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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Author Archives: Richard Pildes
Next time someone asks you why we can’t yet have secure enough electronic voting if we can have ATM machines, send them to this story.
If the Supreme Court holds Section 5 of the VRA unconstitutional by the end of this Term, or cuts back substantially on Section 5′s scope, an outpouring of policy and political energy will undoubtedly burst forth to suggest what kind of legislative response, if any, is warranted. One comprehensive collection of recommendations and suggestions already exists about the direction voting rights policy might most effectively take, from leading academic experts in law and political science on the VRA, in this book, The Future of the Voting Rights Act, for which I was one of the editors. Published by the Russell Sage Foundation, the book can be found here.
Ironically, the book was designed to inform the legislative policy process when Section 5 expired in 2007, but Congress moved the process up to 2006. The book originally came out in 2006 but too late to influence that expedited process. If the Court does invalidate or cut back on Section 5, however, this book will provide a comprehensive starting point for ideas about how Congress might most effectively respond to modernize voting rights policy.
Here is the (modified, updated) description of the book that the Russell Sage Foundation originally published:
The Voting Rights Act (VRA) stands among the great achievements of American democracy. In The Future of the Voting Rights Act, Richard Pildes, Rodolfo de la Garza, Sharyn O’Halloran, and others bring together leading historians, political scientists, and legal scholars to assess the role a re-designed Section 5, or other voting rights legislation, should play in America’s future.
The contributors offer varied perspectives on the most effective future for voting rights law and policy. Rodolfo de la Garza and Louis DeSipio explore the VRA’s limited focus thus far on the situation of Hispanic residents and citizens, whose interests with respect to voting rights differ in insufficiently appreciated ways from those of African Americans (Laughlin McDonald explores similar issues with respect to Native American voters). Sharyn O’Halloran and David Epstein provide extensive data showing that white voters are more wiling than in the past to vote for African-American candidates and to forge interracial coalitions that successfully elect African-American candidates. Richard Pildes explores the difficulties of updating policies to protect vulnerable voters designed many decades ago to today’s different circumstances, and asks whether minority voters might be better off if voting rights policy now were to better facilitate the formation of winning political coalitions across racial and ethnic lines, rather than focusing exclusively on the creation of “safe” districts that minority voters can dominate.
Nate Persily suggests approaches that would update Section 5 from within, by re-shaping it to fit current circumstances, and approaches that would abandon Section 5′s regionally-targeted philosophy for more aggressive, nationwide protections of voting rights. Spencer Overton and Michael McDonald grapple with crafting an updated coverage formula that identifies those areas that remain exceptionally problematic with respect to their treatment of minority voters. Heather Gerken seeks to enlist greater citizen participation on how to determine areas of the country that are especially problematic. Samuel Issacharoff questions whether Section 5 remains necessary, citing the now substantial presence of blacks in legislative positions and the increasingly partisan enforcement of the law by the Department of Justice (DOJ). Rick Hasen explores the constitutional issues that will continue to affect the options for congressional action.
Examining the role that Section 5 or alternative legislation might play in maintaining a healthy democracy is vital. Combining historical perspective, legal scholarship, and the insight of the social sciences, The Future of the Voting Rights Act is a crucial read for anyone interested in one of this year’s most important constitutional issues before the Supreme Court, for any policy debates that might follow in the wake of the Court’s decision, and in the future of civil rights in America.
EDITORS: RICHARD H. PILDES is Sudler Family Professor of Constitutional Law at New York University School of Law.
RODOLFO O. DE LA GARZA is faculty fellow in the Department of Political Science and director of the Project on Immigration, Ethnicity, and Race at the Institute for Social and Economic Research and Policy at Columbia University.
SHARYN O’HALLORAN is the George Blumenthal Professor of Politics and professor of international and public affairs at Columbia University.
DAVID L. EPSTEIN was formerly a professor of political science at Columbia University.
CONTRIBUTORS: Rodolfo O. de la Garza, Sharyn O’Halloran, Richard H. Pildes, Stephen Ansolabehere, Thomas Brunell, Bruce E. Cain, Guy-Uriel E. Charles, Louis DeSipio, Luis Fuentes-Rohwer, Heather K. Gerken, Bernard Grofman, Richard L. Hasen, Samuel Issacharoff, Karin MacDonald, Peyton McCrary, Laughlin McDonald, Michael P. McDonald, Spencer Overton, Nathaniel Persily, Christopher Seaman, David L. Epstein and Richard Valelly.
A new Washington Post-Pew Research Center Poll, here, on the recent failure of gun legislation, casts broader light on the political polarization that began in the 1980s and has increasingly characterized American democracy ever since. In sorting out the causes of this polarization, a major question is whether polarization in Congress distorts the much more centrist preferences of the broader public or whether Congressional polarization reflects a polarized public.
A common perception is that a large majority of the public support gun legislation of the sort that recently failed, which would suggest the polarization in Congress is a distortion of “public opinion.” The most provocative finding of this new poll, in contrast, is that, of those “very closely” following the legislation process, the split was virtually even regarding whether they were pleased or not that the legislation had failed: 48 percent said they were angry/disappointed, and 47 percent were relieved or happy. Democracies tend to respond to the most politically engaged citizens. These data suggest support for the view that polarization in Congress, on this issue at least, reflects polarization among the engaged electorate.
This result is also in line with some of best recent empirical work on polarization more generally. In the mid-2000s, Morris Fiorina and others published a book, Culture War? The Myth of a Polarized America, which argued that Americans were generally less partisan and more centrist than members of Congress. More recently, though, Alan Abramowitz concluded in The Disappearing Center that the more people care about and engage in political activity (such as voting), the more polarized they become; with increased political participation comes increased polarization. This new poll data on gun legislation appears to further support that view. If so, Congressional polarization is not a distortion of what the most politically engaged Americans believe, but a reflection of those beliefs.
Early voting (EV) is a recent development in American democracy. The 2008 election was the first time EV was used extensively in presidential elections. And in the 2012 election, the courts began to confront for the first time the issue of how to understand early voting as a legal matter, including for purposes of constitutional law. The most significant election litigation in 2012 involved early voting, with cases in Ohio and Florida (including cases litigated the weekend of the election) leading to more than 106,000 people in Ohio alone making use of judicial decisions to vote the weekend before the election.
If we reason by analogy, the question is whether early voting should be thought about more like election-day voting or like absentee voting. Is EV best understood, legally, as expanding election day back in time a bit, so that the legal and constitutional framework should be thought about much like the framework that applies to election day in general? Or is EV best understood as like traditional absentee voting, in which States have long made decisions about which groups of voters have sufficiently good “excuses” for not being able to show up on election day to justify their access to an absentee ballot? This was one of the fundamental questions underlying the Obama campaign’s constitutional challenge to Ohio’s “decision” (I will explain the quotes later) to open early voting to some voters but not others the weekend before the election — i.e., military and overseas voters.
