Why Can’t House Republicans Have Nice Things?

David Super

      That may seem a strange and perhaps uninteresting question to ask, particularly given that I (and I suspect many readers) have no great desire for the current set of House Republicans to enjoy nice things (except, perhaps, all the many perks our system offers to former Members of Congress).  Yet on the face of it Freedom Caucus Members would seem to have a point when they say that surely Speaker Johnson could have extracted some concessions for the Ukraine aid bill now moving through the House. 

     The answer provides important insight into how Congress works; that insight's importance goes far beyond today’s House Republican Conference.  Today’s Democrats (and Senate Republican leadership) seem to have mastered these lessons; that has not always been the case and may not be in the fairly near future. 

     Repeat players.  The core point is understanding how negotiations work among repeat players.  In every negotiation, no matter how important the subject-matter, the parties have to be mindful of all the other negotiations that inevitably will follow with the same parties.  When one is under contract to buy or sell a house and one’s counterparty seeks to better their deal through dishonest means, it may be quite plausible to accede to some or all of those demands to get the transaction completed.  You will never deal with these people again so giving them the sense that you are a pushover has no monetary cost beyond the concession itself. 

     In Congress, however, every negotiator has to keep in mind not just how a concession will affect the value of this deal but also the value of every future deal they will negotiate with the same parties.  Imagine having negotiated a bill with Senate Minority Leader Mitch McConnell and having been thoroughly owned in the process.  If you go back to him after having signed off on the deal and ask for a small additional unilateral concession from him, he will absolutely turn you down.  It does not matter that the legislation would still be a huge win for him even with your change:  he cannot afford to give you the idea that you do not have to stick by your deals because next time the leverage could be different.  If you go back to him seeking an additional concession while offering him one in return, you might do a bit better.  He still probably dislikes the idea of re-opening deals, but this offer is not disrespectful, and accepting it would not establish a precedent that would necessarily degrade the value of future deals.  He may demand a more desirable concession to drive home the point that deals are deals and to discourage you from trying this in the future.  He also may insist that the modifications move in a separate bill to preserve the sanctity of the original deal.  And he may just say “no”. 

     The Democrats grudgingly negotiated substantively ghastly anti-immigrant bill with Senate Republicans as the price for aid to Ukraine.  In so doing, they created significant splits within their political base.  Republicans got essentially everything they sought in this bill.  To add insult to injury, House Republicans refused to participate in these negotiations, presumably so that they could demand even more after their Senate counterparts cut a deal.  Republicans then walked away from a bill everyone knew was a huge Democratic capitulation for nakedly electoral reasons on orders from former President Trump.  Reaching and then failing to honor an agreement is a cardinal failing among repeat-player negotiators, all the more so when one’s counterparty bore significant costs from the very existence of the deal.  Once Republicans did this, Democrats absolutely could not make any further concessions regardless of how they felt about Ukraine:  it would invite more intolerable negotiating behavior in the future.  From that point on, the leadership on all sides understood that negotiations were over and the issue would be resolved by raw political pressure.  When Ukraine and its allies ultimately won that struggle, making sure that House Republicans received no rewards for their bad-faith negotiating was crucial. 

     Priorities matter.  Republicans underperformed their leverage in this year’s appropriations battles because they proved unable to set priorities.  Many wanted specific conservative policy changes.  They lacked the leverage to achieve immediately many of their most extreme demands, but they could have won significant downpayments.   A minority of House Republicans, however, wanted to virtue-signal by opposing all appropriations bills, regardless of content.  On bill after bill, this prevented them from passing anything as extreme cuts kept all Democrats away but nihilist Republicans denied leadership a majority – or even any guidance as to how to rewrite the bills to gain a majority.  This gutted the bar­gain­ing position of House Republican leaders, who could not plausibly promise anything approaching the number of votes needed to pass legislation. 

     This pattern repeated itself on the Ukraine aid legislation.  Some Republicans wanted to make the money a loan.  Some wanted to tie it to Republican policy priorities.  Some wanted to shrink the amount.  Some wanted to stall as long as possible.  Some wanted to kill the legislation outright.  And more than a few were going to do whatever former President Trump told them to do, making them complete wild cards.  The House Republican Conference lacked a mechanism for reconciling these positions that all Members would respect.  This left Speaker Johnson with little ability to promise anything in negotiations with Democrats, and everyone knew it.

