Two notes on Citizens United

Sandy Levinson

I much admire Ian Ayres and Bruce Ackerman, but I can't imagine that their proposal would survive the current majority, for it is almost a textbook example of an "unconstitutional condition." Most liberals would be appalled if a conservative Congress tried to place such conditions on everyone who received some kind of federal aid and then said "well, you can always reject the aid." (Recall the huge controversy over the distribution of NEA funds., or requiring everyone who received federal aid to register for the non-existent draft.) One can, of course, readily agree that the Supreme Court got it wrong, even disastrously wrong, in Citizens United, but the rhetoric of Anthony Kennedy's majority opinion is a Hugo Black-like veneration for the text of the First Amendment and the illegitimacy of the state picking and choosing among "proper" speakers. Indeed, as someone who spent many years under Black's spell, I believe there is a real power to the argument, even though, at the end of the day, I would distinguish between "natural persons" and non-media-related corporations. (Would Ackerman and Ayres apply their suggestion to natural persons or partnerships who contracted with the US?)

I confess I am disturbed by President Obama's using the possibility that Citizens United protects "foreign corporations" as a battering ram (even though I am quite happy with his calling out the Supreme Court). Why shouldn't foreigners be entitled to contribute to the electoral dialogue? If one believes, as in the 1960s, that one ought to have some say with regard to decisions that concerns one's own life, then it is obvious beyond dispute that decisions made by the US government affect the lives of people all over the world. So long as there is adequate disclosure, why shouldn't foreigners have the same rights to weigh in on the merits of candidates as nationals? Indeed, would "we" (whoever "we" exactly are) really support limiting participation, and not only voting, in US elections to citizens? The answer, I hope, is absolutely not.

FURTHER COMMENT: The distinction between a "natural person" and a "corporation" allows bright-line application, even if it leaves us having to decide whether "limited liability partnerships" are closer to the former or the latter. There is, I suggest, no similar bright line as between an "American" and a "foreign" corporation, unless we go by the sheer formality of place of incorporation. But, obviously, many shareholders of "American" corporations are foreigners, and I assume the converse is true of "foreign" corporations, especially as sophisticated investors diversify their portfolio by investing in international mutual funds and the like. One might recall early attempts by the Supreme Court to figure out how to interpret "diversity" for jurisdictional purposes and whether it would require actually determining out who the shareholders of a particular company were (so that if even one shared the state of an opposing litigant, there was no diversity). Ultimately, the Court did settle on a wholly formal state-of-incorporation test. But the real point has to do with whether we should be so adamant about "protecting" the American political dialogue from ostensible "pollution" by hearing what outsiders have to say about our candidates. It is, of course, especially ironic that the United States would be so adamant given our repeated practices, over many years, of intervening in all sorts of ways in the politics of foreign nations.



Posted 9:42 PM by Sandy Levinson [link] (100) comments

A Contractual Solution to Citizens United

Ian Ayres

Posted 5:25 PM by Ian Ayres [link]

Another whining rage of despair

Sandy Levinson

Tom Friedman has yet another column, this one from Davos, in today's Times bemoaning the present state of affairs in the U.S. and noting that his fellow participants in the Davos conclave are, for the first time, raising the question of "political instability" in America. I think that such questions are altogether rational. Alas, though, Tom Friedman--like, for that matter, all other famous pundits--seems constitutionally incapable (pun definitely intended) of offering a cogent response to his interlocutors. All he can do is is quote one K.R. Sridhar, the founder of Bloom Energy, a Silicon Valle feul cell company, who states that "Our two-party political system is broken just when everthing needs major repair, not minor repair" (emphasis added). Again, true enough. But apparently "everything" doesn't extend to the Constitution itself, which creates, in substantial measure, the dysfunctional political system that is leading, according to Friedman, the potential replacement of the vaunted "Washington consensus" with a new "Beijing consensus," inasmuch as the Chinese system seems to be working in a way that ours most definitely is not.

All that the leading columnist in the leading newspaper in the United States can say is that we are "stuck" in partisanship, and that the answer is for President Obama and "just six or eight Republican senators--a few more Judd Greggs and Lindsey Grahams" to meet "somewhere in the middle on deficit reduction, energy, health care and banking reform." Apparently, Friedman believes that these Republicans will decide that what they most want to do is to re-elect Barack Obama in 2012, just as Teddy Kennedy (plus, of course, Osama bin Laden) elected George Bush in 2004 by providing cover for Bush's "signature" domestic issues of No Child Left Behind and the Prescription Drug Bill. There is no reason to expect any Republican to do so. Even such vaunted "moderates" as Olympia Snowe and Susan Collins seem incapable of engaging in more than a scintilla (if that) of independent thinking or, more to the point, voting. This is true even of someone like George Voinovich, who isn't even running for re-election but is still incapable of truly breaking with his party on anything important.

Frank Rich, whose understanding of American politics is, I think, far better than Friedman's, has an excellent column on the "Comatose" state of the union. But even he can't connect the dots and realize that the problem is the dreadful Madisonian system we are afflicted with in an age of a basically parliamentaryopposition, whose primary, indeed exclusive, goal is discrediting the party "in power" and replacing it.

I join Andy Koppelman in commending Sen. Udall for his announced intention to try to eliminate the filibuster at the beginning of the next session of the Senate, in January 2011. But there is zero chance of success unless many other Democrats, led, of course, by President Obama, join not only in their opposition to the filibuster, but also, and perhaps m ore importantly, in educating the public as to its existence and consequences for the issues that most concern them. Consider Charles Blow's excellent column in Saturday's Times, which demonstrated that significantly less than a majority of Americans are even aware of the "60 vote rule" and theh fact that not a single Republican was willing to vote for the health bill (or, for that matter, to raise the limits on the federal defecit). It is absolutely essential for President Obama to take the lead in educating his constituents. By election day, we should treat the mantra of "McConnell, Kyl, and Cornyn" as the equivalent of FDR's "Martin, Barton, and Fish." It is certainly nice to see Obama going to Baltimore to take on his enemies, but he surely must realize at some point that they are his enemies, who wish only and exclusively his political destruction, and that they will continue to use the absurd and indefensible rules of the Senate to deprive him of anything that he will be able to claim as a truly important "achievement" in 2012. If he thinks anything else, he is stupid, and I do not think that is a word that one can use with this President. Nor are the American people stupid. They are simply stunningly uneducated and in need of genuine leadership. Will he, or any other Democrat, join Sen. Udall in providing it?


Posted 1:05 PM by Sandy Levinson [link] (28) comments

John Yoo's explanation of the purpose of the Torture Memos, and their actual purpose

JB

Here is John Yoo on the Jon Stewart show, explaining what the White House asked him to do in writing the Torture Memos:


Yoo: Well, first thing, let me say, there were no legal precedents or practices ever before this. The question had never come up before.

Stewart: That's not true. . . . We signed a treaty banning torture, so the question had come up, and we had answered it by saying, "Yeah, we're not gonna do that."
. . .

So, you're saying that, as a country, we had never addressed the question of whether or not we were allowed to torture enemy combatants.

Yoo: No, no, let me be clear: it was the question of what is and isn't torture. We had not ever come up with that, up against that question, as a government.

Stewart: It sounds like, though, what you are saying is, we had never come up with an answer that was sufficient for the Bush Administration.

Yoo: No, no, no, no, not at all.

Stewart: You're suggesting that we had never addressed what torture was.

Yoo: We had not addressed, what is interrogation methods that are short of torture.

Stewart: We prosecuted people for torture during war.

Yoo: I am saying that we had not faced the question of, what interrogation methods do not constitute torture, but go beyond the regular law enforcement methods that we have used in the past.

Stewart: Well, how did we, then, conduct trials for people that had tortured Americans?

Yoo: Because all those cases were ones where what those other governments had done to our soldiers were well beyond the line of what anyone would think were torture. I mean, everyone would agree that things that happened in those other cases in the past, violate the treaty or the statute. The question is a little different, which is, you don't want to violate the ban, but you don't want to say to the #3 guy in Al Qaeda, "You get a lawyer, and you have your Miranda rights, and you have the right to remain silent."

