“Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases”

New report from Joanna Shepherd and Michael Kang:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law. With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases. These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications. Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves. Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.


“New Election Ruling Allows Candidates To Remain Completely Anonymous Throughout Campaign”

The Onion: “Explaining that the measure is intended to protect politicians’ right to free expression against undue scrutiny from the general population, a new ruling implemented this week by the Federal Election Commission allows candidates running for public office to remain completely anonymous throughout the campaign process.”


“Rocky Mountain Gun Owners: We’re suing secretary of state, Ethics Watch”

Colorado Independent: “Colorado’s rough-and-tumble politics firearm-liberty group Rocky Mountain Gun Owners is headed back to court. It is suing the secretary of state’s office and nonprofit Colorado Ethics Watch to keep the identities of its donors secret, even after stipulating in court documents that it has violated state campaign-finance-disclosure laws.”


“Parties’ Most Important Donors: The Fantastically Rich”

NYT First Draft:

New fund-raising tallies filed by two leading “super PACs” show just how dependent each party’s Senate candidates have become not just on rich donors, but on an incredibly small number of incredibly rich donors.

Take the Senate Majority PAC, the Democratic group founded by former aides of the Senate majority leader, Harry Reid. The PAC has led all outside groupson behalf of Senate Democrats in their battle to hold on to the Senate.

Through the end of September, the group had raised about $47 million. About half of it, $23.1 million, came from just 16 people or corporate entities they control. About $11 million came from labor unions, whose contributions are drawn from members’ dues and contributions.


We Get Letters

This one made me chuckle (apparently my Slate piece on Justice Ginsburg’s dissent in TX voter id case was reprinted in the Oregonian):


Before me there lays a 2010 photo of R. B. Ginsburg at Slate with the top of her head cropped off. There is also a photo of you. Noting the eerie resemblance between you and Ginsburg, it occurred to me that you could be the offspring of Ms. Ginsburg and Bill Gates. I suppose it would take discovery (interrogatories, depositions, request for document production) in order to discover the truth.

Assuming arguendo that a voter ID bill/act contained the provision that Repblicans could not vote within one or more states in a state controlled by Democrats (the party of slavery, Jim Crow, and fighting 19th century abolition of slavery). I’ll safely assume your biased take on the position of voter ID would be subsantially altered and that it would be legal to preclude Republicans from casting votes as permitted by the US Constitution.

A majority of non-Democrats believe Democrats vote many more times than the lawful one time – particularly in Democrat strongholds and precincts. Florida, Ohio, Pennsylvania, and other states were captured by Democrat candidates in 2008 and 2012 by voter irregularities. Of course, with a DOJ headed by Eric Holder, those irregularities were swept aside.

Well, look, toying with someone who declines to leave his email address with the liberalista Oregonian is no fun. It’s obvious to me that you prefer to avoid strong debate and contrary opinions from among your UC Irvine Anteater students, the visual media, and your departure from trial law to be an advocate for liberals, communists, kakistocrats, statists, etc.


“Big Money Playing an Outsized Role in Primary Elections”

Press release via email: “In congressional primaries, bigger wallets give a small set of mega-donors an outsized voice, according to new information released today by U.S. PIRG Education Fund and Demos. Just 5,485 donors who gave $1,000 or more to candidates in the primaries outspent the at least 440,362 small donors who gave less than $200, and 65 percent of all candidate contributions came from donors giving chunks of $1,000 or more.”



A Small Error in Justice Ginsburg Texas Voter ID Dissent?

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

It seems pretty clear that veterans cards with photo IDs that do not expire are ok. But I’ve seen some references to veterans cards which lack pictures, which are not acceptable.  Even if that’s correct, and I’m not sure it is, Justice Ginsburg’s statement still seems incorrect.

Can anyone from Texas clarify?

