The Government Shutdown and the Filibuster

David Super

     Senate Majority Leader John Thune evidently plans to keep bringing up the House-passed continuing resolution daily so that Senate Democrats must repeatedly deny it the sixty votes it needs to pass.  Meanwhile, House Speaker Mike Johnson has been keeping his chamber out of session so that Republicans can argue that the only way to end the shutdown quickly is to pass the House Republicans’ continuing resolution. 

     This is all rather silly theater.  Senate Democrats have proposed their own continuing resolution, and the government shutdown remains in place as much because Senate Republicans deny sixty votes to the Democratic bill as because Senate Democrats deny sixty votes to the Republican bill.  If the Senate were to agree on a bill, the House could be brought back in less than a day.  Indeed, if the Senate passed a continuing resolution with broad bipartisan support, the House could go back into session almost immediately with only a handful of Members, vote to suspend the rules, and pass the legislation with everyone agreeing not to prompt a quorum call. 

     Various informal bipartisan groups of senators are forming to try to facilitate the search of a settlement, but with the Republican leadership determined to make Democrats buckle there is no receptivity at the moment to any mediation.  Republicans seem to be shifting from claiming that Democrats are demanding health insurance for undocumented immigrants – an outright lie that most reporters recognized as such – to saying that health insurance premiums should be addressed in December – which is after open enrollment and after many low- and moderate-income families will have had to make painful financial choices about whether they can continue to afford health coverage.  We may see several rounds of this grasping for a winning message before anyone considers modifying their substantive position. 

     Underlying all this is the question of why Majority Leader Thune does not eliminate the filibuster and then pass the continuing resolution with the simple majority that he possesses.  It would seem that he is the one person who could end the shutdown tomorrow without yielding on any policy positions.  We cannot be sure he is not doing so, but several explanations seem likely. 

     First and foremost, he likely does not have the votes.  Forty of the fifty-three Senate Republicans voted against the Democratic resolution to end the filibuster in 2022.  Many surely did so primarily for partisan reasons, but some likely did so out of commitment to the Senate’s rules.  Republicans then pointed out, correctly, that Senator Schumer’s attempt to eliminate the filibuster flatly violated Senate rules, which require a two-thirds vote to change the filibuster.  Some may feel that Senate Democrats’ attempted disregard for Senate rules justifies their doing the same, but if even four feel bound to honor the rules they just defended, Senator Thune would lack the votes to abolish the filibuster, assuming all Democrats are comfortable reversing their prior position and defending the filibuster.  (Rule XXII.2’s prohibition on amending rules relating to the filibuster with less than a two-thirds vote is why various proposals for “moderate filibuster reform” are meaningless:  if one party can breach Senate rules to make the changes it wants, nothing will stop the other party from doing likewise when it has the majority.) 

     Although the filibuster has certainly been employed on behalf of ignoble causes on plenty of occasions, it also has been employed to protect crucial progressive legislative achievements.  At its core, the filibuster is a powerful moderating force in the Senate and in the federal government as a whole.  Presidential elections are winner-take-all.  The disappearance of moderates in both parties have made elections to the House of Representatives winner-take-all as well.  The conservative supermajority on the Supreme Court has made its more liberal members irrelevant on most hotly-contested issues.  The filibuster makes the Senate different:  the only place in the federal government where the minority holds real power without needing a catastrophic split in the majority.

     Serving in a Senate where every senator matters because both parties matter is far more attractive for many than serving in the House, where the majority’s petty abuses of the minority abound.  Forty-five Republican senators served in the Senate minority and surely can imagine how much more frustrating those years would have been if the majority had not been forced to work with them.  Senate committees’ partisan composition is proportionate to the parties’ shares in the Senate as a whole because any other plan would be filibustered; House majorities routinely stack committees egregiously.  The House can be an extremely nasty place on a personal level; although senators are no more inclined as a group toward courtesy, they have to treat each other much better because an angry senator can do a lot of damage.  The filibuster is the main reason why. 