Stewart: Were those the choices, though? Were those the only two choices we had? We had "Miranda rights" or "waterboarding"? We had not allowed any —

Yoo: What's in between, is the question. Now, to me, in my mind, the question is —

Stewart: You're saying that we as a country had not addressed that very issue until they asked you, a year out of 9/11, to figure out what constituted torture?

Yoo: What lies in that area between —

Stewart: How much can we torture?

Yoo: No, no, I'm saying, how much can we interrogate people and not violate the ban on torture?

Now here is a report from Newsweek describing the Justice Department's investigation into John Yoo's professional conduct, describing what Yoo was actually asked to do:

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

That is, the torture memos were written not to define "torture" with respect to new situations where the statute was unclear; rather they were written to allow the CIA to get around the legal ban on torture, even to the point of arguing that the torture statute would be unconstitutional if applied to persons acting under the direction of the President as commander-in-chief. The torture memos were not a hypothetical lawyer's exercise to guide future conduct. They were written in order to ensure that members of the CIA would never be prosecuted for torture.


Posted 7:53 AM by JB [link]

U.S. Supreme Court Can't Wait to Say More About Geneva Conventions

Deborah Pearlstein

Cross-posted at Opinio Juris



Ok, the headline is a bit misleading. It's only two justices - Scalia and Thomas - who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here, and he includes a link to Justice Thomas' 15-page opinion, which is itself well worth a read. Heck of an opinion.

In essence, Justice Thomas (joined by Justice Scalia) argues tha tthe Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United STates from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an "armed conflict" within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega's criminal sentence is now over, and he is arguing - in a collateral petition for habeas corpus - that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.


Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court's decision to deny cert. The Court should've granted review to "provide much-needed guidance" on issues "with which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court]." As Justice Thomas notes: "It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and wll spare detainees and the Government years of unnecessary litigation." Why would this case have any relevance for the Gitmo detainees, none of whom to date has been designated a "prisoner of war"? Because, says Justice Thomas, one of the government's arguments before the 11th Circuit below was that Noriega's claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: "No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories." Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer "invoke" Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.

I’ve written elsewhere about some of the many problems surrounding Section 5 (including its implications for the “judicial power”), so won’t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court’s engagement in the case, the dissent opens by invoking Marbury v. Madison itself: “[I]n our tripartite system of government,” it is the duty of this Court to “say ‘what the law is.’” When was the last time the Court’s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its “war powers,” so to speak? Guess it’s all about the judicial power now.

Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late – so as to further demonstrate, I take it, that the political branches would benefit from the Court’s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don’t actually address the question of Section 5’s validity presented in this case), the opinion mentions the President’s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the “minimum baseline” for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering – but has not yet actually acted upon – other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation “invoking” Geneva to challenge the President’s decision to recognize detainees’ entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone’s old thought about how the Court wasn’t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it’s time to revisit that question.

In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court’s ability – through evaluating the validity of Section 5 – to shed light on “the contours of the substantive and procedural law of detention” affecting the Gitmo detainees that the Court left vague after Boumediene. True enough, Boumediene did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts – and the Administration – have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts’ understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions – as an aid to interpreting a federal statute – seems at least arguably different from the reliance Congress aimed to target in Section 5 – namely, detainees invoking Geneva as a “source of rights.”

In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he’d still lose on the substance of his claim that he can’t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega’s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There’s just no winning claim here. Add to that the uniqueness of Noriega’s particular circumstance - his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General’s own, traditionally weighty, opposition to the Court’s taking the case – and one has a classic case for cert denial. I suspect it’s a good thing a majority of the Court agreed.




Posted 2:54 PM by Deborah Pearlstein [link]

The first Senator against the filibuster

Andrew Koppelman

Regular readers of this blog are familiar with the fact that many of our writers, myself included, think that the Senate filibuster is deeply dysfunctional and should be abolished. Readers of this blog should also know that our writers are all law professors who have no power whatsoever over anything. (Whenever any of us, such as Marty Lederman - now Deputy Assistant Attorney General in the Office of Legal Counsel - do ascend to positions of authority, you can tell this by the fact that we disappear from the blog.)

So it’s worth noting that an actual U.S. Senator has come out in favor of changing the Senate Rules.

Senator Tom Udall (D-N.M.) has now promised that he will push to abolish the filibuster. You can read his statement here. That’s one vote. 49 to go.

We spend so much time on this blog complaining about politicians who are screwing things up that it’s nice to single one out who is doing it right. Bravo, Senator Udall.
Posted 9:28 PM by Andrew Koppelman [link]

Obama's Illogical Afghanistan-Terrorism Policy

Brian Tamanaha

A great deal of the day-after commentary on President Obama’s State of the Union Address focused on his temerity to criticize Supreme Court Justices to their faces (for Citizens United), and Justice Alito’s “not true” moving lips response. I guess that’s important stuff.

I was more taken by his comments on fighting terrorism and Afghanistan. The following two passages nicely help expose why our current course of action in Afghanistan will end badly.

Since the day I took office, we've renewed our focus on the terrorists who threaten our nation. We've made substantial investments in our homeland security and disrupted plots that threatened to take American lives. We are filling unacceptable gaps revealed by the failed Christmas attack, with better airline security and swifter action on our intelligence. We've prohibited torture and strengthened partnerships from the Pacific to South Asia to the Arabian Peninsula. And in the last year, hundreds of al Qaeda's fighters and affiliates, including many senior leaders, have been captured or killed -- far more than in 2008.

And in Afghanistan, we're increasing our troops and training Afghan security forces so they can begin to take the lead in July of 2011, and our troops can begin to come home. We will reward good governance, work to reduce corruption, and support the rights of all Afghans -- men and women alike. We're joined by allies and partners who have increased their own commitments, and who will come together tomorrow in London to reaffirm our common purpose. There will be difficult days ahead. But I am absolutely confident we will succeed.

Here is the basic chain of reasoning behind his policy: President Obama has substantially increased our military presence in Afghanistan—it’s his war now—because that’s the front line in our battle against terrorism. To “win” (or at least not lose) in Afghanistan we must transform their government into a good government respected by the Afghan people, able to maintain security so that the country will not become a breeding ground for future terrorists; additional U.S. troops provide the necessary stability to make that possible (along with piles of money, and lots of lecturing-jawboning at Afghan government officials). Meanwhile, on the home front, we’ll fix our intelligence problems to prevent repeats of the Christmas Day failure and stop terrorists who try to attack us.

This reasoning is two parts fantasy and one part illogical.

Fantasy part one is the notion that the Afghan government can be transformed. No exercise in good governance nation-building, when starting from thoroughgoing corruption and venality in a government, has ever succeeded (see here for abundant evidence). And even if it were possible, we are talking about many decades.

Fantasy part two is the suggestion that intelligence reform will save us from future attacks. What the Christmas Day attack brought home is the lesson that there are limits to what “intelligence reform” can accomplish—for reasons elaborated in this essay. No amount of intelligence reform can halt determined attacks.

The illogic lies in the purported link between the war in Afghanistan and reducing terrorism in the U.S. As his first paragraph above implicitly admits, very few al Qaeda members are actually in Afghanistan today—the arrests he refers to are elsewhere around the world. More important, our continued military presence in Afghanistan (as well as in Iraq) provokes further radicalization. Perversely, his very policy in Afghanistan, which cannot achieve its stated goals, is having the effect of generating more terrorists.

President Obama’s military expansion in Afghanistan is making the terrorism problem in the U.S. worse. This policy is truly bad own its own terms--even without factoring in the many American soldiers and Afghans who will be killed and injured in this war, and the billions of dollars it will cost.


