Category Archives: ELB Book Corner

ELB Book Corner: George Thomas: “The Inescapability of Constitutional Judgment”

June 29, 2022, 6:56 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the final of three posts:

In the first post I pointed out that unwritten understandings play a central role in attempting to faithfully interpret constitutional text, which was followed by the second post where I argued that this leads to a process where constitutional meaning is constructed over time, rather than simply being draw out from the text itself. In this last post, I highlight the fact that we must inescapably make judgments about how to order, weigh, and understand different textual provisions and values as part of a constitutional whole.

There is no getting around this. There is no safe space that allows us to avoid making constitutional judgments that are not determined by text, just the reasons we give for making them. When should courts defer to democratic legislation, and when should they protect rights against democratic legislation? The text does not answer these question for us.

In a recent voting rights case, Justice Ginsburg argued that given the history of discriminatory voting procedures—particularly against blacks in many southern states—the Court ought to give wide latitude to Congress in order to protect minority voting rights. In doing so, she urged the Court to defer to Congress’s information gathering and past record in eliminating race-based discrimination in voting, which had historically plagued America’s democratic process.

The Court, in an opinion by Chief Justice Roberts, argued that on the basis of “principles of federalism,” the Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50-plus years ago, the Congress should not treat states differently in this regard without a recent showing of discriminatory voting practices on the part of particular states. Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, but argued it was unconstitutional to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.

Like Justice Ginsburg’s judgment, the chief justice’s judgment was rooted in how he constructed relations among the states and national government, voting rights, and the Court’s role in the constitutional scheme. Neither simply turned to constitutional text. Rather, based on different textual provisions, an examination of history, and weighing constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave certain constitutional principles. Justice Ginsburg prioritized voting rights against a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting.

It was these judgements about how to order different part of the Constitution that informed their understanding of text. Textual readings we take for granted are often built up as part of an historical process and are not simple givens. Such constructions are a sort of political theory, guiding us to make sense of text, offering standards to shape our judgment in applying the written Constitution to particular cases. At the most foundational level, how we view the character and nature of the Constitution—what we imagine the Constitution to be—will shape our reading of its text.

There is no getting around these “unwritten” understandings. We should acknowledge them, justifying why we think they make the best sense of our written Constitution as part of our ongoing project of constitutional self-government.

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ELB Book Corner: George Thomas: “The Constructed Constitution”

June 28, 2022, 6:00 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the second of three posts:

In the first post, I pointed to the unwritten ideas that constitutional interpretation necessarily rests on, noting that this point is obscured by textualist and originalist jurists. In making this point, The (Un)Written Constitution seeks to illustrate that most of our constitutional disputes depend on constitutional construction. We are not simply drawing out the latent meaning of text. Rather, we are engaged in a process of constructing constitutional meaning based on our ideas about the logic and nature of the Constitution and how it ought to apply to a never-ending series of questions.

Consider the First Amendment’s prohibition against “abridging the freedom of speech, or of the press.” What does that freedom entail? Does it allow an opposition party or private citizen to criticize the sitting government? This question was the subject of heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.

At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that a political minority must “surrender up their judgment” once a government was selected, and that “private opinion must give way to public judgment, or there must be the end of government.” In contrast, James Madison argued that interpretations like Chase’s prohibited the “right of freely examining public characters and measures, and of free communication among the people … which has ever been justly deemed the only effectual guardian of every other right.” The disagreement between Chase and Madison turned on how they understood the nature of republican government, not on the text of the Constitution.

A similar debate occurred around “the executive power” in Article II. Did the president have the power to remove executive branch officers who had required Senate approval to be appointed in the first place? This famous debate of 1789 yielded a number of positions, all of which turned on ideas about the separation of powers and the nature and logic of the different branches of government, not simply on the text of the Constitution. This debate persists to the present day.

Our understanding of republican government shaped how we interpret freedom of speech just as our understanding of the separation of powers shaped how we read the executive power and the question of presidential removal. These answers are not obvious from the plain text of the Constitution, but constructed from unwritten understandings about concepts like separation of powers.

Originalists insist that we should read the text as it was understood by those who framed and ratified it. They turn to history and linguistic conventions from the period under investigation to retrieve the “original public meaning” of the Constitution’s words. What would constitutional text have meant to an ordinary reader at the time of the text’s ratification? As Justice Amy Coney Barrett has argued, the original public meaning of the Constitution’s text, “and it alone,” is law. Yet this argument depends on unwritten ideas about the nature of the Constitution—on a disputed theory of what the Constitution is—not on the text. It may well be a powerful answer to guide our readings of text, but it is very much a construction of that text.

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ELB Book Corner: George Thomas: “There’s So Much That’s Not in the Constitution”

June 27, 2022, 7:00 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the first of three posts:

As we prepare for the Supreme Court to overturn Roe v. Wade, the country is once again debating whether unenumerated rights are constitutionally protected. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case, insists that a woman’s right to choose to terminate her pregnancy is not found in the text of the Constitution. It’s true the Constitution does not explicitly enumerate such a right. But the Constitution also says nothing about Congress delegating its power, and yet Alito is certain it prohibits Congress from delegating “major questions” to administrative agencies.

As Justice Sonia Sotomayor candidly put it during oral argument in the Dobbs case: “There’s so much that’s not in the Constitution.” How we read and interpret constitutional text largely rests on our unwritten ideas about the Constitution, and our most pressing constitutional debates are largely about what unwritten understandings and principles should guide our reading of text. This is the central claim of my The (Un)Written Constitution recently published by Oxford University Press. I’m grateful to Rick Hasen for inviting me to write about it on the Election Law Blog.