To assess the federal courts’ decision that it was unconstitutional for Ohio to open early voting to some voters but not all voters on equal terms, this fundamental question about how to understand early voting has to be confronted. Yet most of the critical commentary (by which I mean, mostly, Rick Hasen’s blog posts) on the Sixth Circuit and federal District Court decisions doesn’t start the process of beginning to come to terms with this issue. Much as the state of Ohio did during that litigation, this commentary just assumes that EV should be treated under Supreme Court precedents that apply to absentee voting, which permit the state to pick and choose among “proper” voters to vote absentee.
The reason every federal judge to address the merits of these issues rejected that position has much to do, I believe, with the way federal judges are beginning to understand EV as they start to work out its legal meaning. As a matter of the actual practice on the ground, EV looks in virtually every way like election-day voting: voters line up in person, sometimes for hours, at state polling locations and they go in and cast their vote. Unlike with absentee voting, no state has ever tried to carve up its electorate during early voting and insist that some voters can vote early but others cannot. Since early voting has been developed, it has always been open to all voters on equal terms, just as election day voting is. Everything about the way early voting is covered in the media and treated by campaigns is just the same as it is on election day. And voters use early voting in massive numbers that dwarf the traditional absentee ballot process. Yet what Ohio wanted to do the weekend before the election was to have polling locations that were open, but to turn most voters away while letting a select group of voters through the doors. No state had ever adopted a policy like that before. That was the situation the federal courts confronted.
As a window into how federal courts thought about EV, those courts cited many of the classic right-to-vote cases, such as Kramer, Dunn, and Harper. That is a powerful signal that the courts did not think that EV should be viewed through the lens of absentee voting. Instead, the courts viewed EV as much like election-day voting, just extended earlier in time. That is why the courts invoked these foundational precedents that preclude states from opening their polls to some voters but not others. Because the commentary fails to recognize that the courts viewed EV as better analogized to election day voting than absentee voting, that commentary has bypassed the central issue that made the litigation successful.
Could a state ever permit some voters to vote early and not others, if the state truly had some compelling reason for picking and choosing among voters? We don’t know the answer to that yet at this early stage of the development of the jurisprudence of early voting. But that issue was not convincingly presented in the Ohio litigation, because Ohio appeared to have stumbled into the situation it created: the state actually enacted two separate statutes, one that would have treated everyone equally for early voting, and one that permitted only military voters to vote the final weekend. In the face of such keystone cops-like legislative efforts (again, the commentary doesn’t take into account these specific facts about the bizarre situation Ohio stumbled into), the federal courts found it hard to credit any post-hoc claim that there were powerful and convincing reasons that justified Ohio opening its polls for EV to some voters but not others.
I did not comment or blog about this case or any other matters during the election because I was working as a Senior Legal Advisor to the Obama campaign and considered it inappropriate to write as an academic expert when I was directly involved in these matters. But now that the election is over and I’m free to write, I want to make the point that once you conclude that the best way to understand EV is that it is an extension of election-day voting earlier in time — which is what the federal courts concluded and which is how, I would venture to say, voters overwhelmingly understand EV — it is easy to understand why the courts would have held it unconstitutional for a state to open its doors to some voters but not others. That is why I also thought the constitutional challenge to Ohio’s selective access to early voting would be successful and why I think most federal judges, not just those who sat on the case, would be likely to come out the same way.
A couple months ago, the SCOTUS blog ran a Symposium on the constitutional issues concerning Section 5 of the Voting Rights Act. In light of today’s Supreme Court decision to address those issues in the Shelby County case, here’s an excerpt from my contribution to that Symposium (the full contribution is here, the full Symposium here):
Congress has put the Supreme Court in an excruciatingly difficult position. The parts of the country the VRA singles out today for Section 5’s unique regime of federal receivership remain essentially unchanged since 1965 (when most of the covered jurisdictions were brought in) and 1975 (when those with certain language minorities were added). In 2006, when Congress adopted the current version of Section 5, nearly twenty-five years had passed since Congress had last re-visited Section 5; many VRA experts assumed Congress would inevitably update the Act in one way or another — particularly its geographic scope — to reflect the demographic, social, legal, and political changes that had taken place since 1982, let alone since 1965. But Congress avoided the provocative and difficult questions these changes unleashed. As Section 5 emerged in 2006, its geographically selective targeting remained unchanged – neither expanded, contracted, nor modified in any way from the contours Section 5 had developed in the 1960s and 70s. In addition, Congress locked that structure into place for another twenty-five years, as long as any extension of Section 5 in the Act’s history. Until 2031, then, the parts of the country put in the 1960s and 70s under the only geographically selective regime of federal receivership in American history will remain there. Thus Congress forced onto the Court’s agenda the question: is there a constitutionally sufficient foundation to justify singling out today (and until 2031) the exact same areas, and only those areas, initially and properly singled out some forty or so years ago?
. . .
When I testified before the Senate Judiciary Committee in 2006, I was concerned that the evidence in the legislative record did not adequately address whether there continued to be “systematic differences between the covered and the non-covered areas of the United States [,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” Congress simply did not seem interested in this question or wanted to avoid it. The legislative process had been designed as if Congress’s only constitutional (and policy) obligation were to establish that race-related problems concerning voting rights continued to exist within parts of the already-covered areas – regardless whether similar problems were occurring at similar rates in other parts of the country. Instead, to be on the safe side of modern constitutional doctrine, which had changed dramatically since Congress had last re-visited Section 5 in 1982, I urged Congress to assess where voting problems were occurring today and tailor Section 5 accordingly. In NAMUDNO¸ the Supreme Court quoted this testimony and concluded that “difficult constitutional questions” existed concerning whether contemporary circumstances justified the current scope of Section 5. Implicitly, the Court gave Congress a second chance to tackle the issues it had avoided. To no one’s surprise, Congress once again preferred to do nothing and leave the status quo intact — thus effectively putting the burden back on the Court.
At least three different possibilities exist concerning the foundation constitutional doctrine might require to justify today’s Section 5. Commentary often does not distinguish between these three: (1) taking the covered jurisdictions in isolation, Congress might only have to show that voting problems continue to exist in those areas; (2) taking the covered jurisdictions in the aggregate and comparing them to the non-covered ones, Congress might only have to show significant continuing differences between “the covered” and the “non-covered” areas; (3) taking the covered jurisdictions one by one, Congress might have to show that significantly different problems plague particular jurisdictions to justify their continued inclusion (at least at the state level, as a first cut at requiring close tailoring between Section 5’s coverage and contemporary circumstances).
