Copyright (c) 2009 All rights reserved. http://works.bepress.com/allison_hayward Recent documents in Allison Hayward en-us Sun, 04 Jan 2009 04:08:41 PST 3600 http://works.bepress.com/allison_hayward/6 http://works.bepress.com/allison_hayward/6 Mon, 15 Sep 2008 07:23:50 PDT This Article looks closely at the 24th Amendment and the origin and application of "poll tax or other tax" (meant here to include any form of tax, fee or charge imposed as a precondition to voting), the history of anti-poll tax reform, the intended scope of such reforms, and suggest a way to decide what voting prerequisites could be unconstitutional "poll taxes." The analysis in this Article isolates the question of defining "poll tax or other tax" under the 24th Amendment from what constitutes a severe burden or a "reasonable" requirement in equal protection doctrine. The 24th Amendment should be understood as a separate source of authority. It contains a flat prohibition on such taxes. Potentially, the 24th Amendment is a more stable and resilient source of protection. This issue is of great salience presently as states explore additional election administration measures, for example voter identification requirements, that may involve individual voter expense. But the question of what constitutes an "other tax" reaches beyond the voter identification debate. Local revenue streams may become burdened by greater demands for election-day technology, expertise, and litigation. Meanwhile economic conditions could pinch government budgets. One should expect states and localities to seek additional ways of shifting the costs associated with elections onto others, even onto voters. A principled rule that can identify permissible forms such cost shifting might take, and flag potentially unconstitutional "tax" burdens, would be a useful tool for policymakers, and the lawyers and judges who will inevitably be called upon to evaluate the scope of unconstitutional taxes or fees that present some kind of hurdle or prerequisite for voting. Allison Hayward Constitutional Law http://works.bepress.com/allison_hayward/5 http://works.bepress.com/allison_hayward/5 Thu, 03 Apr 2008 08:32:46 PDT As the 2008 Presidential campaign proceeds, calls for reform of bundling disclosure continue. Bundling permits individual funders to attract more attention from candidates by producing more funds than the contribution limit of $2,300 per election would permit. Advocates of greater regulation see bundling as an end-run around contribution limits and disclosure requirements of federal campaign finance law. Greater regulation of bundling could be the next step in the incremental but everlasting pursuit of political reform. Critics of bundling both inside and outside the Federal Election Commission (FEC) have called for additional regulations, especially in the disclosure of bundling. This essay looks at what bundling is and is not, what the law requires now, and why more regulation, even disclosure, may not be such a smart idea. Allison Hayward election law http://works.bepress.com/allison_hayward/4 http://works.bepress.com/allison_hayward/4 Fri, 15 Feb 2008 08:54:33 PST The Supreme Court's FEC v. Wisconsin Right to Life decision fits comfortably into a legacy of decisions in which the Supreme Court has toyed with Congress's ability to restrict the political speech of "outside groups." In these cases, the Court offers a schizophrenic vision of political regulation. It seems unable to conclude whether the independent opinions of certain social actors, spread among the public via the "expenditure" of their funds, poses a corrupting danger to campaigns or elections that justified deference to Congress's regulatory choices. If it does, Congress should be able to step in and restrict such pernicious activity. If it doesn't, Congress shouldn't. But because the Court can't decide, it has instead developed an "in-but-not-in" alternative, which permits Congress (and state legislatures) to restrict the independent speech of corporations and labor organizations if the message is "too political." For some time, "too political" has meant that the speech expressly advocated the election or defeat of a clearly identified candidate, or (in pre-BCRA decisions and in some administrative enforcement matters) involved "active electioneering." Congress further limited this speech with its own "electioneering" statute, the Bipartisan Campaign Reform Act "BCRA". The litigants in Wisconsin Right to Life argued successfully that this law, as applied to them, impermissible burdened their speech rights. After Wisconsin Right to Life, "too political" now includes only speech that is "the function equivalent of express advocacy." The Court has affirmed - for the time being - that the First Amendment permits the government to implement a content-based speech restriction, based on the legal form of the spender and whether a message contains something akin to express advocacy. One would assume, following conventional First Amendment doctrine, that the Court would have found some compelling state interest to support such a blanket rule. But it hasn't, and Wisconsin Right to Life perpetuates this oversight. If the Court takes political speech rights seriously, it should revisit the spending prohibitions and either build a reasoned justification for them or find them unconstitutional. Allison Hayward Politics http://works.bepress.com/allison_hayward/3 http://works.bepress.com/allison_hayward/3 Fri, 30 Nov 2007 11:12:29 PST The modern campaign finance fable has its root in progressive political arguments. Advocates placed great faith in the management by experts of social problems, and the application of scientific principles to politics. For campaign finance reform, this meant the study of campaigns, the diagnosis of corruption