Friday, February 03, 2012

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.


Considering the proposed amendments to reverse Citizens United actually reinforces the wisdom of that decision.

You can find the favorite Dem amendment offered by Tom Udall here:

This direct assault on the First Amendment gives Congress the power to limit or prohibit any person or entity from spending money or the equivalent to engage in political speech for a candidate.

Just for the record, the particularl wisdom or unwisdom of any particular amendment is beside the point. The real point is the hide-bound veneration that Ms. Drew expresses. If I wanted to discuss the Udall amendment, I would have written about that. But I did not.

Yep, the issue here is hardly any particular proposal.

The issue here is how many otherwise intelligent persons believe the document was carried down Mount Sinai on clay tablets, by an exhausted Moses, given reasonable estimates of font size and tablet weight.


The point of Article V was to make it difficult for a passing political movement like that to abridge political speech for partisan advantage to amend our basic law.

As I have noted here before, I would lower the bar for amendment somewhat, but fully support maintaining that bar at a super-majority level to avoid mischief like the Udall amendment.

With regard to our yodeler's "The point of Article V ..." he neglects/ignores the point of the southern states back at the Philadelphia Convention to make it difficult to eliminate slavery via many provisions of the Constitution that protected slavery without actually referring to slaves and slavery. Yes, eventually with the costs of the Civil War, slavery was outlawed with the adoption of the 13th Amendment via the Article V process (that might have been a tad flawed because of voting limitations upon the seceding states). But despite the 13th Amendment and the 14th and 15th Amendments, Jim Crow and other remnants of slavery continued until Brown v. Board of Education in 1954; even then, it took the civil rights movement decades to somewhat provide non-discriminatory rights to African-Americans such that America in 2008 had the audacity and hope to elect its first African-American President. Citizens United's money talks and talks and talks is doing its best to prevent Obama's second term. Our yodeler's hide-bound veneration for Article V is in keeping with his vile attacks on Obama from day one of the latter's inauguration on 1/20/09.

By the Bybee [expletives deleted], Stephen Colbert had a great segment on 2/2/12 on the 20 or so major contributors to Super PACs. Yes, money has talked loud and clear. Alas, our yodeler's candidate du jour (Newt), has been a victim, unless he can rise from the ashes in Nevada by coalescing a fractured Tea Party. (See NYTimes front page article 2/2/12 "Downturn and Upstarts Transform Nevada's G.O.P. Caucuses" by Nagourney and Medina.)

I wonder if any of the amendments after #10 set a "bad precedent" as well. Would an amendment, as one should be submitted, that takes away the inability of someone born in Canada but coming here as a child from being President also so nefarious? Was the 19A?

Amendments should be hard to come by though we can debate on the means. The proposals to amend the Constitution to override CU (Justice Stevens on Colbert reminded us some criticisms are off, like the idea corporations aren't persons), at least the ones I have seen, are nefarious.

But, I'm with jpk.

Drew's argument strikes me as strange. She says the founders wisely made it difficult to amend the Constitution (my first reaction is to agree), and yet decries any amendment that scales back Citizens United, even an amendment that makes it through the difficult process (or at least Sandy makes it sound that way, I'm not a subscriber so can't read the original). Assuming she isn't arguing that all amendments are bad, how does she distinguish good ones from bad ones?

My first reaction is also to agree with the Udall proposal, and yet to concede the reality that Article V's requirements are too much to keep it from passing (to the detriment of the country).

The Udall proposal underlines that Citizens United is just the tip of the iceberg. "the amount of expenditures that may be made by, in support of, or in opposition" could be regulated. Not just by corporations. No limits are suggested. When even Justice Breyer has found certain local laws of this type unconstitutional, such open-ended regulation of even individual use of their own funds is problematic.

Dahlia Lithwick's Slate column today (2/4/12) "Colbert v. The Supreme Court" might suggest that satire, ridicule, etc, may result in an "amendment" by the Court of Citizens United that does not require a supermajority (in that instance of unelected officials).


I don't share your concern over open-ended regulation.

