Contraceptives and the Politics of Recognition

Joey Fishkin

The Affordable Care Act requires all health insurance plans (except grandfathered plans) to cover the entire cost of certain preventive medical services, with no co-pays.  This list includes, among many other things, birth control.  This has led to a massive political firestorm.  Should all women, regardless of employer, have access to birth control with no out-of-pocket costs?  Or should religiously affiliated employers with religious objections to birth control be exempt from this requirement as a matter of religious freedom?

On Friday, President Obama announced a clever compromise: yes to both questions.  Yes all women should have access, and yes religiously affiliated employers should be exempt (and not only churches, who got a narrow exemption from the previously announced version of the rule, but also religiously affiliated hospitals and health care systems and universities).  Where a religiously affiliated employer objects to birth control, it need not provide it or pay for insurance that provides it.  Instead, the insurance company must, on its own initiative, provide the birth control to the women at no cost to them.  (For insurance companies, this is not such a bad deal.  Because childbirth and dependent care coverage are very expensive, and birth control pills are comparatively cheap, an insurance company that manages to pay for slightly fewer pregnancies and births as a result of paying for birth control might come out even or ahead.)

The reason this compromise is clever is that each side gets the main thing it says it wants.  Reproductive rights advocates win on access.  Employees (and families of employees) of large Catholic hospital systems, for example, will have the same access to birth control that other women will have.  At the same time, religiously-affiliated institutions win their exemption from a generally applicable law.  They win the right not to participate in something to which they deeply object.  But neither side can be completely pleased with this deal, because this fight was never exclusively about these two concerns.  It was also about the politics of recognition.  But recognition of what?

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Posted 4:30 PM by Joey Fishkin [link]

Understanding the Right’s Birth Control Rage

Ken Kersch

A tutorial in ten minutes.

This is the opening of the documentary film series What Ever Happened to the Human Race? (Gospel Films, 1979), by the evangelical minister Dr. Francis Schaeffer and the pediatric surgeon Dr. C. Everett Koop (soon to be appointed Surgeon General by President Reagan).

Posted 7:55 AM by Ken Kersch [link]

What is Rick Santorum's position on masturbation?

Sandy Levinson

According to the Sacred Congregation of the Faith of the Roman Catholic Church,

The traditional Catholic doctrine that masturbation constitutes a grave moral disorder is often called into doubt or expressly denied today. It is said that psychology and sociology show that it is a normal phenomenon of sexual development, especially among the young. It is stated that there is real and serious fault only in the measure that the subject deliberately indulges in solitary pleasure closed in on self ("ipsation"), because in this case the act would indeed be radically opposed to the loving communion between persons of different sex which some hold is what is principally sought in the use of the sexual faculty.

This opinion is contradictory to the teaching and pastoral practice of the Catholic Church. Whatever the force of certain arguments of a biological and philosophical nature, which have sometimes been used by theologians, in fact both the Magisterium of the Church - in the course of a constant tradition - and the moral sense of the faithful have declared without hesitation that masturbation is an intrinsically and seriously disordered act.

So, now that former Senator Rick Santorum has become the non-Mitt of the hour--and given that his basic theology, as Molly Worthern argues in the New York Times, seems to be drawn from classical natural-law Catholic doctrine--it seems to be an altogether fair question to ask the good former senator what his position is on masturbation (not to mention his general position on his political duties when natural law conflicts with the postive law of the United States that he, as president, would presumably be required to "take care" to enforce). Is it like Newtonian adultery, an act that he has engaged in in the far past, when he was a weak-willed teenager but now publicly atones for? Does he believe that public funds should be cut off to any group that suggests that masturbation is other than a "seriously disordered act" and might even be defensible as a source of personal pleasure?
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Posted 6:03 PM by Sandy Levinson [link] (4) comments

On the Servicing Settlement

Frank Pasquale

Today, Jon Walker tweeted that "No one man has done more to protect the power of the financial elites than President Obama." Is that a fair assessment? Here are some views expressed on the mortgage settlement today:

Adam Levitin, The Servicing Settlement: Banks 1, Public 0:

[The settlement] cover[s] robosigning and overbilling in foreclosures. Given the relatively narrow scope of this settlement, it’s not surprising that the dollars involved are quite small compared to the overall harms created by the housing bubble and aftermath.

