Monday, February 27, 2012

Time for Another Ballot Measure About Redistricting

If I had a nickel for every time I wrote that headline...
It will soon be time for another state election. In California, as recent history demonstrates, that has meant another opportunity to vote on redistricting. In 2008 and 2010, Californians voted to create an independent redistricting commission. Per the responsibility given to them by the voters, this 14-member commission drew state and federal legislative district lines. Then a predictable thing happened: at least one party didn't like those lines.
In this case it is the Republican Party, who correctly recognize that they could risk losing their one-third minority in the state's upper legislative house under the current lines, and who are fighting hardest to get the new maps tossed out. This is particularly disconcerting for the GOP because it takes a two-thirds majority of both legislative houses to pass tax and fee increases. Legislative Republicans stand to lose a good deal of power if their membership falls below one-third in the state's upper house. After largely unsuccessful trips to the courthouse, a GOP-based group called Fairness and Accountability in Redistricting (FAIR) submitted enough signatures to get their state senate map-killing measure on the November 2012 ballot.

Saturday, February 25, 2012

Dear New Residents of L.A.: Please Participate

Welcome to the city of traffic jams, plastic people, air pollution and drive-thru cafes. What's not to love? In the words of Woody Allen's "Annie Hall," "I don't want to move to a city where the only cultural advantage is being able to make a right turn on a red light."

But Los Angeles is more than Hollywood and a perceived lack of substance. It is a city on the edge, literally. As Mike Davis wrote in Ecology of Fear, "The entire world seems to be rooting for Los Angeles to slide into the Pacific or be swallowed by the San Andreas fault." To live in Los Angeles is to be somewhere and someplace, acutely aware of fragility.

More than a city forever between natural disasters, Los Angeles has been described as a place with no center. Both mentally and physically this is true. We have no place where we all coalesce. Los Angeles is indeed the antithesis of the community with a town square.

Finish reading this article on

Wednesday, February 22, 2012

"California's elections chief: Postal center closures threaten integrity of upcoming election"

I am quoted in this article in the Mercury News. 
Perhaps neither snow nor rain nor heat nor gloom of night stays its couriers from the swift completion of their appointed rounds, but the U.S. Postal Service's downsizing plan is threatening the integrity of California's upcoming elections, the state's top elections official said Wednesday.
Beleaguered after years of falling revenue, the Postal Service has proposed closing up to 11 mail processing centers in California as part of a national restructuring. And that could delay hundreds of thousands of mail-in ballots from arriving at registrars across the state in time to be counted, Secretary of State Debra Bowen warned.
Loyola Law Professor Jessica Levinson, an election-law expert who edits the PoLawTics blog, thinks that's wise. Voting by mail costs less than traditional polling places and boosts voter participation, she said, "but the mail service has to be functional and predictable, and it sounds like this is a close-to-disastrous decision when it comes to protecting the integrity of that system."

Tuesday, February 21, 2012

Will California's Judicial and Legislative Branches Please Stop Fighting?

Family fights are among the nastiest clashes. Something about them tends to make many of us cringe. "Why are they battling, they are family?" we may wonder. "Can't they rise above this?" we might question. Something in us wants peace, not war.
I have had the same cringe-worthy feeling as I watch the inter- and intra-branch feud between California Supreme Court Chief Justice Tani Cantil-Sakauye, other members of the judicial branch and members of the Assembly, particularly Assembly Speaker John Perez (D) and Assemblyman Charles Calderon (D). Assembly Bill 1208 is at the heart of the current feud. It would take away power from the Judicial Council, which is controlled by the Chief Justice, and give local trial courts more power over spending decisions. AB 1208, which would disperse control of the state judiciary, is supported by a coalition of lower court judges and the Service Employees International Union (SEIU), on behalf of courthouse employees. Cantil-Sakauye is understandably less than thrilled, but her means of delivering her message of displeasure has left something to be desired among many observers.

Monday, February 20, 2012

"Political watchdog has a full set of teeth under Ann Ravel's charge"

Very smart OpEd in the Bakersfield Californian about the FPPC.

"I consider the previous two (Republican) chairs of the Fair Political Practices Commission friends of mine and I admire them both greatly. Further, I am a longtime Republican denizen of the state Capitol, having worked for state Senate Republicans and served in the administrations of Govs. Pete Wilson and Arnold Schwarzenegger. So it may seem out of character for me to rise in defense of Gov. Jerry Brown's liberal Democrat appointee as chairwoman of the commission.

