“Richard Posner: “The Real Corruption Is the Ownership of Congress by the Rich”

Oh my.   From Judge Posner’s keynote at a Stigler Center conferece:

On the Supreme Court’s 2010 Citizens United decision, Posner said: “If you become a member of Congress, you’ll get a card from the head for your party that you are to spend five hours an afternoon talking to donors. That’s not only time you spend with donors—they’ll take you to dinner, cocktails—but these five hours are important. The message is clear: you are a slave to the donors. They own you. That’s real corruption, the ownership of Congress by the rich.”

Later, remarking on the logic behind Citizens United, Posner remarked: “Your money is actually speech—that’s all nonsense.”…

“You are not going to have people competing with the the Koch brothers. They own many people in Congress.”


The Voters Trump Persuaded

From Nate Cohn’s Upshot column, which now has the most detailed data analysis on the voting patterns in the 2016 election:

Instead, it’s clear that large numbers of white, working-class voters shifted from the Democrats to Mr. Trump. Over all, almost one in four of President Obama’s 2012 white working-class supporters defected from the Democrats in 2016, either supporting Mr. Trump or voting for a third-party candidate. . . .

If turnout played only a modest role in Mr. Trump’s victory, then the big driver of his gains was persuasion: He flipped millions of white working-class Obama supporters to his side.

The voter file data makes it impossible to avoid this conclusion. It’s not just that the electorate looks far too Democratic. In many cases, turnout cannot explain Mrs. Clinton’s losses.

I continue to believe that the best account explaining these patterns is Katherine Cramer’s book, The Politics of Resentment:  Rural Consciousness in Wisconsin and the Rise of Scott Walker.  Though the book was written before the 2016 election and focuses only on Wisconsin, it documents the dynamics leading a substantial number of voters outside the major cities to being willing to vote for Obama (in both the 2007 primary and the general elections), Scott Walker, and Bernie Sanders.  Obama had a strong enough appeal to these voters to carry enough of them to win the elections; as Nate Cohn’s analysis confirms, the primary factor accounting for the changed outcome in 2016 is that around 20-25% of white-working class Obama voters shifted to Trump.


What’s the Matter with Gorsuch?

After watching Judge Gorsuch at his hearings last week, I came away much more worried about the kind of justice he would be on the bench: I saw a kind of arrogance, dismissiveness, and lack of depth that made me worry he would not only be sharply conservative but reflexively and shallowly so.  I tweeted about my impressions last week, and it generated a lot of comments on both sides.

As one SCOTUS observer told me off the record,

seems to me his sins are:

Pretending to have Roberts’ brilliance
Pretending to have Kennedy’s politeness
Pretending to have Scalia’s witty writing
but he comes up short in all respects
while he thinks he’s doing great

The excellent Joan Biskupic seemed to sum up the anxiety on the left about Judge Gorsuch in this must-read column:

In countless ways, the man President Donald Trump has chosen to succeed the late Justice Antonin Scalia downplayed the judicial branch and the importance of a single justice appointed to a lifetime seat.
But that message belies the many 5-4 rulings in recent years that have changed American life and the reality that judges cannot always look simply to the facts and relevant law to resolve a dispute.
The Constitution contains concepts, not clear-cut formulas. And while justices resist characterization based on ideology or politics, their voting patterns can suggest policy preferences. The current four justices appointed by Republican presidents vote, by and large, for conservative results; the four Democratic appointees vote generally for liberal outcomes.
Gorsuch’s record on a Denver-based US appeals court indicates he would align with Scalia’s views as a fifth conservative justice. That would return the court to the 5-4 posture that produced such decisions as the 2010 Citizens United v. Federal Election Commission, which lifted limits on corporate money in elections, and 2013 Shelby County v. Holder, which curtailed voting-rights protections for racial minorities and others who face discrimination at the polls….
For his part, Gorsuch refused to explain his views of congressional authority and separation of powers or constitutional due process and equality in his testimony before the Senate Judiciary Committee last week. He did not tip his hand on how he would resolve disputes over a woman’s right to end a pregnancy, a key question for senators on both sides of the aisle.
To be sure, the 49-year-old federal appellate judge is not the first Supreme Court nominee to keep his views close to the vest, but he did it to a greater extent.
“What worries me,” said the committee’s ranking Democrat Dianne Feinstein, of California, “is that you have been very much able to avoid specificity like no one I have ever seen before.”
I’ve explained here why I think a filibuster now would be counterproductive. But to be clear I think it is deserved on the merits.