     All but two Democratic senators voted to eliminate the filibuster in 2022 but only because they knew those two – Senators Joe Manchin and Kyrsten Sinema – would not.  Had their votes mattered, at least ten more Democratic senators likely would have voted to preserve the filibuster.  A significant number of Republicans likely feel similarly, publicly condemning Democrats’ “obstructionism” but unwilling actually to override it and turn the Senate into the House of Representatives’ clone.

     The filibuster also saves Republicans from painful dilemmas resulting from their party’s rapid swing to the far right.  Where the filibuster is available, they can loyally vote for repugnant bills knowing that the legislation has no chance of passing.  (In this regard, the Senate filibuster also saves House Republicans from similar dilemmas.)  Perhaps our Republic would be stronger if Republicans had to vote on the actual merits of legislation, but many likely would be primaried and defeated if they did.  In these perilous times, we should not scoff at devices allowing somewhat moderate Republicans to remain off the radar and thus in office. 

     For each party, the narrow question is whether protecting the public policies they have is more valuable than any gains they could hope to force through in a purely majoritarian system.  The Trump Administration is providing a compelling lesson for the complacent about the enormous power of destruction.        Defending civil rights and environmental laws remaining from more enlightened eras surely is more valuable than whatever Democrats might accomplish next time they have “trifecta” control of the federal government – especially if that could be destroyed before it has even taken full effect as soon as power swings back to Republicans.  This is especially true because the disappearance of the filibuster likely would expose more Democratic Members’ reservations about some measures activists support:  the potential benefits of pure majoritarianism for the progressive agenda likely are far less than progressives believe because they have failed to sell large parts of that agenda within the progressive coalition.  (Bullying skeptics into silence is not at all the same thing as persuading them to cast difficult votes.) 

     One strain of Marxist thought holds that things must get much worse before the masses can be mobilized to overthrow a corrupt regime and make things fundamentally better.  The people expressing these sentiments often have sufficient privilege to avoid many of the consequences of things getting worse.  And I see little evidence that gutting civil rights and environmental laws will spark any sustained public outcry that would carry us to anywhere better than where we are now. 

     Republican revolutionaries may prefer to maximize their destruction of progressive policies even at the expense of Democrats enacting more of the same the next time they hold a trifecta.  But many Republicans have close ties to businesses, which often prize policy stability to enable planning more than maximizing particular policies that they favor.  And on a human level, Republican senators get emotionally invested in projects back home that could be imperiled if Democrats take power with the same kind of scorched earth mentality that the Trump Administration has.  Finally, the many Republicans privately alarmed by the Administration’s wild policy gyrations, and fearful of being blamed for an economic catastrophe, may not be eager to surrender their one plausible avenue for making Democrats share responsibility. 

     Beyond partisan interests, the Trump Administration’s radical restructuring of our nation’s institutions makes the filibuster more important than ever.  Our constitutional order has always contained a mix of confrontational and cooperative elements.  We have battled over great issues, with elections having consequences, but the great majority of policy has been made through processes of persuasion and compromise, however flawed. 

     Mechanisms for persuasion and compromise are fast vanishing.  The non-partisan government service is being aggressively politicized in blatant violation of civil service and foreign service laws and the Hatch Act, with the Justice Department ignoring or even defending the lawlessness and courts apparently content that injured parties have no effective remedy.  The Administration is increasingly spurning notice-and-comment rule-making.  Independent regulatory commissions are being stripped of their independence with the enthusiastic support of the Supreme Court.  House and Senate moderates used form problem-solving alliances; now, they could hold plenary meetings in a phone booth.  The Supreme Court’s increasingly ideological approach, and its willingness to routinely humiliate lower courts, have weakened the judiciary as a place to pursue reasoned decision-making.  A variety of maladies have stripped universities of much of their traditional role in forging informed societal consensuses. 

     The filibuster – forcing negotiations even among ideological opposites – is one of the last vestiges of reason in a political system driven overwhelmingly by maximalism on both sides.  And with each political party having lost half of the past two, four, six, eight, and ten presidential elections – with no candidate securing even 54% of the popular vote – each has much to fear from unrestrained maximalism when the other one squeaks into office. 