Posted 9:24 PM by Brian Tamanaha [link] (45) comments

More on Sen. Lincoln

Sandy Levinson

Joseph Fishkin, currently a fellow at the Yale Law School, sent me the following post following my own earlier critique of Arkansas Senator Blanche Lincoln, which I share with his permission:

But I think there's another powerful incentive that she and other similarly situated Democrats face: the desire to maintain their own power, through being at or near the crucial fulcrum (now apparently 60 votes!) on which bills teeter between passage and the bottomless pit of endless debate.

In that light, it seems to me hardly an accident or a surprise that Democratic Senators (and Joe Lieberman) situated at spots 55-59 in the current majority would tend to oppose any changes to the running of the Senate that would increase the importance of 50/51-vote thresholds and decrease the importance of 60-vote thresholds. As long as the 60-vote line is the big, important line, people like Lincoln, Landrieu and Nelson, along with Lieberman, Snowe and Collins, run the Senate. They are the key power players. If the Senate abolished today's absurd cloture/filibuster system and moved instead to a 50/51-vote threshold, a different (and slightly more diffuse) cast of characters would become the key power players: those Senators who are around the 51st-most-likely to support a controversial Democratic bill. Maybe Tim Johnson, Claire McCaskill, Mark Begich, etc. Had the health care bill been passed under these different rules, we would have a Senate bill that, instead of buying off Nebraska with extra federal funds, instead contained some hidden giveaway for Citigroup (Tim Johnson) or maybe a special provision for rural clinics in Alaska. It matters a lot who's at the fulcrum of power.

This creates a powerful and important obstacle to reform. Even if mainstream Democrats begin to push hard in our public discourse for changes in Senate rules, Democrats who might not be needed for a 51-vote majority but ARE needed badly for a 60-vote cloture motion face a different set of incentives. Specifically, they have incentives to shoot down proposed changes that would limit their power (thereby providing "bipartisan" cover for opposing any such changes). In a way, all this suggests to me that if you want to make the Senate a more majoritarian institution, it might, perversely, be easier to make this happen if you had a slimmer Democratic majority-- maybe only 52 or 53 seats. Under those conditions, Lincoln, Landrieu, Nelson, and Lieberman would be at the fulcrum of a majority vote, while the 60-vote threshold would make the fulcrum the seventh, eighth, or ninth most moderate Republicans. Then perhaps Blanche Lincoln et al. could be persuaded that the cloture/filibuster system is an antidemocratic Frankenstein's monster that needs to die.

Fishkin raises a lot of obviously interesting points, including the implicit argument, which I suspect is true, that even the most conservative Democrat (Ben Nelson) is to the left of the most moderate (there are no "liberal") Republicans (presumably Susan Collins or Olympia Snowe). So even Nelson, presumably, has no reason to wish any of his Republican colleagues the power to block legislation.

I'd add one further observation. It is an obvious, but important, truth that the more votes that are required, the more power that gives the marginal senator. This also means, by definition, that we move ever farther away from the vaunted "median voter" model of politics by giving inordinate power to the most conservative Democrat or, were the roles switched, the most liberal Republican, either of whom can extort rents that would be unavailable under a different voting scheme. I am put in mind of the Israeli Knesset, where small minority parties of ultra-Orthodox Jews can extort (and I use the word advisedly) all sorts of concessions by providing the vital 60th vote to construct a government. (They are effective extortionists because they generally care about only two issues, lining the pockets of their fellow sectarians and maintaining the hegemony of the Orthodox over such institutions as marriage and declaring "who is a Jew, unlike, one presumes, Sen. Nelson or Sen. Lincoln, who I presume have views about a wide range of issues of interest to their constituents and their own conceptions of what would best serve America.) But just imagine how much worse the Israeli system would be if it required, say, a 60% vote.

In any case, I'm absolutely confident that no sane constitutional designers would look to either the United States or to Israel for models of how to design a well-functioning political order for the 21st century.



Posted 12:36 PM by Sandy Levinson [link]

Bad Mr. Obama Was Very Very Mean to the Poor Poor Supreme Court

JB

Randy Barnett is shocked, shocked that Obama would spend a paragraph of his State of the Union Address criticizing the Supreme Court's recent decision in Citizens United. I suspect that reading Franklin Delano Roosevelt's 1937 State of the Union Address would probably make his head explode.

About a fourth of Roosevelt's 1937 State of the Union Address was devoted to criticism of the Supreme Court for striking down New Deal legislation and asserting that the Court should adopt a different method of constitutional interpretation. As Randy puts it, what a "shocking breach of decorum"! The nerve! The nerve! We should take this man off the dime immediately!:

The statute of N.R.A. [the National Recovery Act] has been outlawed [by the U.S. Supreme Court]. The problems have not. They are still with us.

That decent conditions and adequate pay for labor, and just return for agriculture, can be secured through parallel and simultaneous action by forty-eight States is a proven impossibility. It is equally impossible to obtain curbs on monopoly, unfair trade practices and speculation by State action alone. There are those who, sincerely or insincerely, still cling to State action as a theoretical hope. But experience with actualities makes it clear that Federal laws supplementing State laws are needed to help solve the problems which result from modern invention applied in an industrialized Nation which conducts its business with scant regard to State lines.

During the past year there has been a growing belief that there is little fault to be found with the Constitution of the United States as it stands today. The vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it. Difficulties have grown out of its interpretation; but rightly considered, it can be used as an instrument of progress, and not as a device for prevention of action.

It is worth our while to read and reread the preamble of the Constitution, and Article I thereof which confers the legislative powers upon the Congress of the United States. It is also worth our while to read again the debates in the Constitutional Convention of one hundred and fifty years ago. From such reading, I obtain the very definite thought that the members of that Convention were fully aware that civilization would raise problems for the proposed new Federal Government, which they themselves could not even surmise; and that it was their definite intent and expectation that a liberal interpretation in the years to come would give to the Congress the same relative powers over new national problems as they themselves gave to the Congress over the national problems of their day.

In presenting to the Convention the first basic draft of the Constitution, Edmund Randolph explained that it was the purpose "to insert essential principles only, lest the operation of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events."

With a better understanding of our purposes, and a more intelligent recognition of our needs as a Nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world.

. . . .

Because all of us believe that our democratic form of government can cope adequately with modern problems as they arise, it is patriotic as well as logical for us to prove that we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.

The United States of America, within itself, must continue the task of making democracy succeed.

In that task the Legislative branch of our Government will, I am confident, continue to meet the demands of democracy whether they relate to the curbing of abuses, the extension of help to those who need help, or the better balancing of our interdependent economies.

So, too, the Executive branch of the Government must move forward in this task, and, at the same time, provide better management for administrative action of all kinds.

The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good.

The process of our democracy must not be imperiled by the denial of essential powers of free government.

Your task and mine is not ending with the end of the depression. The people of the United States have made it clear that they expect us to continue our active efforts in behalf of their peaceful advancement.

In that spirit of endeavor and service I greet the 75th Congress at the beginning of this auspicious New Year.

Posted 11:37 AM by JB [link]

Commitment Contracts for Business

Ian Ayres

Posted 9:55 AM by Ian Ayres [link]

So what is the present "state of the union"?

Sandy Levinson

Joel Achenbach has an interesting piece in the Washington Post entitled "The Audacity of Nope." Key passages follow:

The state of the union is obstreperous. Dyspepsia is the new equilibrium. All the passion in American politics is oppositional. The American people know what they don't like, which is: everything.

Consider the poll last week by The Washington Post and ABC News. People were asked a standard question about how much confidence they had in President Obama to "make the right decisions" for the nation's future. A majority -- 53 percent -- gave the two most dismal of the four possible responses: "just some" and "none at all." The same question had been asked a year earlier; in just 12 months, the "none at all" camp had tripled, from 9 percent to 27 percent....

Lawmakers will feel some kinship with the president, because they're all getting pummeled by the public. Democrats in Congress did worse than Obama in the Post-ABC poll, and Republicans in Congress did worst of all. The health-care bill that lawmakers have labored on for the past year has gotten a national thumbs-down: According to a new USA Today/Gallup poll, 55 percent of Americans want Congress to suspend work on the current health-care bills and start over....

