“Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism”

Bertrall Ross has posted this draft on SSRN (University of Chicago Legal Forum).  Here is the abstract:

What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.

In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.

I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.


Must-Buy: Bruce Cain’s “Democracy More or Less”

The book is out today, and you can’t be in the election law field without reading it.  Here are the blurbs, including my own:

“Everyone talks about the dysfunction of American politics, but very few people have practical or thought-through ideas on what to do about it. Bruce Cain has studied this topic extensively as a scholar and has first-hand experience in the cauldron of California’s ongoing experiments in structural reform. In this book he explains the conceptual weakness in today’s most popular reform proposals and offers a convincing alternative. I hope this book informs media, academic and public discussions of a way out of our political morass.”
James Fallows, National Correspondent, The Atlantic

“Bruce Cain has written a remarkable, deeply insightful book about the American experience with political reform. His survey is wide-ranging, distinguishing throughout a populist vision of tight citizen control of government from a pluralist call to protect the role of interest groups, parties and other intermediaries in building coalitions and encouraging workable compromise. Campaign finance, redistricting, election administration, transparency and conflict-of interest regulation are among the topics that receive careful attention, and Cain offers both keen criticism of policy failure and a fresh path forward. Scholars and policy-makers will be turning to this book for years to come.”
Bob Bauer, New York University School of Law and Co-Chair of the Presidential Commission on Election Administration

Democracy More or Less is a crowning achievement from one of the leading thinkers on election law and politics. Bruce Cain’s must-read account of the failures of political reform efforts in the US should be carefully studied by everyone who believes in easy solutions to the problem of money in politics, redistricting, polarization and representation. Cain’s proposed solutions merit our attention and serious consideration.”
Rick Hasen, School of Law, University of California, Irvine

“In this wide-ranging study Cain argues that reforms often fail because they reflect a misguided attempt to increase popular democracy. In his view the latter is like homeopathic medicine, taken in small amounts it may be helpful, but in larger amounts it is harmful.”
Morris Fiorina, Senior Fellow at the Hoover Institution

“This is a book all sides of the political reform debate should read. Its fresh thinking and insightful analysis will probably fully please no side, but it will help all sides better understand the scope of the issues and what others are thinking.”
Benjamin L. Ginsberg, Attorney, Jones Day

“Finally, a book on American democracy that challenges romantic, populist ‘reform’ naiveté and insists that serious and productive reform must instead take into account the way political power is actually constructed, mobilized and channeled – particularly through organizations, including political parties, that inevitably and desirably exist between the isolated citizen and effective political participation. Deceptively short and accessible, this book raises profound and necessary challenges to more conventional ways of thinking about the nature and fate of democracy in America.”
Rick Pildes, New York University School of Law


“Why we still need to worry about money in politics”

Lee Drutman for the Monkey Cage:

Over at the New York Times, Binyamin Appelbaum is the latest columnist to downplay the role of money in politics. His new column, “Who Wants to Buy a Politician?” has the same basic conclusion as David Brooks’s October column “Money Matters Less”:  Money in politics isn’t buying much of anything. But this conclusion isn’t warranted. We do still need to worry about money in politics. Here’s what Appelbaum gets wrong, and why it matters.


“Wall St. Had Invested Heavily in Dodd-Frank Changes”

Eric Lipton for the NYT:

For Wall Street it must seem like money well spent.

An analysis of the House vote on Thursday on the $1.1 trillion federal budget bill — which included a contested provision that will roll back a key rule of the Dodd-Frank law — shows that Democrats who voted in favor of the measure on average received nearly four times as much money from large financial institutions as others who voted “no.”


“G.O.P. Angst Over 2016 Led to Provision on Funding”

Nick Confessore for the NYT:

The secret negotiations that led to one of the most significant expansions of campaign contributions in recent years began with what Republican leaders regarded as an urgent problem: How would they pay for their presidential nominating convention in Cleveland in two years?

The talks ended with a bipartisan agreement between Senate Democrats, led by the majority leader, Harry Reid of Nevada, and House Republicans, led by Speaker John A. Boehner of Ohio, that would allow wealthy donors to begin giving more than $1 million every election cycle to each party’s national committees.


Bush v Gore Reflections

Today is the 14th anniversary of the decision marking the end of the 2000 election controversy. On the decision’s 10th anniversary, I posted a series of reflections on the case.  You can find that and more at my Bush v. Gore reflections tab. 