The formal price tag for the settlement is $25 billion, although it is projected to accomplish up to $40 billion in relief. Only $5 billion of that is hard cash contributed by the banks. Let me repeat that. The five banks involved in the settlement, which have a combined market capitalization of over $500 billion, are putting in only $5 billion. That’s less than 1% of their net worth. And they are admitting no wrongdoing. To call that accountability is laughable. . . . $32 billion of the settlement is being financed on the dime of MBS investors such as pension funds, 401(k) plans, insurance companies, and the like—-parties that did not themselves engage in any of the wrong-doing covered by the settlement.

William K. Black, How Liberals are Getting Spun in the Mortgage Settlement Debate:
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Posted 9:48 PM by Frank Pasquale [link]

Proposition 8's Continuing Constitutionality?

Jason Mazzone

By finding Proposition 8 to violate the Equal Protection Clause solely on the ground that it withdrew the right of marriage that gays and lesbians previously possessed in California (as a result the earlier state supreme court's decision), Perry v. Brown produces a curious result. It appears to leave Proposition 8 partially intact.
Posted 4:08 PM by Jason Mazzone [link]

Marriage and the Ninth Circuit: Next Up, Washington

Jason Mazzone

Today in Washington state the house approved a same-sex marriage bill. The state senate approved the same bill last week. The governor promises to sign the bill into law and it will take effect 90 days thereafter. Washington state has had domestic partnership laws since 2007. Opponents of the marriage bill say they plan to gather signatures for a ballot measure to overturn the legislation. After yesterday's decision of the Ninth Circuit panel in Perry v. Brown, would a ballot measure repealing the law violate the Equal Protection Clause of the U.S. Constitution? Perhaps the answer depends on whether the marriage law has actually taken effect at the time of repeal (it could for example be stayed pending the outcome of the ballot measure). But one thing at least is clear: just 24 hours after Perry, we know the decision cannot easily be contained in California.
Posted 7:34 PM by Jason Mazzone [link]

Understanding Perry v. Brown

Marty Lederman

Jason Mazzone asserts that the Ninth Circuit's decision yesterday in Perry v. Brown was "dishonest and foolish." It is neither. Judge Reinhardt's rationale did not, as Jason argues, rest upon any misreading of Romer v. Evans, nor did the panel hold, as Jason would have it, that "if the state gives you something it can't later take it away." Moreover, in declining to reach out to decide whether a state can ever limit civil marriage to heterosexual couples, the panel not only did not act foolishly; it acted appropriately, since resolution of that question--one that would affect the marriage laws in many states--was not necessary in order to resolve the case. (For the proposition (pp. 5-6) that “[b]roader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court," Judge Reinhardt provides a lone, apt citation, one that I commend to Jason and others who are so eager to have the courts resolve momentous and deeply contested legal questions in one fell swoop, even where the case in question does not require such resolution.)
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Posted 10:54 AM by Marty Lederman [link]

