In 2010, Eric Goldman noted copyright claims against political campaigns appear to be on the rise.  He cites (among others):

• Sen. John McCain: See for example, 2008 WL 3849451 or try search (copyright /3 infring!) & TI(mccain /3 john) in federal court filings.

• Robin Carnahan: See 2010 WL 3805284 for complaint and for links to related pleadings.

• Charlie Crist in 2010.  See Gov. Crist’s answer at 2011 WL 2622081 and Mr. Byrn’s complaint at 2010 WL 2833809)

• Sharron Angle in 2010.  See Righthaven’s complaint at 2010 WL 3690541 and Sharron Anlge’s answer at 2010 WL 3968913.

• In 2008,  Sarah Palin caught heat from the band Heart over her use of their song “Barracuda.”  Although it didn’t result in litigation, it did generate a fair amount of press coverage, and even some legal scholarship.  To see examples, try “Sarah Palin” /p barracuda in News or All State and Federal Materials on WestlawNext:

There are, of course, a host of more recent examples.  The Westlaw welcome page has the link to a complaint filed against Newt Gingrich and his presidential campaign by Rude Music, Inc., a company owned by one of the musicians from the band Survivor, alleging that Gingrich’s campaign infringed on the copyright of the classic song “Eye of the Tiger” by using it at his campaign events.  (For the complaint, see 2012 WL 264219).  NBC asked Mitt Romney’s campaign to remove an anti-Gingrich ad featuring Tom Brokaw’s reporting.

I ran the following search on WestlawNext in All State and Federal materials:

Search:  recording song music copyright infring! /s politic! /5 campaign conference event

This search returns over 550 documents, including 75 cases and over 90 trial court docs.

Unfortunately, there’s no perfect search to capture filings of this sort.  If you’re interested in tracking newly-filed campaign-related copyright cases, you might simply run nature-of-suit code for copyright (820) and review results for candidate names.  However, we did review Federal Election Committee’s Campaign Finance data for commonalities among campaign and committee names to come up with the following search.

NOS(820) & PTN(CAMPAIGN DEMOCRATIC DFL REPUBLICAN GOP RE-ELECT! ELECT ELECTION CANDIDA! CHANGE PAC PAF (POLITICAL +3 FUND ACTION) (#FOR +2 GOVERNOR PRESIDENT SENATOR SENATE HOUSE REPRESENT! CONGRESS) VOTE! DFL GOB)

The Search seems to work best on WestlawNext where it delivers 90 results in Federal District Courts.  Use the Filing Date filter on the left to limit results to recent dockets:

Political campaigns of the past have yielded an interesting variety of legal issues surrounding the use of music in the campaign.  Based on the early start we’re seeing with the Rude Music v. Gingrich 2012 case, this promises to be no exception.

I finally got around to watching the movie Recount last weekend.  It wasn’t until after I finished watching that I realized I had chosen both the week of the just concluded primary in the state of Florida and the week of the 1 month anniversary of the very close vote in Iowa to watch.

The movie, for those who aren’t familiar, is a dramatization of the story of the Rresidential Election recount of 2000 in Florida, which began the day after the election and ended with the U.S. Supreme Court’s decision in Bush v. Gore, 531 U.S. 98.  The relevant details can be found in the opinion, and in the Florida Supreme Court opinion it overruled, Gore v. Harris, 772 So.2d 1243.

One of the film’s characters points to the oft-derided line in the decision*, which effectively rendered the entire decision non-precedential, and asked whether the court had ever written anything like it before.  I was able to find a few prior cases, and one subsequent case, though it appears the language is more likely to appear in concurrences or dissents.