Top Recent Downloads in Election Law on SSRN


RECENT TOP PAPERS for all papers first announced in the last 60 days
27 Jan 2017 through 28 Mar 2017

Rank Downloads Paper Title
1 314 Essay: Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases
Richard L. Hasen
University of California, Irvine School of Law
Date posted to database: 7 Feb 2017
Last Revised: 10 Mar 2017
2 165 Alternative Facts and the Post-Truth Society: Meeting the Challenge
S.I. Strong
University of Missouri School of Law
Date posted to database: 15 Feb 2017
Last Revised: 13 Mar 2017
3 112 Originalism, Constitutional Construction, and the Problem of Faithless Electors
Keith E. Whittington
Princeton University – Department of Political Science
Date posted to database: 6 Mar 2017
Last Revised: 6 Mar 2017
4 105 Electoral Vulnerabilities in the United States: Past, Present, and Future
Charles Stewart III
Massachusetts Institute of Technology (MIT) – Department of Political Science
Date posted to database: 2 Feb 2017
Last Revised: 6 Mar 2017
5 88 From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders
Christopher S. Elmendorf
University of California, Davis – School of Law
Date posted to database: 13 Feb 2017
Last Revised: 22 Feb 2017
6 58 The New Front in the Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General — And How it Might Be Checked
Eli Savit
University of Michigan Law School
Date posted to database: 3 Mar 2017
Last Revised: 3 Mar 2017
7 55 The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform
Anthony J. Gaughan
Drake University Law School
Date posted to database: 21 Feb 2017
Last Revised: 24 Feb 2017
8 54 Party Funding, Competition Law and the Protection of Political Democracy
Arthur Guerra Filho
King’s College London, Dickson Poon School of Law, Students
Date posted to database: 7 Feb 2017
Last Revised: 1 Mar 2017
9 51 One Nation Undecided: Clear Thinking About Five Hard Issues that Divide Us
Peter H. Schuck
Yale University – Law School
Date posted to database: 15 Mar 2017
Last Revised: 20 Mar 2017
10 45 Churches’ Lobbying and Campaigning: A Proposed Statutory Safe Harbor for Internal Church Communications
Edward A. Zelinsky
Yeshiva University – Benjamin N. Cardozo School of Law
Date posted to database: 24 Feb 2017
Last Revised: 4 Mar 2017

“Judge midtrial throws out Pennsylvania pay-to-play case”

Morning Call:

A federal judge on Monday threw out a case in the FBI’s wide-ranging pay-to-play investigation of Pennsylvania government, acquitting a wealthy investment adviser accused of bribing ex-state treasurer Rob McCord to get lucrative contracts to manage public dollars.

U.S. District Judge John E. Jones III took the rare step of dismissing the 79-count case against Richard Ireland in the middle of the trial. Jones agreed with defense lawyers that prosecutors had not proven that Ireland offered campaign contributions or his help in McCord’s private business affairs in exchange for official favors from McCord.


“Senate Committee approves Texas voter ID overhaul”

Texas Tribune:

Filed by Committee Chairwoman Joan HuffmanSenate Bill 5 would add options for Texas voters who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Huffman’s bill would allow voters older than 70 to cast ballots using expired but otherwise acceptable photo IDs. The bill would also require the Texas secretary of state to create a mobile program for issuing election identification certificates. …

Celina Moreno, an attorney for the Mexican American Legal Defense and Educational Fund, testified Monday that Huffman’s bill was a “major improvement” over the current law. But she pressed lawmakers to remove the felony penalties, calling them “voter intimidation.”