     Progressives would be foolish to regard the filibuster as sacrosanct:  Democrats’ attempt to eliminate it in 2022 gave Republicans reason to doubt that their forbearance now will be reciprocated later.  Thus, Democrats will eventually have to accept a compromise continuing resolution falling far short of what the baying maximalists of social media – and their bot allies – would find acceptable.  Numerous Republican senators are maintaining strategic ambiguity on the filibuster. 

     But unless Democrats push Republicans to the wall, the filibuster – and with it some measure of leverage in the minority – stands a good chance of enduring.  Senator Thune has eroded the filibuster in two relatively small ways – broadening exceptions to the Byrd Rule’s limit on extraneous material in filibuster-immune reconciliation bills and allowing nominations to be voted on as a group – but his party’s willingness to go along with those tweaks by no means signals receptivity to a direct attack on the filibuster.

     @DavidASuper.bsky.social @DavidASuper1

Balkinization Symposium on Dylan C. Penningroth, Before the Movement-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

1. Jack Balkin, Introduction to the Symposium

2. Carol Rose, Looking for Law in All the Wrong Places: Dylan Penningroth’s Before the Movement

3. Mark Tushnet, Legal Pluralism in “Before the Movement”

4. Steve Griffin, Penningroth’s  Achievement

5. Evelyn Atkinson, Black Civil Rights and Black Corporate Rights

6. Ian Ayres, Did Race Distort the rule of Taft v. Hyatt?

7. Mark Graber, The Weapons of the Weak Before the Movement

8. Dylan C. Penningroth, Symposium Response 1: The strange career of civil rights

9. Dylan C. Penningroth, Symposium Response Part 2: Centering and de-centering race

Shutdown, You’d Better Take Care

David Super

     Appropriations for much of the federal government just lapsed.  This begins a partial shutdown of the federal government.  The general news media is extensively covering this story’s broad outlines.  This post does not seek to retell that story but rather comments on five issues that media accounts are missing or confusing. 

     First, the cause of the shutdown is not as clear as it might be.  Democrats decided weeks ago that they would demand extension of expiring health insurance premium tax credits as a condition for any continuing resolution lasting more than a few days.  This makes sense:  even though the credits do not formally expire until the end of the year, open enrollment is fast approaching.  Millions of people may drop health coverage if the prices they see reflect the absence of the enhanced credits.  The affordability of health coverage clearly resonates with the electorate, and this issue is already splitting the Republican caucus. 

     On the other hand, Democrats have a more fundamental problem:  no “clean” continuing resolution is possible because the Administration has demonstrated that it will not follow appropriations legislation.  Democrats provided crucial votes for a continuing resolution in March, with the continuation of programs they favored their main motivation.  The Administration then ignored many of those appropriations while congressional Republicans moved a partisan rescission of billions of dollars for foreign aid and public broadcasting.

     Last Friday, the first impoundment case to reach the Supreme Court.  The Court stayed a district court’s injunction requiring the Administration to honor the admirably clear appropriations for a variety of foreign aid programs.  The Court did not say that the Administration was likely to prevail on the merits – as it has in many other cases decided on its Shadow Docket – and indeed went out of its way to caution against reading its action as signaling a decision on the merits.  Nonetheless, it granted a stay on a balancing of the equities.  Many of the grantees have already folded from the lack of the withheld funds, and more likely will be gone before the Court can decide the case on the merits.  Thus, as a practical matter, the Trump Administration is free to ignore appropriations acts, including a “clean continuing resolution”, for the foreseeable future.

     It is hard to see how Democrats can agree to a continuing resolution for any length of time that does not contain language firmly barring the (already preposterous) legal theories the Administration has offered to justify its impoundments.  But apparently they will not be emphasizing the Administration’s blatant disregard of the previous “clean continuing resolution” for which the Democrats voted. 