     A striking contrast was the CARES Act, the largest coronavirus relief law.  Democrats opposed corporate welfare, but their top priority was aid to displaced people, especially through unemployment compensation.  Republicans disliked unemployment compensation, but they cared far more about subsidies for their friends and donors in the business community and about creating large discretionary pools of money for the Trump Administration to dole out in an election year.  Naïve partisans chided Democrats for being sloppy about accountability for the business subsidies or attacked Republicans for undermining the primacy of work with the liberalized unemployment benefits.  In fact, everything went according to plan.  Indeed, the CARES Act was remarkably well-drafted for such a large, complex bill negotiated and drafted under egregious time pressures. 

     Time matters.  Congressional repeat players tend to be fiercely risk-averse.  A great many concessions get made out of fear of highly unlikely events.  I have seen congressional staff win huge changes in bills by threatening to have their bosses give speeches that they and I (but not their opponents) knew their bosses were philosophically opposed to making.  And I have gnashed my teeth when staff gave away the farm to prevent a speech that the Member in question was clearly too distracted (and lazy) to give.  The key to this, however, is leveraging uncertainty. 

     House Republicans’ continual refrain that their leaders were cutting spending deals too early and should have held out for more forced Speakers McCarthy and Johnson repeatedly to wait to the last possible moment to move legislation.  At that point, they lacked time to negotiate and, because their party would obviously be blamed for a government shutdown, had no leverage with the Democrats.  They never had the traction to achieve the House Freedom Caucus’s maximalist demands, but dawdling at a time when the political outcome was a bit more uncertain destroyed what potential they had. 

     Similarly, even a month ago, Democrats’ ultimate ability to get enough signatures on a discharge petition on Ukraine aid was uncertain.  That uncertainty could have given Republicans some leverage.  But with Rep. Marjorie Taylor Greene threatening Speaker Johnson’s gavel if he moved any Ukraine aid bill and other Republicans hedging their bets about whether they would support her, the Speaker was afraid to try to cut a deal.  By this week, the news out of Ukraine was disturbing enough for more than enough House Republicans to signal to the Speaker they would soon sign the discharge petition if he did not bring Ukraine aid to the floor himself.  With all reasonable risk removed, he could no longer leverage Democrats’ risk aversion.   

     Rhetoric matters.  Although it has become fashionable to say that we live in a post-truth world, this is not entirely correct.  Floor speeches rarely persuade opponents now as they might have in the past, and we have all seen that telling innumerable verifiable lies is no longer an impediment to reaching the highest office, but the specific arguments one makes for one’s positions nonetheless matter.  Consider a relatively insignificant local bridge in a bipartisan infrastructure bill moving rapidly through Congress.  If a Democratic Member of Congress says that this bridge is the key to that Member’s strategy for the region’s economic rejuvenation, Republicans will likely roll their eyes and start making their dinner plans.  But if the Democrat praises the bridge because its construction will require demolition of a neighborhood that consistently votes Republican, Republican Members will have no choice but to fiercely object and to stop the legislation in its tracks until the offending bridge is removed – even if the demolition story is entirely fanciful and even if Republicans benefit far more from the overall bill.

     So long as opponents of Ukraine aid made fiscal conservative arguments, no matter how fatuous, they received a free pass.  But when House Republicans returned to demanding anti-immigrant legislation after having lured the Democrats into that trap and reneged previously, Democrats could not even consider immigration-related concessions without encouraging similar behavior in the future.  And when Reps. Greene and Gaetz shamelessly repeated long-discredited Russian propaganda about “Ukrainian Nazis” – have they really never seen pictures of Dmitri Utkin, co-founder of the Wagner Group that did much of the fighting for Russian in the first sixteen months of the war? – even many House Republicans felt obliged to call them out.  Refusing to sign the discharge petition to bring Ukraine funding to the floor previously had been an act of partisan Republican loyalty; Reps. Greene and Gaetz turned it into an admission of being an asset of a hostile foreign power.  For many of their colleagues, that was too much.  

     @DavidASuper1

Norm Breaking at Columbia

David Pozen

Recent events at my home university have inspired a torrent of critical commentary. That Columbia’s leadership declined to follow various norms of campus governance does not, in itself, prove that it acted unwisely. But seeing the pattern of norm breaking helps throw into relief the potential costs of its decisions in the future as well as the present. 