The political winds are gusting, and in no particular direction. Conventional wisdom has become conventional disorientation. The party in power is utterly powerless. The president's last true friend is his dog...

The Republican minority has been accused of having no message other than "No." As if that weren't a winning message. As if we lived in an era when the things people were in favor of were more numerous than the things they were against.

So what we are moving to (assuming we are not already there) is a basic breakdown in the possibility of genuine governance, at least at the domestic level, since presidents, for better and for worse, continue to have significant unilateral powers with regard to foreign and military policy. Whether or not the American people are "nihilistic" (surely they are not, in terms of philosophical definitions of nilhilism), they/we seem to be moving toward what in other contexts might count as a "revolutionary situation," i.e., the breakdown of basic levels of trust that lead one to some regard for public officials.

Needless to say, I'm not about to say that this mood is completely unjustified. Just as needless, but I'll say it anyway, is that it is astounding that for all of the fulmination, from Tea Partiers and Obama's critics on the left, there is a stunning absence of discussion about the structures created by the Constitution that have led to this breakdown. There is, of course, some feeble discussion of the filibuster, but, as yet, no mainstream politician seems interested in leading a genuine popular movement against even this aspect of the Senate (or, its even more evil twin, "holds"). A reader of my previous post sent me a very courteous message by email suggesting that I was unfair to Sen. Lincoln, that she was in fact representing the majority not only of her home state of Arkansas (perhaps that is correct; she has, after all, been elected by Arkansas voters) and even the country inasmuch as the country at large is said to support the filibuster. Perhaps even that is true, but one reason is that there is no serious criticism of the filibuster by political leaders. Significant change is the product of popular movements (e.g., the Civil Rights Movement, perhaps the contemporary Tea Party) and the people who lead them, who are usually a mixture of outsiders (Martin Luther King) and insiders like Lyndon Johnson in the 1960s and perhaps Tea Partiers and Sarah Palin in 2012 (when I predict that she is likely to be the candidate of a "third party," on the assumption that the Republican Party will not in fact be willing to turn itself over to such a patently unqualified candidate).

But, of course, the only time Democrats discussed the filibuster was to proclaim its wonderfulness at the time that Bill Frist was threatening the "nuclear option." Would that the brain-dead Democratic Party had told him to go ahead. Because sooner or later, we're going to have a mass movement with suitable leaders who will engage in the equivlance of "nuclear politics" relative to our dysfunctional Constitution. The most likely movement today, alas, seems to have fascistic overtones. But, of course, there were fascists in the 1930s as well in the US. The difference is that there were also aroused progressive movements, and there was a President who was willing to criticize (though not enough) our "horse-and-buggy" Constitution (or, to be more accurate, the Supreme Court and their crabbed interpretations of that Constitution). We have a dreadful current Supreme Court, but, to be frank, it doesn't hold a candle, in explaining our present situation, to the Constitution itself, most of which the Court has nothing to do with. Citizens United is far less a menace to the country than the U.S. Senate and its arcane rules.

Most Americans, including myself, apparently believe "the country is headed in the wrong direction." Shouldn't there be at least some public discussion of the possibility that the Constitution itself is a major impediment to ever getting back to the right direction?

Posted 2:27 PM by Sandy Levinson [link] (23) comments

Is Barack Obama a Preemptive President?

JB

On the eve of his first State of the Union Message, it looks as if Barack Obama has decided not to try to become a reconstructive president. Instead, he seems to accept that the basic assumptions of American politics still remain set by the previous reconstructive presidency, that of Ronald Reagan, and he is willing to work within them. This makes Obama more like Bill Clinton, Grover Cleveland, and Richard Nixon, and less like Franklin Delano Roosevelt. He becomes, in Steve Skowronek's terms, a preemptive president who works within a political regime that is largely hostile to his aims, accepting its basic premises and making comparatively minor adjustments.

Many people, myself included, believed that the 2008 election would usher in the end of the Reagan coalition and create the opportunity for a reconstruction of American political assumptions, led by a reconstructive President. But Obama has largely defied these expectations.

Liberals have criticized Obama for not being sufficiently liberal and too middle of the road. But the larger issue is not whether Obama is liberal or centrist. It is whether he is willing to remake the political assumptions of the political world he inherited or whether he is willing to accept them and live within them.

As Sandy Levinson and I predicted, Obama has largely continued the construction of the national surveillance state and followed many of the anti-terrorism policies of the Bush Administration while eschewing only their worst features.

Domestically, Obama has effectively conceded that the Republican party's vision of the world is correct and that the greatest danger to American prosperity comes from increased government spending during a time of recession. Hence his proposed spending freeze on non-discretionary spending. This freeze is transparently a gimmick. But it is important because it suggests that Obama has chosen to accept Republican themes and play politics on Republican terms, even though his party controls the Presidency and both houses of Congress. Although he himself knows better, Obama has decided to adopt a public stance that is actually pre-Rooseveltian in framing how to deal with a severe recession.

Obama also seems, for now, to have accepted that his signature domestic initiative, health care reform, is going nowhere and will have to be put on the back burner.

This is not what reconstructive presidencies are made of.

The problem is not that he faces severe impediments to reform. Generally speaking, reconstructive presidents always face genuine institutional obstacles to reform and nevertheless find ways to circumvent them or to smash through them by appealing to the public for authority to remake politics. As of now, Obama has decided not to even try. This suggests that he is (not yet) attempting to be reconstructive.

The major obstacle to reform at this point is the United States Senate, and its filibuster and hold rules, which, in the last two decades have developed into powerful weapons for limiting what the President and his party can do. Senate Republicans have adopted a systematic policy of blocking any significant measures (and most significant appointments) that Obama seeks. They wish to cripple his Presidency so they can replace him in 2012.

Until the loss of the Massachusetts Senate seat, Obama and his allies believed that they could make progress by getting unanimity within the Democratic caucus in the Senate. The loss of the 60th seat removes this possibility. It means that Obama faces a crucial impediment that he must overcome if he wants to remake American politics.

If Obama wants to be a reconstructive president, he needs to directly confront the forces that hinder reform and get the public behind him in his efforts to overcome them. Put differently, Obama needs his own version of FDR's ultimately successful confrontation with the Supreme Court. Although he is popular with the public, Obama (so far) has not really attempted anything like this. Quite the contrary, he has shied away from confrontation, while his political opponents have chosen confrontation and intransigence as their preferred strategies. So far, even with drastically reduced power in Congress, they have largely succeeded. Obama is hamstrung; he cannot make key appointments to the executive branch, he has made only a few appointments to the federal judiciary, his signature domestic imitative has stalled, and a good many of his planned legislative initiatives seem to be going nowhere.

It is no answer to say that the real problem with Obama's presidency is largely out of his hands, because his authority depends on the unemployment numbers, and he can do little about unemployment. Obama could do something about increasing employment if he needed only majority votes in both houses to pass legislation. The problem is his inability or his unwillingness directly to confront the institutional features that hinder successful reform and would make his presidency successful.

Obama has not used the power of the Presidency to challenge the forces that obstruct him and to reframe political realities in a way that makes reconstruction possible. The public does not fully understand the institutional reasons for Obama's setbacks and his political enemies have won the war of framing Obama's policies in their worst light. For example, Americans do not believe that the stimulus was money well spent and they believe that the health care bill will increase deficits (when it is actually designed to reduce them). Again, this is not what reconstructive presidents do. If Obama continues on the course he has begun, he looks to be far a less successful president than Bill Clinton. And Bill Clinton was impeached.

There is still time, of course. Andrew Jackson did not become a truly reconstructive president until his second term in office. But one does not begin a reconstructive presidency by apologizing to one's political opponents and giving in. At the end of his first year, Obama seems to have responded to adversity by capitulation, and to opposition by throwing in the towel.

Surely he can do better than this. Or can he? That is the difference between a reconstructive president and a preemptive one.