Matthew Simpson, with the ACLU of Texas, suggested that a third-degree felony is often reserved for violent conduct.

More than 16,400 Texas voters signed “reasonable impediment” affidavits during the 2016 general election, according to a tally of documents provided by the Texas secretary of state’s office. And an Associated Press analysis published found at least 500 instances in which voters signed the affidavit — and didn’t show photo ID — despite indicating that they owned one. Such voters could be harshly penalized under Huffman’s bill. It’s not clear how many of those questionable affidavits were submitted intentionally or out of confusion.


“Court Allows Challenge to FEC Rule Shielding Nonprofit Donors”

Bloomberg BNA:

A Federal Election Commission rule on “independent expenditures,” which has allowed millions of dollars’ worth of campaign ads to air without disclosure of the donors funding them, can be challenged in court, a federal judge ruled.
The FEC rule has been widely cited by nonprofit groups seeking to keep their donors secret while trying to influence federal elections through ads supporting or opposing candidates.
Numerous ad sponsors have responded to inquiries from the FEC by telling the agency that none of their donors had to be revealed because none gave money “for the purpose of furthering” a specific election-related expenditure. When this provision of its independent expenditure rule—11 C.F.R. Section 109.10(e)(1)(vi)—has been cited by ad sponsors, the FEC hasn’t questioned them further.
The March 22 preliminary court ruling came in a lawsuit filed by the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) regarding the FEC’s dismissal of an administrative enforcement action against Crossroads GPS, a conservative nonprofit that worked to elect Republicans. Judge Beryl Howell of the U.S. District Court for the District of Columbia denied an FEC motion to dismiss the challenge of its independent expenditure rule as time-barred.

“Williams-Yulee and the Anomaly of Campaign Finance Law”

Noah Lindell has written this comment for the Yale Law Journal. A taste:

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases.12 Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like.13 At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test.14 By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Court’s approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way.15 This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines.

This Comment proceeds in two Parts. Part I discusses the Court’s ruling in Williams-Yulee and explores how the analysis developed to this point. It then discusses Williams-Yulee’s potential to affect First and Fourteenth Amendment cases. Part II lays out an alternative jurisprudential path. It describes how campaign finance law diverged from the rest of election law, explains the modern Burdick test, and shows how the test’s application would affect the analysis in Williams-Yulee and other campaign finance cases. Part II also addresses the most common theoretical arguments against using the Burdick test in this area.


“Judicial Candidates’ Right to Lie”

Nat Stern has posted this draft on SSRN (forthcoming Maryland Law Review). Here is the abstract:

A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves

If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.

[A] State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.


“Floridians can help put a stop to denying ex-felons the right to vote”

Frank Askin Miami-Herald oped:

Can Florida claim to be a democracy when one out of every 10 of adult citizens in the state are denied the right to vote because some time in their lives they were convicted of a felony? And 75 percent of those people are out of prison and otherwise living as free members of the community?

Florida is one of a handful of states that impose a lifetime voting ban on convicted felons. Their right to vote can only be restored on a case-by-case basis with the approval of the governor and two members of the Board of Executive Clemency — the cabinet — on a petition filed five years after release from prison. Since Scott’s election in 2010, only 2,487 petitions have been granted. Only a few other states come even close to disenfranchising so many ex-felons.


“Rewriting the Rules of Presidential Succession”

Norm Ornstein in the Atlantic:

The Constitution leaves a lot of leeway for Congress. So it is time to consider a new law, one that cleans up the issues and discrepancies in the existing succession act but does more. It should allow for a special election for president and vice president under extraordinary circumstances. Those could include a terrorist attack or an attack by a foreign power or others on Election Day or on the election system or process that destroys or distorts the results. It can also include foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference. Such a provision would have to be carefully drawn and set a high bar, to avoid any chicanery to call an election for the wrong reasons. It would probably have to require a two-thirds vote in both houses of Congress.


