“Political Powerlessness”

Nick Stephanopoulos has posted this draft on SSRN (forthcoming NYU Law Review).  Here is the abstract:

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determines whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism, the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power — one that (1) is continuous rather than binary; (2) spans all issues; (3) focuses on policy enactment; and (4) controls for group size; and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.



“In lawsuit, ACLU says the First Amendment protects anonymous political speech”

KC Star:

The Missouri office of the American Civil Liberties Union filed a federal lawsuit Wednesday seeking to protect anonymous political speech in the state.

The group is representing “John Doe” — a businessman in Ferguson, Mo., who wants to publish material about the city’s upcoming municipal elections.

Missouri law says campaign communications must include the name and address of the sponsor. But the businessman says he’s afraid of retribution if he identifies himself, so he wants to provide the material anonymously.

The ACLU’s lawsuit says requiring a name and address on political communications violates the First Amendment.


“Insincere Rules”

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

Sincere rules mandate behavior a rule-maker wants, while insincere rules mandate different behavior. To illustrate, if a legislator wants cars to travel at 55 miles per hour, she could adopt a sincere rule — a speed limit of 55 — or an insincere rule, such as a speed limit of 45. When enforcement is costly, rule-makers can use insincere rules to improve the behavior of regulated parties. This works through two mechanisms, one punitive and the other deceptive. The first operates when insincere rules turn minor violations of law into major ones that carry a severer sanction. To illustrate, the penalty for driving 56 miles per hour usually increases if the speed limit drops from 55 to 45. The second mechanism operates when insincere rules convey a false impression of the governing law. To illustrate, if drivers believe the “real” speed limit is 55, they may go 56, but if they believe the real limit is 45, they may go slower than 56. Insincere rules get the law in books wrong but the law in action right. They can benefit rule-makers in many circumstances, and they may permeate legal systems worldwide.



A Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin Voter ID Case

This morning the Supreme Court without comment refused to take up Frank v. Walker, the Wisconsin voter id case. Taking the case to the Supreme Court divided the civil rights community. As I noted last week, those who hoped the Supreme Court would hear the case were betting that Chief Justice Roberts or Justice Kennedy were going to have the same kind of epiphany that Judge Posner of the 7th Circuit had. Judge Posner had voted to uphold Indiana’s voter id law back in the mid-2000s when it was challenged. Judge Posner saw the requirement as no big deal. But by last year, Judge Posner was writing that such laws have now been generally recognized as a means of suppressing likely Democratic votes than as a means of fraud prevention. (The evidence that such laws deter any significant amount of impersonation voter fraud is thin indeed.) But it is not clear that Kennedy and Roberts, the conservative Justices likely in the middle of the Court on this issue have had a similar religious conversion on the issue. The four liberals could have forced a hearing in this case (by voting to grant cert) but they must not have been confident of the religious conversion either.  Similarly, DOJ has done very little to support this case. They are betting on Texas (and to some extent North Carolina), hoping those cases will be better vehicles for getting voter id laws struck down. But relying on Texas to ultimately help Wisconsin is risky. CIn the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.

Had the Court agreed to hear the Wisconsin case, it is possible it would have read Section 2 of the Voting Rights Act even more narrowly in cases of vote denial, as well as make bad law on the scope of the equal protection clause. In this way, the Court’s refusal to hear Wisconsin’s voter id case may be a blessing in disguise. As I’ve long argued, the best way for liberals to cut their losses is to stay out of the Supreme Court when possible. Things could have been worse if the Court took Wisconsin than if they didn’t.  And if you trust Justice Ginsburg, trust her her in not voting to grant cert in this case.

There’s an immediate question: what about the use of voter ID in Wisconsin in the April 7 election?  ACLU is already moving to block its use so close to the election. That seems like a motion likely to succeed. Remember the Supreme Court blocked Wisconsin’s voter id law in the fall from going into immediate effect, likely because there was not enough time for a rollout of the law. The Court apparently applied what I’ve been calling the Purcell principle: the idea that you don’t change election rules in the period just before the election.  So while we likely won’t see the id in place in an election where early voting is already underway. It’s coming before the 2016 elections.