Posted 9:35 AM by JB [link]

History, Neoconservatism, and Citizens United

Step Feldman

Four of the current Supreme Court justices can reasonably be characterized as displaying neoconservative tendencies (Thomas, Scalia, Roberts, and Alito). These justices joined with Kennedy to form the five-justice majority in Citizens United, which held that governmental limits on corporate (and union) spending for political campaign advertisements violate the first amendment. Did the Citizens United Court, therefore, apply neoconservative principles? Not if one understands the history of neoconservatism.

A central component of neoconservatism as it developed in the 1950s, 1960s, and 1970s was its critique of the hegemonic pluralist democratic regime, which had taken hold of the nation in the 1930s. Pluralist democracy accepts ethical relativism: individuals and interest groups press their own interests and values in the democratic arena. From this array of competing interests and values, the government chooses to pursue those goals that emerge through certain established processes. No preexisting or higher principles limit the interests, values, and goals that can be urged. Process determines legitimacy. The early neoconservatives repudiated pluralist democracy and advocated for a return to republican democracy, which had predominated before the 1930s. Republican democratic theory holds that virtuous citizens and officials pursue the common good rather than their private interests. Thus, neocons rejected the ethical relativism that underlay the pluralist democratic regime and instead championed traditional American values or virtues that were to direct us toward the common good.

Neoconservatism and Republican Democracy

In The Closing of the American Mind, Allan Bloom drew inspiration from his teacher, Leo Strauss, the godfather of neoconservatism. Echoing Straussian themes, Bloom wrote: “The United States is one of the highest and most extreme achievements of the rational quest for the good life according to nature. What makes its political structure possible is the use of the rational principles of natural right to found a people, thus uniting the good with one’s own. Or, to put it otherwise, the regime established here promised untrammeled freedom to reason—not to everything indiscriminately, but [nonetheless] to reason.” When Bloom referred to “the regime established here,” he clearly was not denoting the post-World War II pluralist democratic regime built on relativism, historicism, and social-science empiricism. He was looking back to the republican democratic regime, which he equated with Strauss’s concept of the “best regime.”

In this vein, Irving Kristol, a leading neocon, repeatedly invoked republican democratic principles. He encouraged Americans to recollect the nation’s original “revolutionary message.” The “founding fathers,” Kristol explained, “understood that republican self-government could not exist if humanity did not possess—at some moments, and to a fair degree—the traditional ‘republican virtues’ of self-control, self-reliance, and a disinterested concern for the public good.” But how can Americans cultivate civic republican virtue? We do so “through the shaping influence of religion, education, and [our] own daily experience.” That is, we must teach or inculcate virtue and then allow people to practice “self-government.”

Neoconservatism and Free Speech

Constitutional scholars have explored the ramifications of neoconservatism for free speech. Walter Berns, a political scientist who studied under Strauss and was Bloom’s faculty colleague at Cornell, published his first book, Freedom, Virtue, and the First Amendment, in 1957. Berns emphasized that, at the time, the predominant free-expression doctrine was the clear and present danger test. The justices, according to Berns, interpreted the clear and present danger test in the pluralist democratic regime to preclude courts, for the most part, from considering the content of speech and writing for purposes of first-amendment analysis. Except for cases involving national security, “speech of almost any character, true or false, good or bad, enjoys a favored status before the Court.” This approach supposedly followed from the modernist liberal (and social science) commitment to the fact-value dichotomy, which asserted that “all judgments of better and worse are arbitrary.”

Berns denounced this judicial attempt to eschew value judgments regarding the content of expression. The “problem of free speech,” Berns explained, was really “the problem of virtue.” In resolving free-expression cases, the Court should attempt to “promote the virtue of citizens” and to pursue the “general welfare” (that is, the common good). Hence, Berns recommended the following: “Congress shall make no law abridging the freedom of good speech. The basic point is that the purpose of law is and must be to promote virtue, not to guarantee rights of any description.” This approach was the correlative equivalent, from a doctrinal standpoint, of the bad tendency test: the Court should allow the government to punish harmful or bad expression but should proscribe the government from punishing virtuous or good expression. In other words, Berns advocated for a return to a republican democratic approach to free expression; courts had applied the bad tendency test throughout the nineteenth and early-twentieth centuries. The Court must distinguish between “good and evil,” then must allow the government to shape, to educate, citizens of “good character” while censoring the licentious. Otherwise, the United States will be unable to protect “against dangers to civility” and will no longer be a “decent society.” The republican democratic focus on virtue and the common good was, to Berns, far more important than the pluralist democratic focus on the proper process: “The right [moral] education is ultimately much more decisive for good government, for free government, than any of the mechanical arrangements, such as the separation of powers, in which we Americans have traditionally placed our trust.” Ultimately, Berns insisted that all ideas are not equivalent and that all values are not relative. Despite the pretensions of pluralist democratic theorists, a civilized society cannot function if human relationships are based on nothing more than “calculating self-interest.” As citizens, we must proclaim our standards—we must distinguish good from evil—and we must then cultivate a good and virtuous society. And the justices need to do the same.

Neoconservatism and Campaign Financing

The Court in Citizens United reasoned that the statutory “prohibition on corporate independent expenditures is … a ban on speech.” Any “‘restriction on the amount of money a person or group can spend on political communication during a campaign’” implicates first-amendment protections. Thus, after linking the corporate expenditure of money with political expression, the Court emphasized the self-governance rationale, which accords near-absolute protection for political expression. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”

The early neocons did not explicitly discuss campaign finance restrictions. But Daniel Bell, a co-founder with Kristol in 1965 of the foremost neoconservative journal, The Public Interest, cautioned against the dangers of the modernist mixing of money and politics in pluralist democracy. In his 1976 book, The Cultural Contradictions of Capitalism, Bell divided society into three realms: the techno-economic (or social), the cultural, and the political. The three realms, he suggested, will contribute to a stable society if they either remain separate or operate in ways that reinforce each other. For instance, early in the development of capitalism, a culture of hard work, self-discipline, and self-denial—characterized by Max Weber as the Protestant ethic—bolstered the capitalist economy by encouraging individuals to devote themselves to employment in bureaucratically organized workplaces. By the second half of the twentieth century, however, the three realms overlapped and intersected in ways that were not mutually reinforcing; rather, they contradicted each other, causing societal instability. The main contradiction of modern life, according to Bell, was between the capitalist economy and the modernist culture, which imbued individuals with a hedonistic desire for self-gratification. “In the world of capitalist enterprise, the nominal ethos in the spheres of production and organization is still one of work, delayed gratification, career orientation, devotion to the enterprise. Yet, on the marketing side, the sale of goods, packaged in the glossy images of glamour and sex, promotes a hedonistic way of life whose promise is the voluptuous gratification of the lineaments of desire. The consequence of this contradiction … is that a corporation finds its people being straight by day and swingers by night.”

Bell also accentuated tensions between the economic and political realms. The operative principle of the capitalist economy was efficiency, maximizing one’s benefits while minimizing costs, while the operative principle of the pluralist democratic polity in post-World War II America was equality, requiring that all individuals be “able to participate fully” as citizens. If the two realms had remained distinct, each could successfully fulfill its respective principle. But the two realms bled into each other, Bell argued, thus producing discordance. For example, aiming for efficiency, capitalism relied on hierarchically structured bureaucratic organizations that collided with the political desire for participatory equality. Moreover, as the two realms intermingled, an increasing number of issues, previously settled in the capitalist marketplace, shifted into the political realm. Consequently, instead of being decided pursuant to “technocratic rationality” leading to economic efficiency, they were (and are) resolved through a political “bargaining” process that facilitates participation. Economic decisions, therefore, were (and are) made for the wrong reasons. This problem was greatly exacerbated, according to Bell, because the modernist culture of self-gratification induced individuals and societal groups to express an ever-increasing number of excessive demands within the political realm. Demands for equal participation gave way to demands for “rising entitlements,” including “a basic minimum family income,” a minimal “standard of living,” and so on. These never-ending demands then generated group conflict and societal instability.

