All posts by Richard Pildes

Campaign Finance Vouchers Do Not Expand the Diversity of Donors: Evidence from Seattle

As I’ve written before, a mistake many political reformers make is in assuming that most citizens are as engaged in politics as the reformers are, or would be if given the appropriate opportunities. A new paper on the Seattle campaign voucher system concludes that providing campaign vouchers to all citizens does not increase the diversity of those who donate to campaigns. Abstract here:

Donating to a campaign is inherently costly, and as a result the composition of campaign donors differs from the composition of the electorate. What happens when the financial barriers to campaign finance participation are removed? This paper analyzes Seattle’s recent campaign finance reform, where all registered voters receive four $25 vouchers to donate to candidates abiding by stricter campaign finance restrictions. Utilizing individual- and census block group-level data combined with administrative donation records, I find that those most mobilized by the availability of vouchers belong to groups already overrepresented within the donor pool. This finding is significant across race, income, past political participation, age, and partisanship. In some cases, the availability of vouchers appears to pull the donor pool further from parity with the larger electorate.

 
https://www.cambridge.org/core/journals/american-political-science-review/article/campaign-finance-vouchers-do-not-expand-the-diversity-of-donors-evidence-from-seattle/BD8E21A4B646DE4EA56BF8787DF0FF81
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“Much unease in blue states as Supreme Court weighs the Trump ballot case”

This Washington Post story features Prof. Doug Spencer, an election law expert, in both his personal and professional identities:

Professor Douglas Spencer began his Thursday afternoon class at the University of Colorado Law School by reading a text message he had just received from his 13-year-old daughter.

Only a few hours earlier, the U.S. Supreme Court had heard oral arguments in the case that will decide whether Donald Trump is eligible to appear on the Colorado ballot in November. One of the critical legal questions is whether Section 3 of the 14th Amendment bars someone who previously took an oath to support the Constitution as “an officer of the United States” from returning to office if they engaged in insurrection.

The message from Spencer’s daughter asked whether he thought Trump had been an officer or a holder of office. Yes, he texted back. “That’s what I thought,” she replied. “I don’t understand law that much, but even I was like, bruh.”

His 70 students — five rows of them sitting shoulder to shoulder — burst out laughing. It was a rare moment of levity for a discussion of complexity and immense import.

Until this year, Spencer had never taught Section 3. But it is now a centerpiece of his election law syllabus as the high court weighs the case that will shape the race for president, either by allowing Trump to remain on state ballots or by derailing his candidacy months before the vote.

In a divided nation, the profound implications of the justices’ pending ruling have sparked debate and qualms among election scholars,legal experts, activists and students of all political shades. But nowhere may the tensions be deeper than in blue states and jurisdictions that have firmly rejected Trump in past votes but now wrestle with whether democracy is better served by punishing him for his efforts to overturn the 2020 election results or letting voters decide his fate this fall.

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Tim Synder Ridicules Argument that the President is not included in Sec. 3’s Disqualification Ban

Synder, a well-known Yale political scientist, participated in an amicus brief in the case on behalf of academics who study democratic backsliding in other countries. A recent substack post of his illustrates the kind of reaction the Court can expect from some quarters if it holds that Sec. 3 does not include the President. I don’t expect the Court to decide the case on that basis, though I can imagine a separate concurrence on the issue.

From Synder’s substack:

His lawyers (and supporters) depend heavily on the claim that the president of the United States is not an officer of the United States (and therefore not subject to Section 3). 

An argument this bad depends upon fear.  Even in print, it has a wink-wink-nudge-nudge quality — we know this is a horrible legal argument, and you Justices know that this is a horrible legal argument, but we both know that you are just looking for a way out. So here’s your alibi for ignoring the Constitution.

The argument that the president of the United States is not an officer of the United States is risible.  People will laugh at it. A Supreme Court that rules for Trump on that ground will be ridiculed for as long as our republic lasts, and rightly so. …

Twenty-five historians who looked into the matter concluded that Section 3 was meant to apply to the president.  Four more historians in a separate brief drew exactly the same conclusion.  These are the leading scholars of the period and the issues.  The conservative legal scholars who began this discussion concluded that the president is an officer.  Antonin Scalia, a figure of some repute in conservative judicial circles, believed that the president was an officer.  In Trump’s own legal briefs in other matters he also defines the president as an officer.