Search:  consideration decision holding /15 limit! restrict! /15 present current “#before #us” /15 circumstance situation

Result: 24 Documents

Search: le(consideration decision holding /15 limit! restrict! /15 present current “#before #us” /15 circumstance situation)

Result: 9 Documents

The Florida Recount process forced every state to re-examine its election procedures, and a wave of reform legislation followed (for some discussion of this reform, see 73 FDMLR 1711).  Westlaw has a 50 State Survey of current ballot counting laws available at 0050 Surveys 8.   Also, the Reference Attorneys performed a WestCheck report on automatic recount statutes in November 2010. For your own (fairly) comprehensive list of statutes relating to recount procedures, try running pr(election) & sd(recount) in Statutes and Court Rules content. This finds 1832 relevant statutes, but a similar search in a state-specific database would yield a more manageable list.

If you want to learn more about the 2000 Presidential Recount, Westlaw still has the litigation materials in a special database: the database identifier is Preslit-Doc, and it includes numerous petitions and briefs filed by the parties, as well as court orders and oral argument transcripts.  I recommend a reading of the Suprme Court transcript, both for the quality of the arguments and for Joseph Klock’s mildly infamous inability to tell the justices apart.**

*“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  531 U.S. at 109.

**For more on this Mr Klock’s footnote in history, as well as a sense of how the litigation was viewed as it was going on, try the following search in allnews: joseph /3 klock /p justice /3 brennan souter.

Arizona Congresswoman Gabrielle Giffords, who was seriously wounded in a shooting on January 8, 20011 at a constituent event in Tuscon, announced yesterday that she was resigning her seat in Congress to focus more fully on her recovery.

Arizona Rep. Gabrielle Giffords, who became a symbol of Americans’ hope and resilience as she tenaciously recovered from a gunshot wound to the head over the past year, announced Sunday that she is resigning from Congress this week.

. . . .

“I have more work to do on my recovery,” the Democratic congresswoman says in the video. “I’m getting better. Every day my spirit is high,” she says, speaking directly, deliberately and somewhat haltingly. “I will return, and we will work together for Arizona.”

2012 WLNR 1486923

As Rep. Giffords departs Congress, you can check out her legislative legacy on Westlaw using the following resources:

Floor speeches she made are available in the Congressional Record (Database ID: CR)

Search:  SP(Giffords) (189 docs)

The bill tracking for legislation she authored or sponsored during her time in Congress can be found in the Historical Bill Tracking database (billtrk-old).

Search:  au(giffords) & ci(federal) (60 docs)

Examples of her testimony before various committees in Congress can be found in the USTESTIMONY database.

Search: sp(giffords) (24 docs)

My election law professor once suggested that an entire voting rights class could be taught using only cases from North Carolina and Texas.  This past week was an excellent example of why. 

The bigger story comes from Texas.  Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that must get the Department of Justice to approve any change in its election laws, to ensure that the changes do not have the effect of disenfranchising voters on the basis of race (the approval process is called ‘preclearance.’) Changes to where district lines are drawn are one of the many election related functions requiring preclearance.  Most jurisdictions requiring preclearance are in the South, but the list includes states as far north as Alaska (a full list can be found at 28 C.F.R. Pt. 51, App.)

This year, Texas did not receive preclearance from the Department of Justice for its newly adopted map, so it filed suit in the District of the District of Columbia seeking declaratory judgment that the new map did not abridge voting rights on the basis of race.  On Tuesday, a three judge panel denied Texas’s Motion for Summary Judgment, and noted that a second panel, in the Western District of Texas, will have to draw new maps for use next year.  The docket for the D.C. case can be found on WestlawNext at Docket Number 1:11-cv-01303; the order denying summary judgment can be found at Docket Entry No. 106. It’s not clear how long it will take to draw new maps, but when they are available, I expect them to be available on WestlawNext in W.D. Tex. Docket 5:11-cv-00360. 

Meanwhile, in North Carolina, a set of maps that had already been pre-cleared had to be redrawn.  Apparently, a small mistake in a computer program used to aid the state’s redistricting efforts left half a million North Carolinians living outside of any legislative district.  For more on this, try the following search in North Carolina News in WestlawNext:

 advanced:(re-district! & 500,000 (half /3 million) glitch error) & DA(after 11-01-2011). 