Congress implicitly legislated on the assumption that (1) defined its constitutional obligations, but NAMUDNO appears to signal that the Court is not going to accept that approach. If so, the critical question will be the choice the Court makes between theories (2) and (3) — and how strong the evidence is to support the approach the Court adopts. Put more concretely, the question is whether, if unique voting-rights problems continue to infect Alabama, Mississippi, Louisiana, and Texas (if recent three-judge court decisions involving Texas are upheld) but not Virginia, North Carolina, and Georgia, for example, is that sufficient to uphold the constitutionality of Section 5, as (2) would suggest? Or can Congress apply Section 5 only in the former states – if these are the only places where these actual problems distinctively exist, as (3) would require?
. . .
As I have chronicled elsewhere, realpolitik provides the best explanation for why Congress left Section 5’s essential structure and coverage unchanged. To try to update Section 5’s coverage would have opened up too many charged questions about where the interaction of race and electoral politics had improved in the country, remained the same, or gotten worse. The question is whether realpolitik will be an adequate justification to a Supreme Court majority that cannot relish the headline, “Supreme Court Holds Voting Rights Act Unconstitutional,” but that has already expressed serious reservations about a Section 5 that extends to 2031 a geographically-selective regime whose targeting remains unchanged since the 1960s and 70s.
The Continuing Need for Supreme Court Clarification of the Line Between Campaign Contributions, Legitimate Political Activity, and Bribes
The well-known federal district judge, Myron Thompson, recently finished presiding over one of the largest and most important recent trials in which the Department of Justice’s Public Integrity Section sought to convict numerous state legislators and campaign contributors of federal bribery based on campaign contributions. Judge Thompson then issued yesterday a 33-page opinion, as Rick Hasen noted, in which he showed how complex and confusing current law is regarding the boundary between legitimate contributions and criminal bribes; after working through this maze, he then explained why he had decided the particular jury instructions he gave were his best effort to sort through this body of law. This extensive and thoughtful opinion is significant for two reasons.
First, Judge Thompson’s opinion concludes with this line, which reflects a plea from lower court judges (and many others) for Supreme Court intervention to clarify the law in this important area: “Ultimately, the Supreme Court needs to address this issue and provide guidance to lower courts, prosecutors, politicians, donors, and the general public.” Coming from a judge who has just presided over a major case involving these issues, that’s a powerful statement about the legal confusion that exists in an area of such significance to the democratic process. This statement makes it all the more disappointing that the Supreme Court, just a month ago, denied certiorari in the most significant recent case that raised exactly these issues: the criminal conviction of former Governor Siegelman, of Alabama. Indeed, if Judge Thompson’s opinion and plea for guidance from lower court judges had been issued while Siegelman’s petition had still been pending, one wonders whether this confirmation of the need for Supreme Court clarification would have been enough to tip the scales and push the Supreme Court to have taken the Siegelman case. (Full disclosure: I filed an amicus brief in support of Siegelman’s cert. petition).
Second, the case over which Judge Thompson presided has gotten far less national attention than it warrants. The case, known as McGregor, involves another dramatic failure of the Department of Justice, particularly the Public Integrity Section, to use federal criminal laws to prosecute what DOJ sees as political corruption. But in addition, the facts are particularly stunning. Here is just a quick sampler: the DOJ actions might well have tipped partisan control of one chamber of the Alabama legislature from one party to the other, even though all the defendants tried were acquitted; the DOJ intervened to help block a piece of pending legislation, because of the DOJ view that the legislation was tainted by bribery (even though the jury concluded otherwise); the District Court found, as a matter of fact, that the state Republican Party, for reasons the District Court characterized as “racist,” had used the DOJ to go after the Democratic Party; and yet the jury completely rejected DOJ’s case. The DOJ’s failed prosecutions of John Edwards and Ted Stevens have gotten far more national attention, but this massive and failed Alabama case illustrates the profound consequences to state and local politics that can result from DOJ criminal prosecution of legislative action at the murky boundary between legitimate campaign contributions and bribery. A brief summary of the facts in the McGregor case can be found in the reply brief Siegelman’s lawyer, Sam Heldman, filed in the Supreme Court, here; Heldman was also one of the lawyers for some defendants in McGregor.
Her enigmatic, knowing smile comes to mind each time I re-read Chief Justice Roberts’s opinion. How much of his opinion reflects his own purely internal legal analysis, how much his concern for perceptions about the institutional authority and legitimacy of the Court? Did he always accept the tax power argument or did his views shift during the course of the opinion-writing process? Did he do any work to persuade Justices Breyer and Kagan to join his opinion on the Medicaid issue, or was that their view from the start? John Roberts is hauntingly, gently smiling out at us from his opinion, and we will be staring back at it for years trying to come to terms with all that the opinion might or might not imply.
We will know, of course, in a couple of hours. But in all the commentary on the health-care cases, I do not recall seeing the following possibility explored (though surely someone else must have had this thought). So I wanted to flag the thought in case it does end up being expressed in the opinion. From his comments at the oral argument on the mandate, it is possible to read CJ Roberts as believing two crucial things about the mandate: (1) that a mandate to purchase certain kinds of health insurance – in particular, catastrophic coverage – would be constitutional, based on the government’s argument that enough of the uninsured will eventually consume these kind of medical services so that everyone is, indeed, in the market for these services at some point in time but that (2) the scope of the specific mandate in the ACA is overly broad with respect to this justification, because it requires some categories of people to purchase insurance for services they are almost certainly never going to use (pediatric care for people who are not going to have kids) or for services that are not random events but ones over which people have some control (coverage for substance abuse).
For someone who believes both of those things, what would that mean for the outcome in the case? I see two possibilities:
1. CJ Roberts could write an opinion establishing the principle that a mandate to purchase certain health-care services is constitutional under the commerce clause. He could then, however, hold the specific mandate in the ACA unconstitutional on the ground that it is not reasonably tailored to the specific justification the government offers for the mandate. The opinion would presumably assert that a high-level of constitutional scrutiny is required to justify the mandate, for reasons along the lines Justice Kennedy suggested at the argument, and that the mandate is unconstitutionally overbroad. This would leave open the possibility that a more narrowly drafted mandate, such as one tied to catastrophic coverage, would be constitutional. Of course, the current Congress is unlikely to generate any legislation that would in the short-term accept this invitation to craft a more narrow mandate. And I don’t know whether the health-care economics are such that a narrow mandate would achieve the necessary objectives if policymakers would seek to maintain guaranteed coverage and community rating. But in principle, this kind of opinion would leave the door open to future Congresses to adopt a more narrowly framed mandate.
2. More intriguingly, CJ Roberts could conclude that the mandate is not unconstitutional on its face. At this stage, the litigation involves what’s known as a facial challenge to the mandate; the claim is that the mandate is unconstitutional across the board and in essentially all its applications. In upholding the mandate on its face, CJ Roberts could conclude that the way to deal with the overbreadth of the mandate – if that’s the way he sees it – is to handle that in later as-applied challenges that would arise down the road, in which specific categories of individuals who claim that they will never need some of the specific services they are being asked to purchase would be able to make that claim and perhaps prevail with respect to certain categories of services.
