All posts by Richard Pildes

The Significance of the Ninth Circuit’s Decision on Alaska’s Campaign Finance Laws

I want to flag a couple significant aspects to the important 2-1 Ninth Circuit decision in Thompson v. Hebdon that Derek blogged about here. The Alaska laws at issue had been adopted in 2006 through a ballot measure that passed with 73% support.

First, Alaska limited to $500 the amount individuals could contribute to state candidates. The court struck this down as unconstitutionally low, based on the earlier Supreme Court decision in Randall v. Sorrell. What’s of most interest here is that the Ninth Circuit relied heavily on the view that overly strict contribution limits interfere with the ability of challengers to compete effectively against incumbents. The Supreme Court had nodded to this idea in Randall, but the Ninth Circuit elaborates on this point at much greater length.

Second, Alaska capped at $3000 the total amount of money a candidate could receive from out-of-state donors. The Supreme Court has not directly addressed the constitutionality of constraints on out-of-state contributions to candidates for state office. The most significant justification for such constraints was that Alaska was seeking to ensure its legislators would be more responsive to constituents rather than out-of-state donors. The provision was thus defended as protecting democracy at the state level. The majority viewed the state as regulating to protect against the “undue influence” of out-of-state donors, and that such a purpose was forbidden by Supreme Court precedents holding it unconstitutional for states to act against “undue influence” of large donors by regulating election spending. I’m not sure those precedents, however, determine this issue. The dissent instead invoked the Bluman case, in which the DC Circuit upheld provisions in federal election law that prohibit foreign contributors in federal elections. Out-of-district or out-of-state contributions further nationalize elections, including for state office, which is part of why Alaska sought to protect its local democracy.

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“Big problems with small money? Republicans catch up to Democrats in online giving”

From Alex Seitz-Wald and Ben Kamisar at NBC News:

Republicans are beginning to catch up with Democrats in online fundraising, creating for the first time in modern history a political landscape where both parties are largely funded by small donations — for better or, some say, for worse.

Democrats, who have dominated online fundraising since the early days of the internet, have claimed that the billions they raise in small donations are evidence that they are the party of the people, less reliant on wealthy donors and business interests than the GOP.

Republicans have spent years playing catch-up, mostly unsuccessfully. But now, just in time for the 2022 midterm elections, they are starting to pull even, thanks in large part to former President Donald Trump and his army of online devotees.

“This is the harvest of the seeds of digital infrastructure Republicans have been planting for years,” said Matt Gorman, a GOP strategist who worked for the party’s congressional campaign arm during the last midterm election. “That’s why you’re seeing things like freshman members of the House raising over $1 million (in a single quarter). In 2018, we were begging folks to raise a fifth of that.”…

Small donors are especially valuable to the GOP as they try to fill the void left by the Republicans’ traditional allies in corporate America after many businesses announced that they would withhold contributions to Republicans who voted against certifying President Joe Biden’s election on Jan. 6….

While small dollars tend to be romanticized — Democrats’ voting rights bill includes provision to encourage such giving by matching $6 in public funds for every $1 in small donations — some see a big downside to empowering small donors, who tend to be the most ideological and online.

“The same dynamics that fuel virality on social media in general also apply to small-donor fundraising,” said a leading scholar of democracy. Rick Pildes, a constitutional law professor at New York University.

“The more extreme appeals, the more extreme candidates, the candidates who have the highest profiles because they’re dominant presences on social media or on cable news tend to attract and rely most heavily on small donors,” he said. “There’s a real risk that the rise in small-donor fundraising will throw further fuel on the fires of polarization that are burning so strongly.”

Research has shown that people who give online are more ideological than the general public and that more ideologically extreme lawmakers raise larger proportions of their campaign coffers from individual donors.

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2021 Supplement to The Law of Democracy Now Available

The 2021 Supplement is now available at this link at Foundation Press. A few things happened regarding the law of democracy over the past year, all of which are covered in the 2021 Supplement — including major new sections on issues concerning the role of social media in the political sphere.