Marriage and the Ninth Circuit: Collateral Damage

Jason Mazzone

In his opinion yesterday in Perry v. Brown, Judge Reinhardt devotes 15 pages to explaining why reasons offered in support of Proposition 8 (childrearing and responsible procreation, proceeding cautiously, protecting religious freedom, and preventing children from being taught about same-sex marriage in schools) are irrational. He then concludes that, absent any such legitimate reason, Proposition 8 must have arisen out of animosity toward or disapproval of gays and lesbians and such motivations cannot sustain the law. Yet by focusing the equal protection analysis on the revocation of previously existing rights, Reinhardt unintentionally puts on the table another, potentially legitimate, explanation for Proposition 8 apart from animosity and disapproval. The marriage right that existed for a short period in California arose because the state supreme court read the state constitution to require the state government to extend marriage to same-sex couples. Given that context (which Reinhardt ignores), Proposition 8 could reasonably be understood as the people of California correcting the state supreme court's interpretation of the state constitution. Somebody in favor of same-sex marriage might at the same time be opposed to judges decreeing it--and therefore have voted for Prop 8. To be sure, a "pure correction" of the state court's decision would have been a proposition specifying that no provision of the state constitution requires the government to extend marriage to same-sex couples, thereby leaving the issue to the legislature to decide in the normal course of politics. But Californians angry at what they perceive to be an activist court (and yet generally in favor of same-sex marriage) might well have endorsed stronger medicine (no same-sex marriage in the state at all) in order to push back firmly against overreaching judges. Reinhardt sees no rational reason for Proposition 8. But his own approach in the Perry decision appears actually to create one.
Posted 10:48 AM by Jason Mazzone [link]

Marriage and the Ninth Circuit: Thumbs Down

Jason Mazzone

My initial reaction to the Ninth Circuit panel's decision today in Perry v. Brown is that it is dishonest and foolish. It is dishonest because it warps the relevant background and misrepresents Romer v. Evans to reach the conclusion that Romer requires invalidation of Proposition 8. It is foolish because it misses--indeed evades--a ripe opportunity for a straight-up ruling that a ban on same-sex marriage violates the federal Constitution, a ruling that has a better than even chance of being upheld by the Supreme Court. Read more »
Posted 7:18 PM by Jason Mazzone [link]

How the Cold War Matters to the War Powers Debate

Mary L. Dudziak

This is the second in a series of posts about my new book, War·Time: An Idea, Its History, Its Consequences, kicked off when Eric Posner so helpfully generated an on-line discussion.  He dismisses an argument about Cold War statebuilding because "it would be hard to exaggerate legal scholars’ obsession with the rise of executive power, going back at least to the Nixon administration, indeed to the New Deal."

The question of why the Cold War matters to an understanding of the war powers debate might, at first glance, seem obvious.  The most iconic case about presidential war power, Youngstown Sheet & Tube v. Sawyer (1952), is a product of the Cold War era, decided during the Korean War.  We might also think of the Cold War as one “wartime” among many in American history, so that we might compare this wartime to others when analyzing the role of the courts in reining in executive power.  It’s especially when this sort of argument is employed that the Cold War presents some difficulty.  The Cold War is ambiguous, on its own terms.  Was it really a “wartime” that we can compare with others, or was it something else?

The problem of just what the Cold War was was anticipated by George Orwell in 1945.  When reflecting on what the advent of nuclear weapons would bring, Orwell suggested that the world would be divided between two or three “monstrous super-states,” each with nuclear weapons, that would “divid[e] the world between them.” These monster states would not use the bomb against each other. Instead, they would be “unconquerable and in a permanent state of ‘cold war’” with their neighbors. The nuclear age would therefore bring “an end to large-scale wars at the cost of prolonging indefinitely ‘a peace that is no peace.’” The idea that the Cold War was neither wartime nor peacetime ultimately competed with a discourse of the end of peace itself – the idea that wartime had become a permanent feature of the world.

The nature of the Cold War was troublesome at its ending as well as its onset.  When an American soldier thought of as “the last Cold War casualty” was laid to rest on March 30, 1985 in Arlington National Cemetery, a controversy erupted about how he should be remembered.  Arthur Nicholson’s headstone reads: “Killed in East Germany, U.S. Military Liaison Mission.” The Veterans of Foreign Wars objected. “No mention is made of who killed him or why he was shot,” argued an editorial in the VFW Magazine. “This is reflective of how many Americans who preceded Nicholson in death during the Cold War are remembered.”  American veterans have lobbied for the creation of a Cold War medal, so that the Cold War would be memorialized as a wartime, but the bill has not been enacted.