Update: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX. See slides 20 & 21 here: http://www.sos.state.tx.us/elections/forms/id/acceptable-forms-of-ID.pdf …

This seems to confirm Justice Ginsburg made a small error in her decision. I expect to see that sentence deleted or altered.


WI AG Gives Up on Voter ID for This Election

Milwaukee Journal-Sentinel:

As early voting started, Wisconsin Attorney General J.B. Van Hollen indicated he would no longer attempt to put a voter ID requirement in place for the election.

Van Hollen spent the last week and a half looking at ways to reinstate the ID requirement for this election after the U.S. Supreme Court blocked the measure. He has now dropped that idea.

“We do not expect to have voter ID in place for the November election, which is unfortunate as it is a constitutional piece of common-sense legislation that is overwhelmingly supported by the people of Wisconsin,” Van Hollen spokeswoman Dana Brueck said Monday via email.


“How I ended up starring in a Citizens United film”

Seth Masket:

 I was initially approached back in July by a filmmaker named Jason Meath, who explained that he was doing a documentary on Colorado politics and wanted to ask me some questions on campaign spending and demographic shifts in the state. As these are issues I’ve researched and taught, I happily granted the interview. My university’s communications office signed off on it, and I even checked out the filmmaker’s Web site to look at some of his past work. Everything seemed fine. The questions seemed perfectly neutral in tone, and I thought my answers came off well. I heard nothing more about this for months.

A few weeks ago, I was informed that Citizens United was putting together a film concerning the gubernatorial race in Colorado. I was also informed that I was in it. This was rather stunning to me. I suspected that this might have stemmed from the earlier Meath interview, but I couldn’t be sure, and my e-mails to the filmmaker went unanswered. Only last week did I learn that that interview was one of many used in the making of “Rocky Mountain Heist.”


“Records at odds with voter fraud probe claim”

News from Georgia:

Documents obtained from Secretary of State Brian Kemp’s office appear to contradict Kemp’s claim that a voter fraud probe was based on numerous complaints from counties across Georgia.

For weeks, Democrats have hinted that Secretary of State Brian Kemp is trying to keep newly registered Democrats off the voters rolls. Kemp, a Republican, makes no apologies for investigating the New Georgia Project — which has focused on registering Democratic-leaning minority voters. Last week, Kemp said again that reports of potential voter fraud led to the probe.

“I know it’s up over a hundred now. May have been more like 125″ complaints, Kemp said.

But records obtained by 11Alive News tell a different story.


President Obama Talks Voting Rights and Fraud With Jeffrey Toobin

A part of this fascinating New Yorker piece:

The subject of voting rights has largely been thrust upon Obama by a conservative judiciary. “You look at something like the Voting Rights Act, which was uncontroversial from a legal point of view among both Republicans and Democrats ten, fifteen, twenty years ago,” Obama told me. “The ruling that struck down key provisions of the Voting Rights Act would have been considered a fairly radical step, but it’s a step that the Supreme Court took.” He was referring to the Shelby County decision, of 2013, which invalidated the portion of the law that required Justice Department review of electoral changes, mostly in Southern states.

In response, Obama offered a modulated criticism. As he put it, “The fact that the Supreme Court didn’t seem to internalize evidence where state election officials or politicians are pretty unabashed in saying we want to keep certain folks from voting, where you have voter-I.D. laws that clearly make it harder for certain folks to vote, despite the fact that there is no actual evidence of fraud—not just a little evidence of fraud but no evidence—as every mathematical assessment, statistical assessment that’s been done shows, it’s a pretext for wanting to shape the franchise for partisan advantage. The fact that that doesn’t seem to have gone into the Court’s reasoning I think makes it an ultimately flawed decision.”


“ARIZONA AG RACE: National Republican AG Group Goes Dark, Outraises Democratic Counterpart More Than 4:1 In 3rd Quarter; Explains 6:1 Difference In Arizona Spending (#50ShadesOfDarkMoney)”

Arizona’s Politics:

In the Arizona Attorney General’s race, the national Republican 527 organization is outspending the Democrats’ by more than 6:1.  Dark money contributed mightily to that discrepancy, as RAGA raised 4 times as much money as DAGA in the 3rd quarter.