I do so because, despite our diametrically opposed political philosophies, I know Ann Ravel to be a tough, no-nonsense administrator and an honorable friend and colleague. So let me set the record straight."

Sunday, February 19, 2012

"School board to discuss Rios arrest"

I am quoted in this article in the Press Enterprise.

The Moreno Valley school board’s plan to privately discuss this week’s arrest of one of their own members should instead be done in public, one board member and an open-government expert said Friday.


Jessica Levinson, a Loyola Law school professor, said if the school district believes it faces legal action over the arrest, board members can discuss their options in private with their lawyer.

“But if it is anything other than that, this is the type of issue the public needs to know about it,” she said.

Thursday, February 16, 2012

You Can Thank the Supreme Court for 'Obamajams'

The state of California may be low on funds, but many of our residents are not. Yesterday President Obama flew into Los Angeles for one of his seemingly frequent fundraising trips. These trips typically follow a similar pattern: President Obama lands, President Obama creates traffic, President Obama collects money, President Obama creates more traffic, President Obama leaves.

Some have complained that his focus on the Golden State seems to be fundraising, not governing. It is no doubt that the President has made repeated fundraising trips through Los Angeles and other parts of California. But the reality is that candidates needs to raise money in order to keep their jobs, jobs which allow them to govern. As we all know, campaigns depend on money, and presidential campaigns depend on lots and lots of money.

President Obama isn't to blame for our current campaign finance system, although he hasn't done an enormous amount to try to fix it. For those of you (perhaps those of us) who can get frustrated by the delays and hassles that come with President Obama's fundraising trips, I believe your anger is best directed to the majority of the Supreme Court who, in 1976, essentially found that money is speech. Because of that decision, the number of restrictions by the government on how much people (and corporations) can raise and spend in elections is severely limited. Put another way, money flows relatively freely throughout the political marketplace.

Finish reading this post on

Courts bill would shift power but to whom? Large trial courts would gain influence while Legislature regains the purse strings.

I am quoted in this article in the Los Angeles Daily Journal. 

To hear the two sides tell it, either the sky will fall or the sea will part.

Since the unexpected passage last month of a controversial bill to decentralize control of the state judiciary, Assembly Bill 1208's supporters and opponents have continued to make countering claims about what will happen if it becomes law.

Detractors say the bill would dismantle the statewide administration of justice, letting fickle legislators stampede over judicial branch autonomy. Supporters say it would strip budget decisions from incompetent managers, ensuring trial courts get 100 percent of the money they're due.

The reality of a "decentralized" court system, if passed by the state Senate this year, would fall somewhere in between those claims.

In practice, the bill would fundamentally limit the authority of the policymaking Judicial Council - and its chair, Chief Justice Tani Cantil-Sakauye - making it more difficult to push through statewide infrastructure projects. But while trial courts could see more money and greater autonomy over their own budgets, the bill would almost certainly keep power centralized by handing the purse strings to Sacramento and granting a larger say to the biggest trial court, Los Angeles County.

Far from truly "decentralized," the judiciary also wouldn't return to the days when there were 58 completely independent trial courts - called "fiefdoms" by some. The "California Rules of Court" that create a uniform system of paper forms and procedural policies will remain in effect. Services like self-help centers and drug courts are unlikely to go by the wayside. And the current scheme for determining how much money each county receives would remain intact.

"The bill would take a lot of the budgetary power away from the Judicial Council, and it would basically be dispersed. And when you take away budgetary power, you take away power," said Jessica Levinson, a government professor at Loyola Law School who has reviewed the current bill's language. "It's intended to a certain extent to cut the legs out from under the Judicial Council."

A new campaign finance system based on when contributors give

Here is my latest piece, which appears in the Los Angeles Daily Journal

This month marks the two-year anniversary of the U.S. Supreme Court’s much maligned decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). In that case, a bare majority of the Court found that for purposes of spending money in the political marketplace, corporations must be treated as identical to people. The Court also ruled that expenditures made independent of candidate campaigns – no matter how large those expenditures are – cannot be corrupting.

The result of the  Citizens United decision is that corporations can spend unlimited sums in elections. We have already seen the consequences in the Supreme Court’s handiwork with the advent of Super PAC spending in Iowa and New Hampshire. This is surely only the beginning.