There’s nothing unusual about relying on unwritten understandings to bring constitutional text to life. Yet this point is obscured by the most prominent judicial advocates of textualism and originalism, as well as their political champions (unlike originalist scholarship where unwritten understandings are often an important feature of constitutional analysis). The late Justice Antonin Scalia relished pointing to departures from constitutional text as departures from the Constitution, even while his jurisprudence relied on unwritten understandings. Similarly, Republican politicians tend to insist that we are either following the text of the Constitution or following our policy preferences. We persistently see this trope of disciplining judicial discretion by relying on text at Supreme Court confirmation hearings.

The (Un)Written Constitution seeks to dispel this mythology. The book is written for a general audience as originalist and textualist jurists have come to dominate the bench, and their constitutional understandings have become an important feature of our politics. But it should be of interest to scholars as well. Yet The (Un)Written Constitution draws from judicial opinions and political practices rather than scholarly disquisition. It focuses largely on Supreme Court opinions and the arguments of the justices to make visible the unwritten ideas that drive textual interpretation. I begin with two jurisprudential giants of the second half of the twentieth century, Justices Hugo Black and Antonin Scalia, who helped bring textualism and originalism to the bench, powerfully shaping our current debates about constitutional interpretation.

Beyond Supreme Court opinions, the book turns to prominent political figures such as James Madison, who had a hand in working out constitutional meaning based on sparse text. In explicating the Constitution, these judicial and political opinions offer us a great debate on the political theory that underlies the written Constitution. Across a range of constitutional disputes—from the separation of powers to the meaning of freedom of speech, from partisan gerrymandering to the reach and limits of Congress’s power to regulate interstate commerce, from racial discrimination to same-sex marriage—The (Un)Written Constitution illuminates the unwritten understandings that inform our disputes about the written Constitution.

Yet The (Un)Written Constitution does not defend a particular theory of constitutional interpretation; it seeks to illustrate that allapproaches to constitutional interpretation rest on unwritten ideas. This is an inescapable feature of our written Constitution, not a defect or a bug. What approach is most faithful to the Constitution? I leave that judgment to the reader.

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ELB Book Corner: Gibson and Nelson: “State Supreme Courts and the Dominant Partisan Regime”

October 13, 2021, 7:00 amELB Book Corner, judicial electionsRick Hasen

I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their final of three posts:

Schoolchildren in America are often taught that courts are “different” from the legislative and executive branches of government. Because they have high levels of judicial independence, courts are able to stand up against the tyrannical inclinations of the popularly-elected branches of government to protect the rights of society’s underdogs.

In Judging Inequality, written with support from the Russell Sage Foundation and the National Science Foundation, we challenge this view of courts. Judicial independence, we argue, does not necessarily lead to a greater respect for the rights of underdogs. Rather, it does nothing more than provides judges with the opportunity to enact their policy preferences into law without fear of losing one’s job. Indeed, these substantial grants of judicial independence, in practice, might simply make it easier for judges to do “the right thing,” as the judges see it.

For this reason, courts present a potentially dangerous threat to the governing coalition that controls the legislative and executive branches of government. A court with preferences that are not aligned with elites’ policy goals could present a substantial hurdle to the enactment of the dominant political coalition’s policy goals. Thus, courts with conflicting policy preferences may present an existential threat to the ability of traditionally elected branches of government to make the policies their constituents sent them to the capitol to enact. In the eyes of these elites, it is important to do what they can to ensure that the state’s judiciary does not go astray.

At first glance, it might seem that state legislators and governors have only minimal power to affect the composition of state high courts. After all, state supreme courts in the United States are notoriously nearly unique worldwide in the use of popular elections to fill their high benches and retain their judges. However, our data reveal that nearly a majority of “elected” state supreme court justices are initially appointed to their offices. This fact stands in addition to the large numbers of judges who are formally appointed to their positions. That a vast majority of state supreme court justices are placed on the bench by elites, rather than the mass public, goes some distance toward explaining how state supreme courts may have a considerable degree of congruence and compatibility with the other branches of state government.

Indeed, Figure 1 reports the percentages of state supreme court justices who initially joined the state supreme court via an interim appointment. Note that this figure examines the selection method in use at the time the justice was appointed even if that system was no longer in use during the 1990-2015 period. Note that Louisiana prohibits interim appointment judges from later standing for election to a full seat on its high court. The most striking percentage belongs to Minnesota, which uses nonpartisan elections to select its replacement justices. Notably, of the 26 justices serving on the Minnesota Supreme Court from 1990 to 2015, all but one joined the court via an interim appointment. Note as well that Minnesota explicitly designates the incumbent (if there is one) on the ballot presented to the voters in that state.

This strong level of control over initial selection is potent. While state supreme court justices regularly face the electorate, the incumbency advantage is strong in judicial elections. Moreover, judges who face reappointment (rather than reelection) are nearly always reappointed. As a result, many state supreme court justices serve for long periods of time. This fact amplifies the importance of initial selection, which, again, is typically the prerogative of dominant political elites.

As a result—and just as Dahl taught us about the U.S. Supreme Court nearly a half-century ago—state supreme courts are generally part of the dominant governing coalition in a state at a given time. To paraphrase Dahl:

The fact is, then, that the policy views dominant on the [state supreme courts] are never for long out of line with the policy views dominant among the lawmaking majorities [in their states]. Consequently it would be most unrealistic to suppose that the [state high courts] would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.

Figure 1: The percentage of state high court judges who were initially appointed to their position in states that formally use elections to select justices.

This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.