In addition, we will publish the 6th edition of The Law of Democracy for use in fall 2022. As a reminder, the authors of the new edition of The Law of Democracy will be:

Samuel Issacharoff, New York University School of Law
Pamela S. Karlan, Stanford Law School
Richard H. Pildes, New York University School of Law
Nathaniel Persily, Stanford Law School
Franita Tolson, University of Southern California Gould School of Law
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Competitive Districts Part II: Colorado’s Independent Redistricting Commission

Now that I’ve described in Part I how DRA enables assessing a map’s competitiveness, along with other dimensions, I’ll lay out how DRA makes it possible to compare different maps.  To do that, I’ll compare the preliminary map for the new districts that CO’s independent redistricting commission has released to the legislatively enacted plan in place from 2011-2020. 

Two points at the outset.  CO has gained 1 seat and will have 8 congressional districts, but we can still compare the aggregate effects of the 2020 map and the proposed map for 2022.  Second, I am using the map titled CO preliminary 2021 Congressional Districts, under Published Maps, in DRA.  This is the commission’s proposed map, and since the 2020 Census numbers have not been released, the census and demographic numbers are based on the 2019 ACS data.

Recall that Amendment Y requires the commission to give significant weight to the value of competitive districts.  Recall also that the legislatively-enacted plan, in effect in 2020, came out as “very bad” on competitiveness ground.  The commission does improve on this metric, since the proposed plan would merely be “bad” on competitiveness grounds.  Here’s the thermometer to illustrate where the new plan comes out on competitiveness.

The proposed plan is also a tad better, though not much, on compactness:

The new plan fares less well on proportionality of the outcomes in partisan terms.  That’s because the commission proposed plan is a bit more favorable to Democrats than a fully proportional plan.  With 8 seats, the most proportional plan, given voter preferences in CO, would have 4 districts likely to come out for the Democrats and 4 districts for Republicans.  Statistically, the proposed plan projects 4.64 districts to be controlled by Democrats.  That is, the odds of a 5-3 D-R split are higher than they would be in a purely proportional plan.

Proportionality:

DRA has a great feature that permits two plans to be directly compared and presents the comparison in visual terms.  Recall the “radar graph” for the plan in effect.  Using a Compare Maps feature, DRA superimposes this graph for one map on top of the other.  The result looks like this, when we compare the 2020 plan with the commission proposed plan:

From this direct comparison, in which the orange lines represent the commission proposal and the black lines the 2020 map, we can see the following:  the commission proposal creates somewhat more competitive districts; is the same on county splits; is a tad better on compactness, and, for the reasons just noted, would be likely to produced slightly less proportional outcomes.  The commission process would thus be something of a gain for competitiveness, but not a dramatic one.

But now here is something else that can be done – DRA enables individuals and groups to draw their own maps, and DRA identifies the map that would maximize the competitiveness of districts.  I’ll save another post for what that map suggests about how much more competitive Colorado’s commission might be able to make the districts, and what tradeoffs would be involved in doing so.

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Designing Competitive Redistricting Maps: Part I

Colorado’s congressional districts are being drawn by an independent redistricting commission created in 2018 by “Amendment Y,” a legislatively referred constitutional amendment that voters approved.  That amendment also specifies the criteria the commission is to use.  After specifying that districts must comply with constitutional requirements for population equality and the VRA, the amendment states:

(2) (a) as much as is reasonably possible, the commission’s plan must preserve whole communities of interest and whole political subdivisions, such as counties, cities, and towns.
(b) districts must be as compact as is reasonably possible.
(3) (a) thereafter, the commission shall, to the extent possible, maximize the number of politically competitive districts [emphasis added]

This provides a good opportunity to begin to discuss how to assess the competitiveness of maps.  As I have argued, the competiveness of maps ought to be a high value in drawing maps, though incumbents prefer the exact opposite.  I’ll explain how the free app, Dave’s Redistricting (DRA), can be used to assess the competitiveness of proposed and enacted plans.