(See accompanying article “BREAKING: APS Semi-Openly Places $425k Bet On Arizona Attorney General Race…Red)


“Statement of Vice Chair Ann M. Ravel Encouraging Public Comments to Increase Disclosure and Address Corruption in the Political Process”

Via email:

Statement of Vice Chair Ann M. Ravel Encouraging Public Comments to Increase Disclosure and Address Corruption in the Political Process

For the first time in more than a decade, the Commission is now accepting wide-ranging public comment on issues fundamental to campaign finance — including disclosure and corruption in the political process.  Between now and January 15, 2015, citizens from across the political spectrum are invited to express their views, submit proposed policy solutions, and otherwise formally participate in the Commission’s policymaking process.  Then, on February 11, 2015, the Commission will convene a public hearing where commenters will have an opportunity to speak directly to the Commission.

The Commission is asking what rules it should implement to address corruption and increase disclosure in the political process.  For example, how should the Commission improve its rules on public disclosure, earmarking, joint fundraising committees, and committee affiliation?  Are there any other regulatory changes the Commission should make to prevent the circumvention of contribution limits or the concealment of the sources of those contributions?  There may be solutions to these problems that have not yet been considered, or the Commission might look to states like California and Maryland, which have been working on new approaches.  We need to hear from the public on these and other issues of consequence to campaign finance and our democracy.

As a public agency, the Commission has an obligation to directly engage the public in a constructive dialogue concerning the impact of its policymaking on our democracy.  But for far too long, the Commission has been closed off, mired in gridlock, and uninterested in meaningful public input.  So this new comment period and the public hearing to follow are major steps toward openness and direct public engagement.  And they are the direct result of the compromise rulemaking package the Commission approved on October 9.
To me, allowing an opportunity for the public to participate in the Commission’s policymaking was especially important — and long overdue — given the growing public concern about undisclosed spending flooding the American political process.  An estimated $4 billion will be spent during this year’s mid-term election, with $700 million or more in anonymous spending.  Outside spending by groups that hide their donors increased from just $5 million in 2006 to more than $300 million in 2012.  Despite this dramatic increase, declining levels of public trust, and growing cynicism about the political process, the Commission has ignored — until now — public views about, for example, how to strengthen its disclosure rules so that voters know who is behind the messages intended to influence their votes.

That is why every citizen who cares about the future of our democracy should make his or her voice heard during the current comment period.  Submit comments and join us for the public hearing in February.  We need to hear from you.

Here’s how to submit written comments and testify at the public hearing:

Online:          http://sers.fec.gov/forces/addcomments.htm?pid=93617

Paper:                Federal Election Commission
Attn.: Amy L. Rothstein, Assistant General Counsel
999 E Street, NW
Washington, DC 20463

Be Sure to
Include:                Each commenter’s full name and postal address

Deadline for
Comments:        January 15, 2015

To Testify at
the Hearing:        File a written comment by January 15, 2015, that includes a request to testify at the public hearing.


“Silicon Valley CEOs Get A Warm Washington Welcome To Politics”

HuffPo: “According to people familiar with the situation, committee staff director and former super lobbyist Gary Andres personally has been calling the CEOs of major Silicon Valley tech companies, hammering them for coming after Upton and spooking Mayday’s donors, who worry their companies will get rougher treatment when and if Upton survives.”