The Political Safeguards of Horizontal Federalism

Over at Balkinization, I’ve been blogging (here, here, here, and here) about the benefits associated with spillovers, which occur when one state’s policies affect citizens of another state. Most of those arguments have to do with my other field, federalism. But they are relevant to two debates in election law. First, to the extent that election law scholars are interested in the role that political parties play in safeguarding vertical federalism, a topic that has inspired great articles from both Larry Kramer and Jessica Bulman-Pozen, I speculate that political parties play an equally important role in safeguarding horizontal federalism. Second, to the extent that we are all worried about polarization and the “big sort,” interstate spillovers may provide a partial antidote to polarization’s worst excesses. That’s because they force all of us to live under someone else’s law. You might think that living under someone else’s law is a terrible thing because it violates the deep-seated democratic principle of self-rule. But democracy isn’t only about self-rule; it’s also about ruling together. Given our impulse to retreat into our all-too comfortable red or blue enclaves, it’s very useful for our worlds to collide now and then. Those collisions give us a chance to see how other people live, to live under someone else’s law, to try someone else’s policy on for size. Democracy, in short, requires us to do just what spillovers require us to do: Work it out. Sometimes we work it out directly. Sometimes we need a referee. Sometimes we just take our lumps and live under a policy we don’t like. And we do so for a simple reason: We’d rather live with other people than without them.


Rick Perry Slips and Refers to Himself as “the Candidate”

Des Moines Register:

Because he’s not a declared presidential candidate yet, Perry in his prepared remarks at a Dallas County GOP event Thursday evening was careful to say he’s in Iowa to push for the election of all constitutional conservatives — in state government, in Congress and “obviously, the president of the United States.”

But he slipped up in a question-and-answer session when a reporter asked him about remarks one of his new aides had made in 2011. “I’m the candidate,” Perry stressed. “And my views are the ones that matter, not” those of Jamie Johnson, whose hire was announced Wednesday.

(h/t Political Wire)


“McConnell Makes Changes, but Senate Gridlock Remains”


WASHINGTON — When he became majority leader, propelled by sweeping Republican victories last year, Senator Mitch McConnell of Kentucky vowed to run a more productive and traditional Senate than his Democratic predecessor, Senator Harry Reid of Nevada.

In some ways, that has come to pass. Democrats have been given greater opportunity to amend bills than Republicans had when Mr. Reid had a majority. Mr. McConnell promised there would be no government shutdown, and he averted one over funding the Department of Homeland Security. And, occasionally, senators now have to work on Fridays.

But when it comes to the central role of a Senate leader — getting things done — Mr. McConnell has been impeded by internal struggles in his party and the hostility that awaits him across the aisle.


“Leveling the Playing Field? The Role of Public Campaign Funding in Elections”

Tilman Klumpp, Hugo Mialon, and Michael Williams have posted this draft on SSRN (forthcoming, American Law and Economics Review).

In a series of First Amendment cases, the U.S. Supreme Court established that government may regulate campaign finance, but not if regulation imposes costs on political speech and the purpose of regulation is to “level the political playing field.” The Court has applied this principle to limit the ways in which governments can provide public campaign funding to candidates in elections. A notable example is the Court’s decision to strike down matching funds provisions of public funding programs (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 2011). In this paper, we develop a contest-theoretic model of elections in which we analyze the effects of public campaign funding mechanisms, including a simple public option and a public option with matching funds, on program participation, political speech, and election outcomes. We show that a public option with matching funds is equivalent to a simple public option with a lump-sum transfer equal to the maximum level of funding under the matching program; that a public option does not always “level the playing field” but may make it more uneven and can decrease as well as increase the quantity of political speech by all candidates, depending on the maximum public funding level; and that a public option tends to increase speech in cases where it levels the playing field. Several of the Supreme Court’s arguments in Arizona Free Enterprise are discussed in light of our theoretical results.



