SCOTUS Recognizes Congress’ Powers to Govern

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The Supreme Court has decided Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., recognizing Congress has constitutional prerogatives to govern and structure the federal government as it sees fit. The case will no doubt mostly be discussed as an obscure case that put an end to the long conservative attack on the constitutionality of the Consumer Financial Protection Board. But it should also be acknowledged as a pro-democracy case–and those are few and far between these days. This Court is arrogant in its assertion of judicial supremacy, and when it comes to Congress, it routinely minimizes that branch’s constitutional powers. This impacts democracy because as Congress lays mired in gridlock, the administrative state is the main place governance is occurring. This decision upholds Congress’s power to financially insulate administrative agencies from Congress’s dysfunction. To be sure, it is doctrinally limited and will not put a stop to other developments likely to undercut congressional flexibility to structure agencies. Nevertheless, it should be recognized as an important separation of powers decision that appears to acknowledge Congress as a co-equal branch of government.

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A Justice’s Perspective on Moore v. Harper

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Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.

But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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“Secret Service appears unlikely to move RNC protest zone despite pressure from Republicans”

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Milwaukee Journal Sentinel. Once again, the emphasis is entirely on risks of disruption with absolutely no consideration of the contribution of assembly and protest to democracy. Everyone should read Tim Zick’s wonderful forthcoming. chapter, Assembly Within ‘Sight and Sound’ of the Audience (Oxford Handbook on Peaceful Assembly 2024).

“Republicans put pressure on the U.S. Secret Service to move an expected protest area farther from the Republican National Convention in downtown Milwaukee[.]”

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Democrats and “Traditional” Republicans Must Unite This Year

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New Common Ground Democracy column, with this subtitle: “Until electoral reform occurs, the best way to protect democracy is for a bipartisan coalition to join together in a campaign against a would-be autocrat.” The reference to “traditional” Republicans is to this recent Washington Post opinion piece, which (while well-intentioned) fails to recognize that it will be impossible for the non-MAGA wing of the GOP to resuscitate itself without electoral reform according to Common Ground Democracy (in technical terms, Condorcet-based) principles.

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New Index for California Campaign Finance Reformers

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California Common Cause has released a first-of-its-kind index and report on campaign finance laws in all California cities. The report, Local Dollars and Local Democracy, is an analysis of all campaign finance reforms in California cities, as of December 2022.

Key statewide findings include:

  • 97% of all California cities now have contribution limits, thanks to AB 571 (Mullin – 2019), compared to just 22% of California cities in 2016.
  • 482 California cities (and other local jurisdictions) now have pay-to-play prohibitions that require governing-body members who accept large campaign contributions from interested parties to recuse themselves, compared to just 35 cities before the passage of SB 1439 (Glazer – 2022).

But the report’s main emphasis is on identifying those cities that go beyond these state-wide norms, and it is set up so that local jurisdictions can the Municipal Campaign Finance Index (MCFI) to see what types of reforms other cities have implemented and determine which are desirable for their jurisdictions.

The report and interactive spreadsheets of the index can be downloaded HERE. The findings in the report are a product of the data collected in the California Municipal Campaign Finance Index (MCFI), which is an organized accounting of campaign finance laws codified in the charters and/or municipal codes of all California cities.

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