First, during President Shafik’s testimony on Wednesday before the House Committee on Education and the Workforce, she disclosed that several faculty members are under investigation for making discriminatory remarks. “President Shafik’s public naming of [these faculty members] to placate a hostile committee,” the American Association of University Professors observed, “sets a dangerous precedent for academic freedom and has echoes of the cowardice often displayed during the McCarthy era.” In setting this precedent, Shafik violated a longstanding norm of confidentiality regarding internal disciplinary proceedings. University rules provide that allegations of discrimination will be handled in a confidential manner. Often, these proceedings are handled so secretively that even the complainant is kept in the dark. To have an ongoing investigation revealed by a top administrator on live TV, in the absence of a subpoena or other legal compulsion, is a stunning departure from campus customs and investigatory best practices more generally.

Second, although President Shafik’s decision to invite the NYPD on campus to arrest students may have been within her formal authority, it breaks with an informal settlement that had been in place for more than a half-century. The last time the university called the cops on student protesters was April 1968; that episode ended so bitterly and bloodily that it yielded a norm of police noninvolvement. Since 1968, student protesters have repeatedly occupied Low Library, blockaded Hamilton Hall, held sit-ins in administrative offices, waged hunger strikes, staged walkouts, and more. Some of these protests yielded disciplinary code charges. None elicited a criminal law enforcement response. This week’s encampment on the South Lawn posed a difficult problem for the university administration, to be sure, but not one that was different in kind, duration, or disruptiveness from scores of post-1968 protests. When the next extended student demonstration occurs, it will be hard to resist pressure to call in the cops again. 

Third, the most serious charge that President Shafik leveled against the student protesters, that their encampment created a “harassing and intimidating environment,” was made without the benefit of any factfinding process. “Discriminatory harassment,” defined to include the creation of “an intimidating … environment,” is prohibited by Columbia’s Standards & Discipline policy. But that policy, and the procedural protections that come with it, does not seem to have been applied here. This suggests that the university deemed the protesters’ expressive conduct, as well as their occupation of the lawn, to be in violation of the Rules of University Conduct. Yet while the Rules allow the restriction of “expression that constitutes a genuine threat of harassment,” President Shafik offered no examples of such threats, nor to my knowledge have any been reported. If this finding of harassment is based on the discomfort some feel from the presence or message of the encampment, then the harassment concept—intended to set an objective standard that preserves a wide berth for provocative speech—has become an engine of viewpoint discrimination. Either way, its application to this case indicates that the president’s office now believes it can make such fraught judgments summarily and unilaterally.

Other examples of recent ruptures might be added to the list. In the jettisoning of these institutional norms, one throughline is the prioritization of immediate objectives over longer-term considerations of academic autonomy and democratic self-governance—considerations that the norms had developed, however imperfectly, to protect. In the university as in the wider world, crisis has thus led not only to rising repression but also to the consolidation of presidential power.

Abrams Institute Conversations: Will the Supreme Court Let States Take Control of the Internet?

JB

Here is a conversation between Tim Wu and myself, moderated by Floyd Abrams, about the First Amendment issues in the NetChoice cases before the Supreme Court. (Tim and I participated in writing amicus briefs on opposite sides of the case.) 

This event, which was recorded on March 4, 2024, is a part of a series of conservations on free speech issues hosted by the Abrams Institute for Free Expression at Yale Law School. 

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

Mark Milley and the Constitution

Mark Tushnet

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

Send in the Clowns

David Super

     So with just over six months remaining in the fiscal year, the federal government is finally funded.  And Rep. Marjorie Taylor Greene has filed a motion to oust House Speaker Mike Johnson.  Should we be worried?

     The omnibus appropriations legislation is bad, but that was largely pre-ordained by the bad budget deal President Biden made with then-Speaker Kevin McCarthy to prevent a national default.  Within those constraints, the final deal is about what one might expect. 

     The final appropriations bills – this one and the one enacted earlier this month – are much closer to the bipartisan Senate appropriations bills than to the extreme measures House Republicans proposed, and occasionally managed to pass, through their chamber.  But this is precisely because the Senate wrote its bills to be plausible and the House wrote its bills to gesture to numerous special interests and ideological fringe groups. 

     Far right (and far left) activists doggedly insist that moving their starting position in negotiations farther in their direction will pull the final compromise in that direction, too.  That can be true under some circumstances, but only to a degree.  Past a certain point, a position comes to be seen as unserious and has no impact at all on the negotiations.

Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Michael Waldman, Expanding Our Constitutional Imagination

3. Emily Rong Zhang, Give us (a lasting consensus on really protecting) the Right to Vote!

4. Bruce E. Cain, Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

5. Alex Keyssar, That Little Omission in the Constitution

6. Wilfred U. Codrington III, A [More] Real Right to Vote?

7. Sanford Levinson, Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

8 .Derek T. Muller, Some skepticism about (and some promise for) a constitutional right to vote

9. Dan Tokaji, Dare to Dream

10. Richard L. Hasen, A Surreal Right to Vote: Responding to the Balkinization Symposium

Who will own DJT?

Joseph Fishkin

Comstockery in the Court and on the Campaign

Guest Blogger

A Surreal Right to Vote: Responding to the Balkinization Symposium

Guest Blogger

Dare to Dream

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).

Dan Tokaji

This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

“The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Some skepticism about (and some promise for) a constitutional right to vote

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.

Agency Problems’ Impact on Budgetary Outcomes

David Super

     Over the past few years, critics on both the Left and the Right have been intensely critical of their respective party leaders for supposed timidity in failing to achieve their fiscal objectives.  These criticisms are not without foundation.  A careful examination of the past few years, however, suggests that although agency problems have real adverse effects, within each political coalition grassroots distrust of leaders has proven much more destructive to the grassroots’ espoused substantive goals. 

     The inescapable conclusion is that each side needs effective ways of dissuading their leaders from putting personal considerations ahead of the group’s substantive objectives, micromanaging negotiations from afar is disastrous.  Even when partisans suspect their leaders have fallen short, failing to support those leaders opens a huge opportunity for the other side.  This post illustrates this point with one actual agency failure and one grassroots revolt from each side of the political chasm. 

     With an evenly divided Senate during President Biden’s first two years in office, and with supposedly moderate Republicans abandoning much pretense of bipartisanship, passing any legislation required the support of every Senate Democrat.  That included the moderate Joe Manchin and the capricious Kyrsten Sinema.  As much as progressive activists might wish otherwise, neither senator shares their values.  Although Arizona has recently elected some fairly liberal candidates, West Virginia is one of the reddest states in the country:  if Joe Manchin were not a moderate, he would not be a senator.

Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Sanford Levinson 

            There is a deep pathos underlying Richard Hasen’s call for A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy.  Hasen probably knows more about the workings of the American electoral system than any other contemporary academic.  A founding  co-editor of the Election Law Journal, on whose Board he continues to serve, he has published more than 100 articles on various aspects of election law, not to mention a number of books on the topic.  He is frequently, and for good reason, a “go to” source by journalists looking for thoughtful—and often critical—responses to judicial decisions touching on voting.  He recently moved to the U.C.L.A., where he is a professor of law and political science and directs the Safeguarding Democracy Project there.  He is a truly engaged scholar. 

            A frequent theme of his writings, not at all surprisingly, is the inadequacy of the American system of conducting elections.  He is certainly correct.  I would go so far as to say that the United States has the worst electoral system, overall, of any of the countries that we count as “democratic.”  I have chided my friends Pam Karlen, Sam Issacharoff, and Richard Pildes for titling their widely used casebook on election law The Law of Democracy.  For me the title is sadly misleading and, therefore, ideological, inculcating in at least some impressionable students the mistaken view that the United States is a democracy.  (This, of course, is not a new theme of mine.)  One might argue, of course, that it was never designed to be one; thus the old slogan that the United States is a republic and not a democracy.  In any event, those who shared the views of, say, Eldridge Gerry that the nascent United States in 1787 was plagued by an excess of democracy might be pleased with the way things have worked out.  If one compares the United States Constitution with the fifty state constitutions, let alone most modern foreign constitutions, it is easily the least democratic constitution in the mix. 

            We are, of course, headlong into a new election season where the upcoming choices, especially at the presidential level, are accurately described as not only the “most important election of our lifetime,” but also a potential referendum on whether the United States will continue to be recognizable as a purported “democracy” (or “Republican Form of Government”) at all.  Perhaps it is hyperbolic to compare our situation to Weimar Germany in 1933, but it is surely the case that Donald Trump has become the avatar of a basically authoritarian, even fascistic, political party whose members brook no challenges to their exercises of power. 