I retrieved 23 stories but that number is likely to go up over time. 

While the North Carolina Legislature instituted a fix that ensures everyone in the state has representation, which should in theory be the end of this embarrassing episode, some opponents say that the change runs afoul of a North Carolina requirements that districts be drawn only once every ten years.  A search in the North Carolina Statutes for “Apportion! /s unalter!” returns the two provisions at issue. 

A quick WestlawNext search across all dockets for “advanced:KNOS(110.50) & DA(after 01-01-2011)” reveals 148 voting rights cases filed since the beginning of this year, and more are likely to be filed in the coming weeks.  There’s no way of knowing which will end with a bang, and which with a whimper, but in every decade since the Voting Rights Act passed, at least one state’s maps have been debated in the U.S. Supreme Court.

With the field of presidential candidates taking shape, and Election Day only 14 months away, national campaign and election issues are again coming into focus.   There are many resources available on the Westlaw Elections tab to facilitate researching these issues.  Here are a few of the highlights.

The Elections tab contains State and Federal election law cases (ELECTION-CS), federal election statutes (ELECTION-USCA) and regulations (ELECTION-CFR), as well as a very useful selection of 50 State Surveys for election law issues, including Candidate Filing Requirements, Limits on Contributions and Marking and Counting Ballots.

Court filings are found in ELECTION-FILING and ELECTION-BRIEF.  Try the  following query to retrieve campaign advertising-related filings:

ADVERTI! /10 CAMPAIGN

The database ELECTION-2008 is a nice combination of election-related trial filings and news, including newspapers, magazines, journals, transcripts and wires, not limited to the 2008 election.  To demonstrate its currency, try the following search:

 BACHMANN /p DEBT-CEILING

As you might already know, Wisconsin is holding a series of elections this summer on the subject of recalling 9 Wisconsin State Senators (if you don’t know the background, Reuters wrote a preview last week that really brings you up to speed on it).  The recalls were initiated in response to a controversial bill amending Wisconsin Civil Service rules. 

While the Wisconsin recalls are probably getting the most press, this year has also seen an attempt to recall the Mayor of Omaha in January.  The Mayor of Miami-Dade County was successfully recalled in March. 

As all this has been going on, I’ve been interested to know whether recalls have been featured more prominently in the news recently, or if it just seems that way.  To test this, I ran a quick advanced search in News in WestlawNext.  I searched Recall and Election in opening paragraphs, with a date range of 7/15/10 to 7/16/11 (the one year period before I wrote this).  I came back with 2926 results. 

Advanced: DA(aft 07-15-2010 & bef 07-16-2011) & HLD(recall & election)

2925 Documents in Content: News.

Running the same search, but a year earlier, returns 2095 results in news.  That means there was a significant increase this past year compared to a year earlier.

Advanced: DA(aft 07-15-2009 & bef 07-16-2010 & HLD(recall & election)

2095 Documents in Content: News

This is probably not a fair comparison because the elected officials we would expect to be recalled were at a very different point in the electoral cycle in the 2009-2010 year than they were during the 2010-2011 year.

I ran the same search again in the same July to July time frame with regard to the last midterm election, to get results from a comparable period in the election cycle.

Advanced: DA(aft 07-15-2006 & bef 07-16-2007 & HLD(recall & election)

2060 Documents in Content: News

So there has been a clear increase in recall discussion, even when making the comparison against the last midterm elections.  In fact, the only similar period in which I could find more articles was 2003-2004, which was the year when California Governor Gray Davis was recalled and replaced by Governor Arnold Schwarzenegger. 

I’m left fairly convinced that there has been a distinct increase in the discussion of recalling public officials in the past year, though as the voting is just starting in Wisconsin, I imagine I’ll see even more in the weeks to come. 

See also Nathan A. Persily, The Peculiar Geography of Direct Democracy: why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol’y Rev. 11 (1997).