The effect of this resolution would be to uphold the mandate for now but to have the courts carve down the scope of the mandate in later cases. One downside to this approach would be that it would spawn a good deal of litigation down the road and would create uncertainty in the health-care markets until the issues were resolved fully. On the other hand, one of the characteristic themes of the Roberts Court has been to resist deciding cases as facial challenges and to insist that more cases be handled as as-applied challenges. So such a resolution would be consistent with that larger set of jurisprudential themes.
3. I am not in the prediction business and this is not a prediction. But I have thought for a long time that this is an intriguing option I have not seen discussed elsewhere, and so I wanted to raise it in advance of the decision.
In holding Montana’s ban on corporate electioneering unconstitutional today, the Supreme Court stuck to its guns about Citizens United and put the lie to shallow, but frequently repeated, theories about how much public opinion constrains the Court. According to these theories, the Court’s decisions do not and will not stray far from “mainstream public opinion” because political institutions or “the public” will punish the Court if its decisions do so. Savvy to this dynamic, the Court factors the “anticipation” of this potential punishment into its decisions and hence avoids from the start decisions that will inflame large majorities. Thus, these large structural forces supposedly constrain the Court to issue only opinions that are well within the mainstream of public opinion on even the most controversial issues. Rather than decisions reflecting a mix of jurisprudential, philosophical, ideological, and legal understandings, the decisions should be understood more like weathervanes in which the Court tilts toward the direction in which the most dominant popular forces happen to be blowing. Journalists are drawn to these theories, since they can take readers outside the more legalistic issues within the opinion to speculate more broadly (even if without any foundation) for why the Court “really” decided a case the way it did.
In recent years, the biggest embarrassment to these theories — which I have criticized in depth in my academic writing — has been the Court’s extremely well known, controversial, and greatly unpopular decision in the Citizens United case. From the moment the Court held two years ago, in a 5-4 decision, that corporations have the constitutional right to spend unlimited amounts of money to seek to influence election outcomes, polls have consistently shown that roughly 80% of the public strongly opposes the decision. Measured by “mainstream public opinion” (not a concept I like, since getting a meaningful handle on “public opinion” is so elusive, but a concept central to theories that insist “public opinion” strongly constrains the Court), few decisions in recent decades can be said to so boldly fly in the face of “public opinion.” So how do the theorists who insist the Court is strongly constrained by “public opinion” explain the decision?
They cannot conclude that the majority of the Court has strong constitutional or even ideological convictions (whether right or wrong) that corporate political speech is just as entitled to First Amendment protection as other political speech. After all, to conclude that these Court commentators would have to accept that the Court’s decisions in big cases rest on something other than guesses about where “mainstream public opinion” lies. So instead, these Court commentators have to assert that the otherwise savvy Court just made a massively mistaken miscalculation when it decided Citizens United. Thus, my colleague Barry Friedman and his co-author, Dahlia Lithwick – two of the biggest proponents of the view that Court decisions will not stray far from “public opinion” – assert that no one could have known how negative the reaction to Citizens United would turn out to be. As they put it in a recent Slate piece: “[The Justices] could not have anticipated the strength of the negative public reaction to the Citizens United decision on campaign finance reform. . . . Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.” In other words, had the Court realized what the reaction to the decision would have been, the case would have come out the other way.
Even on its own terms, though, the claim that the Court just miscalculated and would never have decided Citizens United had it known how negative the popular reaction would be seems like a desperate attempt to salvage a fundamentally flawed theory. Anyone following these debates at the time, or the general debates about the role of corporations in American democracy, knew how vehemently most of the public would react to the Court overturning decades of campaign finance law and licensing unlimited corporate election spending. Indeed, the best evidence that hindsight wasn’t necessary comes, ironically, from Friedman and Lithwick themselves. For one week after the decision in another Slate piece, they criticized the “bombshell” Citizens United decision for being dramatically out of touch with public opinion – as evidence by polls they cited even back then which showed that 76% of people believed government should have the power to limit corporate election spending. Perhaps we are supposed to think that the Justices in the majority were the only ones in the political elite who failed to understand how controversial and unpopular their decision would be.
But today’s Montana decision means we no longer have to speculate about such matters. Because if the Court made a mistake and simply miscalculated how the public would react to Citizens United, the Montana case presented the perfect opportunity, just two years later, for the Court to “correct” its mistake. Now in a position to fully appreciate “the strength of the negative public reaction” to the original decision, the Court nonetheless not only reaffirmed that decision but doubled down on it by making clear that it would tolerate no exceptions to Citizens United. That outcome comes as no surprise to those of us who believe Citizens United reflected powerfully held philosophical and constitutional convictions, whether we agree with those convictions or not. But it should put the final nail in the coffin of theories that assert the Court could have decided Citizens United only “by mistake” and, more generally, put to rest the view that Court decisions are destined to reflect “mainstream public opinion,” rather than sometimes standing forcefully against such opinion in the name of powerfully held philosophical and legal convictions. The American public might not believe in unlimited corporate speech rights in elections, but the Court’s majority does – and no amount of public backlash is going to cause this Court to back down.
Thomas E. Perez, the Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice, is speaking today at an academic forum for students and faculty at NYU Law School. I am the host and moderator for this event. He will be addressing current controversies concerning enforcement of the Voting Rights Act. This should be an exciting and major forum for discussion of current voting-rights issues. In addition to me, the panelists with whom Mr. Perez will discuss and debate these issues include the following academic experts and experienced practicioners in the voting-rights field:
Professor Guy Uriel-Charles, Professor of Law, Duke Law School
Professor Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU School of Law
Wendy R. Weiser, Director, Democracy Program, Brennan Center for Justice at NYU School of Law
The NY Times Inadvertently Clarifies That Its Real Problem is with Buckley v. Valeo, Not Citizens United
Under the broad heading of Living in a Citizens United World, the NY Times has a longer-than-usual editorial entitled “When Other Voices Are Drowned Out.” The key sentence is this: “But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.”
The Times’s reasoning confirms a point I have made several times, including here and here, on this blog: those, like the Times, who are concerned that “the wealthy” can “distort” democracy by “drowning out” those with fewer resources need to understand that their complaint lies with the Court’s decision in Buckley v. Valeo, not the more recent Citizens United decision. The most famous and most cited passage in all of campaign-finance law, from Buckley, is the following:
But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors,365 U.S. 127, 13 (1961).
It is this reasoning from Buckley that directly holds unconstitutional precisely the position that the Times editorial today advocates. Those who hold the view the Times does need to understand that their real complaint is with Buckley. Put another way, if Citizens United were overruled tomorrow, the problem that concerns the Times would remain essentially the same. The Times editorial should really be titled Living in a Buckley v. Valeo World.