Originalism, Republican Democracy, and Free Speech

Neoconservative (and other conservative) constitutional scholars often advocate for an originalist approach to constitutional interpretation. Walter Berns, for one, lamented how the post-1937 Court eschewed republican democratic principles. “[T]he constitutional law of the [post-1937] First Amendment has not been built on the precedents and principles of the past,” Berns wrote. “One looks almost in vain for references in the Court’s opinions to what the great [nineteenth century] commentators—Story, Kent, and Cooley, for example—have written on freedom of speech and religion, or to what the Founders intended with the First Amendment.” Strict adherence to originalism and neoconservative principles would support a doctrinal approach akin to the bad tendency test, which predominated during the republican democratic regime. The return of the bad tendency test would allow the government to punish any speech or writing that had likely harmful consequences or that might be deemed antithetical to a virtuous citizenry and the common good.

Significantly, the self-governance rationale, which the Citizens United Court invoked, rose to prominence only after the post-1937 judicial acceptance of pluralist democracy. The crux of pluralist democracy is free and open citizen participation; if citizens cannot express their interests and values, then such participation seems impossible. Free expression thus appears to be a precondition for the pluralist democratic process itself—hence, the near-absolute protection for political expression. For this reason, governmental limitations on corporate expenditures for political campaigns are constitutionally problematic (though not necessarily unconstitutional). But if the Court were to follow an originalist and neoconservative approach, a governmental limitation on corporate campaign expenditures could be readily justified as promoting the common good. Under republican democracy, the right to free expression—even for political speech and writing—always remained subordinate to the common good. Thus, speech and writing could potentially be restricted in many situations. Specifically, the government could act to preserve the integrity of the democratic process by limiting corporate campaign expenditures without violating the first amendment, regardless of whether the corporate expenditures were categorized as speech itself or as merely facilitating speech.

Stephen M. Feldman
Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming


Posted 1:33 AM by Step Feldman [link] (2) comments

Has Blanche Lincoln ever heard of democracy?

Sandy Levinson

This just in from ostensibly Democratic Senator Blanche Lincoln of Arkansas:

“I am opposed to and will fight against any attempts to push through changes to the Senate health insurance reform legislation by using budget reconciliation tactics that would allow the Senate to pass a package of changes to our original bill with 51 votes," she said in a statement. "I will not accept any last-minute efforts to force changes to health insurance reform issues through budget reconciliation, and neither will Arkansans."

She is, of course, entitled to her view, as is the case with every citizen in this great country of ours. But why in the world should we care that she will huff and puff (in the name of her her constituents, a full third of whom are basically without health insurance)? If, of course, nine other other craven Democratic senators join her, that's another matter, and it will further prove that we have a basically ungovernable country, given the ability of the Republicans, together with collaborators like Sen. Lincoln, to prevent anything from happening.

Of course, given my own hobbyhorse, I don't really "blame" Sen. Lincoln, any more than I blame any other senator besides the raving narcissist Joe Lieberman. They are all behaving "rationally." Republicans learned from Teddy Kennedy the costs of helping an opposite party president achieve anything from his agenda; i.e., Teddy was as responsible as Karl Rove for electing Bush in 2004 by providing the essential cover to make No Child Left Behind and Prescription Drug coverage possible, however flawed each bill was. Why should any Republican help Obama be-relected in 2012? This is, of course, why the filibuster has become so pernicious, since, as Mark Tushnet has noted, it has almost literally nothing to do with genuine differences over policy and everything to do with destroying the ability of the president to implement any of his agenda, including even making appointments to the Executive Branch. (When, oh when, will Dawn Johnson be allowed to become head of the OLC?) We have managed to create a "parliamentary mindset" within a Madisonian separation-of-powers system.

Lincoln, I gather, is worried about a mad-dog Republican (assuming there are any other kinds these days) challenging her for re-election this year, and we know from David Mayhew that ultimately the only thing members of Congress care about is their re-election. She will do what she "has" to do, the rest of the country (and her party) be damned. But that's precisely why she shouldn't be taken seriously. If 50 Democratic Senators are willing to go through reconciliation (with VP Biden providing the 51st vote), then they have an obligation to do it. If it means sacrificing Blanche Lincoln's vote (and even threatening her re-election chances), so be it.

It is time to "blow up" the Senate, not literally (of course), but in almost every other way. James Madison was correct in 1788 to label in the 62nd Federalist the equal voting power a "lesser evil"
to having no Constitution at all, just as others decided that collaborating with slavemasters was a similar "lesser evil." It is time to realize that the Senate, in its modern configuration and self-imposed rules and practices (including filibusters and holds), is, if not "equally" as illegitimate as slavery, is almost equally able to destroy the country and render us ever less a "more perfect Union." Ironically, if a minority faction of Democratic Senators were doing to a Republican majority what the Republicans are doing to Obama, then the Tea Party crowd, led by Glen Beck, would almost literally be marching on the Senate (with good reason). Democrats, however, remain supine, hoping that maybe in 2011 Joe Biden will declare the Senate not to be a continuing body. I'm all for that, but it will work if and only if the electorate has been prepared for it, which means that Democrats, led by our suddenly ineloquent President, take the lead and talk about a democratic (and not only Democratic) government fit for the 21st century and persuade ordinary Americans that, almost literally, their lives may depend on changing the way the Senate operates.




Posted 2:31 PM by Sandy Levinson [link]

"Make Them Filibuster"

Mark Tushnet

Governor Ed Rendell got some attention today with his demand, "Make them filibuster." But that's not enough -- or even a sensible strategy. Sure, there's something comical about the fact that the mere announcement of an intent to filibuster has the same effect as an actual filibuster -- including triggering the "requirement" of a cloture vote. But "making them filibuster" doesn't make filibusters more difficult or even subject to closer public attention. All it does is make life harder for the majority. Why? Because a "real" filibuster requires only one Republican on the floor at a time (or two or three for insurance), but requires fifty Democrats there. Otherwise the (sole) Republican can "suggest the absence of a quorum" and require fifty other Senators to show up, while taking a break from talking.

What can be done? Obviously, change the Senate's rules. As they stand, the rules require a two-thirds majority to change the cloture rule. What about changing the rules when the Senate reconvenes in January? There's a tradition that the Senate is a continuing body, whose rules remain in place until altered according to their own terms. That is, the Senate doesn't adopt its rules anew every two years as the House does. An important forthcoming article by Aaron Bruhl of the University of Houston Law Center, "Burying the 'Continuing Body' Theory of the Senate," debunks that tradition, at least to the point where a credible "legal" argument can be made that the Senate can change its rules in January by majority vote.

But, as I've said in a prior post, changing the cloture rule alone won't be enough. There was a reason that doing so by a ruling from the chair got the label "the nuclear option." Changing the rule over the objections of a cohesive minority that's big enough -- as the Republican minority is -- would immobilize the Senate because an enormous amount of the Senate's work gets done by unanimous consent to the waiver of otherwise applicable rules. (Remember the contretemps over reading Senator Sanders's substitute amendment for the health care reform bill? The rules require reading such amendments, which almost never happens because the proposer seeks and obtains unanimous consent to waive that rule.) By denying unanimous consent to such waivers, a minority can stall legislation almost as effectively as it can through the modern form of the filibuster.

So, what Democrats need is either to invoke cloture using the existing rule -- obviously an impossibility -- or to change the Senate's rules rather comprehensively. Supporters of reforming the Senate's procedures have to talk to specialists in the Senate's rules to figure out what exactly needs to be done. There's no quick and easy fix. "Make Them Filibuster" may sound good on TV, but it's not a policy option that would have real effects.
Posted 3:48 PM by Mark Tushnet [link]

The Future (or lack thereof) of Student-Edited Journals: Why Most Law Journals No Longer Give Scholars What They Need or Want

Heather K. Gerken

Michael Froomkin and several others have come up with a quite smart idea – JOTWELL, which stands for the "Journal of Things We Like (Lots)." Scholars are asked to post semi-regularly on an article they admire. Today I've posted on two great pieces by David Schleicher, a young election law scholar at George Mason.