“Laws in the 21st Century Thursday, Oct. 23, 2 p.m. EDT CSG eCademy”


Voting Laws in the 21st Century
Thursday, Oct. 23, 2 p.m. EDT
CSG eCademy
Register now!
With less than a month before the Nov. 4 midterm elections, voting laws in eight states are being challenged in state and federal courts, often going all the way to the U.S. Supreme Court. These recent court challenges are due, for the most part, to varying state interpretations of two Supreme Court decisions in recent years. In 2008, the high court ruling in Crawford v. Marion County Election Board upheld an Indiana law requiring voters to provide photo IDs at the polls on Election Day. The high court’s 2013 ruling in Shelby County v. Holder blocked two provisions of the Voting Rights Act: Section 5, which required select states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contained the coverage formula that determined which select jurisdictions were subjected to preclearance based on its voting discrimination history. This eCademy session will shed light on several recent voting law challenges across the country and how these cases may impact the states in November and beyond.
Rick Hasen
Professor of Law and Political Science
University of California at Irvine
Full bio >>
Dan Tokaji
Constitutional Law Professor
Moritz College of Law, The Ohio State University
Full bio >>



“Dawn Patrol: Justice Ruth Bader Ginsburg’s critically important 5 a.m. wake-up call on voting rights”

[Bumping to the top for the Monday morning crowd.]

I have written this new piece for Slate.  It begins:

On the surface, Supreme Court justices seem to have it pretty easy: They decide only around 70 cases per year with a written opinion, meaning each of the nine justices on average gets assigned to write fewer than nine majority opinions per year. They do not sit for regular argument in July, August, or September; and some justices use part of those summer months to moonlight as guest law professors in exotic locations.

But every so often court watchers are reminded that these justices are working very hard behind the scenes by reading briefs, exchanging memos, and debating outcomes. Case in point: The justices issued an order and a dissent in a Texas voting rights case at 5 a.m. Saturday morning. Supreme Court reporters stood by all night for the ruling. The holdup apparently was Justice Ruth Bader Ginsburg’s six-page dissent, joined by Justices Elena Kagan and Sonia Sotomayor.

The Supreme Court allowed Texas to use its voter ID law in the upcoming election, even though a federal court decided a few weeks ago that Texas’ law violated both the Constitution and the Voting Rights Act, and that Texas engaged in intentional racial discrimination in voting. The trial court had barred Texas from using its law this election, but the United States Court of Appeals for the 5th Circuit reversed that decision last week, and the law’s challengers went to the Supreme Court, where, as expected, the court sided with Texas.

The Supreme Court’s order was consistent with some of its other recent orders indicating that lower courts should not change the rules of running an election shortly before voting begins. I have dubbed this rule the “Purcell Principle,” for a2006 Supreme Court case so concluding.

The court had to decide the emergency request very quickly—early voting begins in Texas on Monday morning—but Justice Ginsburg did not need to write her extensive dissent. The week before, when Justices Samuel Alito, Antonin Scalia, and Clarence Thomas dissented from a Supreme Court order putting Wisconsin’s voter ID law on hold, their entire dissent was only a few sentences. It was a dissent which disturbingly treated the right to vote as less important than deference to the Court of Appeals judgment, kind of an Anti-Purcell Principle.

Sometimes justices disagree with emergency court orders such as these and do not even bother to write a formal dissent. And recently, as Slate’s Dahlia Lithwick has noted, the majority has not been explaining its various orders in cases from voting rights, to abortion, to same sex marriage, at all.

So why did Justice Ginsburg keep the court and court-watchers up all night for a relatively lengthy dissent from an order issued with no majority opinion? There is no way to know from the outside, but my guess is that she wanted to make an important statement about how the Supreme Court should handle these voting cases going forward and to publicly flag where she believes the court is going wrong. Like a rare oral dissent from the bench after a written opinion, this middle-of-the-night dissent calls attention to what Justice Ginsburg likely sees as a grave injustice.


Justice Ginsburg Tells Nina Totenberg SCOTUS Likely Would Have Granted Same Sex Marriage Review If Circuit Split

At the 92nd Street Y event:

“As of now, all the Courts of Appeal agree, so there is no crying need for us to step in.”