          Six Reflections on Bush v. Gore

Today is the tenth anniversary of the Supreme Court’s decision in Bush v. Gore, ending the Florida recount and handing the 2000 presidential to George W. Bush. Here is a link to the reflections in this series:
Lyle Denniston, That Night at the Courthouse
Ned Foley, Bush v. Gore in Historical Perspective (Moritz)
Heather Gerken, Rethinking the 2000 Fiasco
Rick Hasen, Election Hangover: The Real Legacy of Bush v. Gore (Slate)
Nate Persily, Bush v. Gore in the American Mind
Rick Pildes, That Night Ten Years Ago
After reading Nate’s contribution, I wonder if the 20th anniversary will go even more unnoticed. In my Remedies class, I always teach about the most controversial stay order in history, the Supreme Court’s Dec. 10, 2000 order stopping the statewide recount of undervotes ordered by the Florida Supreme Court. I used to say to my students, with a great laugh: “There was a disputed election in Florida, you may have heard about it.” Now, ten years later, when I teach the same stay order, I say with a completely straight face: “There was a disputed election in Florida, you may have heard about it.” Many of those students were in middle school when Bush v. Gore was decided. In 2020, I’m guessing most students would have been in diapers when the case was decided. Time marches on.


Top Recent Downloads in Election Law on SSRN

(my bimonthly listing)



RECENT TOP PAPERS for all papers first announced in the last 60 days
13 Oct 2014 through 12 Dec 2014

Rank Downloads Paper Title
1 326 Governing and Deciding Who Governs
Josh Chafetz
Cornell Law School
Date posted to database: 12 Nov 2014
Last Revised: 12 Nov 2014
2 136 Understanding Electoral Politics in Solomon Islands
Terence Wood
Australian National University (ANU) – Crawford School of Public Policy
Date posted to database: 5 Oct 2014
Last Revised: 11 Nov 2014
3 133 Things Aren’t Going That Well Over There Either: Party Polarization and Election Law in Comparative Perspective
David Schleicher
George Mason University School of Law
Date posted to database: 19 Nov 2014
Last Revised: 19 Nov 2014
4 131 Campaign Finance and American Democracy
Yasmin Dawood
University of Toronto – Faculty of Law
Date posted to database: 22 Nov 2014
Last Revised: 22 Nov 2014
5 52 Ballot Bedlam
Samuel Issacharoff
New York University School of Law
Date posted to database: 16 Nov 2014
Last Revised: 16 Nov 2014
6 47 The Intratextual Independent ‘Legislature’ and the Elections Clause
Michael T Morley
Barry University School of Law
Date posted to database: 28 Oct 2014
Last Revised: 28 Oct 2014
7 43 Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule
Gabriel J. Chin
University of California, Davis – School of Law
Date posted to database: 8 Oct 2014
Last Revised: 8 Oct 2014
8 42 Ballot (and Voter) ‘Exhaustion’ Under Instant Runoff Voting: An Examination of Four Ranked-Choice Elections
Craig M. Burnett and Vladimir Kogan
University of North Carolina (UNC) at Wilmington and Ohio State University (OSU) – Department of Political Science
Date posted to database: 7 Nov 2014
Last Revised: 7 Nov 2014
9 37 The Meme of Voter Fraud
Atiba R. Ellis
West Virginia University – College of Law
Date posted to database: 22 Oct 2014
Last Revised: 2 Dec 2014
10 31 Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation
Roseann R. Romano
University of Iowa – College of Law
Date posted to database: 24 Oct 2014
Last Revised: 24 Oct 2014

“Tea Party Angered by Fundraising Change in Spending Bill”

Now this is an interesting development. On the one hand, you would think groups like Citizens United would be opposed to any remaining limits on money in politics on ideological grounds. On the other hand, these are insurgent groups who compete against the establishment, and would rather see money flow to outside groups rather than the parties. Plus, as I detail in this piece, tea party folks sometimes rail against campaign money and lobbying as part of “crony capitalism.”


“What Do I Need to Vote? Bureaucratic Discretion and Discrimination by Local Election Officials”

White, Nathan, and Faller have this draft coming out in APSR.  Here is the abstract:

Do street-level bureaucrats discriminate in the services they provide to constituents? We use a field experiment to measure differential information provision about voting by local election administrators in the United States. We contact over 7,000 election officials in 48 states who are responsible for providing information to voters and implementing voter ID laws. We find that officials provide different information to potential voters of different putative ethnicities. Emails sent from Latino aliases are significantly less likely to receive any response from local election officials than non-Latino white aliases and receive responses of lower quality. This raises concerns about the effect of voter ID laws on access to the franchise and about bias in the provision of services by local bureaucrats more generally.

Paul Gronke has more.