            So Hasen’s latest book is his latest exercise of warning the American public about the deficiencies of our electoral system and calling on us to engage in reform before it is indeed too late.  He might well be analogized to a modern-day Paul Revere.  We must worry that what we think of as our democratic system is under systematic threat, and we must mobilize to save it.  For these warnings Hasen deserves our repeated gratitude and highest esteem.  He is a good citizen in the highest sense of that term.

Why We Won Trump v. Anderson

Mark Graber

Who won Trump v. Anderson is for the future, not the Supreme Court to determine. Or so I maintain in this Washington Monthly piece.

A [More] Real Right to Vote?

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Wilfred U. Codrington III

Many congratulations are due to Professor Richard L. Hasen on the publication of his newest book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. In this short book that seeks to address not-so-sweet problems, Hasen seamlessly weaves anti-canonical election law cases with modern stories of anti-democracy (some of which have yet to reach their conclusions) to explain the utility of a Right to Vote (“RTV”) Amendment today. In general, I am happy to read this work, as it adds a distinguished voice to the growing chorus that sings the praises of a RTV Amendment. An idea that was once looked upon as extraneous, unworkable, or even a pipe dream seems to be gaining more traction in the scholarly community. Even still, my sense is that Hasen’s proposals—both the basic and extended versions—do not go far enough in an important respect. Any discussion of an effective right to vote that disregards the problem of partisan gerrymandering, to me, seems incomplete.[1] And having gone back to review some of Hasen’s older works, I am persuaded that, even on his terms, there are at least three reasons why the basic amendment should include a provision to address the concern of partisan gerrymandering.

Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity

JB

I've just uploaded a draft of my latest article, Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity, to SSRN. It is part of a B.U. Law Review Symposium on my new book, Memory and Authority: The Uses of History in Constitutional Interpretation and Jonathan Gienapp's forthcoming book, Against Originalism: A Historical Critique.

Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

That Little Omission in the Constitution

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Alex Keyssar

More than twenty years ago, in the aftermath of the 2000 election and Bush v. Gore, I participated in an effort to place a “right to vote” amendment in the Constitution.  Working with Jamie Raskin (then a law professor), Rob Richie (of FairVote), and numerous other activists and intellectuals, we drafted several versions of such an amendment -- a simple text as well as others dealing with more knotty matters like ex-felons and Puerto Rico.  Illinois Congressman Jesse Jackson, Jr. not only promoted the idea in Congress but vowed publicly that getting it passed would be the centerpiece of his work as a political leader.  Our actions, and our thinking, were prompted by the conflicts, litigation and disenfranchisement that arose during the 2000 election, as well as by Justice Scalia’s pointed assertion, in oral arguments, that “there is no right of suffrage under Article II” of the Constitution.  We thought that an amendment could plug a big hole in the fabric of our democracy.  We were also optimistic about its prospects (or at least I was):  the right to vote was an all-American value, like motherhood and apple pie.  Who could be against it? 

Thanks primarily to Jackson’s efforts, the amendment fairly quickly attracted more than forty co-sponsors in the House.  But then the effort gradually stalled.  No Republicans signed on, and no Senate co-sponsors could be found (not even the junior senator from Illinois).  The Democratic Party, at its convention in 2004, declined to insert an amendment proposal into its platform; key leaders said they feared opening up the Pandora’s box of amendments, lest conservative ones enter the fray.  Congressman Jackson understandably put his energy into other battles and later ran into some legal troubles of his own, depriving the effort of his leadership.  Over the years, we learned that many people – or at least many members of Congress – were more than ready to oppose a constitutional amendment protecting the right to vote.

Academic Freedom of the Press: Is it Too Late for the New Fourth Estate?

Guest Blogger

Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Bruce E. Cain

Through various editions of his textbook, voluminous blogs and extensive scholarship, Professor Rick Hasen has tirelessly promoted and energized the field of Election Law for several decades.  Indeed, there are times in my life when I received more daily communications from Rick and electionlaw@lists than my close friends and family combined. Not complaining, mind you, but just saying. 

 Due to his high public profile and many connections with the reform community, Rick often both reflects and shapes the modern US political reform agenda. Accordingly, his latest book offers insight into contemporary reform thinking in the context of recent conservative judicial decisions and the country’s considerable political uncertainties. 

On the strategy spectrum of going big with reform versus going small with incremental measures, the trend lately is more towards the former than the latter.  We got a glimpse of this when the Democrats offered up HR1 in the early days of the Biden administration. Professor Hasen ups the ante on big and proposes what many consider the most politically difficult pathway: i.e. amending the US constitution.