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ELB Book Corner: Gibson and Nelson: “The Advance of Conservative State High Courts”

October 12, 2021, 7:00 amELB Book Corner, judicial electionsRick Hasen

In our previous post, we discussed a core finding from our new book, Judging Inequality. Based on an analysis of nearly 6,000 equality-relevant cases decided in state supreme courts between 1990 and 2015, we found that state supreme courts issued approximately equal proportions of pro- and anti-equality decisions. Yet, this topline number masks enormous variation in the propensity of particular state high courts to support equality: states like Texas are particularly unlikely to issue pro-equality decisions; the opposite is true in New Jersey.

But the decisions of state high courts are made by judges. Understanding the background characteristics of these judges is essential to understanding the willingness of state high courts to strike down restrictions on voting, to support the rights of same-sex couples, and to provide citizens with full access to justice. Armed with the support of the Russell Sage Foundation and the National Science Foundation, we worked with a team of research assistants to code the background characteristics of nearly 1,000 people who served as full-time judges on the supreme courts in each state during our twenty-six year time period.

Political scientists have long been interested in the relationship between judicial ideology and judicial behavior, so we began our analysis of judge-level behavior in these equality-relevant cases by examining this connection. Based on news articles, ballot designations, and obituaries, we were able to score each judge in our database as either a Democrat or a Republican. Overall, Democrats dominated; about 56 percent of the judges are Democrats and the remaining 44 percent are Republicans.

The conventional wisdom is that Democrats tend to be at least somewhat liberal and that Republicans tend to be at least somewhat conservative. That assumption, however, is subject to some necessary empirical verification. To validate this assumption, we refer to the work of Bonica and Woodruff, who have developed a measure of state supreme court judges’ ideologies that is useful for us. The measure is derived from a mixture of campaign contributions data and the party of the appointing authority (typically, the governor). We find a large partisan difference in ideology according to the judges’ party affiliation: the difference between the average Republican justice and the average Democrat is about two standard deviations, a very large difference indeed

Armed with these data, we can assess change in the make-up of state supreme courts over time. Figure 1 displays the average ideology of the 50 state supreme courts with civil jurisdiction between 1990 and 2015. Lower (more negative) values indicate greater liberalism. The ideology scores are relative, not absolute scores, so zero has no inherent or substantive meaning. That these bars get closer to the zero line over time demonstrates that the state supreme courts have become considerably more conservative from 1990 to 2015. In the early part of the time series, the courts tilted toward the liberal end of the spectrum. At the end of the time series, this tilt righted itself, producing ideological parity between liberal and conservative state high court judges. As to political party attachments, the average state supreme court in 1990 was 34 percent Republican. By 2000, this figure increased to 45 percent. By 2015, the average state high court was 54 percent Republican.

Figure 1: The average percentage ideology of state supreme courts, by year.

How well does our measure of ideology predict judges’ votes in equality relevant cases?

Figure 2 shows the relationship between judicial ideology and judicial behavior in our dataset. Perhaps unsurprisingly, there is a noticeable negative relationship between ideology and judges’ willingness to support equality. Even without accounting for differences in states, cases, or time, knowing that a judge is liberal or conservative is enough to predict with some degree of confidence how that judge is likely to decide an equality-relevant case.

Figure 2: The relationship between the ideology of state supreme court justices and the percentage of equality-relevant cases in which they voted in a pro-equality direction. The figure is limited to justices who decided at least 10 cases in our dataset.

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ELB Book Corner: Gibson and Nelson: “Judging Inequality: Enormous Variation in State High Courts’ Willingness to Advance Equality”

October 11, 2021, 7:00 amELB Book Corner, judicial electionsRick Hasen

For the past two decades, social scientists have looked with renewed interest at the problem of inequality in the United States, teaching us that at least some portion of the growing political, legal, economic, and social inequality in the U.S. is a function of the policy decisions made by U.S. political institutions, particularly the executive and legislative branches.

Courts are also powerful and efficacious policymakers, issuing decisions about the boundaries of the government’s ability to regulate the economy and the depth and distribution of citizens’ rights and responsibilities. Yet, with only a few exceptions, we know little about the extent to which the judiciary—at any level of government—has played a role in the inequality crisis in the United States.

While the U.S. Supreme Court issues a declining number of opinions each year, the 52 state supreme courts (Texas and Oklahoma have separate civil and criminal high courts) have the final say on most cases filed in the United States. Indeed, as interest groups recognize, these institutions are incredibly potent and relevant policymakers.

We take up this challenge in Judging Inequality, a new book published recently by the Russell Sage Foundation. With support from the National Science Foundation and the Russell Sage Foundation, we created an original dataset of nearly 37,000 votes in about 6,000 equality-relevant cases decided in the 50 states between 1990 and 2015. We divide the cases into three broad policy domains. First, we code rulings concerning the rights of minorities, including poor people. This issue area involves cases relating to school finance funding equality, gay rights, and election law. Second, the dataset includes cases about the rights of workers and employees, including cases concerning employment at will doctrines and collective bargaining. The final issue area is cases relating to access to the state’s justice instructions. Cases in this issue area involve mandatory arbitration, class action, attorneys’ fees, and damage caps.

The core of our analysis is the 6,000 state supreme court decisions relevant to political, legal, economic, and social inequality. We therefore begin the discussion of our findings with an examination of the outcomes in these cases: do the courts’ rulings advance or slow greater inequality? A team of nearly 50 research assistants read each case and coded them according to the court’s disposition on the merits. In election law, for example, we asked coders whether the court’s decision expanded opportunities for participation. To aid coders, we provided specific exemplars of pro-equality decisions: for example, those that remove barriers to voting (e.g., Voter ID laws), allow initiatives or referenda to be placed on the ballot, lessen the control of political parties over ballot access, and require the disclosure of campaign donors.

Overall, we found that state supreme courts decided cases in pro- and anti-equality directions equally: 47 percent of the cases in our dataset were decided in a pro-equality direction; 53 percent were not. Among election law cases specifically, the gap is slightly larger, but not overwhelming: about 58 percent of the election law cases in our dataset were decided in a pro-equality direction.