First, start with the map currently in effect, in which CO has 7 congressional districts.  If you click on the “Show Analytics” tab for that map, DRA provides quantitative metrics for how any map fares on 5 dimensions: (1) compactness of districts; (2) competitiveness of districts; (3) minority representation opportunities; (4) how much the map splits counties between districts; (5) the “proportionality” of the map, which means the likely D v. R outcomes under the map given the past preferences of voters across a series of elections [a dozen measures of partisan bias experts use are also available].  This also enables map drawers to see the tradeoffs involved between these values.  If you decide the overriding goal should to be ensure proportional outcomes, for example, how much sacrifice must be made in other values, like keeping counties intact or having competitive districts.

DRA provides visual and quantitative data on these dimensions.  But it then also helpfully converts that more technical data into an easily understood and visualized thermometer graph to explain what those numbers mean in lay terms. 

I’ll illustrate with two shots taken from DRA.  In the first, the higher the value, the better the map scores on that particular measure.  First, here’s the technical graphic for the current map:

This shows that the map performs extremely well on fairness of partisan outcomes, but poorly on competitiveness.  It also performs poorly on minority representation, as DRA defines that, because it has no districts that are majority-minority (DRA uses 2019 ACS data and reports CO as having a Hispanic population of around 15-16% and a black population a bit above 4%). 

Here’s the second graphic, which puts these technical measures into easily understood terms. 

On competitiveness, the current map is “very bad”–

On proportionality, or partisan outcomes, the current map is “very good” –

On compactness the current map sits on the border between “bad” and “okay” —

With that in mind, one of the great virtues of DRA is that it enables users to compare maps along all these dimensions.  That’s particularly interesting in CO, given that Amendment Y requires the commission to “maximize” competitive districts, subject to a few other constraints.

In addition, the commission recently released its initial proposed map.  We can compare that map to the one currently in effect – as well as to maps that others have drawn for the new districts, to see how well the commission has met its legal obligations.

Since this post is already a long one, I will leave for another post how to do those comparisons and, more importantly, what they tell us about the commission’s initial proposed map and alternatives.

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As House Hearings Begin on the Risk of Electoral Subversion, Here’s One Major Issue to Address

On Wednesday, the House will hold hearings to address the risk of electoral subversion. In light of that, I’m re-upping this NYT piece of mine, titled “There’s Still a Loaded Weapon Lying Around in Our Election System.” The piece identifies a critical provision in federal election law that could well become the route through which state legislatures would subvert the presidential election. Congress needs to fix this provision before 2024. An excerpt:

The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.

The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves….

This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.

The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

The act, however, does not define what it means for an election to have “failed.” Nor does past practice give any more determinate meaning to this term; this provision has never been invoked, at least since the closely related federal Electoral Count Act was passed in 1887. But the little-known history of the act reveals that one major purpose for it is now anachronistic, and the act needs to be modernized to reflect the limited purposes for which it might remain relevant today….

Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.

First, a natural disaster or similar event might make it temporarily impossible for a state to vote on general Election Day. But in many contexts, states will be able to recover from these disasters quickly enough to hold the election within a week. State laws, enacted in advance, should provide for these foreseeable emergencies. Federal law, in turn, should permit a state to choose its electors after Election Day in this rare circumstance when it is impossible for a state to hold elections on Election Day.

Second, it is possible a state might not be able to certify its vote before the date the Electoral College must vote, which would risk depriving the state of its vote. That could happen if unresolved litigation raises legitimate challenges and the judicial process cannot be finished in time to certify a winner before the electors must vote. Leaving open a small window to account for this rare possibility might be necessary, but the scope of this power must be extremely limited. Indeed, one strategy of the Trump campaign was to exploit this possibility by dragging out court cases long enough for state legislatures to “have” to step in….

The American people, not state legislatures, should choose the president. The “failed election” provision, which lies around as one of the greatest threats to that principle, was created in significant part for reasons that no longer apply. To preserve the integrity of presidential elections, Congress needs to modernize that provision and define clearly the extremely limited, highly unlikely circumstances in which it might ever legitimately come into play.

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How Voters Eventually Decided 4-Year Terms for Governors were Appropriate

Continuing the discussion of the two-year term for the House, Tyler Yeargain, Associate Director of the Yale Center for Environmental Law and Policy, sent me this graph he created. This shows, first, the strength of the original view that democracy required frequent elections. It also shows that, with the easier amendment of state constitutions, voters were able over time to change views about the appropriate tradeoff between empowering a government with a chance to govern effectively — hence longer terms — versus the value of frequent accountability to voters. By the late 1940s, the median term had become stable at four years. Thanks again to Tyler.