Arthur Nicholson’s body came to rest in a shifting terrain. Even as he bled to death in a field in East Germany, the historical category of his military service—the Cold War—was beginning to collapse. The nature of this death and its consequences (was it a murder, as Vice President George Bush claimed?  or was he a soldier killed in battle?)  depended on whether it fit into a period that we call wartime.  He was a liminal figure in an ambiguous era, and his death seemed to trigger a need to stabilize the categories.

The ambiguities of the Cold War era, so much a part of its experience, get lost when it is simply assumed to be a “wartime” in a way that allows for a comparison with other American wartimes.  The argument that wartime affects law and politics is an argument that a geopolitical event affects law and politics.  To better understand the nature of the geopolitical event, we might then turn to the scholarship about geopolitics, for example scholarship in the history of U.S. international relations.  But when we do, any easy analogy begins to fall apart, for we find a disconnect between the diplomatic history literature and legal scholarship about nature of the Cold War and its impact.

There are at least two sorts of difficulties presented by the disconnect between diplomatic history accounts of the Cold War and the way the Cold War tends to work as a category for legal scholars. 
The rest is below the fold.
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Posted 11:20 PM by Mary L. Dudziak [link]

What Eric Posner Misses About War Time

Mary L. Dudziak

Eric Posner has spent much of the last decade criticizing the liberal legal response to post-9/11 government policies. In his review of my new book, he sticks to the script. But this leads him to miss a critical point: the book does not reinforce post-9/11 liberal thought but instead criticizes it.

What’s at stake here is the way the very concept of “wartime” works in contemporary American law and politics. Just in the past week, Defense Secretary Leon Panetta announced that the United States hopes to end its combat mission in Afghanistan in 2013. Meanwhile, at Guantanamo and elsewhere, the United States holds enemy combatants “for the duration of hostilities.” The “endings” of combat in Afghanistan and Iraq appear to have no consequences for the ending of detention. This illustrates a difficulty: there is a disconnect between the wars the United States is ending (Iraq and Afghanistan), and the war that has justified detention (the war on terror). President Obama generally has not employed the Bush Administration’s idea of a “war on terror,” but the war on terror continues to serve as the basis for detention.

This particular disconnect helps to uncover a more enduring problem of the misfit between the way war is conceptualized and the military conflicts the nation engages in. In War Time, I argue that this is not a new phenomenon. It has been of great importance at least since the Cold War. Uncovering the disconnect could enable more transparent decision-making – whether it be liberal-leaning or conservative.

Posner gets distracted by the usual right/left argument about war and civil liberties, and he reads the book as taking a position on the left side of that debate. I will address why this is a misreading in a later post (my argument is more about the scholarship on civil liberties, identifying a conceptual problem on both the left and the right), but right now let me take up what the book is actually doing.

A reader looking for conventional liberal complaints about post-9/11 government policy might be puzzled, as Posner is, about the reason the book spends so much time talking about time itself. The book is not a traditional historical narrative, but a work of critical historiography and intellectual history. It is short because it focuses on just one thing: the way ideas about time are part of the way we think about war, as captured in the very term “wartime.”

That temporal thinking is built into the way war is conceptualized goes back to at least Hobbes: “War consisteth not in battle only, or the act of fighting; but in a tract of time, wherein the will to contend by battle is sufficiently known; and therefore the notion of time is to be considered in the nature of war.” “Wartime” itself, on its own terms, is a temporal concept. The purpose of my first chapter is simply to point this out. I turn to Durkheim and others to explain that we tend to think of time as a natural phenomenon, yet ideas about time are a cultural feature. Our wartime thinking is therefore not determined by the nature of time itself, or the nature of war. Like other kinds of time, it has its origins in social life.