The Unsurpri$ing Connection Between the Two Odious Parts of the #Cromnibus

Progressive revolted over two provisions in the massive compromise spending bill about to become law.  One provision rolls back banking regulation of derivatives under the Dodd-Frank Act passed during the financial crisis. The other provision will vastly increase the amount of money which individuals can donate to political parties. A couple could give their favorite political party over $3 million during a two-year election cycle. (It is quite sad for the House to pass the provision the night of Tom Mann’s retirement party from Brookings; Tom was so instrumental in the writing and passage of the McCain-Feingold law, whose soft money limits have now been severely undermined by the Cromnibus.)

The two objectionable provisions might seem unrelated, but in fact they are quite interrelated. Both show the importance of the role of money and influence in Washington.  On the derivatives law heavily favored by the banking industry, the NYT explains: “The language in the spending bill was inserted by Representative Kevin Yoder, Republican of Kansas, but he did not write it. Citigroup did. In 2013, the bank and its allies were able to corral a bipartisan vote to pass the rollback out of the House Financial Services Committee. In an analysis by The New York Times of Citigroup emails, more than 70 lines of the committee’s 85-line rollback bill came from Citigroup’s recommendations. The banking industry strongly supports the rollback measure. James C. Ballentine, an executive vice president at the American Bankers Association, said financial instruments like credit deferred swaps are used to mitigate risk, not bolster it. To force their trading into units unprotected by federal taxpayers would be onerous, he argues.”

On the campaign finance measure, this was not something that anti-regulationist Mitch McConnell forced on unwilling Democrats.  This was negotiated by Senate Majority leader Harry Reid and likely supported by President Obama. No one has been a bigger hypocrite on campaign finance than President Obama, who has always talked about the need for campaign finance reform while his actions did a tremendous amount to undermine and weaken existing law.

Neither of these provisions were the subject of hearings or deliberation. Both were snuck into a massive bill through the back door at the behest of the powerful.

The Citibank provision got in the law because those with wealth have the best access and the greatest ability to influence law, especially on technical issues which are unlikely to rile up the public. The campaign finance provision is inside baseball and not salient for most people, who already believe money is out of control because of Citizens United. What that analysis misses is that as the money gets even closer to the politicians, politicians get to demand more money from the wealthy for access and reward them with a greater ability to influence both policy and elections.

The problem here, as I am detailing in my book in progress, is that in times of rising economic inequality we are witnessing an unprecedented ability for the wealthy to translate their economic power into political power, undermining political equality and our democracy.

A very sad day indeed.


“FEC Still Deadlocked on Enforcement 18 Months After Counsel’s Departure”

Bloomberg BNA: “The Federal Election Commission deadlocked in a 3-3 vote after a contentious debate on a long-pending proposal by Republican commissioners to limit the authority of FEC staffers in the agency’s Office of General Counsel to investigate alleged campaign finance violations and share information with the Justice Department and other government agencies.”


Reid and Boehner Slipped in Controversial Party Campaign Finance Measure


House Majority Leader Kevin McCarthy (R-Calif.) and his staff have been in contact with Minority Whip Steny Hoyer (D-Md.) throughout the whole process, despite Minority Leader Nancy Pelosi’s (D-Calif.) public proclamation that Democrats were worried about provisions tucked into the bill that would loosen Wall Street regulations and campaign finance laws.

In fact, the deal to jack up donation limits to national party committees was negotiated by top aides to a leading Democrat and Republican: Speaker John Boehner and Senate Majority Leader Harry Reid.

Despite Pelosi’s protest, many institutional Democrats are no doubt ecstatic about these proposed campaign finance changes—it will be like the pre-McCain-Feingold era of soft money again, with parties giving extra special access to the most generous party patrons.


“Party fundraising provision, crafted in secret, could shift money flow in politics”


A massive expansion of party fundraising slipped into a congressional budget deal this week would fundamentally alter how money flows into political campaigns, providing parties with new muscle to try to wrest power back from independent groups.

The provision — one of the most significant changes to the campaign finance system since the landmark McCain-Feingold measure — was written behind closed doors with no public debate. Instead, it surfaced at the last minute in the final pages of a 1,603-page spending bill, which Congress is rushing to pass to keep government operations from shutting down.


ELJ 13:4 Now Available Online, with Commentaries on Cain

The table of contents and links are here.  The issue features a forum on Bruce Cain’s new book Democracy More or Less: America’s Political Reform Quandry, with papers from a conference at Ohio State last year.  The forum is guest co-edited by Ned Foley and Piers Turner, and includes contributions from Ned, Piers, Michael Neblo, Paula Baker, Stéphane Lavertu, and me along with a reply from Bruce.