I hope the Udall amendment would lead to mandated nothing-but public financing of campaigns as it relates to television and radio. I think that is the best way to free elected officials from being held hostage by their largest campaign donors.

But, maybe you can suggest a regulation we should be wary of and an appropriate modification of the amendment to deal with it.

just_looking, the USSC over the years, including in opinions written or joined by liberal justices, set various limits on election regulations, including if the barriers (even to use of your own money) are so complete that very small amounts of money are blocked or various sensitive groups need to disclose certain information.

For instance, an open-ended expenditure law would require every single person, even those who gave $20, to disclose the fact, including contact information. Individuals, not just corporations with deep pockets, would be blocked from spending fairly small amounts of money, while established candidates will benefit. In fact, since the amendment comes later, arguably, even media sources would be limited in some fashion, the later amendment overriding the earlier given the powerful role such "expenditures" can play.

Requiring "public financing" for every election also is unnecessary. There are thousands of small elections, let's say for a local village sheriff, and the idea that only public financing should be allowed is to me unsubstantiated.

Mandatory financing -- I'm all for various types of financing laws and think the Arizona decision with Kagan's powerful dissent was wrongly decided -- what about if the person decides to write a campaign book or video? If this is done by private funds, can it be barred?

These are just a few concerns with such open-ended language.


Firstly, let me clarify that I want a federal statute mandating exclusive public financing of federal elections (House, Senate, President). Each state can decide for itself what to do. It is doubtful the sheriff would be impacted, but Arizona's fine law for statewide office you referred to would be permitted thanks to the Udall amendment.

Secondly, I'm not following your concern over small-donor disclosures. If campaigns were mandated to be exclusively public-funded, there wouldn't be any donations.

Thirdly, maybe the amendment could be reworded to protect the book or video while still permitting a public-financing mandate on radio and TV. But if not, Congress is not going to outlaw the book or video. We should address the problem we know exists, not an unrealistic hypothetical. Do you have a better solution that would reinstate the Arizona law?

Thanks for the clarification though there is plenty of state funding that people are concerned about.

I also don't know how federal funding would work. How would we determine who would get it? Some primaries might have say five candidates. One party. Then, there are third parties. Would they all get the same amount even if they have small public support?

By your own lights, only the feds would be publicly funded. Every ballot measure, e.g., might not be. And, total funding is a pretty big step. The mode often is matching funds. And, what about people who might run in federal elections? Would third party groups be blocked? How about their funding?

Citizen United was about videos. If there is an exception for books and media, that is a notable hole. As to Arizona, there might be a way to craft the law that would meet USSC approval. Public financing is still allowed generally. I don't think a constitutional amendment is the best path. If one was crafted, it might say something like "voluntary public financing" should be allowed or something.

With more ashes for Newt in Nevada, his rise may come in CO with the benefit of the endorsement of you know who. But the Nevada support for Mitt from the Tea Party suggests otherwise.

I'm working on a dyslexic political bumper sticker:


with a tie-in to Citizens United. Any ideas?

Federal law already sets thresholds for public funding. Even Buddy Roemer is eligible.

Citizens United was about videos only because SCOTUS bent over backwards to improperly construe the statute (against even the argument of the plaintiffs) so they could invalidate it.

Since you haven't offered up a rewrite of the Arizona statute, how about an amendment that reads:

Public funding of electoral campaigns, including amounts that compensate for unequal levels of privately-funded candidate or independent expenditures, shall not be construed to violate Free Speech as defined in the First Amendment of this Constitution.

Phase two of dyslexic political bumper sticker:

Citizens United LATER!

In the second line, the lower case letters would be smaller than usual so the viewer's glance would focus on "C" "U" LATER!

If ONLY public spending was allowed, things would be more complicated. R. is rarely seen, an example of how limits can selectively affect outsiders.

If you want to allow videos and various other things, putting aside "trust us" is never quite a good rule for the government, large amount of spending would be allowed for any number of things.

That sounds okay though public funding laws should follow the normal 1A rules that apply generally. And, an amendment to the Constitution to override the Arizona case alone doesn't seem necessary. Public funding is after all still allowed. That isn't the concern of the drafters. They have bigger game, game that goes far beyond CU.