Particularly noteworthy is the cross-state variation in pro-equality outcomes, as the figure below illustrates. While most states vary in a band from about 40 percent to 60 percent of their decisions favoring greater equality—a significant range in itself—a handful of state supreme courts stand out as outliers. The Arizona, New Jersey, and Kentucky courts issued an unusually large percentage of pro-equality decisions, while the state supreme courts in seven states issued an unusually low percentage of such decisions. The Texas Supreme Court is the most anti-equality court in the country, followed by the Indiana Supreme Court. Across America, the rights you have depend on where you live.

Figure 1

This figure aggregates outcomes in all equality relevant cases decided between 1990 and 2015.

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ELB Book Corner: Primo and Milyo (Post 4 of 4): The Road Ahead for Campaign Finance Reform

September 2, 2021, 7:00 amcampaign finance, ELB Book CornerRick Hasen

I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their final of four posts:

In the last of four blog posts about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we place our findings into perspective.

You can look at our book’s major finding—that campaign finance laws do not affect trust and confidence in government, contrary to the assumptions of courts and reformers—in one of two ways. For die-hard supporters of reform—we call them True Believers in our book, where we discuss them in much more detail—this may be depressing, cognitive-dissonance-inducing stuff. But their “romantic view” of democracy—that if we could just get money out of politics we could enact the “right” policies—has been at odds with the scientific research on collective decision making for some time. This is one more nail in the coffin for that naïve perspective.

But even many campaign finance experts seem to adopt the “romantic” perspective, at least to some degree. In chapters 1 and 7 of our book, we report the results of the first-ever published survey (far as we can tell) of campaign finance experts. Figure 1.1 of our book, reproduced below, compares experts’ responses to the responses of Americans on a set of questions about money in politics. Not surprisingly, experts better understand the realities of campaign finance—for instance, that elective offices are not for sale to the highest bidder. Yet nearly 70% of the experts who took our survey believe that “campaign finance reform is needed to restore the integrity of American democracy.”

For those of us who adopt a “politics without romance” perspective (a phrase coined by the economist James Buchanan) grounded in the traditions of public choice and political economy, these results are one more piece of evidence that democracy has its limits. The pathologies of collective decision making—manifested most elegantly by Arrow’s Theorem—are unrelated to campaign finance. It’s absolutely worth studying how campaign finance alters models of decision making, but we should not be surprised that the fundamental limits of democracy remain even after tinkering with how campaigns are funded.

So what is the path forward for campaign finance reform? While we disagree with him often, Rick Hasen’s focus on political equality and campaign finance moves the conversation in a productive direction—though as we discuss in our book, we are skeptical that political equality is a viable standard for assessing reform efforts. We’d rather see a debate about political equality, however, than a continued beating of the dead horses of trust in government and the appearance of corruption.

We also need better education about money in politics. The public, reporters, and even judges often learn about campaign finance from advocacy groups which have a very clear rhetorical script when it comes to campaign finance. Social scientists can contribute to the public discourse by better informing the American public, the media, policymakers, and others about the role of money in the US political system. We are not so Pollyannaish to think that this will lead to a sea change in how the public thinks about campaign finance. But, we are certain that allowing reform groups and politicians to frame the campaign finance debate will cause misunderstandings and misinformation to flourish.

Thank you for taking the time to read about our book, and thank you once more to Rick Hasen for this opportunity. There are many findings we didn’t have time to discuss in these blog posts, and we hope you will find our results interesting enough to merit getting a copy of our book to learn more.

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ELB Book Corner: Primo and Milyo (Post 3 of 4): Campaign Finance Laws Won’t “Fix” American Democracy

September 1, 2021, 7:00 amcampaign finance, ELB Book CornerRick Hasen

In our first two blog posts about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we explained that the American public is uninformed and misinformed about campaign finance and cynical about money in politics (and politics generally)—so cynical, in fact, that there is good reason to question whether reform can have any effect on confidence in government—a key pillar of campaign finance jurisprudence. In chapter 8 of our book, we put this question to the test.

The states provide a natural laboratory for studying the effects of campaign finance reform because regulations vary across states and change over time more frequently than at the federal level. In chapter 8, we focus on trust and confidence in state government rather than the appearance of corruption, for two reasons. First, there is the matter of data availability; trust in government is a fairly standard survey instrument, so we are able to obtain dozens of national polls over a long time period that ask similar questions about this concept. Second, there is a theoretical justification. Ultimately, the courts are concerned about the appearance of corruption because of its relationship to faith in government. In Buckley v. Valeo, the US Supreme Court explicitly tied the “appearance of corruption” standard to maintaining faith in government.

We construct the largest dataset to date of survey results asking Americans about trust and confidence in state government—nearly 60,000 individual-level observations in all. Our data spans several changes in state campaign finance laws, allowing us to leverage these changes to better estimate the effects of laws, as well as the Citizens United decision, on trust, giving us a unique window into that controversial decision’s effects on trust in government.

Our book goes into detail on the underlying statistical methodology, but the bottom line is this: we find there simply is no meaningful relationship between state-level trust in government and state campaign finance laws—including contribution limits and public financing—during this time period. We view this as the most important finding in our book, as it challenges 45 years of assumptions about the role campaign finance reform plays in maintaining confidence in government.