The cert. petition pending before the Supreme Court concerning the criminal conviction of former Alabama Governor Don Siegelman raises important issues concerning whether campaign contributions can ever be treated as bribes and, if so, under what circumstances. Rick Hasen has rightly observed that the petition presents “important and recurring issues which have never been fully resolved about the relationship between the laws of bribery (and related offenses) and campaign contributions.”
I have now filed an amicus brief, along with my colleague Sam Issacharoff, in support of Siegelman’s cert. petition. Here is an edited excerpt (without footnotes) from the opening Statement of that brief:
The Petition raises important issues concerning the increasing use of vague, conflicting, and unsettled definitions of bribery in federal criminal prosecutions of state-level political activity. Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600. See Daniel H. Lowenstein, When Is a Campaign Contribution a Bribe?, in Private and Public Corruption 127, 129 tbl.6.1 (William C. Heffernan & John Kleinig eds., 2004). Many of these federal prosecutions involve high-profile political figures, such as the prosecution of former Senator Ted Stevens, the currently pending prosecution of former Senator John Edwards, the prosecution of former Governor Donald Siegelman, or the prosecution of Richard Scruggs, one of the most prominent trial lawyers in the United States.
In a number of these cases, federal judges and others have criticized federal prosecutors for excessively ambitious zeal in their pursuit of criminal charges against high-profile public or political figures. As is well known, United States District Judge Emmet Sullivan cited for contempt three attorneys in the Department of Justice (DOJ) in the Stevens case for what Judge Sullivan called their “outrageous” failure to turn over to Stevens’s defense counsel certain documents. The DOJ indictment of John Edwards for the crime of receiving illegal campaign “contributions,” for large payments two of his supporters made to Edwards’s mistress, has been strongly criticized by experts in campaign-finance law as an example of prosecutorial overreaching. That prosecution is based on a novel and expansive interpretation of the term “contribution” to a context far removed from the way that term has traditionally been understood in the campaign-finance laws. In many of these contexts, as in the Siegelman case, United States Attorneys that Presidents of one party have appointed initiate prosecutions of high-level political figures from the opposite party; allegations arise that the prosecutions have a partisan cast.
Given the potential vagueness of the line between campaign contributions and bribes, these allegations are not surprising. As former professor of law and Ninth Circuit Judge John Noonan wrote in his comprehensive analysis of the issue: “Depending on the decision of the prosecutor and the will of the judges, many contributions could be classed as bribes.” John T. Noonan, Jr., Bribes 651 (1984). When it comes to core democratic activities, such as the soliciting and giving of campaign contributions, that is an intolerable situation. . . .
[V]agueness concerns continue to plague honest-services “corruption” prosecutions under 18 U.S.C. § 1346 despite this Court’s effort in Skilling v. United States, 130 S. Ct. 2896 (2010), to root out such concerns. Federal prosecutors have responded to Skilling by replacing unconstitutionally vague honest-services fraud prosecutions of state officials and private actors, for deprivation of “intangible rights,” with vaguely defined and expansive conceptions of “quid pro quo bribery” in honest-services “bribery” prosecutions. But if honest-services bribery convictions can rest on less than the “explicit promise” of a quid pro quo required under McCormick v. United States, 500 U.S. 257, 273 (1991), potential defendants will confront similar vagueness concerns with respect to “bribery” prosecutions under 18 U.S.C. § 1346 that this Court held unconstitutional with respect to “intangible rights” prosecutions in Skilling. Vague definitions of the quid pro quo reintroduce the same constitutional infirmity that the Court tried to stanch in Skilling.
Using expansive and loosely defined conceptions of “bribery” as an end-run around Skilling is particularly troubling when the alleged quid . . . is otherwise valuable and common political activity, such as the making of campaign contributions, the petitioning of public officials, or the endorsement of candidates for public office. These kinds of protected political activity are often undertaken for a mix of motives, including self-interested ones. As a result, the clarity and precision about what constitutes “bribery” under 18 U.S.C. § 1346 that is currently lacking in the lower federal courts must be provided, lest those engaged in core democratic processes be able to do so only at the sufferance of federal prosecutors. . . . This Court’s review is needed to ensure that such activity not subject citizens to the risk of criminal prosecution at the discretion of federal prosecutors invoking uncertain and imprecisely defined conceptions of honest-services “bribery” under 18 U.S.C. § 1346.
When a copy of the brief is available online, I will post a link for those interested.
Several months ago I wrote to argue against the constantly-repeated storyline that cast Citizens United as responsible for the explosion of SuperPacs in this election cycle. Though I have written critically about the Court’s decision, I was also skeptical of the tendency to blame the Court’s decision for all the forms of newly emerging election financing in this cycle that critics disliked. Citizens United did liberate corporate and union general-treasury funds to engage in independent election spending, but it did not otherwise change the constitutional architecture originally constructed in Buckley v. Valeo, back in 1976.
Yesterday’s disclosure filings with the FEC by the various SuperPacs give us better traction on this issue. Based on the data provided by the New York Times, my quick initial calculation suggests that the proportion of the money contributed to the major, candidate-specific SuperPacs for the Republican primaries that came from corporations versus wealthy individuals was the following: Romney (“Restore Our Future”): 23% corporate money; Gingrich (“Winning Our Future”): 0% corporate money; Santorum: 0% corporate money. I also included Rick Perry in my calculations, even though he has dropped out, because he had the second most successful SuperPac for the last quarter of 2011, and he might be thought more likely than Gingrich or Santorum to have been able to draw corporate money. The Perry SuperPac, “Make Us Great Again,” raised 25% of its money from corporations. Aggregating the figures for all four of these candidates, 22% of the money supporting Republican-candidate SuperPacs seems to have come from corporations. Compared to all the prior ungrounded speculation, that figure now provides us actual information, for the first time, on how much Citizens United and corporate money is or is not fueling the rise of SuperPacs. UPDATE: This pattern could change as move deeper into the election cycle, of course, particular when we reach the general election.
To be sure, lots of the individuals who donated large amounts are CEOs of various corporate entities. The Gingrich-supporting SuperPac is almost single-handedly being funded by the Adelson family, and Sheldon Adelson is the CEO of Las Vegas Sands Corp. But ever since Buckley, wealthy individuals could spend unlimited amounts to seek to help elect their preferred candidates. One might ask whether these CEOs are being reimbursed for their donations from the general corporate treasury in some form. I hope not and assume they are being well advised legally. For doing so might well constitute a crime.