“The Legislators Working to Thwart the Will of Voters”

David Graham for the Atlantic:

“This isn’t how democracy works,” said Justine Sarver, executive director of the Ballot Initiative Strategy Center, a nonprofit that works with progressive ballot campaigns. “You don’t get to pick and choose when you like a process and when you don’t.”

Sarver sees a trend of legislatures trying to restrict voters’ ability to make laws and amend state constitutions around the country. The popularity of initiatives has ebbed and flowed across the years, and the roles of defender and critic have been fluid. But there are a few factors that make the present moment especially ripe for such conflicts. First, Republicans dominate state legislatures around the country, thanks to favorable redistricting maps drawn after the 2010 Census, even in states with sizable Democratic-leaning voter bases that want more progressive policies. Second, while ballots sometimes function to deal with purely state-level concerns, policy fights are increasingly nationalized. Groups like BISC and the Fairness Project are working to coordinate state-level pushes around the country on liberal reforms like paid sick leave, minimum-wage hikes, or recreational marijuana. Their opponents are working at the national level too. In November, ProPublica and The New York Times reported on how major corporate lobbies, some convened under the auspices of the Koch brothers’ political network, have sought to push back on ballot measures.


“Judging Ordinary Meaning”

Justice Thomas Lee (Utah Supreme Court) and Stephen Mouritsen have posted this draft on SSRN. Here is the abstract:

Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.

Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.

We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics.

We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.

When we speak of ordinary meaning we are asking an empirical question — about the sense of a word of phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.


Political Fragmentation and the Demise of the Health Care Act

Over at the Washington Post’s Monkey Cage blog, I have a piece today that puts into a larger context the remarkable inability of the Republican Party to get the AHCA through the House.  Here is the opening:

The failure of the American Health Care Act is a stunning moment. Its failure was not just a one-off event that can be blamed on Donald Trump, Paul Ryan, or any specific politician. It is the culminating event in a broader process of “political fragmentation” that I have been writing about for  the last several years.

By political fragmentation, I mean two things. One is how power within Congress has shifted from the party leaders to individual members of Congress, who are now far more capable of acting independently than in the past. The second is the shift in power from the political parties themselves to outside groups and actors.

The piece then highlights three structural changes that contribute to the inability of party leaders to bring along rank-and-file members for the party’s signature legislative effort:

First, many members of Congress now depend less on the party’s financial and other support. This was manifest in the highly public pledge of the Koch Brothers network to support Republicans who bucked the party leadership. But it is not just these big funders that have changed the landscape. The communications revolution has enabled individual members of Congress to connect effectively with small donors throughout the country. Small donors (like other individual donors) tend to be the most ideologically polarized source of money in politics, and they further empower the extreme wings of the parties to stand up against more centrist leadership.

Second, committee assignments seem to matter less than at some points in the past, which also diminishes the leverage of party leaders. Committee assignments are less necessary for name recognition and fundraising. Committees are less important as centers of policymaking, as was obviously the case with the AHCA. Because committees were not particularly important designers of that bill, individual members had no significant role in shaping it.

Third, the end of earmarks has taken away a tool that party leaders can use to entice members to support legislation that party leaders view as a priority. Mark Schmitt has argued that the loss of earmarks doesn’t matter because many members are so philosophically opposed to earmarks they wouldn’t accept them even if offered. That might be true of some, or even all, members of the House Freedom Caucus. But if this story is accurate, only 15 of the 33 Republican AHCA opponents were part of the Freedom Caucus. Other Republican dissenters may have been more persuadable. 

Because the forces driving the fragmentation of the parties are not confined only to the Republican Party, I think these phenomena will be reflected in the Democratic Party as well:

The Democratic Party is not immune to the forces driving political fragmentation. While tensions between the Sanders and Clinton wings of the party can be suppressed in the service of forging a united opposition, those tensions will surface when the party returns to a governing role.