Why couldn't the same rule for qualification apply if only public funding is allowed?

Until you offer something that can replace the Arizona law, I don't see any other solution except an amendment. As we have witnessed, public funding that does not compensate for unequal private funding is useless.

Today's WaPo (2/6/12) features Tom Toles' political cartoon "Game is Over" depicting the Supreme Court and the impact of Citizens United (with a not so subtle reference to CJ Roberts' "umpire" role). With Citizens United the "Umpire Struck Out."

I haven't checked out Udall's proposed amendment as yet but it is difficult for me to envision what the result would be of efforts to overcome Citizens United via the amendment process. The real problem is with the Court as described in yesterday's (2/5/12) NYTimes lead editorial "Politics and the Supreme Court" with the subheading: "Big legal cases may influence the 2012 election, but politics forcefully shaped the cases."

E. J. Dionne's WaPo column today (2/6/12) "The Citizens United catastrophe" is even more biting than yesterday's NYTimes lead editorial.

By the Bybee [expletives deleted], the NYTime website today features "Dickens v. Lawyers" by Joseph Tartakovsky, a young lawyer clerking in the 10th Circuit. I don't know if the article is in hard copy of the NYTimes, but it is worth a read and not just for lawyers.

just looking, the Arizona case didn't say all public financing was unconstitutional. And, even if they did, it is not necessarily the best policy to amend the Constitution, especially since there are other means to address the problem.

The book review following this post does not allow comments, but I would also recommend "A More Perfect Military
How the Constitution Can Make Our Military Stronger" by Diane Mazur.

Yesterday's NYTimes (2/7/12) features on its front page Adam Liptak's "Sidebar" column "'We the People' Loses Followers" making the point that our Constitution is no longer the model for newer democracies. Sandy is referenced in the article and perhaps we can expect a post on it by him.

Does creative destructionism apply to constitutions?

Originalism here in America might be contributing to the waning interest in our Constitution. In this regard, I recommend Saul Cornell's "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism." A link to Prof. Cornell's article is available at the Originalism Blog.

As to Citizens United, Pres. Obama has decided to jump on the Super PAC bandwagon to "level the playing field."

By the Bybee [expletives deleted], I note that Rick Santorum topped three (3) GOP beauty contests yesterday, including in our yodeler's backyard of CO. Is Rick the new non-Romney, acing out our yodeler's choice du jour of Newt? Or is this a reaction to contraception rules in the news?

Shag's comment brings to mind Justice Ginsburg's comment that she would counsel constitution writers to not use our own as a model in various respects.

Judicial review has been adopted with Europe and Canada adopting it as a means to protect rights. But, one thing that post-WWII constitutions tend to include are positive rights.

Other things such as our federal system also might not fit in some other country, at least, see Breyer's writings, the specific way we handle it.

The Prop 8 case has also resulted in much commentary. Therefore, for those who prefer commenting, there are various other places to go, such as Volokh Conspiracy.

If a newer democracy were to adopt in its constitution provisions similar to those in our Constitution that have been controversial and subjected to the scrutiny of various forms of originalism in recent years, would such adoption carry with it the baggage of such originalism in interpretation/construction? Or perhaps some baggage of SCOTUS precedent/stare decisis? It might be that the newer democracy needs a tabula rasa constitution that just might benefit from such baggage by avoiding it. So perhaps the situation described in Liptak's column is understandable.

Do any of the newer constitutions spell out how to interpret/construe it?

I noted at Daily Kos a posting illustrated with Mitt Romney and young children spelling out "Rmoney," Maybe my bumper sticker idea noted in my earlier comments on this thread may come to fruition. But with Rick Santorum now leading Mitt in national polls and even in Michigus, this idea may be mooted. So I propose a Rick Santorum bumper sticker:


to attract voters versed in Latin (although it might not attract Latinos).

With further consideration on my suggested Santorum bumper sticker, perhaps it should be revised to:


as sort of an abbreviated progressive syllogism. But some may reflect upon it as mere conjugation.

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