The renewed use of the tools of direct democracy in the 1990s portends even more frequent clashes between the ultra-democracy of direct legislation and ultimate anti-democracy of an unelected and, at the federal level, virtually unremovable judiciary…

Candidates are fond of stating, “my record speaks for itself.”  This may be true, but that record can be hard to hear unless one knows where to find the information.  Here are a few tips for researching a candidate’s record.

Congressional Record:  Four of last night’s Republican debators served or are currently serving in the Congress: Rep. Michele Bachmann, former Speaker of the U.S. House Newt Gingrich, former U.S. Senator Santorum, Rep. Ron Paul. Recordation of votes in the Congressional Record (CR) most often look  like this: “The vote was taken by electronic device, and there were-yeas [number of votes], nays [number of votes], not voting [number not voting], as follows….”:  So, try the following search in the CR database, limiting by date and candidate as desired:

electronic +1 device means and [last name] and da(2010) 

Governor’s Messages:  Statements by former Gov. Tim Pawlenty and Gov. Rick Perry can be found in the Governor’s Messages database (ST-LH-MSG).  We had less luck with former Gov. Mitt Romney, former Gov. Gary Johnson, former Gov. Sarah Palin, former Gov. Charles Roemer, and others. We tried simple searches such as ”romney,” for example.

Political Transcripts: We had much better luck for governors in USPOLTRANS.  USPOLTRANS includes verbatim transcipts of news conferences, press briefings, political speeches, and oral testimony from Congressional committee hearings dating back to 1994. There were even a few results for former Utah Governor John Huntsman who entered the race today.  Try, john /3 huntsman for example. 

Bill Tracking:  Also, review old bill tracking databases (xx-billtrk-old, where xx = state postal abbreviation).  Here, try sign! adopted veto! /10 governor.  Add relevant date period (date when governor served) and key terms if desired. For example, for former Gov. Palin, try:

Database: ak-billtrk-old

Query: SIGN! ADOPT! VETO! /10 GOVERNOR & da(aft 12/04/2006 & bef 07/26/2009) & CRIM!

Several stories have noted that the amount of money spent on this year’s election will easily break the previous record for money spent on a midterm election.  Not only are the candidates themselves spending freely, but outside groups have also been pouring money into the election like never before.

One reason for the increase in spending from these groups is likely the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S.Ct. 876.  If you don’t recall, that case dealt with the constitutionality of a federal law prohibiting certain election spending by corporations.  Smolla & Nimmer on Freedom of Speech (FREESPEECH § 16:18) describes the Court’s holding as follows:

[T]he Supreme Court of the United States held, by a 5-4 vote, in an opinion delivered by Justice Anthony Kennedy, that federal laws prohibiting corporations and labor unions from using their general treasury funds to make independent expenditures for speech expressly advocating the election or defeat of a candidate violated the First Amendment.

Thus, corporations and other entities are now free to spend money on advertising in support of, or in opposition to, any candidate for office (subject to existing limitations on contributions directly to a candidate or political party).  Corporate contributions are often made directly to non-profit corporations, which then put the money to work on campaign advertising and are presently not required to disclose the source of their funding.  This situation has prompted one group to seek the appointment of a special prosecutor to investigate the spending of these so-called “shadow groups.”

RESEARCH REFERENCES

To read more on Citizens United’s effect on election spending, try the following searches:

“CITIZENS UNITED” & DA(LAST 30 DAYS) – ALLNEWS

PR,TI(“CITIZENS UNITED”) – TP-ALL

Check out the Federal Election Commission’s website for campaign finance disclosures from candidates, political parties, and political action committees.

President Obama has recently spoken out several times on this issue.  His remarks can be found on Westlaw in the PRES-OBAMA database.  This database includes several types of documents related to the Obama administration including executive orders, presidential proclamations, signing statements, press releases, and transcripts of press conferences and speeches.  A search in PRES-OBAMA for “CITIZENS UNITED” returns a number of documents, many of which are recent speeches given at various locations.

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