Election Law and Legislation at the AALS Annual Meeting

Going to the 2015 AALS Annual Meeting, January 2-5 in Washington, DC?  Trying to decide whether to go?  It’s a bumper year for those interested in Election Law and Legislation, with these panels of interest on the program:

Saturday, January 3, 2015

10:30 am – 12:15 pm Legislation & Law of the Political Process, Co-Sponsored by Section on Administrative Law Legislation/Regulation and the Core Curriculum (Papers to be published in Journal of Legal Education)

  • James J. Brudney, Fordham University School of Law
  • Abbe Gluck, Yale Law School
  • John F. Manning, Harvard Law School
  • Kevin Stack, Vanderbilt University Law School
  • Daniel P. Tokaji, Chris Walker & Dakota Rudesill, The Ohio State University, Michael E. Moritz College of Law
  • Speaker from a Call for Papers: Deborah A. Widiss, Indiana University Maurer School of Law
  • Moderator: Olatunde C. Johnson, Columbia University School of Law

10:30 am – 12:15 pm Nonprofit and Philanthropy Law, Co-Sponsored by Section on Taxation IRS Oversight of Charitable and Other Exempt Organizations – Broken? Fixable? (Papers to be published in Pittsburgh Tax Review)

  • Ellen P. Aprill, Loyola Law School
  • James J. Fishman, Pace University School of Law
  • Philip Hackney, Louisiana State University, Paul M. Hebert Law Center
  • Terri L. Helge, Texas A&M University School of Law
  • Donald B. Tobin, University of Maryland Francis King Carey School of Law & Daniel P. Tokaji, The Ohio State University, Moritz College of Law
  • Moderator: Mr. Marcus S. Owens, Caplin & Drysdale, Chartered

Sunday, January 4, 2015

8:30 am – 10:15 am Civil Rights Voter Suppression, the 2014 Elections and Beyond

  • Kareem U. Crayton, University of North Carolina School of Law
  • Joshua Douglas, University of Kentucky College of Law
  • Irving L. Joyner, North Carolina Central University School of Law
  • Spencer Overton, The George Washington University Law School
  • Daniel P. Tokaji, The Ohio State University, Moritz College of Law (subbing for Michael E. Waterstone)
  • Moderator: Gilda Daniels, University of Baltimore School of Law

2:00 pm – 3:45 pm Election Law The Voting Rights Act at 50 (Papers to be published in Election Law Journal)

  • Kareem U. Crayton, University of North Carolina School of Law
  • Christopher S. Elmendorf, University of California at Davis School of Law
  • David J. Gartner, Arizona State University Sandra Day O’Connor College of Law
  • Pamela S. Karlan, U.S. Department of Justice, Civil Rights Division
  • Daniel P. Tokaji, The Ohio State University, Moritz College of Law
  • Moderator: Joshua Douglas, University of Kentucky College of Law

4:00 pm – 5:45 pm AALS Hot Topic/Bridge Program – Citizens Invited: Scholars and Professors in the Campaign Finance Wars Citizens Invited: Scholars and Professors in the Campaign Finance Wars (A program selected from a competitive process by the AALS Committee on Special Programs for the Annual Meeting)

  • Joshua Douglas, University of Kentucky College of Law
  • Joseph R. Fishkin, The University of Texas School of Law
  • Lawrence Lessig, Harvard Law School
  • Eugene D. Mazo, Wake Forest University School of Law
  • Spencer Overton, The George Washington University Law School
  • Jamin Ben Raskin, American University, Washington College of Law
  • Bradley A. Smith, West Virginia University College of Law
  • Zephyr Teachout, Fordham University School of Law
  • Franita Tolson, Florida State University College of Law
  • Ciara Torres-Spelliscy, Stetson University College of Law
  • Moderator: Richard Albert, Boston College Law School

Monday, January 5, 2014

10:30 am – 12:15 pm Constitutional Law Perspectives on Federal Power Under the Reconstruction Amendments (Papers to be published in University of Pennsylvania Journal of Constitutional Law Online)

  • William D. Araiza, Brooklyn Law School
  • Allison Orr Larsen, William & Mary Law School
  • Douglas Laycock, University of Virginia School of Law
  • Bertrall Ross, University of California, Berkeley School of Law
  • Moderator: Derek T. Muller, Pepperdine University School of Law

2:00 pm – 3:45 pm Law and Interpretation Richard Posner and Stanley Fish: Revisiting Interpretation

  • Stanley Fish, Florida International University College of Law
  • The Honorable Richard Allen Posner, The University of Chicago, The Law School
  • Moderator: Brett Gilbert Scharffs, Brigham Young University, J. Reuben Clark Law School

We might as well just take over the whole conference, don’t you think?

Note that the Election Law program is the inaugural one for our new section, ably chaired by Josh Douglas, so it would be great to have a big turnout.  Hope to see you there!