and the prescription of legislative remedies. To sustain this idea over time, as it turns out, required a fable. That fable justified past reform efforts as calculated, measured and reasonable remedies, prescribed by Congress (or legislators, or regulators) after careful examination of political ailments. As new symptoms arise, the fable taught that lawmakers (or regulators) are justified in revisiting the diagnosis, unfettered by judicial interference or constitutional constraint.In the Supreme Court's 1957 majority opinion in United States v. UAW-CIO, known more commonly as Auto Workers, Justice Frankfurter added the necessary history to makes the reform fable work. Subsequent campaign finance decisions lean heavily on this account of the reasonable and measured history of campaign finance regulation. Judges rely on the decision's expression of "history" to justify deference to regulatory judgments. This Article corrects and supplements the history in Auto Workers. It examines in detail the specific events Frankfurter cited in the opinion. It shows how the opinion avoided political context and truncated legislative history. What emerges from a more complete account of the history is a messy, complicated record, dictated by political opportunism. At each step, reform is a way to capitalize on public sentiment (against the Sugar Trust, or John L. Lewis, as we shall observe) and restrict political rivals' access to financial resources, using little debated legislative vehicles and parliamentary skill. If Congress's credibility as a source of reform is derived from a mistaken view of its record, then judges may be too willing to accept Congress's rationalizations for legislative choices. If, out of misplaced respect for a fable, courts allow enforcement of laws that burden political activity, citizens and activists outside the bubble of Congressional protection risk disproportionate punishment for exercising political rights. Correcting the flawed historical premise, and setting courts to the task of evaluating closely all these laws, would go some distance to restoring proper checks upon campaign legislation. Courts, legislators, and lawmakers need to understand history. Especially in campaign regulation, where high purpose can conceal self-interest, it does no good to adopt a fable as history, or adapt history to a fable. Allison Hayward Politics http://works.bepress.com/allison_hayward/2 http://works.bepress.com/allison_hayward/2 Tue, 17 Jul 2007 11:04:56 PDT This essay examines how U.S., Germany, and EU cases have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging. In brief, U.S. law protects blogging content, but may impose restrictions on the source of political commentary by barring certain funding sources. German law imposes stricter limits on the content of blogging, but does not regulate financial sources to the same degree. European court rulings may offer greater protection than domestic German law, but seem inconsistent and thus add uncertainty and ambiguity to the situation. In the end, bloggers may avoid legal entanglement because they enjoy public sympathy and support, but better still would be an international agreement to spare blogging from prosecution. Allison Hayward Comparative Law Computer Law Law and Technology Politics http://works.bepress.com/allison_hayward/1 http://works.bepress.com/allison_hayward/1 Tue, 10 Apr 2007 12:23:24 PDT Abstract: Election Day At The BarAllison R. HaywardSince the 2000 election, national parties and a number of special interest groups have changed how they "lawyer up" for election day. They recruit nationally for attorneys to work in whatever "hot spots" develop. Yet in key jurisdictions their activities may amount to the unauthorized practice of law ("UPL') UPL discipline of these attorneys may seem unlikely so long as all participants in elections desire to mobilize these volunteers. Yet enforcement could be triggered once local interests who rely on suppression or fraud recognize that outside volunteers will cause them to lose their edge. Or an isolated instance of selective enforcement in one jurisdiction (perhaps a place that allows private actions to enforce professional ethics rules) could inspire actions elsewhere.As in so many other aspects of American political life, volunteers are valuable and necessary here. By imposing uneven jurisdiction-by-jurisdiction standards, state-based UPL rules confuse participants. They also discourage the development of trained national election-day experts, skilled in the federal rules applicable to elections and voting, familiar with the kinds of issues that arise on election day, and - perhaps most overlooked - with a stake in the smooth functioning of American elections over time. In an area of increasing federal concern, it makes sense to move away from relying on election-day lawyering from local partisan non-specialists and regional political supplicants.Can the situation be improved, or are these vagaries the necessary consequence of an intransigently parochial election - and ethics - regime? While a national ethical code would alleviate the disparities, for many reasons that particular reform is unlikely. This paper suggests a much more modest proposal, through established ethics reform channels (i.e. the American Bar Association) that would not just clarify the position of election-day volunteer attorneys, but insulate other very limited and casual "practice" situations from professional discipline. Without some change, the enforcement of UPL rules against election-day attorneys would seem to be a matter of time. Then the following chill on participation will be felt everywhere and ultimately voters will lose the benefit of this activity. Allison Hayward Professional Ethics Law and Society Politics Civil Rights Legal Profession