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The Shift to Four-Year Terms for Governors

In response to the NYT piece I published today on the two-year term for the House, Rob Richie pointed out to me that governors had originally been enacted to short terms for many decades. Indeed, after WWII more than 20 states that still had two-year terms for governors shifted to four-year terms, assuming the information in this chart is accurate.

As late as 1876, around 9 states still had one-year terms. MA kept that system as late as 1919 and RI until 1911. Today all states but two have four-year terms — only VT and NH still have two year terms.

Needless to say, amending state constitutions is far easier than the federal constitution, which is why all these states were able to shift to the now standard four-year term for governors.

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“America Has Too Frequent Elections”

My new piece in the NYT highlights how institutional design choices, which we come to take for granted as the background features of American democracy, dramatically shape the kind of politics and governance we end up with:

The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.

Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.

The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.

Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.

In nearly all other democracies, this is not normal. The two-year House term has profound consequences for how effectively American government can perform — and too many of them are negative….

In nearly all other democracies, parliaments are in power for four to five years. Political scientists view voting as primarily the voters’ retrospective judgment on how well a government has performed. Four to five years provides plausible time for that. But the comparison with U.S. House members is even starker than focusing on the two-year term alone. In most democracies, members of parliaments do not have to compete in primary elections; the parties decide which candidates to put up for office. But since the advent of the primary system in the early 20th century, members of Congress often have to face twoelections every two years.

Moreover, in most democracies, candidates do not have to fund-raise all the time to run; governments typically provide public financing to the political parties. The two-year term, combined with primary elections and the constant need to raise funds individually, generates exceptional turbulence and short-term focus in our politics.

When the Constitution was being drafted, many framers and others strongly pressed the view, as mentioned in Federalist 53, “that where annual elections end, tyranny begins.” At the time, most states had annual elections. Elbridge Gerry insisted that “the people of New England will never give up the point of annual elections.” James Madison urged a three-year term, arguing that annual elections had produced too much “instability” in the states. In the initial vote, the Constitutional Convention approved a three-year term, but with four states objecting, the convention eventually compromised on two years. The Federalist Papersthen had to devote a good deal of energy fending off the demand for annual elections.

If you think American politics is not chaotic enough, imagine if the Constitution had adopted annual House elections….

In discussions of the Constitution’s structural elements that we might well not adopt today, the two-year term for the House is rarely noticed. (Attention is usually focused on the Electoral College, the Senate or life tenure for federal judges.)

Yet as other democracies demonstrate, there is nothing inherently democratic about a two-year term. We do not recognize how distorting it is that soon after a president is elected, our politics are upended by the political calculations and maneuvering required by always looming midterm elections and their primaries.

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530 On the Importance of Competitive Elections

By Geoffrey Skelley:

Incumbent politicians have moved further toward the political extremes in recent elections partly because they are worried about a primary challenge. But studies suggest that the primary electorate itself isn’t any more ideologically extreme than the general electorate. Rather, the bigger problem is the decline in competitive congressional districts. Only about 1 in 6 congressional districts were “swingy” in the 2020 general election, compared with roughly 2 in 5 in 2000.

The rapid decline in competitive elections isn’t because of our primary system, though. It’s due mainly to partisan sorting, whereby Democratic areas are becoming more Democratic and Republican areas more Republican — either because people are changing their attitudes to better match their party or they’re moving to areas where their preferences are already dominant. 

The upshot, of course, is that with fewer competitive districts, a primary is often more important than the general election, as it’s in this stage that the eventual winner is selected. That’s one big reason why incumbents fear a primary challenge even though few incumbents lose primaries — it’s the primary that increasingly matters for electoral survival.

I agree about the importance of competitive elections in creating incentives for candidates to appeal to a broader electorate. See my piece “Create More Competitive Districts to Limit Extremism.” The one point this 538 piece does not recognize is how little weight is giving to the importance of creating competitive districts — and not just when legislatures redistrict. Many reform proposals focus on other values and give no weight to creating competitive districts. Some of the reform proposals that have been adopted by voters, such as in Colorado and Arizona, do stress the importance of competitive districts. But others do not.