I cannot say whether the Supreme Court will re-qualify Trump for office.  I can say, though, that requalifying him on the grounds that the president of the United States is not an officer of the United States is preposterous.  It defies the wording of Section 3, and the intentions of its framers, and the way it was understood by society at the time.  It defies the whole historical experience on which Section 3 was based. And it defies Section 3’s political logic of defending the rule of law. 

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Rick Pildes: I’m Honored to Receive the John Hart Ely Memorial Prize, for Contributions to Election Law, from the American Assn of Law Schools

I was greatly honored this weekend to receive this award at the annual meeting of the American Law School Association, even if it partly means I have been at this work for a long time. 

It’s particularly meaningful to me because of the warmth and respect I felt for John Hart Ely.  My connection to John goes back to law school, when he taught me Conflicts of Law.  After John wrote Democracy and Distrust in 1980, he did not write again about those issues until the late 1990s.  I have always liked to think that the new energy those of us brought who entered the field back then played a role in drawing John back to these issues.  In the last years of his life, we were fortunate John participated in conferences on these issues.  He was also incisive, eccentric, and unfailingly intellectually honest.  It’s a great honor to receive this award rightly named for him.

As always, I’m particularly grateful to my longest-time collaborators, Pam Karlan and Sam Issacharoff, who helped make this work intellectually exciting, challenging, and fun. Part of what we drew me to this work at the outset also was the work of such terrific political scientists as Bruce Cain, Bernie Groffman, and Morgan Kousser, among others, and I want to acknowledge them as well.

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AALS Panel Tomorrow on Legislation, Governance, and Democratic Fragility

The theme of this year’s annual meeting of the American Law Schools Association is Defending Democracy. I’ll be speaking tomorrow on this terrific panel:

Legislation, Governance, and Democratic Fragility (co-sponsored Legislation and the Political Process)

Moderator: Vicki C. Jackson, Harvard Law School

Panelists:  Richard H. Pildes, NYU Law School; Josh Chafetz, Georgetown University Law Center; Nicholas Stephanopolous, Harvard Law School; Tabatha Abu El-Haj, Drexel University Kline School of Law.

The perceived inability of legislatures, Congress most especially, to deliver legislative solutions to our most pressing problems is a significant strain on the public’s faith in democracy. This panel will explore the under-appreciated relationship between good governance and democratic stability as well as potential reforms at both the state and federal level that might improve governance, even in this era of polarization, and thereby support our democracy.

Time: Wednesday, January 3, 10:00 am – 11:40 am 

Hotel: Marriott Marquis Washington, DC

Room: Shaw

Floor: Level M3

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“George Santos Reveals One Truth: It’s Easy to Abuse Campaign Finance Laws”

From NYT:

Perhaps no federal officeholder in modern American history has been accused of ignoring, testing or breaking as many aspects of campaign finance law so flagrantly, in such a short span of time, as George Santos has.

But his case, while sensational, illustrates the profound weaknesses of the system, and its potential for abuse.

For years, campaign finance laws have eroded, while the watchdogs responsible for their oversight have been weakened by limited powers, underfunding and political stalemate. The system, which largely relies on campaigns and political committees to self-report thousands of donations, expenditures, loans and refunds, has been left wide open for anyone willing to mislead, experts said.

Mr. Santos might have slipped through unnoticed — and many candidates probably do.

“He is an extreme example of something that is happening all the time in campaign finance,” said Saurav Ghosh, a former Federal Election Commission enforcement lawyer who is now the director of federal campaign finance reform at the Campaign Legal Center, a watchdog group. Mr. Santos, he suggested, was able to take advantage of “the overall under-regulation of money that is raised and spent on election influence.”

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“The mega rich are the new political bosses. Is that bad for democracy?”

From the Washington Post:

The demise of political party bosses and the smoke-filled rooms in which they operated was heralded a long time ago as an important step toward handing more power over the selection of presidential nominees to ordinary citizens. Who would have thought then that billionaires would seek to become the new bosses of American politics?