I agreed to take part in Jotwell because I can still remember what it's like to be untenured. I was lucky enough to have a bunch of senior scholars go out of their way to get me conference invitations and publicize my work. Now that I'm on the other side of the tenure, posting about great work by young scholars falls under the category of "the least I could do."

Jotwell isn't just about helping young scholars get the attention they deserve. It's designed to deal with a bigger problem in legal scholarship: figuring out what to read.

As Jotwell's mission statement indicates, there are so many articles being published in so many places that it's hard to sort the wheat from the chaff. We all use heuristics, of course. We tend to read the latest work of people with big names from big schools, people whose work we've liked in the past, or articles placed in peer-edited journals (at least in the handful of specialities where they exist). Some even rely on SSRN downloads or the prestige of the student-edited journal in figuring out what to read. Needless to say, none of these heuristics gives us a full picture of what's out there. There aren't enough peer-edited journals to winnow down the list. Relying on the reputation of the author or his school will, at the very least, prevent you from seeing good work from younger or underplaced scholars. The student-edited journals don't help much here. Even if you think that most students are remotely competent at evaluating scholarship -- a big if -- most of them are relying heavily on letterhead as a heuristic for identifying the best work. And papers get downloaded on SSRN simply because they state a controversial thesis or have a catchy précis.

The development of sites like Jotwell make me wonder whether student-edited journals (with the possible exception of the top-tier journals) are going to have much of a future in this brave, new world. Student-edited journals survived in the past because they provided authors something they needed: a place to publish. Now there are a myriad of publication sites that don't require delaying publication and going through a lengthy editing process. And most student-edited journals have never provided what authors want: a signal that the work is of highly quality. Perhaps, as Michael Froomkin has suggested to me, Jotwell is a boon for student-edited journals, as it makes them all equally relevant. But my guess is that while Jotwell and enterprises like it won't be the source of the student-edited journals' demise, they are the harbingers of it.

Posted 10:14 AM by Heather K. Gerken [link]

Citizens United: Qui Bono and Que Sera

Nate Persily

As critics of the Citizens United decision have moved in their stages of grief from denial to anger to depression and now acceptance, attention has turned to the questions: Who wins and who loses under this new system the Court has crafted? And what does the future hold for both law and politics?

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Qui Bono?

There are many ways to ask and answer the question as to who won in Citizens United. Republicans v. Democrats, Corporations v. Unions, Incumbents v. Challengers, Political Parties v. Outside Groups.

Given the apoplexy of Democrats and the euphoria of Republicans in the wake of the decision, it seems so easy to identify the political coalitions favored by the new constitutional rule. Just because it is easy does not necessarily make it wrong, and due deference should be given to the admitted myopia of those whose jobs are on the line. Perhaps corporate money will now flow in great amounts toward ads supporting Republican candidates. Union money will flow as well, but not as much, so Democrats and their causes will be at a disadvantage, the argument goes. As a consequence, policy in Washington and the many states that have similar (and now unconstitutional) bans on such spending will skew toward protecting corporate interests.

Predicting winners and losers from either a new decision or new legislation governing campaign finance has proven to be a tricky business, however. A vocal minority thought the McCain-Feingold law (BCRA) might actually hurt Democrats, for example, because historically they had been better able to raise money in larger chunks from fewer donors (especially unions) than Republicans, who had a comparative advantage in a broad base of small contributors. Of course, the Obama election, with its unprecedented success among small donors over the internet, seemed to redefine our collective assumptions as to who could raise how much money from whom.

Similarly, many (including some Justices on the Supreme Court) viewed the BCRA as pro-incumbent, because it muted the voices of institutions (parties, unions and corporations) best positioned to spend money to buy the name recognition and exposure for challengers that incumbents get for free. However, it is just as plausible that, under the new regime, corporations and unions will feel the need to ingratiate themselves to current incumbents who have promised to exercise greater power to craft regulations and to allocate money in ways that could literally define their existence. If that is so, perhaps the party currently in control (i.e., the Democrats) will prove to be short-term benefactors of the ruling.

Although we might not know for sure whether Democrats or Republicans were the winners yesterday, it seems to me that the political parties as institutions were probably the losers. Their power is now diminished relative to that of outside groups funded (now in unlimited amounts) by corporations and unions. Perhaps this is a good thing: the extreme cohesiveness and polarization of the political parties might be countered by independent, non-party bases of support that influence candidates. At the same time (and more likely from my view), the decision might polarize the parties even further, because independent spenders tend to come from and support extreme positions.

Still, many predicted that, in the wake of BCRA, corporations would simply funnel their money into shadowy interest groups, such as 527s. Although such groups blossomed, they did so mainly with contributions from individuals, not corporations. This caused many, as my previous post suggested, to conclude that corporations may not have been willing spenders in the campaign finance system at all. Rather than consistently trying to buy influence through expednitures, corporations may have more often been on the receiving end of politicians shaking them down for campaign cash. Perhaps the stimulus, TARP, and a new age of increased government regulation of industry may have restruck the balance in motivations of corporations. Or perhaps, as was historically the case, corporations will continue to spend much more on lobbying, which has often proven a more efficient means of influencing policy.


What does the future hold?

Predicting the future of campaign finance reform represents a task even more difficult than predicting the winners and losers from this decision. To some extent, it depends on the boldness of both the Court and Congress and assumptions as to whether the current majority in each branch continues to retain control.

For the Roberts Court, this will not be the last word on campaign finance…not by a long shot. By treating corporations as a mere species of individual associations, the Court has cast doubt on campaign finance regulations that distinguish between the two. Most notably, the ban on soft money, which prevents corporate and union contributions to political parties and candidates, may be the next shoe to drop. If corporations are like individuals, how can Congress completely ban contributions from one while letting the other give within limits?

Although contribution limits (ubiquitous in both state and federal codes) themselves remain untouched in Thursday’s decision, it has now become more difficult to justify them. As Heather Gerken has argued at greater length, the Court significantly narrowed the interests states can argue underlie such laws. In particular, the Court changed the very definition of corruption in its opinion. In the case it overruled, Austin v. Michigan Chamber of Commerce, corruption included “the corrosive and distorting effects of immense aggregations of wealth [amassed] through the corporate form.” No longer do corporations pose a unique corruption threat. Moreover, even the garden variety definition of corruption as signaling “undue influence on officeholders’ judgment” or special access is now under attack. As the Court said in Citizens United, “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. . . . Ingratiation and access, in any event, are not corruption.”

Because corruption of the quid-pro-quo variety is notoriously difficult to prove (after all, how many politicians admit they voted a particular way because of a campaign donation?), defendants historically relied on assurances from the Court that states could target the appearance of corruption. Although still standing, even that concept is under attack, as the Court reinforced that “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

As the notion of corruption has now become more anemic, the state’s capacity to regulate at all in this area has shrunk considerably. It will be a long time (if ever) before the Court reverses Buckley v. Valeo and grants contributions the absolute First Amendment protection it just gave corporate expenditures. However, the pattern in this area of the law has been death by a thousand strategic cuts, with each new decision casting doubt on classic precedent justifying the state’s ability to regulate.

In the short term, the President and several members of Congress are promising reform, each version of which raises its own constitutional questions. To target corporations, some urge that shareholders be required to vote to have treasury funds used for campaign expenditures. Or, given the presumed ability (still kept alive explicitly by Citizens United) of the federal government to prohibit foreigners from spending money in campaigns, perhaps the government could ban expenditures by corporations substantially owned by foreigners. Or, perhaps it could change the tax code so as to reduce the incentives of corporations to spend money on political campaigns. Or, given the tremendous dependency of the financial industry and others on federal funds as of late, the government could make eschewing electioneering expenditures a condition of its largesse. Or, in the same vein, states could condition the granting of a corporate charter on a promise to disengage from campaigns.

Several of these proposals raise questions of unconstitutional conditions while others may be seen as too-clever-by-half regulations. Public funding of various sorts may be the constitutionally safest option, but in an age where the public has become suspicious of both bailouts and politicians they are likely to be hesitant to use one for the other.