Since the Supreme Court’s January 2010 decision, many have been scrambling to find new ways to limit the influence of money in politics. One largely unexplored way to limit the negative consequences of money in electoral campaigns is to institute temporal restrictions on campaign contributions. I recently published a law review article, entitled “Timing Is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections,” in which I advocate for the imposition of limits on when money may be given and spent during campaigns.

Most jurisdictions seek to stem the pernicious influence of money on electoral processes by limiting the size of campaign contributions. Those jurisdictions have concluded that large campaign contributions may give rise to actual or apparent corruption and therefore place per election limits on the size of campaign contributions. However, other jurisdictions impose restrictions based on when those contributions are made and received. These temporal (or time-based) campaign contribution limits may take various forms, including pre-election, legislative-session, off-year, or post-election restrictions on contributions.

Temporal contribution limits are enacted with the understanding that money given candidates during certain time periods may pose a unique threat of actual or apparent corruption. To use but one example, a contribution given a few months after the election, and therefore at least a few years before a possible future campaign, may be given (or at least appear to be given) for access or influence, not to help a candidate wage a campaign that is years away. As another example, a contribution given during a legislative session can raise issues of corruption because the contribution may be given when a candidate is voting on an issue, which may directly affect that contributor. Members of the public should ask themselves why people are giving money to candidates, particularly incumbents. Quite obviously, elected officials should serve the interests of all of their constituents, not just those who can and do give or spend money in support of their candidacies.

Courts alternatively treat temporal limits on campaign contributions as either contribution limits or expenditure limits in disguise. On the one hand some courts view limits on when people can given money as akin to limits on how much money people can give. On the other hand, some courts view time restrictions on campaign contributions as expenditure limits, reasoning that if candidates cannot raise money during certain blackout periods then they are essentially prohibited from spending any money as well. This distinction makes a huge difference, as contribution limits are generally permissible while expenditure limits are not.

Many temporal contribution restrictions should pass constitutional muster. These restrictions allow candidates to amass the resources necessary to effectively advocate for themselves and serve to preserve the integrity of electoral and governmental processes by preventing money from flowing directly to candidates during time periods seen to be uniquely susceptible to corruption or its appearance.

Unfortunately, the majority of courts have found that the most effective temporal restrictions stand on constitutionally infirm grounds. Therefore I propose a novel legislative model in which jurisdictions could adopt variable contribution limits based on the time contributions are made and received. Under this proposal, per election contribution limits would remain the same, but contribution limits during the first half of an election cycle would be lowered to one third of the total limit. For instance, if the overall contribution limit for a four-year cycle is $3,000, a contributor could give a candidate no more than $1,000 in the first two years of the election cycle. The contributor could then give $2,000 in the last two years of the cycle.

This legislative model draws on two existing systems, found to be constitutional, for support. First, courts have already upheld variable contribution limits based on the identity of the contributor – for instance lobbyists can be subject to contributions limits to which other individuals cannot. Second, courts have also upheld variable contribution limits based on whether a candidate opts into a public campaign financing program. In both cases the purpose of the variable limits is to prevent corruption or its appearance.

This proposal would limit political fundraising when it is most likely to result in actual or apparent corruption and when it is least needed, in the beginning of an election cycle. This proposal would also allow contributors and candidates to give and accept the same per election contributions that they otherwise could. In sum, this new contribution limit structure would serve the government’s interests with minimal impact on the rights of contributors and candidates. At a time when public approval of elected officials is at an all time low, we must take steps to increase public confidence in electoral and political processes.

Tuesday, February 14, 2012

"Welcome to California, Ka-Ching!"

Hello and welcome to the Golden State, a fitting name indeed. But wait, we are not only gold, but also blue. Democrats easily outnumber Republicans in California. Democrats make of 44% of registered voters, Republicans constitute almost 31% of that population, and decline to state voters comprise a little over 20% of registered voters.

California is more than just a color palette; it is also a size, extra large. California, as we all know, is enormous. And with that enormity comes the most electoral votes of any state in the land, 55.

However, even with the prize of 55 electoral votes, few presidential candidates seriously campaign in California. Why? Please see above (we're blue).