Super-wealthy individuals receive outsize attention in presidential politics. And virtually every prospective candidate wants the support of a well-funded super PAC and the vocal backing of the mega rich. The defection of a disenchanted billionaire is treated as bad news for any candidate. But what difference does all this make?…

What all this says about the nature of politics today is far more concerning. Citizens — voters — do have a larger voice in the selection of presidential nominees than they did many decades ago, but billionaires get special treatment. The richest among us can influence who runs and who does not, who has the money to stay in the race and who does not. No one planned this. The system today is an accident of several seemingly unrelated changes.

The influence of the old bosses, including powerful governors, mayors and other party leaders, began to wane over half a century ago when, after the tumultuous 1968 Chicago convention, the Democratic Party revamped rules to give more power over the selection of national convention delegates, and therefore the eventual nominee, to voters….

Few viable candidates run for president without a flush super PAC backing them up, which enhances the power of the mega-rich donors. They are courted by candidates, their family members and their top strategists, and sought out by political reporters as sources of inside information. Their opinions should carry no more weight about the strengths and weaknesses of a candidate than those of voters in Iowa or Michigan or Arizona. But their voices are amplified because they speak with dollar signs.

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“‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives”

From Politico:

A POLITICO review of tax filings, financial statements and other public documents found that Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.

It is the first comprehensive review of amicus briefs that have streamed into the court since Trump nominated Justice Amy Coney Barrett in 2020, solidifying the court’s conservative majority. POLITICO’s review found multiple instances of language used in the amicus briefs appearing in the court’s opinions.

The Federalist Society, the 70,000-member organization that Leo co-chairs, does not take political positions. But the movement centered around the society often weighs in through many like-minded groups. In 15 percent of the 259 amicus briefs for the conservative side in the seven cases, Leo was either a board member, official or financial backer through his network of the group that filed the brief. Another 55 percent were from groups run by individuals who share board memberships with Leo, worked for entities funded by his network or were among a close-knit circle of legal experts that includes chapter heads who serve under Leo at the Federalist Society.

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Justices with Political Backgrounds, such as Justice O’Connor, and Judicial Oversight of Districting

As many have noted, Justice O’Connor was the last Justice on the Court who had a political background. She was the majority leader of the Arizona state senate, before becoming a judge and then Justice.

Can we say anything about how that type of background influences a judge’s view about whether courts have a role to play in constraining the political process of drawing election districts? In Justice O’Connor’s case, it led her to conclude that partisan gerrymandering claims should not be justiciable in the federal courts. When the Court first recognized a cause of action for partisan gerrymandering under the federal constitution, in Davis v. Bandemer, (1986), she wrote the principal dissent. Then in Vieth v. Jubelirer, (2004), she joined Justice Scalia’s plurality opinion that would have held such claims non-justiciable. Her dissent in Bandemer ultimately won a majority on the Court after she had left, in Rucho v. Common Cause, (2019) [disclosure: I represented Common Cause in that litigation].

To give a flavor of her view, this is one the opening paragraphs in her Bandemer dissent:

There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out — by the very parties that are responsible for this process — present a political question in the truest sense of the term.

Does this mean Justices with political backgrounds tend to see the area of districting as off-limits to the Courts?

Not at all. When the Court was first asked to hold that malapportioned legislative districts were unconstitutional, the Court in Colegrove v. Green (1946), refrained on the ground this too was a political question. But it’s noteworthy that of the three Justices in dissent, two had political backgrounds. Justice Black had been a Senator from Alabama and Justice Murphy, the Governor of Michigan. And when the Court finally did overturn this political question holding and established the one-person, one-vote principle, it was CJ Earl Warren, former Governor of California, who wrote Reynolds v. Sims (1964).

If anything, this pattern suggests it has been judges with political backgrounds who have been most strongly of the view that the courts have a role to play in overseeing political linedrawing. But that was not the case for Justice O’Connor, in the context of partisan gerrymandering claims.