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Drawing Maps that Comply with the VRA

Dave’s Redistricting App (DRA), which is free, has become an extraordinarily powerful tool in this decade for individuals and groups seeking to draw their own redistricting maps. Thousands of DRA users have created more than half-a-million Congressional, state legislative, and community maps in 2021 alone, and DRA is used by groups like Common Cause, the League of Women Voters, and the Southern Coalition for Social Justice. These maps can be drawn to show how a redistricting plan might maximize the partisan fairness of a map, or the competitiveness of districts, or minimize the number of counties split between districts. These maps can also be used to compare proposed or enacted plans to criticize those choices and propose realistic alternatives.

For understandable reasons, DRA does not limit the maps users can draw to those that would comply with the VRA. That’s in part because the VRA requirements are not easy to distill into a simple metric. But maps that do not comply with the VRA will not be useful for most purposes, since those maps could not be legally valid plans.

In order to enable DRA users to draw maps that will comply with the VRA, I have written this Medium post on the subject. The goal of the post is to distill the VRA requirements into relatively simple rules of thumb that mapmakers can use to draw maps that comply. These are meant to be rules that DRA users can implement relatively simply. For that reason, some of the rules are a bit overly simplified, and I do provide a fuller, more technical discussion of the legal standards in a few notes. My hope is that these simple rules of thumb — which I will revise if commentators have further good suggestions — will help DRA users draw legal maps. DRA is a great tool for this decade’s redistricting, and is not that many steps behind the software programs actual redistricters use.

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“Hyperpartisan Campaign Finance”

Michael Kang has published this article in the Emory Law Journal. Here’s the abstract:

Hyperpartisanship dominates modern American politics and government, but today’s politics are strikingly different from the preceding period of American history, a Cold War Era when bipartisanship and ideological moderation predominated. Hyperpartisanship was not the salient dynamic in American politics when campaign finance law began, and as a result, campaign finance law developed under strikingly different assumptions about American politics than the current prevailing circumstances. Today’s campaign finance law, inherited from this preceding era, is thus mismatched to the campaign finance of today. Campaign finance law focuses on individual candidates as the central actors in fundraising and misses the role of parties in organizing the campaign finance landscape. It therefore both systematically underestimates the risk that parties pose in collectivizing the potential for campaign finance corruption and overestimates the First Amendment values promoted by modern campaign finance when the parties today focus so heavily on mobilizing their base and preaching to the choir.

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“Political Fragmentation and the Decline of Effective Government”

That’s the title of a new article of mine. Here’s the abstract and the link:

What is the most fundamental challenge facing democracies today? One major concern is democratic backsliding, regression, or the rise of “illiberal democracies.” Another concern, closely related, is the rise of “populism,” at least in certain forms, such as those that are fundamentally anti-pluralist and view the “people” as a “moral, homogeneous entity whose will cannot err,” or, in less virulent form, those that express impatience with institutional structures and norms — such as judicial review, independent institutions, or separation of powers — that stand in the way of direct, unmediated expression of the “popular will.”

This essay takes a different perspective. It argues that the deepest and perhaps most enduring challenge to democratic governments across the West that has emerged in recent years is what I call “political fragmentation.” Put briefly, political fragmentation is the dispersion of political power into so many different hands and power centers that it becomes extremely difficult to marshal enough political power and authority for governments to function effectively.

The inability of democratic governments to deliver on the issues their populations care most about poses enormous dangers. At a minimum, it can lead to alienation, resignation, distrust, and withdrawal among many citizens. Worse, it can spawn demands for authoritarian leaders who promise to cut through the dysfunction of the political process. And at an even more extreme, it can lead people to question the efficacy of democracy itself and become open to anti-democratic systems of government.

The first part of this paper describes the ways in which political fragmentation is now affecting most Western democracies, and describes the different forms fragmentation takes today in proportional-representation political systems versus in first-past-the-post ones.