More than any area of election law, however, campaign finance had been characterized by the tug of war between the Court and the political branches in the slippery mud of politics. Each law leads to its own loophole, either discovered by political entrepreneurs or poked by a court or agency. The political branches respond with their own innovations and the Court reins them in.]

Posted 8:06 AM by Nate Persily [link]

Did Massachusetts conduct a "referendum" on health care? NO!

Sandy Levinson

On NPR this afternoon, Senate Minority Leader Mitch McConnell described the Massachusetts election last week as a "referendum" on health care. He was demonstrably wrong.

The first thing to note, of course, is that we do not have, at the national level, the kind of "direct democracy"for which the word "referendum" is appropriate. James Madison and his friends, not to put too fine a point on it, hated the very idea of direct democracy, and designed a system of exclusively "representative democracy." Many, perhaps most, of the American states include some role for direct democracy, most notoriously California. My own view is that there is much to be said for direct democracy as a complement to representative democracy, especially if the mechanisms of government are as awful as those of the national government (or, for that matter, present day California). Obviously, opinons differ on this. But the principal point is that there are no national referenda, period, thanks to the Founders whom, I suspect, Sen. McConnell venerates more than I do.

If, however, one believed that a national referendum on health care would be a good thing, instead of leaving it up to the present-day Senate in all of its illegitimate glory, no sane person would select Massachusetts as the one and only state that would take part of such a referendum. It is not only that Massachusetts, by definition, is atypical of the rest of the US--that, obviously, would be true of any given state. It is one of the reasons that many of us are appalled at the excessive role played by Iowa and New Hampshire in the presidential candidate selection process. But beyond Massachusetts 's atypicality, and the fact that no election, including that of now-Senator Brown, is ever a true "single-issue" election in the way that a referendum, again by definition, is, the fact is that Massachusetts has a very special kind of atypicality: Massachusetts residents enjoy, courtesy of the collaboration of Massachusetts Republican Gov. Mitt Romney and the Democratic legislature, a reasonably decent state medical plan (for which Sen. Brown voted when he was in the state legislature). It is altogether reasonable for Massachusetts voters to wonder if they will indeed be better off under the plan that Congress would presumably pass. It is not really reasonable for the millions of Americans who either have no health insurance or are literally one signifcant illness away from bankruptcy, given the vagaries of the present insurance system, to believe that signifcant reform is not needed. It is like asking only citizens of Nevada or Arizona to vote on whether the rest of the country should continue the substantial subsidies, including access to scarce water, that have enabled Las Vegas and Phoenix to flourish.
So, in every conceivable way, Sen. McConnell's analogy is misleading. One does not expect intellectual honesty from Sen. McConnell (or, to be fair, perhaps from any other senator or either political party). But to the extent that the learned punditry buys the argument that the election was a "referendum" that should be taken seriously as exemplifying national public opinion, they are disastrously wrong and disserving the public they presume to enlighten. If they want to talk about national public opinion, let them talk about polls, some of which indeed suggest majority rejection of the Senate bill. But they should be ashamed of themselves if they overemphasize the Massachusetts vote as a "referendum."




Posted 12:08 AM by Sandy Levinson [link] (61) comments

The Ghost of Campaign Expenditures Past

JB

Larry Lessig begins his critique of Citizens United by contrasting the Justices of the Supreme Court with Senators and Congressmen:

Whatever else one believes about the Supreme Court's decision striking down limits on corporate speech in the context of political campaigns, there's one thing no credible commentator could assert: That money bought this result.

At the risk of Larry not regarding me as a credible commentator, I beg to differ. The structure of campaign finance law matters considerably to how the Constitution gets interpreted over time.

Electoral politics, heavily influenced by monetary contributions, shapes who becomes President and who serves in the Senate. However, federal judges are appointed by the President and confirmed by the Senate. Once appointed, they serve for life. The current composition of the Supreme Court is shaped not by the latest elections, but by a string of previous elections. Its current composition was pretty clearly the result of the power and influence that money created. This was true during the Gilded Age, and it is no less true today. It is not an accident that the Supreme Court during the Gilded Age mostly sided with the interests of railroads, trusts, and other large business entities, even going so far as to hold the income tax unconstitutional in 1895 and temporarily eviscerating the antitrust laws in the Sugar Trust Case the same year.

It is not an accident that many of the Justices appointed after the Civil War had significant connections to railroads and other large businesses enterprises; many of them were attorneys who represented the railroads. Installing lawyers friendly to business interests as Supreme Court Justices was one (but not the only) goal of the Republican Party during this period in history, and during that period the Republican Party also dominated Presidential politics. (The lone Democratic resident of the White House during this period, Grover Cleveland, was a business friendly Democrat who was very different from a populist candidate like William Jennings Bryan). The influence of money on the two political parties during the Gilded Age produced the kinds of Justices who sat on the Supreme Court during the Gilded Age. This certainly does not explain all of these Justices' decisions; it simply helps us understand why these Justices were generally friendly to business interests, especially near the turn of the century when enough of them had been appointed to constitute a clear majority on the Court. The Presidents who appointed them and the Senates that confirmed them wanted people on the bench who would likely decide cases in certain ways and not others. The Justices' principled constitutional views meshed well with the needs and interests of the politicians who appointed them.

Sandy Levinson's and my theory of partisan entrenchment argues that Presidents generally attempt to install jurists who agree with their constitutional and policy positions on the issues most important to them. For at least thirty years, most Republicans, and especially the most ideologically committed conservative movement Republicans, have argued against the constitutionality of campaign finance laws on first amendment grounds. John McCain was considered a "maverick" precisely because he bucked this standard view. It is not an accident that the current Senate Majority leader, Mitch McConnell, brought the first challenge to the McCain-Feingold law that the Supreme Court has now struck down. Republicans, far more than Democrats, have sought to free campaign finance from regulatory control, and have argued in favor of the right of corporations, as first amendment actors, to influence the political process.

Justice Sandra Day O'Connor, who was not a movement Republican, was replaced with Justice Samuel Alito, who is. With this switch, four movement Republicans plus a conservative libertarian (Anthony Kennedy) have created a Supreme Court majority which has put the constitutional views of the conservative movement into law.

It is true that nobody bribed the Justices to decide as they did. They did not have to. The Justices in the majority are not corrupt: they sincerely believe that their views about the First Amendment are correct. Past electoral influence has been laundered into present juridical conviction.

This is the genius of partisan entrenchment: The Supreme Court we have today is the ghost of campaign expenditures past.

Posted 10:35 AM by JB [link]

What’s at stake in the filibuster question

Andrew Koppelman

President Obama seems to have gotten the message that he needs to strike a tougher tone than he did in his limp response after the bad news from Massachusetts. His latest speech, which used the word “fight” more than 20 times, is a good sign.

But none of that matters if the Republicans, who are determined to let him accomplish nothing, have a veto over any legislation via the filibuster. He can fight all he likes, but he will lose, and he’ll keep losing for the rest of his Presidency.


It’s time for him to demand of Democratic Senators that they abolish the Senate filibuster. If he can get 50 of them to agree, then the game will change fundamentally. In a world in which the Senate can act with a simple majority of votes – and remember, that’s the way America was governed for most of its history - the Democrats will have firm control over both houses of Congress, and will be able to pass health care, and address global warming and financial reform as well. Obama will be one of the transformative presidents.

But unless the filibuster is abolished, none of that will happen. If the Senate rules are unchanged, it’s unlikely that there will be any health care bill at all, these other problems will go unaddressed as well, and Obama can look forward to being a minor president in a holding pattern, keeping the Presidential seat warm to make sure a Republican doesn’t get it.

If there ever were a time for Obama to throw all of his personal influence behind a single political measure, this is it.

Democratic Senators love the personal power the filibuster gives them, of course. But they also like the power that comes with being in a majority that is actually capable of enacting legislation. It’s time for Obama to tell them that they have to choose.


Posted 9:37 PM by Andrew Koppelman [link]