Federal law makes it a crime to make a political contribution in the name of another. Indeed, this is the one crime in the area of federal campaign financing that the Department of Justice prosecutes most aggressively. Specifically, 2 U.S.C. Section 441f makes it a crime to manipulate the source of the actual contribution: “No person shall make a contribution in the name of another person or knowingly permit his name to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.” Reimbursement schemes are a core violation of this provision, as numerous successful criminal prosecutions have established. This provision covers direct “contributions” to candidates. There might be some uncertainty about whether “contributions” to PACs, including what are now called SuperPacs, are similarly covered. I do not know whether the Department of Justice has brought criminal prosecutions for contributions made in the name of person A to a SuperPac that are then reimbursed by some other person or entity, including the corporate general treasury. The DOJ regulations implementing 2 USC 441f do apply to contributions made to “political committees.”
Today’s Supreme Court decision in the Texas redistricting case is largely a win for the State of Texas, for reasons I explained in advance of the decision. But the Court forged a “compromise” solution that was not raised or discussed at all at the oral argument in the case, nor one raised in the briefs. It is actually not the “compromise” solution that Justice Kagan raised at the argument, but a somewhat different one the Court apparently came up with during its internal deliberations in the case. And I fear that this compromise is going to make an already complex situation even more unwieldy when these situations arise in the future.
Until today’s decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution: only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues. Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well – thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question. The Court has held that the San Antonio court has to make the predictive judgment of whether there is a “reasonable probability” that the state’s plan will fail to gain preclearance in the other federal court – the preclearance court in DC. So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan – it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues. This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.
There are at least two better solutions to this trainwreck situation of two different federal courts both reviewing the same redistricting plan. First, the Court could have said that if the case is one in which the Department of Justice has already taken the legal position in the pre-clearance court that the plan does have Section 5 violations, the Texas court should be obligated to accept those objections, if there is a reasonable legal basis for them, and cure them when it creates an interim plan. Indeed, DOJ has done exactly that in this case. Yet one of the oddities of the Court’s opinion is that there is no mention of this fact, let alone any discussion of its relevance. I am puzzled as to why the Court said nothing about the relevance of the already-existing DOJ Section 5 objections to Texas’ plans, although the argument did not flag this issue clearly for the Court. So the situation now is that even if DOJ has not yet taken a position on whether a plan complies with Section 5, the second court still has to make its own inquiry into that question.
If the second court is going to be instructed to reach Section 5 issues, it would be better to have its inquiry anchored in a firm baseline, such as whether DOJ has argued that Section 5 is indeed violated. Instead, the Court’s decision instructs the second court to engage in essentially a general, wide-ranging Section 5 analysis.
The even better solution to this problem, which is not one the Court itself was asked to adopt in this case, is for the system to find a way to consolidate the two actions in a single court, which would be the pre-clearance court in D.C. It makes little sense to have two courts addressing the same redistricting plan, in the midst of uncertainty about how the other court will act, and under tremendous time pressures. This consolidation could be accomplished either by a statutory enactment, if necessary, or possibly by the pre-clearance court exercising powers under the All Writs Act to transfer the merits case to its jurisdiction if a pre-clearance action had already been filed. That would be a much more creative solution than any court has yet undertaken or any litigant proposed, and courts might be reluctant to exercise such powers. But either through statutory amendment or such use of judicial power, we would be far better off with these issues all consolidated in front of one three-judge federal court to avoid the kind of trainwreck this case represents.
And Rick Hasen has indeed sneaked in under the wire on the last day and earned the right to have me buy him a beer, which I will gladly do!
1. There’s been speculation that the Court might adopt a “compromise” solution, first floated at oral argument by Justice Kagan, in the Texas cases. If so, my view is that this would be one of those “compromises” that actually gives one side — in this case, Texas — 90% of what it wants. Whether that is good or bad is a separate matter, but I want to explain why Texas benefits most from this compromise.
The challengers’ position is that the plans Texas enacted in 2011 should be given no legal effect because they have not yet been precleared. Instead, the three-judge federal court in San Antonio should be obligated to start with the last legally adopted redistricting plan, which pre-dates the 2010 Census. Texas argues that the San Antonio court should be obligated, instead, to start with the 2011 redistricting plans. But Texas already concedes — as it must — that the court cannot follow those plans if the court finds there is a substantial likelihood that the plans (or districts within them) would violate Section 2 of the Voting Rights Act (VRA) or the Constitution. That concession is no surprise: a federal court cannot, of course, adopt a redistricting plan that the court concludes violates federal law. Justice Kagan’s approach would still require the San Antonio court to start with the 2011 plans. That is the key point, for that is the major legal requirement Texas is after. And it wouldn’t change the substantive requirement that the court must accept those plans and the policy choices embedded in them, unless the court concludes that there is a substantial likelihood the plans violate federal law. All that her approach would do is shift the burden from the challengers to Texas on that question. In the context of the issues at stake, I consider that a relatively minimal benefit to the challengers — one that I do not believe would be likely to change the actual outcome on the substance of the litigation. That is why Texas would gain far more than it would lose through this “compromise.”
2. Some journalists and legal commentators have hyped this case as if it will have major consequences for Texas or for redistricting law. As I have said throughout, I think the case involves a messy but ultimately minimally significant set of procedural issues; I don’t even think the Court’s decision will have any significant effect on the districts Texas ends up using for the 2012 election cycle. I anticipate that within a month or so of the Court’s decision, one or both of two actions will occur that will immediately supersede the Court’s decision. And it will be at that point (or points) that the serious issues will actually be joined — very likely triggering another round of Supreme Court review, but this time on the issues of genuine substance and importance:
(1). The federal court in D.C. will issue its preclearance decision on the merits. If it preclears the plan, that’s the end of the matter. But based on its earlier opinions, that court seems likely to refuse to preclear at least parts of Texas’ congressional plan. If so, its decision will provide the new starting point from which any federal court plan for Texas’ district will have to be developed. The current fight over the (2) On remand from the Supreme Court, the San Antonio court acts first and concludes (as seems likely already from its initial decision) that the plan has a substantial likelihood of violating Section 2 of the VRA or the Constitution. Either of these actions on the merits will likely make irrelevant the Supreme Court’s coming decision on how to sort through the preliminary procedural wrangles.
If Texas loses the next round in either of these courts (as I expect it will), I would assume Texas would be right back before the Court asking it to hear that case on the merits. And there is a good chance the Court would agree to do so, although its current immersion in the initial procedural skirmishes in Texas might make the Court less anxious to get involved a second time. But the issues about Section 2 and 5 of the VRA involved in the DC and San Antonio courts are of great consequence for this round of redistricting in general, and the Court has shown considerable interest in these questions as it struggles with how to apply the VRA to today’s circumstances. If the Texas cases are back before the Court a second time, that is when the issues of major importance will be faced.
3. Rick Hasen has predicted the Court will decide the Texas cases by the end of this week. I’ll take the bait and predict otherwise. I think the Court has too many knots to untangle, and too many differing views internally, to act that quickly. The Court surely feels some degree of urgency, but I would bet against a decision this week.