Finish reading this post on

Thursday, February 9, 2012

Prop 8 Decision Reads Like a Letter to Justice Kennedy

The big legal news of this week was the Ninth Circuit ruling in the Proposition 8 case. The appeals court ruled, on narrow grounds, that the passage of Proposition 8, which in 2008 banned same-sex marriage in California, is invalid under the U.S Constitution.

But the opinion is as important for what it didn't say, as for what it did. In a 2-to-1 decision, the majority of the three-judge panel steered clear of broader issues surrounding gay marriage. The court specifically noted that it need not, and would not, rule on whether marriage is a fundamental right. Instead, the court's analysis focused on a narrower question that is likely to arise infrequently at best.

Finish reading the post on

Wednesday, February 8, 2012

"Prop. 8 ruling: why it might not go the the Supreme Court"

I am quoted in this article in the Christian Science Monitor. 

Justice Kennedy is seen as the key swing vote on the US Supreme Court, and “I think Judge Reinhardt absolutely wrote a narrow decision as if he were writing a letter directly to Justice Kennedy,” says Jessica Levinson, a professor at Loyola Law School in Los Angeles.

By pointing to Romer v. Evans, Professor Levinson says, Reinhardt “made it sound like this decision [on Prop. 8] followed undeniably from some of Kennedy’s own thinking on that case.”

She also notes how Reinhardt steered clear of any implication of a broader right to gay marriage. “We …. need not and do not consider whether same-sex couples have a fundamental right to marry,” the opinion stated.

"A Question of Integrity: Politics, Ethics, and the Supreme Court"

I'll be a panelist at this event at UCLA on Monday 2.13.12.

Alliance for Justice
American Constitution Society at UCLA
California Common Cause
and CREDO Action

Invite you to attend the Los Angeles premiere of the Alliance for Justice's newest short documentary, A Question of Integrity: Politics, Ethics, and the Supreme Court, narrated by actor, director and activist Edward James Olmos.

Monday, February 13, 2012
UCLA Law School

Please join us for the film followed by an exciting and informative panel discussion featuring:

Jessica Levinson, Professor at Loyola Law School
John Wellington Ennis, Filmmaker and Activist
Kathay Feng, Executive Director of California Common Cause and UCLA Law Graduate.

Monday, February 6, 2012

Republicans: No Need for Tax Increases with Facebook's IPO

Goodbye, budget deficits; hello, surplus funds? I could "like" that.
Last week Facebook filed its Initial Public Offering (IPO). In less time than it takes me to "like," comment, post or share, some claimed that California's budget problems were about to be solved (or at least eased).

Breaking News: Ninth Circuit to Rule on the Merits of Prop 8 Tuesday 2.7.12

More from Reuters. 

"The ruling on California's same-sex marriage ban, passed by voters in 2008, could set national policy, if the Supreme Court takes the case. Both sides have indicated they will appeal if they lose the case in the 9th U.S. Circuit Court of Appeals.
About 40 U.S. states have outlawed same-sex marriage, but the issue has been decided on a state-by-state basis"

Saturday, February 4, 2012

"Prop 14 Could Change How San Fernando Valley Congressional Race Plays Out"

Many us who watched the state's independent redistricting commission drawing congressional lines collectively sighed when we saw the newly drawn lines in the San Fernando Valley. Because of the way the lines were drawn two incumbent Congressman, both Jewish Democrats with similar voting records that are determined to win, will face off in elections this year.
Representatives Howard Berman and Brad Sherman and running for the same congressional seat. The two prodigious fundraisers have wasted no time. Reports that came out this week show that Berman has raised a total of $2.9 million and Sherman has raised $3.7 million.
The Berman-Sherman matchup is expected to be one of the most expensive Congressional races this year. The fundraising reports support this conclusion. But savvy voters must ask themselves an important question: will such a matchup ever occur?

Thursday, February 2, 2012

"Pro-Romney super PAC rakes in cash from Calif. donors"

If super political action committee dollars were votes in the Republican presidential primary, California would already have voted resoundingly for Mitt Romney.
With California's presidential primary not until June, the state's role in the race is mainly that of an ATM, said Jessica Levinson, campaign finance scholar at Loyola Law School in Los Angeles. Super PACs, she said, have allowed for a "shadow campaign finance system" that is detrimental to the political system.

"If money’s speech, then people with more money get more speech, and this is a fundamental problem in a representative democracy," Levinson said. "It’s giving people with money a megaphone in the current debate."

Finish reading this article on California Watch.