“Corporate Speech and the First Amendment: History, Data, and Implications”

This looks like a must-read from John Coates:

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.



“Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey”

Oguzhan Dincer and Michael Johnston have posted this draft on SSRN.  Here is the abstract:

Using data from the “Edmond J. Safra Center for Ethics Corruption in America Survey”, we construct indices measuring two specific forms of corruption across American states: illegal and legal. We define illegal corruption as the private gains in the form of cash or gifts by a government official, in exchange for providing specific benefits to private individuals or groups, and legal corruption as the political gains in the form of campaign contributions or endorsements by a government official, in exchange for providing specific benefits to private individuals or groups, be it by explicit or implicit understanding. We then put our indices to work and investigate why some states are more corrupt than the others. In addition to demographic and economic variables we also investigate how political participation effects corruption depending on how well it is covered by the media. Our results suggest that we have a lot to learn about the politics of corruption control.

I’m working on a paper on this topic posting soon, reaching similar conclusions.  Looking forward to reading this.


“WyLiberty Attorneys File Brief in Wisconsin Free Speech Case”


Wyoming Liberty Group attorneys filed an amicus curiae (friend-of-the-court) brief in the Wisconsin Supreme Court today in Three Unnamed Petitioners v. Peterson, a case consolidated with two others in what has become known as the “Wisconsin John Doe Investigation.” The prosecution in each case alleges illegal campaign finance coordination between political groups and ostensibly members of Wisconsin Governor Scott Walker’s campaign. WyLiberty’s brief argues that Wisconsin law governing coordination is unconstitutionally overbroad, and the latest effort to criminalize political participation.



“FEC Ruling Allows Foreign Volunteers To Provide PAC With Intellectual Property”

Bloomberg BNA:

The Federal Election Commission voted 4-2 to approve a controversial, long-pending advisory opinion allowing a political action committee to receive intellectual property produced by foreign volunteers.
The vote at an FEC open meeting March 19 fell mainly along party lines, with one Democratic commissioner, FEC Chairwoman Ann Ravel, joining the three FEC Republicans to approve the ruling. Two commissioners holding Democratic seats, Steven Walther and Ellen Weintraub, dissented.
Approved was an advisory opinion (AO 2014-20) allowing a political action committee called Make Your Laws, or MYL PAC, to receive computer services from foreigners using open-source code, which could then become the intellectual property of the PAC.

Two Election Law Cases Lead off @SCOTUSBlog’s Petitions to Watch List for Mar. 20 Conference



Issue: (1) Whether a state’s voter ID law violates the Equal Protection Clause where, unlike in Crawford v. Marion County Election Board, the evidentiary record establishes that the law substantially burdens the voting rights of hundreds of thousands of the state’s voters, and that the law does not advance a legitimate state interest; and (2) whether a state’s voter ID law violates Section 2 of the Voting Rights Act where the law disproportionately burdens and abridges the voting rights of African-American and Latino voters compared to White voters.


Issue: Whether and to what extent false statements of fact, which are designed to deceive voters, are protected by the Free Speech Clause of the First Amendment.


“Voting Rights Advocates Settle Voter Registration Suit”

Press release: “Today, voting rights advocates announced a settlement with the Massachusetts Department of Transitional Assistance (DTA) that will ensure that hundreds of thousands of eligible Massachusetts citizens are provided opportunities to register to vote in compliance with the National Voter Registration Act (NVRA). In light of the settlement, the parties have jointly requested that U.S. District Court Judge Denise J. Casper enter an order dismissing the claims against the DTA. The settlement will become effective when Judge Casper enters the requested order.”