Give us (a lasting consensus on really protecting) the Right to Vote!

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Emily Rong Zhang 

I am reminded of the following aphorism as I read Rick’s new book: “Never let a good crisis go to waste.”  If we can emerge from the Trump era of American politics with the kind of robust protections for the right to vote that Rick writes about and argues convincingly for, perhaps we will have gained something lasting and worthwhile from it all.  If a truly secure right to vote can be the lasting legacy of the Trump era, it might (almost) make all the agita we collectively suffered less painful in retrospect. 

As a former/retired voting rights advocate, I am, of course, excited for what Rick advocates in the book, a federal constitutional amendment that affirmatively enshrines the right to vote.  But I am even more excited for what having such an amendment would memorialize: that enough people cared about the right to vote so much as to perform a veritable political feat to protect it.  Rick writes persuasively about what should galvanize folks to want to undertake this political feat; our troubled history with the right to vote, especially as it concerns the Courts, was what upset me enough as a law student to want to do something about its modern vestiges. 

Clearly, the courts cannot be trusted to do the right thing on their own.  Rick suggests that with our help, they might.  A constitutional amendment might be a good starting point, but it shouldn’t be thought of as a destination.  After all, while Rick reminds us that there is no right to vote in the federal constitution, we have no shortage of rights to vote in this country.  As Joshua Douglas documented, each of our fifty states has the right to vote explicitly enshrined in its state constitution.  Their existence during our recent Voting Wars makes painfully clear the inadequacy of legal protections that are not backed by a current and diligently-maintained consensus about the importance of those protections. 

            What might such a consensus contain?  Rick makes a compelling proposal for one in his book.  To be sure, not every element is uncontroversial.  Some, as Rick acknowledges, for instance those related to felon disenfranchisement or implementing national voter identification, are likely to be contested.  But that should serve as an invitation for us to engage, not as an excuse to disengage.  Afterall, some of us are better at reacting to what someone else has written than at filling an empty page.  We are lucky to have as good a drafter as Rick. 

Emily Rong Zhang is an assistant professor of law at UC Berkeley School of Law. You can reach her by e-mail at zhanger@berkeley.edu

Expanding Our Constitutional Imagination

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Michael Waldman

The most significant thing about this terrific book may be the simple fact of the topic and author. It matters that Rick Hasen, a mandarin of election law and a prominent public intellectual voice, has embraced an amendment to guarantee voting rights. It is a welcome sign of the expansion of our constitutional imagination. As Rick notes, the fight for American democracy over the centuries has included fierce drives to amend the Constitution. These battles were won not in court but in the court of public opinion.

Yet for decades, those who care about voting rights – and progressives more broadly – have been remarkably skittish about the notion of amending the Constitution. Some argue there already is a right to vote in the Constitution. True, the original document, the one written by the powdered-wig boys, makes no mention. (Most Founders did not support a dramatic widening of the franchise, though some did.) But five later amendments refer to the “right to vote.” Acknowledging that protection is weak or missing seemed a misguided concession. For many years, this was my own view. The Brennan Center shied away from such an amendment because we did not think it necessary. (In contrast, we have long backed an amendment to overturn Buckley v. Valeo to allow reasonable regulation of money in politics.)

The Myth of the Irresolvable Conflict

David Super

      Monday’s decision in Trump v. Anderson amplifies a growing if selective theme in our public life:  the assumption that no controversy may ever be resolved because neither side will accept its loss.  From this, the reasoning seems to go, we should wall off the processes through which a conflict might arise and, if one does anyway, regard it as permanently irresolvable.  This pattern of thinking is irreconcilable with both democracy and the rule of law, yet it seems to be gaining ground. 

     On Monday, the per curiam declared that “state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President represents all the voters in the Nation. … The patchwork that would likely result from state enforcement would sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole.”  (Citations and internal quotations omitted.)  Justice Barrett joined this part of the Court’s opinion, and the disaffected liberal justices wrote that allowing states to enforce Section 3 of the Fourteenth Amendment “would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” 

     To read this, one might think that the justices have never heard of a certain institution empowered to resolve such disagreements among states’ adjudications of federal questions.  Indeed, that institution, at the very moment the justices were writing, was busy resolving a patchwork of inconsistent state decisions about a candidate’s eligibility for federal office. 