The second part analyzes the causes of fragmentation and asks whether this fragmentation is temporary or more likely to be enduring. This part argues that the communications revolution is a major cause of the political fragmentation of our era. The challenge the communications revolution poses to democratic governments is deeper than is generally recognized, because it goes beyond the now familiar issues of disinformation and conspiracy spreading (though these are serious problems). But the communications revolution might be thought almost inherently to undermine the capacity for legitimate, broadly accepted political authority – the authority necessary to be able to govern effectively in democratic systems.

Most Western democracies are perceived by many of their members to be failing to address the major issues of the day. Political fragmentation makes it all the more difficult to do so. Democracies must figure out how to meet this challenge, lest their inability to deliver effectively on the issues their citizens find most urgent leads to even greater threats to democratic politics.

I have been writing about political fragmentation in the United States for a number of years, including the factors that contribute to it here. This article begins extending that perspective to democracies more generally.

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Disclosure Law in a Toxic Political Culture: The Impending Americans for Prosperity v. Bonta Decision

That’s the way I would frame the big-picture perspective on this case.  The major precedents on when state demands for disclosure of a group’s donors violate the First Amendment’s protections for freedom of association (outside the campaign-finance context) come from earlier eras.  More specifically, many of those cases involve attempts by Southern states in the 1950s and 1960s to force disclosure of donors to the NAACP.  At times, those laws were even clearly targeted at the NAACP.  Given the risks of reprisals against those donors, in that context, the Court struck these forced-disclosure laws down.  The risk of reprisal was quite specific, and the Court rightly understood the risk donors to the NAACP faced.  Few other organizations faced similar risks from state-mandated disclosure of donors.

The California law in this case is a general law and is clearly not targeted at any specific group.  But in today’s political culture, the Court is realistic enough to realize, as oral argument demonstrated, that the risks of economic or other reprisals against donors to a broader range of groups is greater than in earlier decades.  Because cultural issues are so much more central to politics, and so polarizing, groups dealing with issues ranging from religion, to education, to sexual-orientation, and many other areas are at the center of intense political conflict (the animal-rights group, PETA, filed a brief in the case).  Not only is the political culture more punitive, but the internet and social media make it far easier to get access to sensitive information and to mobilize tactics, including various forms of reprisal, against donors to groups perceived to be controversial.  On top of that, politically motivated leaking of information disclosed to the government, and required to be held confidentially, has become more common.  It will be interesting to see if any of the opinions make reference to the recent disclosure to Pro Publica of tax returns filed with the IRS, which are among the most sensitive documents filed with the government. 

Indeed, Justice Sotomayor went even further at argument to comment that anything can be hacked these days, suggesting that even without intentional leaks, sensitive private information filed with the government is at risk of being exposed.  And to add to the mix, a central aspect of the case is the incompetence of California’s government, which inadvertently exposed vast amounts of the charities’ donor-disclosure information that was supposed to be available only to the government. 

There are many significant, intriguing doctrinal issues in the case.  One thing I’ll be looking for is how each of these issues is affected by our toxic political culture and these surrounding realities.  In many ways, this case is the Court’s first confrontation with applying the First Amendment to disclosure laws in the “modern” context of today’s vicious political realities.

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“A war on truth is raging. Not everyone recognizes we’re in it.”

From Lee McIntyre and Jonathan Rauch in the Washington Post. This piece reflects the views developed in full in Rauch’s new book, The Constitution of Knowledge: A Defense of Truth

#StopTheSteal is not merely Trump’s way of being a sore loser or clinging to relevance (though it is those things). It is the most audacious disinformation campaign ever attempted against Americans by any actor, foreign or domestic. And it has been devastatingly effective. According to a recent Ipsos-Reuters poll, the majority of Republicans think the 2020 election was stolen, and almost half of independents either think the election was rigged or are unsure. Vladimir Putin could only dream of creating so much cynicism, doubt and distrust….

Since epistemic warfare has proved its mettle so spectacularly in U.S. politics, it is likely here for good. Measures may allow us to fight back, such as revamping social media and teaching media literacy. But our primary means of defense is to be awake to the scope and origin of the threat. The first step toward winning the war on truth is to accept that we are in one.

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