DOJ’s Silence on the Wisconsin Voter ID Case Before SCOTUS

Linda Greenhouse joins the chorus of people calling for the Supreme Court to agree to hear Frank v. Walker, the Wisconsin voter id case, up for a Supreme Court conference vote on Friday. (I think it is very unlikely we will hear anything Monday, when the Court next issues orders.  If the court is seriously considering the case, it has been taking two conferences to vet the cases to make sure they are appropriate vehicles to hear issues. If there is a cert. denial, I would expect a dissent from that decision, given Justice Ginsburg’s earlier strong dissent in the Texas case).

But conspicuously absent from the set of filings from amici calling for the Supreme Court to hear the case is the United States Department of Justice. DOJ’s failure to support the cert. petition stands in sharp contrast to the Texas voter id case and the challenge to North Carolina’s strict voting case, where DOJ is an active participant beginning at he level of the trial court. It is also in contrast with DOJ filing an amicus brief in the 7th Circuit in the Wisconsin case, urging the 7th Circuit to affirm a lower court holding that Wisconsin’s law violated both Section 2 of the Voting Rights Act and the Constitution’s equal protection clause.

What explains DOJ’s silence? Within the voting rights community, the decision to seek cert. in the Wisconsin case is controversial. To win, it requires the Court to either expand the scope of the Voting Rights Act section 2 in the vote denial cases or to reinvigorate the equal protection clause in the context of voting rights beyond that which the Court did in the Crawford v. Marion County case.

Crawford, like Frank, came up from the 7th Circuit as a horrible opinion from a Seventh Circuit judge. I wrote an oped in the Washington Post urging the Supreme Court to take the case. It did, and the Supreme Court made things worse. Crawford was essentially a green light for ever more restrictive voter id laws.

Why should now be different? The Frank decision is also horrible. But the judge who wrote the horrible Crawford opinion in the Seventh Circuit, Judge Posner, had a revelation that voter id laws were about voter suppression rather than fraud prevention. Judge Posner wrote a fiery dissent in the Wisconsin case now, and the 7th circuit [corrrected] divided 5-5 on whether to rehear the Wisconsin case en banc. Those supporting the cert. petition in the Wisconsin case, like Linda Greenhouse, are betting that Justice Kennedy and/or Chief Justice Roberts will have a similar revelation on voter id. That’s a big, big bet.

Compare that to Texas. In the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.

But before this Supreme Court, DOJ may have calculated it will take what it can get.

UPDATE: Sasha Samberg-Champion writes:

I am formerly of the DOJ’s Civil Rights Division and a great fan of your site.  I think you are a little off in your tea leaf reading with respect to the Wisconsin Voter ID case.  As a matter of policy, the SG’s office virtually never files in support of someone else’s cert petition (as opposed to filing its own petition).  That is true even where the DOJ has weighed in as amicus below.  Rather, the SG’s office will weigh in regarding the cert petition only in response to a CVSG (call for the views of the SG).  My understanding is that this policy is precisely to avoid this sort of speculation.  There are thousands of cert petitions filed each year and the DOJ does not want its failure to file in support in any one of them to be read as having any meaning (nor, for that matter, does it want to be lobbied incessantly, and have to make a difficult decision, with respect to each petition).  So the “failure” to file in this case is unsurprising; it would have been surprising for the DOJ to weigh in before being asked by the Court.

Interesting. Though my sense is that this case is of such importance that DOJ would have weighed in if the government thought this case was likely winnable.



Senator Durbin Plays the Race Card

I usually am skeptical of claims that someone is improperly injecting race into a political issue. But I find Senator Durbin’s comments about Republican obstructionism (and it is obstructionism) on the nomination of Loretta Lynch to be attorney general to be an improper injection of race into a purely political issue:

“And so, Loretta Lynch, the first African American woman nominated to be attorney general, is asked to sit in the back of the bus when it comes to the Senate calendar,” Durbin said on the Senate floor Wednesday morning. “That is unfair. It’s unjust. It is beneath the decorum and dignity of the United States Senate. This woman deserves fairness.”

Durbin, of course, was comparing Lynch to Rosa Parks, the civil rights icon who in 1955 refused to give up her bus seat to a white passenger.