     If we cannot bear the thought of states reaching inconsistent applications of federal law, perhaps the Court should overturn Testa v. Katt and get the states out of the business of applying federal law at all.  That would, of course, lead to a serious under-enforcement of crucial tenets of federal law, but that is no more than what happened in Trump v. Anderson.

Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy

JB

This week at Balkinization we are hosting a symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Bruce Cain (Stanford), Wilfred Codrington III (Brooklyn), Alex Keyssar (Harvard), Sandy Levinson (Texas), Derek Muller (Notre Dame), Daniel Tokaji (Wisconsin), Michael Waldman (NYU - Brennan Center), and Emily Rong Zhang (Berkeley)

At the conclusion, Rick will respond to the commentators.

Trump and the American Problem of the Commons.

Mark Graber

Waiting for others to act and insisting on our preferred solution is likely to guarantee the continued menace of Donald Trump. See Verfassungsblog

Been a busy day.  See also, The Guardian

What's dividing the Justices (and other initial reactions to the Court's decision in Trump v. Anderson)

Marty Lederman

Is Trump's Innocence Irrelevant?

Mark Graber

Or how conservatives stopped worrying and learned to love procedural technicalities that prevent criminals, in this case a traitor, from receiving their deserved sanctions.

Two Other Quick Takes on the Opinion

Gerard N. Magliocca

First, the majority says that each House of Congress could (and did) exclude members-elect on Section 3 grounds during Reconstruction. Thus, the opinion (I think) cannot be read to say that exclusion can occur only through an Act of Congress when a national official is involved. No Act of Congress was involved in those exclusions by the House and Senate.

Second, Congress gave amnesty in 1868 to Roderick Butler, a member-elect to the House from Tennessee, so that he could be seated. No Act of Congress was in place at that time to enforce Section 3. Under the majority's theory, that amnesty was completely unnecessary.

I may be back with more later . . .

UPDATE: And here I am. The Court at one point describes Section Three as a "penalty," which is incorrect but conveys its negative attitude toward the provision.

The Court Wasn't Clear Enough

Gerard N. Magliocca

If the majority in Trump v. Anderson wanted to foreclose the possibility of a post-election Section Three challenge to Donald Trump's eligibility, then they did a poor job. The majority did not address the Electoral Count Reform Act or the Joint Session pathways at all. Thus, if Trump wins in November those pathways will remain open (or at least a lot of people will think that they are open).

It's the worst of both worlds. The majority used dicta that drove away four Justices and denied fans of unanimity the satisfaction of a single opinion. But the dicta doesn't accomplish anything because it's too vague. Perhaps they should have taken a few more weeks to iron that out.

Ida B. Wells: A Plea for Law and Society Canonization

Tom Ginsburg

Anticipating a New Senate Republican Leadership

David Super

     For anyone who follows Congress, the departure of the longest-serving Senate party leader is a momentous occasion.  It merits comment both on the significance of his leadership and what is likely to come after it. 

     Senator McConnell’s career has been marked by taking advantage of virtually every opportunity within his reach.  As an obscure state judge, he won the Republican nomination to run against seemingly popular Senator Walter Huddleston because nobody else wanted it.  McConnell noticed, however, that Huddleston had been neglecting constituent services and had stopped traveling outside of the urban parts of the state.  McConnell’s win was a shocking upset in a state that was, at the time, solidly Democratic (and whose Republican Party had been quite moderate).  Since then, Senator McConnell has shown remarkable skills in spotting and exploiting political opportunities. 

     Representing an impoverished state on the Senate Agriculture Committee, engaging with the Food Stamp Program would have been a logical move:  many extremely conservative senators from such states have made an exception for food stamps (now SNAP).  But he did not care for the Food Stamp Program and did not think supporting it would help the hard-line conservative brand he was trying to build.  He therefore found an alternative in making a name for himself as a supporter of school meal programs.  This avoided the ire directed at senators who ignore their constituents’ hunger while not forcing him to tangle with other conservatives. 

     He outmaneuvered self-congratulatory Democrats on numerous occasions.  He deftly used threats to eliminate the filibuster for judicial nominees to push through a collection of extreme George W. Bush picks without actually having to terminate the filibuster.  That left him free to tie up numerous Barack Obama nominees, which would not have been possible had Democrats called his bluff a few years earlier. 