When Nina asked if there is a split and the Court takes a case if it would be feasible to go back to same sex marriage being illegal after all of the decisions that have allowed it now in so many states, Justice Ginsburg demurred: “I can’t give an opinion on that.”


Justice Ginsburg Tells Nina Totenberg About 5 AM Texas Voter ID Decision

From this event at the 92nd Street Y [my transcription, and there could be errors]:

Nina Totenberg: Justice Ginsburg, you were up until … Friday night/Saturday morning, writing a passionate dissent in the Texas voter id case. Just to let people in the audience know, this was a procedural question in some measure. And you can note a dissent in those kinds of cases and not write and it is fairly common for that to happen. But you wrote; you were joined by Justices Kagan and Sotomayor. So why did you write and why did it take until 5 in the morning?

Justice Ginsburg: Why till 5 in the morning? We didn’t get the last filing from Texas until Friday morning and then the Circuit Justice [Justice Scalia in this case—Ed.] as you know has to write a memo. And that came around some time in the middle of the afternoon. So there wasn’t much time to write the dissent. I had written a dissent in the North Carolina voting case, voting rights case. This one was… I would say it was very well-reasoned. You called it passionate.

Nina Totenberg: The point you were making…to explain a fact of law here is that in 2006 the Supreme Court issued a decision that basically said we try not to disturb what’s going on in an election right before an election because people will get confused. And you said you did not think that applied here. Why?

First this case was unlike others because it had gone through a complete 9 day trial, reams of evidence, and an excellent decision written by the district court. This was a new system for Texas. From 2003-2013, they have a voter id that was reasonable. There were many things you could present. The new law cut back drastically on that. There had never been a federal election held under the new law. There had been local elections with very small turnout. So the poll watchers [workers?-Ed] were more familiar with old procedur. So I didn’t think this case fell into the mold of we can’t disturb an election. There had been very little in the way of educational efforts, so that people knew what the new law required, so that the poll watchers would know. So I thought that the old system would involve less disruption than this never-done-in-a-federal-election-before [system].

You can read my Slate piece about this decision and Justice Ginsburg’s dissent.


“In Judge’s Footnote, a Heavy Slap at Texas’ Past”

Ross Ramsey:

Strange things show up in the footnotes of federal court rulings.

Consider this one in a ruling by a federal judge in Corpus Christi, Tex., that the state’s voter photo ID law is unconstitutional: “The Texas Legislature did not vote to ratify the 24th Amendment’s abolition of the poll tax until the 2009 legislative session,” and “the process has not been completed and the measure last went to the Secretary of State.”

That came up early in an excoriating 147-page ruling from United States District Judge Nelva Gonzales Ramos that the state’s voter photo ID law, also known as Senate Bill 14, “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The court further holds that SB 14 constitutes an unconstitutional poll tax.”


Explaining Justice Breyer’s Surprising (Non-)Vote in the Texas Voter ID Case

Justice Breyer did not join in Justice Ginsburg’s fiery 6-page dissent in the Texas voter id case the Supreme Court just decided. The majority let Texas’s law go into effect, despite a final judgment from a federal district court finding Texas engaged in intentional racial discrimination in voting, and violated both the Equal Protection Clause and the Voting Rights Act.

Justice Ginsburg’s dissent was joined by Justice Kagan and Justice Sotomayor but not Justice Breyer, the other liberal on the Court. Why not?

We don’t know for sure, but here are the possibilities, put in order of what I think is most to least likely:

1. Justice Breyer still dissented, but did not want to publicly state (Justices do not always state their votes in these orders), perhaps because he disagreed with one or more aspects of Justice Ginsburg’s dissent.

2. Justice Breyer still dissented, but was not available until 5 am to review to see if he agreed with Justice Ginsburg’s dissent.

3. Justice Breyer agreed with the majority, because he believes more strongly in the Purcell principle (or he agrees Texas should win on the merits—which seems less likely).