     Second, this shutdown may be harder than most to end precisely because the Administration has obliterated its ability to make a credible deal.  The path to ending past impasses was often greased with quiet promises to fund this or that project dear to powerful members of the minority party.  But if the Trump Administration will not honor statutory language, it certainly will not be bound by quite understandings or the ubiquitous appropriations “report language”.  This Administration also has shown far less sensitivity to public opinion than its predecessors, including Trump 1.0.  Congressional Republicans worry about offending swing voters, but they worry much more about offending the President.

     Democratic leaders, in turn, have remarkably little flexibility.  Much of their base is furious, having accepted a not-entirely-justified perception that Democrats are not fighting hard enough.  Fear of being skewered on Bluesky has profoundly shaped Democratic leaders’ choices, often in ways that actually undercut the progressive agenda.  After taking the difficult choice to provide the key votes for the continuing resolution in March, Democratic leaders were humiliated when the Administration impounded funds for many of the programs they voted to preserve.  These leaders will have difficulty backing down again even if public opinion turns decisively against them.  And because progressives have gotten into the habit of believing cherry-picked polling results circulated on social media, they may not give leadership the room to back down even if the shutdown is clearly losing the public. 

     Third, the only reason the Democrats have any say in any of this is because of the filibuster.  Alas, terrible cases of laryngitis seem to have afflicted the voices that caustically denounced anyone arguing for preserving the filibuster to guard against disaster. 

     Fourth, Office of Management and Budget Director Russell Vought’s threats of mass layoffs in the event of a partial government shutdown is a transparent fake – yet it seems to be drawing in a great many credulous commentators.  A partial government shutdown does not grant OMB any special powers.  In fact, it actually may temporarily make layoffs even more unlawful. 

     In a lapse of general appropriations, the Appropriations Clause of the U.S. Constitution and the Anti-Deficiency Act preclude the federal government from paying employees whose salaries are not covered by some specific appropriation still in force.  The Act also prohibits government officials from accepting unpaid service not explicitly authorized by law “except for emergencies involving the safety of human life or the protection of property”.  The Act clarifies that this emergency exception “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” 

     In practice, this means that most federal employees are furloughed and locked out of their jobs.  A few unlucky “essential employees” are required to report but not paid.  This arrangement has worked through numerous appropriations lapses without any widespread problems.  Therefore, no layoffs – nothing beyond these temporary furloughs – are needed to honor the Anti-Deficiency Act.  In fact, because laying off government employees permanently is not an “emergency involving the safety of human life or the protection of property”, any Administration official performing this function during an appropriations lapse would be violating the Act.  Violations of the Anti-Deficiency Act carry criminal penalties, although we should not hold our breath waiting for Attorney General Bondi to bring indictments. 

     The layoffs that Director Vought threatens also violate civil service law in various ways, most obviously by providing less than the required sixty days’ notice.  The Administration has wantonly disregarded civil service law since January, but public employees’ unions’ suit was rejected on the grounds that any challenges must begin as grievances before federal personnel agencies.  That will often be impossible, however, because President Trump unlawfully fired the only Democratic member of the Merit Systems Protection Board, denying it a quorum to act on complaints.     

     The Administration has demonstrated its desire to lay off federal employees en masse since it took office:  this has absolutely nothing to do with a lapse in appropriations.  The only reason any federal employee is still working is that the Administration concluded that the risk of political embarrassment from abandoning that function outweighed the marginal appeal of sacking another civil servant. 

     Nothing about a government shutdown changes that calculus.  With or without a government shutdown, the Administration will lay off anyone it thinks it can get away with dumping; with or without a government shutdown, the Administration will not lay off anyone whose departure it fears will blow back on it.  Director Vought’s threats are naked attempts at intimidation that should not affect anyone’s assessment of a government shutdown, whatever they think about federal workers. 

     Finally, as someone who spends a fair amount of time talking with reporters about current events, I have noticed that, as a group, reporters are getting less and less interested in whether this or that Administration action is legal.  Law has limited value as predictor of what this Administration will do.  And with the Supreme Court so frequently overriding lower courts’ injunctions against the Administration’s lawlessness in minimally reasoned Shadow Docket orders, even many of the brightest and most capable reporters seem to feel little need to sort through statutes and caselaw.  I do not share their skepticism, but persuading them that law matters is getting more and more difficult.  That by itself is a fundamental change in our constitutional order. 