One of the historical oddities about today’s debates over corporate money and elections is that the issue maps so directly onto partisan political differences, at least among national political players. As I’ve noted before, the deeper, long-term pattern historically has been quite different. Starting at least in the Jacksonian era, with Andrew Jackson’s war on the Bank of the United States — in significant part, because of allegations that the Bank was playing a role in partisan political contests — there have been longstanding alliances against corporate money in politics that united more conservative populists in the west and midwest with more liberal progressives in the east and that transcended conventional partisan divisions.
Arizona’s John McCain, of course, was a principal architect of the restrictions on corporate electioneering the Supreme Court struck down in Citizens United. And within the US Supreme Court, manifestations of that deep historical pattern can be seen in the fact that several Justices from the western United States who otherwise were considered conservatives or moderates strongly endorsed the power of government to limit the role of corporate money in elections — Justice O’Connor (from Arizona), Justice White (from Colorado), and Justice Rehnquist, until he changed his view at the end of his tenure (sixteen years in private practice in Arizona). But there is no one on the Court now who appears to reflect that western-style populist resistance to corporate electioneering.
It’s against this backdrop that the recent decision of the Montana Supreme Court, which upheld that state’s ban on corporate electioneering despite Citizens United, ought to be seen. What’s particularly striking about the 5-2 decision is that even the dissenting judges, who believed Citizens United required them to hold Montana’s law unconstitutional, nonetheless railed against the U.S. Supreme Court’s decision. Take a look at a couple of these passages from dissenting Justice James Nelson:
I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the
exaggerated power to influence voters and elections. . . .
Furthermore, it defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spendingcapability of corporations to place corporate views before the electorate. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections. . . .
While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. Citizens United, 130 S. Ct. at 949-50 (dissenting opinion).
Whether or not the decision of the Montana Supreme Court holds up legally, the decision is a significant signal regarding the ways in which the issue of corporate electioneering continues to transcend conventional partisan affiliations in much of the country (since 1965, Montana has voted for Republicans for President in every election except 1992) — particularly in the West, even if the issue remains a purely partisan one in Washington, D.C. Some activists, like Larry Lessig, have sought to bring the Tea Party and the Occupy Wall Street groups together around this issue (see here). Historical patterns of American political culture, which have bubbled through to the surface in the Montana Supreme Court decision, suggest a basis for believing latent coalitions of these sorts continue to exist. Whether they can be successfully mobilized, and to what effect, remains to be seen.
UPDATE: In confirmation of the perspective advanced here, a former public official in MT writes to tell me that the two leading public officials who filed affidavits testifying to the justification for the MT law were Republican and Democratic former members of the state House and Senate and candidates for the Governor’s office.
Yesterday, the indispensable Supreme Court blog ran a discussion on what we know at this stage about how much the Citizen’s United decision is affecting campaign financing. Because I have a somewhat different view on this question than Rick Hasen (see this Slate piece), I will re-post my contribution here:
There is a tendency right now to attribute to Citizens United (CU) virtually all newly emerging forms of financing elections, and the increasingly large amounts, that arose in the 2010 election cycle and that look to play an even more central role in the 2012 elections. But this tendency can reflect a complacent sensibility among critics of Citizens United that the case is the source of all evil in campaign financing, or the desire of journalists and others to craft dramatic narratives that elevate single moments into uniquely transformative events. The truth is more complicated, for at least two reasons.
First, the most significant innovation – the rise of so-called Super Pacs, which can solicit unlimited contributions for purposes of independent electioneering – probably would have happened without CU. The organizational entrepreneurs that pioneered the Super Pac form, SpeechNow, came up with this idea in 2007 and pursued this strategy long before CU. It is really Buckley v. Valeo, from 1976, not CU, that establishes that Congress cannot regulate independent electioneering spending (other than through disclosure requirements). On this issue, CU did little more than confirm what Buckley had already established. In virtually every election cycle in our highly competitive, polarized era, innovators have created new organizational forms or exploited existing ones (527 organizations, 501(c)(4) entities). Super Pacs should be understood as the most recent stage in this cycle, not as some radical new structure made possible only by CU. CU does affect whether corporate and union general treasuries can contribute to these Super Pacs; but Super Pacs, funded with unlimited contributions by wealthy individuals and various other entities would exist without CU, once aggressive innovators figured out Super Pacs would best serve their interests.
This leads to the second point: we simply do not know at this point how much corporate money is or is not flowing to Super Pacs or other campaign-finance entities. Large, publicly traded corporations might be less likely to get involved in election financing than many people tend to assume – particularly if that involvement must be publicly disclosed. A recent, authoritative study concludes that 60% of companies in the S & P 100 Index have already responded to CU by prohibiting spending corporate money on politics or disclosing their direct political spending and adopting Board oversight. Such spending risks alienating potential customers; it can trigger shareholder backlash; and, frankly, corporations probably are able to attain influence more efficiently through spending their money on lobbying on specific issues, rather than generally trying to influence election outcomes. Privately-held corporations, or those dominated by a single shareholder, are probably more likely to engage in election spending. Moreover, we are still in the middle of working out what kind of public, regulatory regime for disclosure will end up being required; the SEC, for example, has been petitioned to adopt such requirements. Until we know what kind of disclosure of direct and indirect corporate spending will be required, we won’t know how active corporations will end up being. And because we don’t have such a regime in place yet, we are left with a lot of speculation, but little actual information, about how much corporate spending is actually taking place.
The 2011 Supplement to the The Law of Democracy: Legal Structure of the Political Process (3rd ed.), written by Samuel Issacharoff, Pamela Karlan, and Richard Pildes, is now available. Foundation Press has graciously made the Supplement available without charge to casebook users. You can download the Supplement here on the Foundation Press website; click on the link for “2011 Update Memo.”
Former Governor Blagojevich’s criminal conviction for trying to sell his power to appoint someone to fill out the rest of the term left on Barack Obama’s Senate seat after Obama had been elected President helps frame this important constitutional question: when must an election, rather than a gubernatorial appointment, be used to fill a vacant Senate seat? The most important court decision on that question was handed down by the Seventh Circuit in Judge v. Quinn, and the Supreme Court recently denied cert. in the case. The Seventh Circuit concluded that the Constitution required a special election to fill out the rest of Obama’s Senate term; as a result of that election, a Republican, Ron Kirk, replaced the Democrat, Roland Burris, whom Blagojevich had appointed.
To give you a sense of the possible stakes, a group of states filed an amicus brief arguing that the Seventh Circuit’s decision would make unconstitutional the laws of 13 states for filling vacant Senate seats (I don’t know how accurate the claim is, since I haven’t studied those laws). And the Seventh Circuit itself appears to acknowledge that 27 appointed Senators, since the 17th Amendment, have served unconstitutionally under the Seventh Circuit’s ruling. The stakes for partisan dynamics in the Senate, as well as political and partisan dynamics between Governors and statewide voters, can also obviously be significant.