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“Republicans again target Democrat Lucy McBath in Georgia congressional map that keeps 9-5 GOP edge”

AP:

Georgia Republicans on Friday proposed to redraw the state’s congressional districts to create a new court-ordered Black majority district, maintaining the current 9-5 Republican congressional majority and again targeting Democratic U.S. Rep. Lucy McBath’s district for wholesale transformation.

It’s unlikely any of the proposed districts would produce competitive races between Republicans and Democrats. That’s also true of Georgia’s current map.

If it passes, the map could set up a court fight over whether the federal Voting Rights Act protects McBath’s current district from being wiped out. She currently represents Atlanta suburbs including southern Gwinnett County and northern Fulton County. No ethnic group has a majority in the district, but Black, Asian and Hispanic voters collectively favor Democrats….

Republicans said in debate Friday that their plans comply with Jones’ order. Democrats though, predict Jones will find the Republican plans are still illegal and draw his own maps.

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“Biden campaign prepares legal fight against election deepfakes”

CNN:

President Joe Biden’s 2024 campaign has assembled a special task force to ready its responses to misleading AI-generated images and videos, drafting court filings and preparing novel legal theories it could deploy to counter potential disinformation efforts that technology experts have warned could disrupt the vote.

The task force, which is composed of the campaign’s top lawyers and outside experts such as a former senior legal advisor to the Department of Homeland Security, is exploring what steps Biden could take if, for example, a fake video emerged of a state election official falsely claiming that polls are closed, or if an AI-generated image falsely portrayed Biden as urging non-citizens to cross the US border to cast ballots illegally.

The effort aims to produce a “legal toolkit” that can allow the campaign to quickly respond to virtually any scenario involving political misinformation and particularly AI-created deepfakes — convincing audio, video or images made using artificial intelligence tools.

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“Federal Judge Rejects Trump’s Immunity Claims in Election Case”

NYT:

A federal judge on Friday rejected claims by former President Donald J. Trump that he enjoyed absolute immunity from criminal charges accusing him of seeking to reverse the 2020 election, slapping down his argument that the indictment should be tossed out because it was based on actions he took while he was in office.

The ruling by the judge, Tanya S. Chutkan, was her first denying one of Mr. Trump’s many motions to dismiss the election interference case, which is set to go to trial in Federal District Court in Washington in about three months. It offered a sweeping condemnation of what Judge Chutkan called Mr. Trump’s attempts to “usurp the reins of government” and cited foundational American texts like the Federalist Papers and George Washington’s farewell address.

Mr. Trump’s lawyers had expected the immunity motion to fail. They have, in fact, been planning for weeks to use the defeat to begin a long-shot strategy to put off the impending trial. They intend to appeal Judge Chutkan’s ruling all the way to the Supreme Court if they can, hoping that even if they lose, their challenges will eat up time and keep the case from going in front of a jury until after the 2024 election.

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“Florida Democratic Party says Biden is the only candidate, angering rivals”

From the Washington Post, this can be viewed as a story about how parties seek to recapture control of the nominations process in an age of primaries:

With presidential primaries looming, there is only one name on the official list of Democratic presidential candidates in Florida — President Biden — a move that angered the incumbent’s long-shot challengers, who say they’re being unfairly left out.

The decision is the latest setback for Rep. Dean Phillips (D-Minn.) and Marianne Williamson, both of whom trail Biden in public polling and fundraising.

Under Florida rules, the state’s party votes on who will appear on primary ballots. Florida’s Democratic Party said in a statement Friday that the executive committee voted unanimously late last month to name Biden, and only Biden, to its list of candidates.

If a presidential primary has a single candidate, state election law says that the uncontested race will not appear on the state’s primary ballot.

“Americans would expect the absence of democracy in Tehran, not Tallahassee,” Phillips said in a statement. “Our mission as Democrats is to defeat authoritarians, not become them.”

Williamson said in a statement that the move in Florida is meant to help Biden win the nomination “without any opposition.” Both candidates’ statements said their campaigns are considering legal options to gain access to Florida’s ballot.

In its statement, the Florida Democratic Party said the party’s actions were part of a “standard process,” and that “it is not uncommon for an incumbent President to be declared the automatic winner of a presidential primary.” The last time it happened was in 2012, when President Barack Obama ran for reelection, according to the statement.

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