Archive for the 'progressive politics' Category

Professor Lessig’s Electoral College Litigation

September 19, 2017
posted by Bob Bauer

It happens often that calamitous election outcomes are attributed to democratic dysfunction, and reform proposals follow from there. Those Republicans who are not deeply cynical about voter ID--and there are a fair number of those--sincerely and mistakenly believe that they lose elections because of illegal voting. Years ago, they convinced themselves that structural bias would keep Democrats in power in the Congress until the nation adopted mandatory term limits. Democrats in 1971 famously believed Richard Nixon reinvented himself politically through dark manipulations of television advertising, and to weaken his reelection prospects, their ranks in the Congress enacted a short-lived law that limited candidate media expenditures.

Of course, not all reform proposals born of frustration are misconceived or doomed to fail. But there are risks, some of which are apparent in a new reform initiative from Professor Lawrence Lessig’s: litigation to establish that states may not allocate Electoral Votes on a winner-take-all basis (WTA). His argument is not entirely about a change in the rules to achieve preferred outcomes or prevent bad ones. He does contend that, by driving active campaigning to a handful of states, WTA limits meaningful participation in the election to a handful of states whose voters see the most paid advertising and enjoy--if that is right word--the most visits from candidates and their surrogates.

Professor Lessig’s next argument, however, is more political. He sees WTA as putting more power in the hands of older white voters in industrial heartland states. It is fairly clear, then, that this proposed litigation is a response to the election of 2016, grounded in the belief that a change in the allocation would work a shift in the balance of national political power. And we have seen a reaction like this before. In 2012, the Democratic nominee won Pennsylvania, and those who were bitter about WTA were Republicans state legislators who threatened to shift a Congressional-district based allocation. Indeed the same move among Republicans is now underway in the State of Virginia and Minnesota.

So this is one risk: guessing wrong, as the Republicans did in 2012. Had they succeeded then, the congressional district-based allocation of electoral votes would have benefited Hillary Clinton in 2016. Politics is not static, and the judgment about the political effects of specific allocations is hazardous.

Another risk is misreading, or reading narrowly, the requirements of democratic participation in the concrete setting of the politics of the era.

The New York Times has carried two pieces in the last days on the Internet politics, each making a case for its contribution to degraded democracy. Michael Birnbaum writes about the influence of rightist websites in Europe as both the Netherlands and France head into national elections. Tom Edsall adds a thoughtful, more academic note, interviewing scholars and citing to various studies that generally reinforce a dark message about “democracy, disrupted.”   The Edsall analysis also takes on the question of whether this disruption plays favorites, helping more the left or the right, and he concludes as follows:

There is good reason to think that the disruptive forces at work in the United States — as they expand the universe of the politically engaged and open the debate to millions who previously paid little or no attention — may do more to damage the left than strengthen it. In other words, just as the use of negative campaign ads and campaign finance loopholes to channel suspect contributions eventually became routine, so too will be the use of social media to confuse and mislead the electorate.
This is a significant coupling of concerns about the uses of social media with two of the prominent planks in the campaign finance reform program. Edsall may mean that each disserves democracy in its own way, or that there is an interaction among these developments that is generally helpful to conservative, and inimical to progressive, politics.

What is also unclear is why these means are closely associated with a specified political end. For example, what is it about a “negative campaign ad” that is markedly more useful to the right-wing sponsor? There are times when the anger can be turned in the opposite direction, as Republican Members of Congress recently found in their town hall meetings; and this anger is finding expression through social media, on TV, and surely in the election to come, in negative campaign advertising. Those same angry progressive voices will be amplified only if the required funding is available. “Loopholes”--as some understand Super PACs or (c)(4) issue advocacy to be--will flourish on the left and right alike.

Contribution Limits and “Standards of Review”

March 3, 2017
posted by Bob Bauer

Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”

Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?