The rest is below the fold.
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Posted 12:53 PM by Mary L. Dudziak [link]

The conservatism of Elizabeth Drew

Sandy Levinson

I've been swamped this past month, and even now don't really have the time I'd like to return to posting on my favorite Blogsite, especially since I have a number of pent-up postings on such topics as Haley Barbour's pardons, what it means to call reason the "slave" to the passions, and other such topics. But I couldn't restrain myself when I read Elizabeth Drew's Can We Have a Democratic Election? in the current (February 23) New York Review of Books (available only to subscribers, I'm afraid). I agree with much of what she says about the corrosive impact of SuperPacs (and the roles played by such billionaires as Sheldon Adelson). But I am most interested in--and dismayed by--her attack on those who would go after Citizens United by trying to amend the Constitution. It's not that I necessarily support all of the proposals that are out there; many are undoubtedly dubious and, perhaps, even pernicious in their implications. But that really isn't the basis of her argument (or what triggers this post). Instead, she writes, "To submit the Constituiton to the political process is to put in danger of being opened up to the popular movements of the moment." To call for a constitutional amendment, she writes, "sets a very bad precedent. The Founders in Philadelphia wisely [my emphasis] made it difficult to change this core document.... They sought to protect the Constitution from being subject to shifts in popular opinion...."

I won't rehearse all the arguments I've made over the years as to why Article V is the worst single feature of a dysfunctional constitution and therefore distinctly "unwise." What is important is to note how deeply "Madisonian veneration" continues to display itself, so that Elizabeth Drew, a smart and insightful journalist, literally can't imagine that every state constitution within the United States and every national constitution outside the United States may be "wiser" inasmuch as they make it less difficult to change their respective constitutions, even at the cost of allowing "popularl opinion" to exercise some role in deciding how we want to structure basic institutions or even what rights are most worth protecting. It is ironic that someone so (properly) interested in the attack on democracy being leveled by contemporary Republican would-be hegemons in state governments (with regard to various legislation designed to reduced turnout by potential opposition voters) is so indifferent to the anti-democratic aspects of her own embrace of the wisdom of the framers.
Posted 3:24 PM by Sandy Levinson [link] (27) comments

Iguanas and the Rule of Law at Guantánamo

Guest Blogger

Liza Goitein

Two weeks ago, I made my first trip to Guantánamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.

A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:

“It is illegal to harm, kill or eat an iguana.”

At last! The rule of law has come to Guantánamo!

There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief—as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure” or death. The government has not argued that Congress surely did not intend the law to extend to Guantánamo Bay—as it did when detainees sought to avail themselves of the statutory right to habeas corpus.

As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantánamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantánamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts—holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention—the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.
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Posted 1:58 PM by Guest Blogger [link]

The Lincoln Conspiracy Trial

Gerard N. Magliocca

I am now writing the portion of the Bingham biography that deals with his role as one of the prosecutors in the military trial of John Wilkes Booth's alleged co-conspirators. When I began my research two years ago, I thought that this would be a terrific stand-alone chapter that would not shed much light on Bingham's constitutional views. I was wrong on the latter point.

One of the crucial issues in the Lincoln case was whether the defendants were entitled to a jury trial with the full protections of the Bill of Rights. After all, they were citizens being accused of conspiracy in the District of Columbia. Why, then, was it lawful to use a military commission to try them? Senator Reverdy Johnson argued to the tribunal that the Constitution did not permit the use of military justice on civilians when the courts were functioning. Senator Johnson holds the dubious distinction of being the man who argued and won Dred Scott in the Supreme Court, but consider what he had to say here:

Basic rights "are more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other." Otherwise, those rights "which our fathers thought so vital to individual liberty when assailed by government prosecution, is but a dead letter, totally inefficient for its purpose whenever the Government shall deem it proper to try a citizen by a military commission." To say that a court could not be trusted with such a sensitive case was an attack “upon our civil institutions themselves—upon the very institutions on whose integrity and intelligence the safety of our property, liberty and lives, our ancestors thought, could not only be safely rested, but would be safe nowhere else.”

Ironically, John Bingham, the author of the Fourteenth Amendment's Due Process Clause, rejected this logic: "Who will dare to say that in time of civil war ‘no person shall be deprived of life, liberty, and property, without due process of law?’ This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded." He went on: “If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him?”