     And he outmaneuvered his own less-diligent Republican colleagues.  Few have commented on how he centralized the vetting of Republican nominees in his office.  When Democratic presidents selected nominees for Republican seats on multi-headed agencies, they soon learned that negotiating names with anyone but Senator McConnell all but ensured that the nominee – and any Democratic choices for the same panel – would never come up for a vote.  No longer could Democrats find a moderate Republican donor from the home state of the top Republican on the relevant committee.  Instead, the nominees would be intensely partisan and reliably conservative, highly resistant to cooptation by the career staff or other board members of the agency. 

     Senator McConnell also had the judgment that so many of his colleagues lacked about when a seeming short-term opportunity was worth seizing and when it would be a long-term liability.  He recognized that federal government shutdowns depend heavily on careful messaging.  Having seen his party repeatedly pummeled in shutdowns under Bill Clinton due to undisciplined messaging by Speaker Newt Gingrich and other House Republicans, he became a determined foe of shutdowns. 

     He also concluded that blocking broad relief during the coronavirus pandemic would unsustainable for Republicans in an election year and sought to negotiate the best deal he could.  Trading the Republicans’ dream corporate welfare package for the Democrats’ dream temporary unemployment compensation expansion surely won him enormous credit with GOP donors; had he tried to hold out, his party would have suffered serious damage and, in the end, he would have had to have negotiate a package from weakness. 

     More generally, he stayed sufficiently focused on the big picture to reject short-term expedients with big long-term costs.  He would freely, even enthusiastically, tell Democratic senators “no”, but he would not tell them lies.  (He also was zealous in his punishment of those that lied or broke promises to him.) 

     On the other hand, he correctly determined that neither he nor his party would endure serious long-term damage for blockading Merrick Garland’s nomination to the seat vacated by Justice Scalia’s death.  He also concluded that the only people paying enough attention to notice Republicans’ hypocrisy in filling Justice Ginsburg’s seat on the eve of an election were self-identified moderates whose feigned commitment to process values paled next to their determination to “both sides” every issue.  He similarly perceived that Republicans cared much more about judicial nominations than Democrats so that he could force through record numbers of Trump nominees to lower courts without provoking Democrats to bring the Senate to a grinding halt – and then make exactly that kind of threat to slow confirmation of Biden nominees. 

     For most of his political career, his motto might have been “nothing personal”:  he maneuvered as necessary to maximize the power of the Senate Republican Conference without becoming personally invested in this or that particular issue.  In the past few years, however, his detachment began to crack.  He took the January 6 assault on the Capitol very personally.  Senator McConnell is not nearly as athletic as some of his Republican colleagues and would have been in grave peril had the mob gotten close to him.  His subsequent speech criticizing former President Trump and failure to repair that relationship greatly weakened him within his caucus.  And after leading a Senate Republican delegation to Kyiv, he became smitten by the Ukrainian people fighting Putin’s efforts to re-establish the Soviet empire.  As Russian disinformation took hold in the Republican base, this commitment weakened him further.  Like the Lady of Shallot, he grew half tired of the shadows that are today’s Republican Party, lost his magic, and paid the political price.   

     Senator McConnell never allowed anyone to get to his right on substance, although he maintained more tactical flexibility in negotiating deals than many other congressional Republicans.  Assertions that the next Senate Republican Leader will be more conservative are therefore absurd.  The next Senate Republican Leader likely will be much weaker than Senator McConnell, far less able to make commitments on behalf of their party and hence far less able to secure concessions from Democrats.  The MAGA element of the Conference seldom meets a deal it likes or a fight it dislikes, no matter how bad the long-term consequences might be. 

     Thus, the new leader will fight more and, lacking Senator McConnell’s political and procedural skills, lose more.  When they commit their conference to positions out of step with the electorate, their subsequent collapses will give Democrats more room to dictate terms on key legislation. 

     The new leader also will have more difficulty getting rid of disastrous nominees for winnable seats and will be less adept at protecting Republicans in swing states from political embarrassment.  This could cost Republicans control of the Senate some years.   

     On substance, therefore, Democrats will likely gain from Senator McConnell’s departure from the leadership.  The increasing contentious, combative tone that will result, on the other hand, will alienate more voters from politics.  Reduced voter turn-out likely helps Republicans, particularly MAGA Republicans.  And the further degradation of our public life will contribute to the normalization of ruthless, anti-republican behavior like that of former President Trump.  That is not good for our future at all. 

     @DavidASuper1