We also dispel the myth that Citizens United has destroyed Americans’ faith in government, finding no evidence that trust in state-level government was affected by the decision. Critics might argue that the null results are due to the fact that the effects of the ruling were felt nationwide, not just in states with corporate independent expenditure bans which became unconstitutional as a result of the decision. When we rerun our analysis looking at the ruling’s impact on trust in the federal government, we still find no effects. And sometimes a picture tells you as much, or more than, a regression can. Figure 1.2 of our book, reproduced below, depicts the percentage of Americans indicating that they trust the federal government to do what is right “just about always” or “most of the time.” One would be hard-pressed to look at this figure and discern any impact of Citizens United.

When we have presented these findings, we have been met with one of three reactions: This is obvious, this is wrong, or reformers don’t really mean it when they say that campaign finance reform will restore or maintain faith in government (and some critics hold all three reactions simultaneously!). In our fourth and final blog post, we will discuss the importance of our findings for the campaign finance debate.

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ELB Book Corner: Primo and Milyo (Post 2 of 4): The Cynical Public

August 31, 2021, 7:00 amcampaign finance, ELB Book CornerRick Hasen

In our first blog post about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we explained that the public is uninformed and misinformed about campaign finance. Today, we delve into what the public thinks about campaign finance.

Cynical is perhaps the best word to describe American attitudes toward money in politics—and politics generally. In our 2015 and 2016 surveys of the American public, 81% believe the campaign finance system is corrupt, and 89% believe there is too much money in politics. (Think about how hard it is to get that many Americans to agree on anything!)

These cynical attitudes may seem to create an open-and-shut case for campaign finance reform. But, as we document in chapter 5 of our book, Americans see corruption everywhere—so much so that it raises questions about how campaign finance reform could ever improve attitudes toward government. We asked respondents about nine factors that may affect a politician’s policy positions, such as personal financial advantage or wanting to secure favorable media coverage. Reassuringly, 84% of Americans think that it’s corrupt to adopt a policy position for personal financial advantage. Less reassuringly, nearly two-thirds of Americans think it’s corrupt to adopt policy positions under pressure from party leaders or to secure favorable media coverage—suggesting the term “corruption” has become a catchall for a broad distaste for politics.

Perceptions of corruption also have an ideological bias—what we call contingent cynicism. Chapter 5 of the book presents the results of some survey experiments in which we vary question wording in a random fashion to see whether views about corruption depend on the actors involved. For example, 47% of liberals believe that it is likely corrupt for an elected official to meet with a corporate lobbyist, but only 20% of liberals view a meeting with a union lobbyist as corrupt. Is a campaign contribution from the NRA or Planned Parenthood corrupt? The answer, it turns out, depends heavily on whether you support the NRA or Planned Parenthood’s policy positions.

As with many other policy issues, Americans are divided in their support for campaign finance reform, with disclosure being the most widely supported of the reforms we ask about. Yet, even as some reforms have majority support (masking a partisan divide we discuss in chapter 6 of the book), Americans don’t expect much to come of them. Perhaps sensing the futility of reform given their cynical state, Americans are skeptical that campaign finance reforms will make much of a difference in reducing corruption. On a scale from 1 to 7, with 1 being “the right package of reforms will greatly reduce corruption” and 7 being “reforms are ineffective and politics will always be corrupt,” only a third of Americans come down anywhere on the side of reforms having a positive impact.

These findings raise serious questions about the reform enterprise. If Americans see corruption everywhere, and especially when observing the behavior of political opponents, is there really hope for campaign finance reform to reduce the appearance of corruption? To put a finer point on it, does the Court’s famous “appearance of corruption” standard have any meaning in light of our findings?

Reformers, however, might reasonably point out that just because Americans say they don’t think reforms will work doesn’t mean that reforms are ineffective in addressing the appearance of corruption. In our next blog post, we’ll delve into whether public trust and confidence in government is improved by tightened restrictions on campaign contributions.

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ELB Book Corner: Primo and Milyo (Post 1 of 4): Ignorance About Campaign Finance Reform Is Not Bliss

August 30, 2021, 7:00 amcampaign finance, ELB Book CornerRick Hasen

We are grateful to Rick Hasen for inviting us to discuss our new University of Chicago Press book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters. We have collaborated on campaign finance research for over twenty years. This book takes what we have learned during that time—as well as new survey data emerging from our participation in the Persily-Bauer-Ginsberg campaign finance task force—to construct the most comprehensive look at public opinion about campaign finance to date.

Why does public opinion about money in politics merit a book-length treatment? Since the US Supreme Court’s 1976 Buckley v. Valeo decision, the foundation of campaign finance law has largely rested on concerns about how campaign contributions lead to quid pro quo corruption or the “appearance” of such corruption. Concerns about appearances place public perceptions front-and-center in the campaign finance debate.

Campaign finance is sui generis among policy issues in that public opinion determines the constitutional permissibility of regulations that otherwise restrict political speech and participation. The Court, however, has been content to assume that campaign finance laws work in the ways reformers promise, reducing corruption and its appearance. While this may seem self-evident, science demands actual evidence—hence, the importance of the questions we ask in this book.

These questions can be boiled down to

What does the public know about money in politics?
What does it think about money in politics?
Do campaign finance laws influence these attitudes?
Why do the answers to the above matter for American politics?

In today’s post, we answer the first question. In 2015 and 2016, we surveyed Americans as part of the Cooperative Congressional Election Study (CCES) to understand their views on campaign finance. The first thing we learned is that the American public is woefully ignorant about money in politics. Americans do about as well in answering questions about the basics of campaign finance law as a blindfolded monkey throwing darts at possible answers.

Even worse, Americans also buy into false narratives about money in politics. More than three-quarters of respondents in 2015 and 2016 thought that super PACs accounted for over half of campaign spending in the most proximate election season—in reality, super PAC spending was 9% of total spending in 2014 and 15% in 2016. Supermajorities of Americans also believe that “elective offices are for sale to the highest bidder” and “campaign contributions are the equivalent of bribes.”