The most surprising constitutional point that I've learned in my research thus far is that Bingham's view of due process was that in wartime it meant nothing more than "whatever process Congress provides." He said this both as a member of the House and in the Lincoln trial, which throws a different light on the original understanding of that provision.
Posted 2:41 PM by Gerard N. Magliocca [link] (6) comments

First Amendment Challenges in the Digital Age

Marvin Ammori

Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year's topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article ... written by me. The panel participants joining me to discuss the article are two of the nation's great free speech scholars--Harvard's Yochai Benkler and the University of Virginia's Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment "means." While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces. I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review "articles" generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it "important work") and Susan Crawford (calling it "a terrific article"), as well MSNBC host Dylan Ratigan (saying it addresses "important ... First Amendment questions") . This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article's arguments more fully.Read more »
Posted 9:36 AM by Marvin Ammori [link]

More on Corporations as Slaves

JB

Following my previous post on why for-profit corporations cannot be persons for purposes of the Thirteenth Amendment, Sandy Levinson reminded me of another important fact. Not only can people buy and sell for-profit corporations like slaves, but they can also liquidate them. In the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life. On the other hand, people who were not owners (or in the position of an owner, as Mann was in the case) could be sued for injuring or killing a slave.
Posted 3:31 PM by JB [link]

Corporations and the Thirteenth Amendment

JB

Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon).
Posted 10:27 AM by JB [link]

Bad Ads in Mass.

Joey Fishkin

Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message.

This creates opportunities for mischief. If I were a really savvy Brown operative (by which I mean, of course, not a current campaign staffer, but perhaps an ex-staffer, college roommate, childhood best friend, or someone else officially “independent”), I’d run the worst, shoddiest, most-likely-to-backfire anti-Brown ad I could, and then watch as (a) the ad does nothing to hurt Brown, and may even help him, (b) Brown claims credit for sticking up for himself amid a barrage of attack advertising that Warren’s side is reprehensibly launching despite their agreement, and (c) oh, and by the way, for every two dollars I spend, the Warren campaign has to give one to charity. Not bad.

Now probably this is one of those “loopholes” to which the Brown-Warren agreement refers briefly at the end—a “sham ad.” But if so, all that does is move the goalposts. Now the game is to come up with an ad that, while pointless and ineffectual, is nonetheless just serious enough not to be considered a “sham.” In theory, even if an ad helps Warren, if it helps her less than 50% as effectively per dollar as the ad she would otherwise have run—for example because it muddies her message or unhelpfully changes the subject—then it actually helps Brown. (Don’t assume it will be easy to distinguish deliberate self-sabotage from earnest boneheadedness. If an agreement like this one had been in place, and if an ad like this one had been an independent expenditure, would you have believed it was for real?) On the flip side, there’s always a danger that a message intended to be ineffectual will instead be wildly popular…
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Posted 4:39 AM by Joey Fishkin [link] (7) comments

What Am I Missing?

Mark Tushnet

According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren).
Posted 8:32 PM by Mark Tushnet [link] (9) comments

Favorite Son/Daughter Candidates

Gerard N. Magliocca

Normally I wouldn't post on something that has nothing to do with law, but in this case I can't resist. If Newt Gingrich wins the Florida primary and turns the campaign for the GOP nomination into a long fight, I wonder whether we might see an old-style tactic reemerge; namely, local politicians running in their home state to win delegates and thereby prevent anyone from getting a first-ballot majority. For example, Mitch Daniels could run in the IN primary in May, Mike Huckabee could run in the AR primary in May, Mitch McConnell could run in the KY primary in May, etc.

People could have many motives for doing this. Maybe it's because they don't want any of the current candidates to be the nominee. Maybe it's because they think that they could the nominee of a brokered convention. Maybe they just want bargaining power at the convention. ("That first Supreme Court vacancy would look nice in exchange for my support.") Or maybe they want to serve as a stalking horse for somebody else. Granted, many of the filing deadlines for these later states are coming up quickly or have already passed, but that doesn't prevent an organized write-in campaign from taking delegates.

Is this far-fetched? Sure. Would it be entertaining as all get-out? Absolutely.
Posted 12:09 PM by Gerard N. Magliocca [link] (27) comments