On top of the political polarization between the parties, political fragmentation makes the political process even more unwieldy, even during unified government, and even less able to address many of the major issues of the day.


“S.F. political scientist spots bias in rigged U.S. elections”

James Matson oped in the SF Chronicle:

A much-anticipated U.S. Supreme Court showdown soon will decide whether America’s major political parties can continue to rig American elections without violating the Constitution.

The case of Whitford vs. Gill will test the court’s willingness to finally set constitutional limits on that long-standing, pervasive form of election rigging known as partisan gerrymandering.

Taking center stage in Whitford, and playing a pivotal role, will be the innovative idea of a San Francisco political scientist.

Eric McGhee’s “efficiency gap” model may prove to be the elusive standard the court has been seeking to enable the justices to identify and rein in excessively partisan gerrymanders.


Federal Court Strikes Down Illinois Law Barring Campaign Contributions from Medical Pot Businesses


The Pillar of Law Institute won summary judgment today in the case Ball v. Madigan, striking down an Illinois state law that prohibits medical marijuana cultivation centers and dispensaries from making campaign contributions. Judge John Z. Lee of the United States District Court for the Northern District of Illinois ruled that the law violates the First Amendment right to free speech.


“Democrats Plan to Filibuster to Thwart Gorsuch Nomination”


Senate Democrats on Thursday vowed to filibuster the Supreme Court nomination of Judge Neil M. Gorsuch, signaling an imminent partisan showdown over the nominee’s fate and the future of century-old rules in the chamber.

As committee hearings on Judge Gorsuch concluded on Thursday, it appeared increasingly likely that Republicans hoping to elevate President Trump’s choice for the court would resort to replacing longstanding rules with a simple majority vote on his confirmation.

While a parade of witnesses addressed the Senate Judiciary Committee, trading dueling views of Judge Gorsuch, the Senate Democratic leader, Chuck Schumer of New York, went to the Senate floor and announced that he would try to lead Democrats in blocking an up-or-down vote on Judge Gorsuch. The Senate’s “cloture” rule requires a supermajority of 60 votes to overcome such a filibuster.


“Controversial 197th District special election heading to federal court?”


Tuesday’s controversial special election to fill the state House’s 197th District seat may be moving from the polling place to federal court, as Philadelphia’s City Commissioners prepare to start tallying the votes Friday morning.

Lawyers for Republican nominee Lucinda Little, the only candidate who was listed on the ballot, and Green Party nominee Cheri Honkala, who waged a write-in campaign, sent letters to the Commissioners Thursday, demanding that they seal and preserve the ballots.

Both camps alleged widespread voter fraud in the North Philadelphia district.


“Party Labels Back for North Carolina Judges”

Bloomberg BNA:

Starting next year, ballots listing candidates for North Carolina’s superior and district courts will once again include their party affiliations.

Both the state House and Senate garnered enough votes to override Gov. Roy Cooper’s (D) March 16 veto of H.B. 100. Both votes were largely along party lines, with Republicans generally supporting the override and Democrats voting against it.
As I understand it, the impetus for this bill was the election of a Democratic state Supreme Court Justice with a “white” sounding name and no party label.

“Could Gorsuch Undo Campaign Finance Disclosure Rules?”

Bloomberg BNA:

U..S. Supreme Court nominee Neil Gorsuch has observers wondering if he could be a vote to strike down campaign finance disclosure requirements if he winds up with a seat on the high court.

Such rules require candidates and political parties to disclose the source of their contributions, and are one of the few anti-corruption protections remaining after the high court’s decision in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), Heather McGhee of Demos, New York, told Bloomberg BNA March 23.

