Justice Stevens and his “Oops”

September 29, 2014
posted by Bob Bauer
Justice Stevens has taken the occasion of another address to critique the Supreme Court's campaign finance jurisprudence. This time, his attention fixed firmly on the McCutcheon case, he asks why the Constitution should protect campaign contributions made by one state or district’s residents to a candidate who represents another. Mr. McCutcheon, he argues, had no clear right as an Alabaman to contribute to candidates in other states, and the Supreme Court mistakenly overlooked this weakness of his case.  The Justice cites as authority for his position the Supreme Court's validation of Congress’s prohibition on contributions by foreign nationals. Of the Supreme Court’s failure to deal with the question of a contributor’s right—or lack thereof—to support a candidate in another jurisdiction, Justice Stevens writes that it was a glaring oversight—an “oops,” as he puts it.
Category: The Supreme Court

“Nudge” Theory and the Gerken Disclosure Proposal

September 24, 2014
posted by Bob Bauer
At this time, we have going several distinctive programs for addressing contemporary campaign finance questions: (1) Reliance on strengthened “command and control” measures—that is, more reform to counter “circumvention” of the 1970s-era regulatory framework and rebuild it on a more secure footing; (2) Public financing proposals; (3) Deregulation; (4) Constitutional change, either through

(a) an amendment; or

(b) a change in the Court and its jurisprudence (pressing for the Court to adopt doctrinal changes, whether by expanding the corruption rationale or adding in another like political equality).

And then there is a fifth category, “soft regulation,” the leading example of which is Heather Gerken’s proposal that organizations that do not disclose their donors be required to affix a notice to that effect in their advertising.

Lying in Political Campaigns and the Judicial Response

September 19, 2014
posted by Bob Bauer
The District Court that struck down Ohio's false campaign speech statute won few points for craftsmanship.  See Susan B. Anthony List v. Ohio Elections Comm'n, No. 1:10-CV-720, 2014 WL 4472634 (S.D. Ohio Sept. 11, 2014).  In straightforward terms, the court concluded that the government may not police the truth or falsity of political campaign speech. It is an opinion seemingly prepared for a general audience, its sentences plastered in bold type or energetically underlined.  At one point, the court consciously pitches its presentation to a wider lay readership, patiently explaining that "lawyers and courts call [laws like Ohio's] ‘overbroad’ and hence ‘unconstitutional.’”  Id at *1.  For all this earnestness, Rick Hasen critiqued the Ohio decision as lacking subtlety, and he was joined by Eugene Volokh in this skeptical view of the court’s work.
Category: First Amendment
If it is generally agreed that politics should not be criminalized, there is uncertainty about the sort of “politics” that should be protected. Jeffrey Bellin warns about prosecutors with unfettered discretion who can aim vaguely drafted laws at public officials.  And he and others have noted the concern triggered by the McDonnell prosecution over the breadth of the definition that may be given to the term "official act" in prosecuting public corruption cases. The task is to distinguish the official from the political act, or to decide when an action motivated by both official and political purposes is properly accountable under the criminal laws.

The Mayday PAC and Progressive Politics, Part II

September 10, 2014
posted by Bob Bauer

Jim Rubens has lost, but the discussion of Mayday politics will continue. The issues it raises for progressives were raised to a new level of visibility by the news that the PAC was working  with Stark360 , a New Hampshire organization that opposes campaign finance reform and is generally hostile to progressive objectives.  Professor Lessig replied to critics with a clear and thoughtful defense, denying that he was  “compromising” on fundamental commitments.  He was not, he stressed, collaborating with Stark360 on anything on other than the election of Jim Rubens, and it was a strength, not a weakness, to join with adversaries in the search for “common ground.”

But it seems that this reply confuses the issue.  That Professor Lessig means  to advance the cause of reform, and that his joint venture with Stark 360 was launched (on his part) for that purpose alone, is not to be doubted. As in all matters political, however, the means chosen have consequences, and Professor Lessig underestimates the burden he carries to establish for progressives that the means are well fitted to his ends. In this case, in New Hampshire, he has yet to make the case.