It’s no surprise that the public is uninformed and misinformed about money in politics, though the extent of the ignorance and misinformation is a bit jarring. What may be surprising, though, is that this ignorance has consequences for policy preferences. The less you know about campaign finance laws, the more likely you are to support stricter laws. Buying into the false narrative that super PACs are “flooding” the campaign finance system also leads to greater support for tougher campaign finance laws.

There are many more findings in chapter 3 of our book about public knowledge, or lack thereof, including how little the public knows about just how much of their personal information is publicly revealed after they make a campaign contribution.

Knowing little about campaign finance does not stop Americans from having opinions on the role of money in the American political system. In our next blog post, we’ll delve into what the public thinks about the campaign finance system and the prospects for reform.

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ELB Book Corner: Kurt Lash (Post 3 of 3): The Fight for Black Suffrage: Documenting the History of the Fifteenth Amendment

August 11, 2021, 7:00 amELB Book CornerRick Hasen

I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for the third of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:

In my last two posts, I’ve described the basic theory and contents of the new historical collection, The Reconstruction Amendments: Essential Documents (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021). In this final post, I describe the collection’s documents relating to the issue of Black suffrage and the framing and ratification of the Fifteenth Amendment—materials likely of special interest to readers of the Election Law Blog.

Sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session. The result was procedural chaos as competing drafts flew back and forth between the two houses of Congress. Within this chaos, however, are extended and sophisticated discussions of congressional power and constitutional meaning. Just as the Fourteenth Amendment drafting debates contained extended discussions of the meaning and scope of the Thirteenth Amendment, so the Fifteenth Amendment drafting debates contain substantial commentary on the meaning and scope of the Fourteenth Amendment, especially the Citizenship Clause and the Privileges or Immunities Clause of Section One and the suffrage provision of Section Two. Also, as was true during the Fourteenth Amendment debates, the suffrage amendment debates included significant discussion of the scope of congressional power under the original Constitution (particularly the Republican Guarantee Clause and the “Comity Clause” of Article IV) as well as repeated references to and debates about the theories of Madison and Hamilton in the Federalist Papers and the original ratification debates.

Even before debating a Fifteenth Amendment, Congress had already taken significant steps towards securing the right to vote for southern Black Americans. The 1867 Reconstruction Acts, for example, required southern Black citizens be allowed to register and vote on the creation of a new state constitutions and new state assemblies (assemblies that would hold new votes on ratifying the Fourteenth Amendment) (see Volume 2, Part 1B, docs. 74 and 77). Congress also had imposed “fundamental conditions” on the readmission of former rebel states such as Arkansas, North and South Carolina, Louisiana, Georgia, Alabama, and Florida, prohibiting these states from denying blacks the right to vote any time in the future (Vol. 2, Part 1B, docs. 74, 77, 89 and 93).

Nevertheless, even in those southern states that were required by federal law to permit Black suffrage, the exercise of Black political power faced stiff resistance. In Georgia, for example, although Black citizens had been permitted to vote for members of the state legislature, the Georgia State Assembly voted to excluded elected Black representatives (claiming that blacks had the right to vote but not the right to hold office). The exclusion outraged congressional Republicans who responded by refusing to seat Georgia Senator Joshua Hill at the opening of the third session of the Fortieth Congress (Vol. 2, Part 2A, doc. 1). By that time, Republican congressional leaders had decided that the time had come to take the final step toward constitutionally securing the equal political rights of freedmen: passage of a fifteenth amendment abolishing racial discrimination in voting.

Congress drafted and debated the Fifteenth Amendment during the third session of the Fortieth Congress, between December 7, 1868, and March 3, 1869. A widely shared sense of urgency to see it completed before the end of the session resulted in both houses of Congress working on various suffrage amendments at the same time. The multiplicity of versions and votes, with drafts bouncing back and forth between the two houses, inevitably produced periods of substantive and procedural confusion. (see, Introduction, Vol. 2, Part 2A) Although members like John Bingham proposed broad amendments prohibiting states from denying any qualified male “the equal right of suffrage” (Vol. 2, Part 2A, doc. 8), on February 6, 1869 Congress passed a narrow amendment prohibiting the denial of the right to vote “on account of race, color, or previous condition

of servitude.” (id. at doc. 21). Discussed but ultimately not included was language protecting the right to office holding (id. at doc. 20), and protection against discrimination on the basis of wealth, property, or education. (see, e.g., docs. 3, 6, 8, and 11).

Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in Democrat-controlled state legislatures and, most startlingly, from women’s rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton’s “All Wise Women Should Oppose the Fifteenth Amendment,” Vol.2, Part 2B, doc. 23). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.” (id. at doc. 18)

In fact, significant pockets of opposition to Black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected Black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar “Requirement Bills” were passed for the readmission of Virginia, Mississippi and Texas—acts which prompted newspaper editorial concerns about legitimacy). (see, e.g., id. at doc. 13)

Finally, on March 30, 1870, President Ulysses S. Grant announced the ratification of the Fifteenth Amendment, what he called “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.” (id. at doc. 34) Frederick Douglass agreed. In a message to a group celebrating the passage of the Fifteenth Amendment, wrote, “[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us.” (id. at doc. 35).

To date, scholarship on the history of the Fifteenth Amendment has been relatively rare (though there are some signs of renewed interest). This new collection should help lower the bar to new historical scholarship on the history of constitutional suffrage rights. Even beyond questions of the right to vote are broader questions of racial equality, congressional enforcement power, and the role of federalism in our post-Civil War Constitution. All of these issues were hotly debated for what amounted to a five-year “moment” of public constitutional debate. The collection is meant to be an introduction this extraordinary moment and a prompt to further and deeper investigation and scholarly debate.