McGhee testified in opposition to Gorsuch’s nomination on the final day of his confirmation hearings before the Senate Judiciary Committee. Demos works to ensure “all have an equal say in our democracy,” according to the organization’s website.
Gorsuch had an opportunity to clearly state the public benefits of campaign disclosure rules, but instead took the opportunity to suggest that such rules could actually “chill” political speech, McGhee said.
But judicial nominees are limited by ethics rules in what they can say during the confirmation process, so Gorsuch’s comments during the hearing shouldn’t raise alarms, Jeff Brindle, of the New Jersey Election Law Enforcement Commission, Trenton, N.J., told Bloomberg BNA March 23.

“Common Cause and Georgia NAACP Appeal Lower Court Ruling Greenlighting Georgia Voter Roll Purge”


Common Cause and the Georgia NAACP filed notice of appeal today with the 11th Circuit Court of Appeals in response to a lower court dismissal of their complaint against Georgia Secretary of State Kemp for violating section 8 of the National Voter Registration Act (NVRA) regarding how voters are purged from the registration rolls.


“Lacking Evidence of Voter Fraud, Legislatures Target Its Specter”

Michael Wines in the NYT:

Nationwide, Republican state legislators are again sponsoring a sheaf of bills tightening requirements to register and to vote. And while they have traditionally argued that such laws are needed to police rampant voter fraud — a claim most experts call unfounded — some are now saying the perception of fraud, real or otherwise, is an equally serious problem, if not worse.

Given Republicans’ history of raising undocumented claims of fraud, Democrats and voting rights advocates say that citing perceptions of tainted ballots as a reason for voting restrictions is disingenuous at best.


“There’s no there there; NASS releases facts and findings on cybersecurity in 2016 election”


This week, the National Association of Secretaries of State released the State Election Officials Report Facts & Findings on Cybersecurity and Foreign Targeting of the 2016 U.S. Election.

The report is an effort by NASS to help improve voter confidence and show for a fact that the election was not “hacked”.

As Congress examines the impact of Russian involvement in the November 2016 election, it is important to provide the clearest and most accurate public record possible regarding election cybersecurity and foreign targeting of U.S. election infrastructure. The following findings are based on all unclassified documentation and evidence available to the National Association of Secretaries of State (NASS)….


J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else. I’m even more convinced watching the hearings that Judge Gorsuch fancies himself an originalist and textualist in the mold of Justice Scalia. This means he is likely to be more conservative than Chief Justice Roberts, and could be as conservative if not more conservative than Justices Alito and Thomas. (I wrote about where he is likely to stand on campaign finance and voting rights in this CNN piece and this blog post. I also think we need a bit more clarification on his views. based on misstatements at the hearing.)

So should Democrats try to filibuster him? Right now it takes 60 votes to bring Gorsuch’s nomination to the floor. If Democrats hang together, they could filibuster him. That would likely cause Senator McConnell to trigger the nuclear option for Supreme Court appointees (just like Senator Reid, for the Democrats, went nuclear a few years ago for all appointees aside from the Supreme Court). He may have some reluctant Republicans to do that, but my bet is he’d get it through.

So why shouldn’t Democrats do it now, to get attention and to protest the shameful failure of Republicans to consider Judge Merrick Garland for the Supreme Court when nominated by President Obama? I’ve struggled with it but now think it better not to filibuster.

Democrats hold a pair of twos.  They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination restores the balance of power on the Court to the position it was in before Justice Scalia’s death.

Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.

Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what they lost when they lost the 2016 election and how bad things will be.

Another thing. Lots of Trump state Democratic Senators are coming up for reelection in 2018. Democrats need to hold those seats. Democrats and their allies have not done a good enough job painting Judge Gorsuch as a danger to the rights and issues people care about in those states. They would be put to tough votes if they are put in the position to filibuster. They may not do it, and if they do it could make the more vulnerable in 2018.

So while I’ve vacillated, I now don’t think Democrats should trigger the filibuster now.

The future is uncertain. It won’t buy much now. It might buy more in the future. Maybe in the future Democrats will have better than a pair of twos.