When it comes to filling vacant House seats, the Constitution is clear: Art. I, Sec. 2 requires the seat to be filled by election. With respect to the Senate, matters are more complicated. The 17th Amendment requires an election, but also provides that the state legislature may permit the Governor to make a temporary appointment for some period:
“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
Only two federal courts I’m aware of have addressed the relationship between these two parts, elections and appointment, of the 17th Amendment. The Quinn decision (written by Dianne Wood, who had been on the short list for both of the Supreme Court seats President Obama has filled) held that every time a vacancy occurs for a Senate seat, the 17th Amendment requires that the Governor must issue a writ scheduling a special election to fill that vacancy. Thus, the decision restores the primacy of elections in filling vacant Senate seats. The key follow-on question is how quickly an election has to be held after the vacancy occurs, or, from the other side, how long a temporary appointment can last. Here matters get trickier. Quinn concludes that state law controls issues of the timing and procedures for the election; it also holds that states have an affirmative constitutional obligation to create these rules. In this case, that meant that Illinois had to hold a special election at the next regularly scheduled general election, which was the first Tuesday in November. The State had taken the position that Burris could serve through the lame-duck session of the Senate (until Jan. 3, 2011), but the Seventh Circuit held the Constitution required a Senator elected in the November election to serve as soon as the election was certified. Thus, a Republican, not a Democrat, represented Illinois in the legislatively important lame-duck session this past year.
Going forward, Quinn will come into play now every time a Senate seat becomes vacant. Courts and political actors will be under pressure to figure out how quickly they must move toward a special election to fill vacant Senate seats, given the particularities of different states’ laws. The last session of the Senate had an exceptionally large number of appointed Senators, and Sen. Feingold sought to introduce a constitutional amendment to require a special election to fill every vacant Senate seat, but that legislative effort went nowhere. (I should note that Richard Winger has been, understandably, focused on certain ballot-access issues the case raised, but those are minor compared to the major holding on the 17th Amendment’s requirements for holding special elections to fill vacant Senate seats).
I was co-counsel for the Judge plaintiffs in the Supreme Court phase of this litigation and some aspects of the Seventh Circuit litigation, which is why I refrained from blogging about the case until the litigation on the merits was fully resolved. UPDATE: I should add that the Court did not take cert., I believe, because there is no conflict yet in the courts of appeals on these issues — as noted, this is only the second case that has ever addressed the issues — and because there were mootness problems in this case. But if a conflict in the lower courts emerges down the road, it is easy to envision the Supreme Court addressing these issues.
Much of the initial reaction to the Edwards indictment from experts in campaign-finance law has been critical or skeptical of the government’s theory. But in my view, the reaction has not been critical enough. Some skeptics think the problem with the government’s case is figuring out what the “true motives” of Edwards and his supporters were when they gave large amounts of money to keep his affair secret. If their motives were to benefit Edward’s campaign, then perhaps this money was an illegal campaign “contribution;” if their motives were anything else, like preserving Edward’s family relationships, then the money was not a campaign contribution. On this view, the government has a difficult, but not impossible, problem on its hands only because sorting out mixed motives in a situation like this is extraordinarly complex. This is Rick Hasen’s view of the case: the government’s case is difficult, but plausible, because if the government can prove Edwards and the donors “really intended” the money to benefit his campaign, then a crime will have been committed.
But I believe the government’s case is even more tenuous than Hasen’s view suggests. What constitutes a “campaign contribution” under the federal election law for criminal-law purposes must be defined in objective terms. The definition of a “contribution” cannot turn on the subjective motive of the actors involved. There are a limitless number of ways supporters of a candidate can spend money that could indirectly benefit the electoral prospects of that candidate. Whether any of these means are “contributions” or not should depend, for purposes of criminal law, on objective facts, not on whether those involved intended to benefit some candidate. For example, if a candidate has published an autobiography, a supporter could buy up thousands of copies of the book and help turn it into a bestseller, which could enhance the candidate’s stature and visibility. Most forms of this kind of indirect activity will cost more than the $2300 cap on campaign contributions (at $25 a book, buying 93 books would exceed that cap). But the courts are unlikely to accept the view that whether buying up these books constitutes a crime turns on whether the purchases were motivated by a desire to help the campaign or, instead, a belief in the correctness of the ideas expressed and a desire to share those ideas with others. Motives are irrelevant. The FEC has already recognized this in the flip-side of the Edwards case; when a donor gives money directly to a candidate, this will be treated as a contribution, regardless of whether the donor says my real motive is to give a gift to the candidate, not a campaign contribution. But just as subjective intent cannot turn a contribution into something else, it cannot turn something not a contribution into one. There are two points here: (1) not every form of spending that indirectly benefits a candidate is, in legal terms, a “campaign contribution;” (2) determining which forms of spending are contributions cannot turn on whether the actors involved are motivated to help the campaign or not — especially in the criminal-law context, where due process considerations require that potential defendants have clear notice of whether their conduct constitutes a crime or not.
The question in the Edwards case is thus whether money given to support a mistress is, under the law, a campaign “contribution,” period, regardless of trying to sort out why the money was given. Based on my knowledge of the election laws, I find it hard to believe the courts will answer yes to that question. For one, the money involved here was not a substitute for money the campaign itself might otherwise have spent; indeed, if Edwards has used campaign money to support his mistress, that would itself have violated the criminal law. So the donors did not save the Edwards campaign from spending money it might otherwise have spent. Criminal prosecutions under the federal election laws are extremely rare to begin with; the government has never brought a criminal case involving an expansive notion of “contribution,” let alone one as expansive as this case involves. Indeed, even in the civil context, the FEC has never tried to stretch the definition of “contribution” this far. The money spent here is almost certainly not a “contribution” within the meaning of the election laws, at least for criminal-law purposes. I believe at least nine out of ten election-law experts would have been of that view before this prosecution was announced. But even if there is uncertainty about that, the Constitution prohibits criminal prosecutions under statutes that are too vague to provide fair notice about the boundaries between lawful and criminal conduct.
The confusion on this issue might be a result of the fact that specific intent is necessary to establish a criminal violation of the federal campaign finance laws. Thus, the government must generally prove that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge. But the fact that intent is necessary doesn’t mean it’s sufficient: the payments either are contributions, within the meaning of the law, or they are not. Whatever motivated the donors or Edwards cannot turn spending that is not a contribution into a contribution. I have no sympathy as a moral matter for John Edwards, but regardless of his motives, I doubt the courts are going to accept the view that he can be prosecuted for criminal violations of the federal campaign-finance laws — regardless of whether he or his donors intended to benefit his campaign through the payments.