My thanks to Rick Hasen for giving me the opportunity to present these three posts on “The Reconstruction Amendments: Essential Documents.” In the next few months, I’ll be speaking about the collection at a variety of conferences and symposia around the country. I look forward to meeting and talking with readers of the Election Law Blog at those events.

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ELB Book Corner: Kurt Lash (Post 2 of 3): Documenting the Second Founding: The Road From the Founding to the Thirteenth, Fourteenth and Fifteenth Amendments

August 10, 2021, 7:00 amELB Book CornerRick Hasen

I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for the second of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:

The adoption of the three Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments, constitute such a profound change in the national Constitution that the event is often referred to as the “Second Founding.” Remarkably, despite the obvious legal and historical importance of these three amendments, prior to the publication of The Reconstruction Amendments: Essential Documents, no collection existed which presented the original arguments and debates that accompanied their passage and ratification. In this, the second of three posts, I’ll describe the basic contents of the two volumes. My third and final post will focus on the less-often studied, and remarkably chaotic, history of the framing and ratification of the Fifteenth Amendment.

Volume One covers two subjects: The antebellum constitutional debates over slavery and federalism, and the framing and ratification of the Thirteenth Amendment. Antebellum historical debates produced ideas and commitments that later played critical roles in the debates over the Thirteenth, Fourteenth, and Fifteenth Amendments. Reconstruction-era Americans came of age during an increasingly strident national discussion regarding the nature of American government and the scope of human freedom. Ideas developed in the crucible of antebellum political and legal debate became the building blocks of constitutional reconstruction.

Antebellum constitutional debates had dimensions that were both structural (e.g., the meaning and scope of federalism) and substantive (e.g., slavery as a denial of due process, the nature of the privileges and immunities of national citizenship, etc). Documenting the structural debates includes familiar documents such as Madison’s Virginia Resolutions, Calhoun’s South Carolina Exposition, and Webster’s “The Constitution is Not a Compact.” Less familiar, perhaps, are the documents illustrating the degree to which abolitionists and northern free states embraced Madisonian federalism in their fight against slavery. Wisconsin, for example, relied on Madison’s Virginia Resolutions in its refusal to recognize the validity of the Fugitive Slave Act.

The documents on citizenship and rights include the declaration at Seneca Falls, Williams Yate’s “Rights of Colored Men,” the 1853 Colored National Convention, and the speech of a young Ohioan named John Bingham in opposition to the admission of Oregon—a speech which contains the seeds of what became Bingham’s draft of Section One of the Fourteenth Amendment.

The historical documents on slavery include the early state emancipation laws, the debates in the Philadelphia Convention on the proposed “slavery” provisions, state slave codes, David Walker’s “Appeal,” the abolitionist writings of Garrison, Spooner, and Tiffany, the Supreme Court’s decision in Dred Scott, northern state “Personal Liberty Laws,” and Frederick Douglass’s “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”

The second half of Volume One is devoted to the congressional and public debates accompanying the passage and ratification of the Thirteenth Amendment. Readers may be surprised to learn that our current Thirteenth Amendment is the second of two “thirteenth amendments” sent to the states for ratification. The first, passed and submitted just prior to the Civil War (the “Corwin Amendment”) would have constitutionally protectedslavery—a last ditch effort to stave off secession which was abandoned when war broke out.

The Thirteenth Amendment framing debates contain lengthy exchanges on the nature of the original Constitution, republican government, natural rights, and the proper use of Article V of the Constitution. Some of the more significant sections include the rejection of Charles Sumner’s “equal rights” language and the selection of Thomas Jefferson’s language from the Northwest Ordinance, and the Republican divide over whether ending slavery requires a constitutional amendment or can simply be accomplished by way of broad interpretations of pre-existing powers. Scholars investigating the scope of congressional power to enforce Section Two of the Thirteenth Amendment have a wealth of material to work through here, especially in the ratification debates where the scope of Section Two became a matter of express concern among the southern provisional governments. The newly sworn-in President Andrew Johnson assured these assemblies that Section Two would not authorize federal civil rights legislation—an issue, of course, that became a major subject of debate in 1866, when Congress debated whether it had the power to pass the Civil Rights Act.

Volume Two begins with the opening of the Thirty-Ninth Congress and the debates that led to the framing and ratification of the Fourteenth Amendment. Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Thirteenth, Fourteenth and Fifteenth Amendments were all open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. Members of the public could follow the arguments supporting or opposing proposed amendments–arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons, and the nature and limits of federal power.

Volume Two also presents a number of previously unpublished documents containing the Fourteenth Amendment ratification debates. Long assumed to be either non-existent or no more than fragmentary, Volume Two contains discussions of the proposed amendment in gubernatorial addresses, committee reports, and state legislative debates (including Pennsylvania’s lengthy ratification debates). The ratification documents also include public commentary on the proposed amendment by Frederick Douglass, Wendell Phillips, southern loyalists, Susan B. Anthony, Elizabeth Cady Stanton, S.S. Nicholas, anonymous essayists (the “Madison” essays), northern and southern newspaper editorialists, and much more. One of the most sublime documents in this section is the notice of ratification by the majority black legislative assembly of South Carolina–the state that started the Civil War.

In short, the collection brings together for the first time the voices that demanded constitutional reform and that accomplished constitutional reform. Black and white, men and women, north and south, government officials and private citizens, supporters and opponents, ratifiers and rejectors. Readers can trace the evolution of the proposed constitutional text (an ability the National Constitution Center used in the creation of its new exhibit on the Reconstruction Amendments), as well as the evolution in theories and arguments by both supporters and opponents.