4. Justice Breyer disagreed with the majority, but either he did not publicly dissent or voted with the majority for strategic reasons, as could have happened before in the North Carolina case.  This seems less likely–in the North Carolina case, the Justices knew the Wisconsin case was in the wings. There’s nothing else now on this same Purcell issue coming up, nor any reason to think that the next set of Purcell cases in future elections will be those that will help to protect voting rights.


Teachout’s “Corruption in America”

[This is the latest in a series of short reflections on new books in campaign finance which I am working my way through as I write my own manuscript on the subject.]

Zephyr Teachout’s Corruption in America is a lively and valuable look at the common and judicial understandings of the concept of “corruption” in the United States during the time of the founding and at other key points in U.S. history. The historical analysis builds up to a contrast with the Supreme Court’s current narrow definition of corruption in the Citizens United line of cases and to an argument for courts, scholars, and society to adopt a broader anticorruption principle in both constitutional adjudication and argumentation and in legislative drafting (on the latter point, Teachout favors broad prophylactic rules, in a Madisonian way, to remove the temptation of those in power to act corruptly).

I will have more to say about Teachout and the focus on corruption in my own campaign finance book in progress. I would just say now that as a matter of constitutional interpretation I find her corruption concept rather fuzzy (I continue to believe that much of what she (and Lessig) would call corruption is more properly considered an issue of inequality), and her discussion of the First Amendment interests on the other side of the equation in the constitutional balancing relatively light.  But this is a book well worth reading for anyone trying to get a broader historical perspective on current battles in the Supreme Court on the constitutionality of campaign finance rules.


Joan Biskupic’s Must-Read Book on Justice Sotomayor and the Supreme Court

Supreme Court reporter (and current Reuters legal editor) Joan Biskupic has written Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice. It is an engaging and insightful book on Justice Sonia Sotomayor’s path to the Supreme Court and the Justice’s complex relationship with the other Justices on the Court. Although not a straight-out biography, the book tells two parallel stories: the path of Justice Sotomayor from growing up as a poor girl with Puerto Rican parents in New York to the U.S. Supreme Court and the politics of the first judicial nomination of an Hispanic Justice to the Supreme Court (the material on the failed Miguel Estrada DC Circuit nomination was particularly fascinating).

What is perhaps most original in Biskupic’s reporting (which relied on interviews with many Supreme Court Justices, although they usually would not agree to be quoted by name) is an understanding of Justice Sotomayor’s role on the Court. Biskupic ably describes Justice Sotomayor’s strong personality, and willingness to go it alone and sometimes to go up even against her ally Justice Ginsburg; the Justice’s move to change the nature of what it means to be a Supreme Court Justice, and how other Justices should interact with the public, the bar, and other members of the Court; and how her personal experiences shape her judging. (The inside information on the drafting of the Fisher affirmative action decision is especially fascinating for Court watchers).

The picture that Biskupic paints of Justice Sotomayor is much like the picture Biskupic painted in her earlier excellent biography of Justice Scalia: a rich, complex, very smart person, full of contradictions, full of passion about ideas and ideals, and still fighting some demons from childhood. Biskupic paints in shades of gray while many other writers who write about the Justices know only black and white–trying to make an ideological point in the course of describing the Court. That’s not Biskupic’s way.  A must read.



“Aligning Campaign Finance”

Nick Stephanopoulos has posted this draft on SSRN (forthcoming, Virginia Law Review).

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found.

This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people.

It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

I read an earlier version of this piece. Recommended!


KY Electioneering Ban – Modified on Appeal

It looks like my wrap-up post from yesterday is already out of date.  Late Friday, the 6th Circuit granted a partial stay of the KY decision on electioneering.  The district court’s order is stayed — and electioneering is prohibited — within 300 feet of the polls on the property where the polling place is located, and on other public property.  However, the district court’s order stands (at least until the appeal is heard), and electioneering is permitted, with respect to private property like John Russell’s auto body business.