In Time for Fall Classes: New 6th Edition of Election Law, Cases and Materials

I’m delighted to announce that the Sixth edition of our casebook, with new co-author Nick Stephanopoulos, will be available in time for fall classes. (For orders now, the ISBN is 978-1-5310-0472-9). There will be a revised teacher’s manual as well.

We’ve sent the manuscript to the printer for production, and I’m very excited about it, especially the revamped materials on redistricting and voting rights.  I hope you’ll consider adopting it.  Here are the details:

Election Law

Cases and Materials

Sixth Edition

by Daniel Hays Lowenstein, Richard L. Hasen, Daniel P. Tokaji, Nicholas Stephanopoulos

Forthcoming 2017

ISBN 978-1-5310-0472-9
e-ISBN 978-1-53100-473-6

2017 Teacher’s Manual forthcoming

Tags: Election Law

The new streamlined and student-friendly Sixth Edition of Election Law: Cases and Materials fully covers developments in election law through the 2016 election season, including extensive coverage campaign finance cases in the Citizens United era; emerging issues in voting rights and redistricting, including recent partisan and racial gerrymandering challenges; and challenges to new voter identification laws and other voting restrictions. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well.

Complimentary Copy RequestIf you are a professor teaching in this field you may request a complimentary copy.


“Federal elections commissioner wants Trump to back up his allegations of voter fraud”


A member of the Federal Election Commission has accused President Trump of threatening democracy with his unproven allegations of voter fraud and asked him to show evidence if he has any.

Ellen Weintraub, a Democratic commissioner at the agency, sent him a scathing letter Wednesday, calling on the president to produce evidence that illegal ballots were cast in last year’s election.

“This allegation of a vast conspiracy … has deeply disturbed citizens throughout America,” she wrote. “Our democracy depends on the American people’s faith in our elections. Your voter fraud allegations run the risk of undermining that faith.”


Plutocrats Divided: “Koch Network Spending Millions to Stop GOP Health Care Bill”


The conservative Koch network is promising to spend millions of dollars to defeat the health care overhaul backed by President Donald Trump and top House Republicans.

The network’s leading organizations, Americans for Prosperity and Freedom Partners, announced late Wednesday the creation of a special fund to support House members who vote against the health care bill.


“Voting Rights Advocates Vow to Continue Fight Against Kemp Despite Dismissal”

Daily Report:

Georgia Secretary of State Brian Kemp is cheering a federal judge’s dismissal of a voting rights lawsuit filed against him by the Georgia NAACP and Common Cause, but his opponents say he’s celebrating too soon.

U.S. District Judge Timothy Batten Sr. of the Northern District of Georgia granted Kemp’s motion to dismiss in a March 17 order. Kemp released a statement Tuesday saying he “applauds Judge Batten’s order,” particularly the holding that “the maintenance of accurate voter rolls is a substantial government interest.”

 The fight is over the Georgia law that allows the state to remove people from the rolls if they haven’t voted recently and don’t respond to a mailed verification request.


“Textualism and Statutory Precedents”

Anita Krishnakumar has posted this draft on SSRN (forthcoming, Virginia Law Review).  Here is the abstract:

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court’s textualist Justices—or at least some subset of them—have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct; Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices’ brazen willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism’s core aims of promoting clarity and stability in the law?

This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the “motivating factor” test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., “labor” means “manual labor”). More specifically, textualist jurists regard what I call “implementation test” precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test exception” to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices’ proclivity to overrule to an oft-unspoken predicate assumption of textualism—i.e., that there is a singular “correct answer” to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order—including outmoded precedents reached through the use of illegitimate, atextual interpretive resources.

Ultimately, the Article both supports and critiques textualist Justices’ approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists’ attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation.

Can’t wait to read this!


Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?

The Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities. In the 1976 Buckley v. Valeo case, the Court held that such disclosure, while implicating First Amendment rights, served three important government interests: deterring corruption, providing voters with valuable information, and helping to enforce other laws (such as the ban on foreign money in US elections).