Thus far, I’ve described the collection’s antebellum documents and those relating to the framing and ratification of the Thirteenth and Fourteenth Amendments. In my third and final post, I’ll describe the documents relating to the framing and ratification of the Fifteenth Amendment, the capstone of constitutional reconstruction.

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ELB Book Corner: Kurt Lash (Post 1 of 3): “The Reconstruction Amendments: Essential Documents” (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021)– A New and Unprecedented Collection of Historical Materials

August 9, 2021, 7:00 amELB Book CornerRick Hasen

I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for a series of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:

University of Chicago Press has just published “The Reconstruction Amendments: Essential Documents,” a two-volume collection of original historical documents relating to the framing, ratification and public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments to the American Constitution. Prior to this publication no such collection existed. My thanks to Rick Hasen and the Election Law Blog for inviting me to introduce the collection and talk about why it might be a particular interest to readers of this blog.

The two volumes contain more than 400 original historical documents spread across approximately 1,200 oversized pages. The format intentionally copies the University Chicago Press’s earlier five volume publication, “The Founders’ Constitution,” with this collection serving as a kind of sequel.

The collection emphasizes the public debates which led to the adoption of the three Reconstruction amendments. It includes the voices of politicians, presidents, governors, generals, radical abolitionists like William Lloyd Garrison and Wendell Phillips, constitutional abolitionists like Lysander Spooner and Joel Tiffany, Black civil rights activists like William Yates, David Walker and Frederick Douglass, women’s rights activists like Francis Watkins Harper, Susan B. Anthony, and Elizabeth Cady Stanton, the proceedings of the “Colored Conventions,” “Southern Loyalist Conventions,” “Equal Rights Conventions,” southern newspaper editors, northern political essayists, and politicians like Charles Sumner, Thaddeus Stevens, James F. Wilson, James Ashley, John A. Bingham, Lyman Trumbull, Jacob Howard, and George S. Boutwell.

There is a lot of stuff in here. Some researchers will know immediately what they want to see: Perhaps Susan B. Anthony’s “Make the Slave’s Case or Own,” (Vol. 1, p. 283), William Yates’ “The Rights of Colored Men” (Vol. 1, p. 134), Charles Sumner’s effort to broaden the language of the Thirteenth Amendment, (Vol. 1, p. 434), the Women’s Suffrage Petition presented in the Thirty-Ninth Congress (Vol. 2, p. 47), John Bingham’s call for an amendment enforcing the Bill of Rights (Vol. 2, p. 108), Jacob Howard’s Speech Introducing the Fourteenth Amendment, (Vol. 2, p. 185), Frederick Douglass’s criticism of the Fourteenth Amendment (Vol. 2. p. 293), or the Fifteenth Amendment framing debates (Vol. 2, pp. 439-536).

Those purchasing the Kindle e-edition of the volumes will be able to conduct word-searches of the documents (a tool some scholars have already put to good use). For the first time, scholars can search a curated collection of Reconstruction-era documents for terms like “Black suffrage,” “equal suffrage,” “universal suffrage,” “privileges or immunities,” “appropriate legislation,” “bill of rights,” “natural rights” or “women’s rights.” There is a vast difference between being able to word-search, say, a noncurated collection of tens of thousands of historical newspapers, and searching a specially curated collection of documents—the ratio of relevant to non-relevant “hits” will be much higher.

The collection actually aspires to be read from beginning to end. Together, the documents present the remarkable story of how the American people, enslaved and free, politically empowered or not, together engaged in an eighty year debate over the nature of the original Constitution, its relationship to slavery, the scope of constitutional federalism, the meaning of American liberty, and the basic rights of every human being.

Not everyone who uses the collection, of course, will have a background expertise American constitutional history. Accordingly, every major section of documents begins with a lengthy introduction describing the included documents, their historical context, and how they relate to the broader issue of constitutional reconstruction. Lay readers will thus engage the historical documents with a basic idea of what happened, when it happened, who participated, and why it’s important.

For example, the introduction to the framing of the Thirteenth Amendment describes the chronology of voting in the House and Senate, the major players in the debates, the major arguments for and against the proposed abolition amendment, and major external events affecting those debates, such as President Lincoln’s re-election. Similarly, the introduction to the ratification of the Fourteenth Amendment describes the major public arguments for and against the amendment, major events which affected ratification such as the 1866 New Orleans riot, the 1866 congressional elections, the passage of the Reconstruction Acts, and the impeachment of Andrew Johnson. As far as the Fifteenth Amendment is concerned, the introduction to the framing of that amendment is essential reading for anyone confronting for the first time the bewildering debates and procedural votes that somehow ended in the successful passage of the suffrage amendment.

Prior to the publication of this collection, there were few (any?) courses on the history of the Reconstruction Amendments at American law schools. Last year, with the assistance of these materials, faculty taught such courses at both Stanford Law School and Chicago Law School (and, of course, my home institution at Richmond School of Law). To facilitate the creation of more such courses, I have prepared a set of teaching materials. They are available both at my SSRN webpage, and as a link on the books’ webpage at University of Chicago Press (see “download the instructor’s manual”).

These teaching materials include a sample syllabus for a fourteen-week course, weekly reading assignments with specific page numbers, explanations for the instructor regarding the nature and context of the assigned materials, and suggested questions for class discussion for each week of the course. It is my hope, and it was my purpose, to provide a set of documents and teaching materials that would be useful to researchers, teachers, lawyers and judges regardless of their position on originalism, their interpretation of “privileges or immunities,” or their stance on the “1619 Project.” Hopefully, the collection has lowered the barriers to conducting original historical research and teaching about this critical period in our constitutional history.

My second post will present a kind of overview of the two volumes, and what I think are some of the collection’s highlights. My third and final post will focus on the materials relating to the framing and adoption of the Fifteenth Amendment.

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