Although the Court has repeatedly upheld disclosure laws against First Amendment challenge, Justice Thomas has taken the position that there is a constitutional right to anonymity, and Justice Alito has been moving in that direction (as in his Doe v. Reed concurrence), suggesting that disclosure laws can chill activity. Justice Scalia, an originalist like Justice Thomas, disagreed that the original meaning of the First Amendment required anonymity, famously writing in Doe:

For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

 There has been a continued push by campaign deregulationists to get the Court to water down corruption on First Amendment grounds—not to throw it out entirely as to campaigns, but to allow outside groups to mask their donors. (It is already now pretty easy to do this under federal law, but that’s a political, not legal, problem. Congress needs to rewrite the laws to make disclosure work).
So where would a Justice Gorsuch be on this? Would he be with a majority that has upheld disclosure, or would he be with J. Thomas and, likely Justice Alito, believing that the “chill” of compelled disclosure requires constitutional anonymity?
If you watch the exchange with Senator Whitehouse from yesterday’s hearing, I believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He spoke of the “chill” and did not really give any reason why disclosure might be valuable. He never suggested, for example, that the public might have an interest in knowing who is spending millions to support his campaign. From Slate:

And because of our lax disclosure laws, it is often very difficult to determine who is spending money and how. For example, Whitehouse said, someone is spending $10 million to get Gorsuch confirmed.

“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We don’t know because it is dark money.” He asked Gorsuch why someone thought it was worth $10 million to get him confirmed.

“You’d have to ask them,” a frustrated Gorsuch responded.

“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.”

What does it matter, if he’s only a second or third vote? Because we can look to the future, 10 years from now, and there could well be more Gorsuch’s on the Court.

It makes me worried.


“Former Colorado GOP chairman Steven Curtis charged with voter fraud”

The Denver Channel with a story that is just too rich:

The former chairman of the Colorado Republican Party is charged with forgery and voter fraud for allegedly forging his wife’s mail-in ballot from last year’s election, according to court records and sources….

The Colorado Secretary of State’s Office says this is the only voter fraud case that has ended in charges stemming from last year’s election.

Curtis spoke about voter fraud ahead of last year’s election.

“It seems to be, and correct me if I’m wrong here, but virtually every case of voter fraud I can remember in my lifetime was committed by Democrats,” he told KLZ 560.


Judge Gorsuch Misstates Citizens United’s Holding, and Inexplicably Says Congress Has Ample Room to Enact Expenditure Limits

From an exchange with Sen. Leahy at today’s hearing:

Judge Gorsuch, questioned on Citizens United, said the following (my transcription):

I think there is lots of room for legislation in this area that this court has left. The Court indicated that if proof of corruption can be demonstrated a different result may obtain on expenditure limits….

I think after Citizens United made clear that quid pro quo corruption remains a vital concern and a subject for potential legislation. And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to with expenditure limits, or whether it has to do with disclosure requirements.

This is incorrect. In American Tradition Partnership v. Bullock, the Supreme Court majority (the same majority in Citizens United) held that it would NOT consider evidence of corruption to justify a spending limit. It needed only a paragraph to dispose of the case given its holding in Citizens United. The dissenters (the same dissenters in Citizens United) argued in contrast that the Court should consider evidence of corruption which could justify an expenditure limit.

Instead, in Citizens United the Court left NO room for spending limits, apart from spending limits applied to foreign individuals and entities (which it allowed via a summary affirmance in Bluman v. FEC). 

I explain all of this in Citizens United and the Illusion of Coherence in the Michigan Law Review.

So either Judge Gorsuch does not understand the scope of Citizens United and its holding, or he is trying to soften its harshness by wrongly suggesting Congress has room to legislate spending limits.

I don’t believe he would actually uphold any spending limit Congress passes (expect as to foreign spending).  I explain why based on reading his earlier opinions here. 

Update: Derek Muller disagrees.