     @DavidASuper.bsky.social @DavidASuper1

Virginia Is For Vengeance

Gerard N. Magliocca

Presidents sometimes try to wield the criminal law against their political opponents. It never works. Jefferson went after Aaron Burr. That failed. FDR targeted Andrew Mellon. That was a flop. And so on. The Comey indictment (and the others that will surely be brought) will meet the same end.

The Mellon example is instructive. He was our most powerful Treasury Secretary not named Hamilton. Mellon was also wealthy. FDR wanted him prosecuted on criminal tax fraud charges. Robert Jackson, newly arrived at the DOJ, objected that a criminal charge was unwise and unwarranted. He was overruled. A federal grand jury in Pittsburgh then refused to indict Mellon, which was a major embarrassment for the Government. A civil tax case ensued that was still going on after Mellon died.

Grand juries work best when they are asked to indict well-known members of a local community on flimsy charges. Mellon was famous in Pittsburgh because (you might say) he owned half of town. James Comey, by contrast, is not a local celebrity. He just lives in Virginia. Nevertheless, the grand jury asked to indict Comey rejected one of the Government's three charges. That is unusual. There is some confusion about what else happened, which should come as no surprise given the resignation of the prior interim U.S. Attorney. Comey's defense attorneys must be licking their chops.

Symposium Response Part 2: Centering and de-centering race

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Dylan C. Penningroth

Looking at the Symposium overall, I think these posts have drawn out what I hope is a creative tension in the book’s approach to race. On the one hand, the book invites law scholars to move race and race relations toward the center of the curriculum and the profession. But then it asks historians, and especially African American historians, in essence to de-center race relations. There were both conceptual and pragmatic reasons behind this dual approach. Conceptually, I felt that the history of race had too often been conflated with the history of Black people, and that this conflation inadvertently wound up treating African Americans instrumentally—as something more like a window into the soul of America than as people worth studying in themselves. From a purely pragmatic point of view, using local court records practically compelled me to think hard about centering race: the overwhelming majority of the cases involving Black people were between Black people. Obviously, white supremacy produced these skewed proportions, and yet it seemed important to take seriously what Black-Black cases had to say, especially when I saw other kinds of sources saying similar things. It is by now axiomatic that Black people fought for “independence in their working lives,” autonomy for “their families and communities,” and “equal citizenship” in the body politic.[1] But what did autonomy mean to a Black tenant farmer like Nate Shaw (Ned Cobb) who said that his own father treated him “just like slavery”? What did equal citizenship mean to Black women who were treated as second-class citizens in their churches and fraternal orders, the citizenship that mattered most (or at least most immediately) to Black people before the movement?

Symposium Response Part 1: The strange career of civil rights

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Dylan C. Penningroth

Many thanks to Jack Balkin and Balkinization for hosting this symposium. I’m grateful to Carol Rose, Evelyn Atkinson, Ian Ayres, Mark Graber, Mark Tushnet, and Steve Griffin for taking the time to read and provide such probing comments on Before the Movement. It has taken me awhile to post my response, in part because it has been so much fun to absorb and learn from their comments.

The contributors beautifully bring out several of the book’s main themes, and space allows me to touch on only some of their constructive critiques. The first, as Professor Griffin notes, is how Black people used and thought about law from the 1830s to the 1970s, how a subset of nineteenth-century rights and privileges came to be understood as “civil rights,” and how that term, over the next century or so, slowly came to stand for the principles of nondiscrimination and anti-humiliation that animate much of modern civil rights law. If had been more daring and witty, I might have titled the book “The Strange Career of Civil Rights.”[1]

The second theme is the sources I used to tell this story. Of course, I am far from the first historian to go asking big questions of small courts. Since the early 2000s, a number of legal historians have made the trek to the courthouse door, including Laura Edwards, Melvin Ely, Sarah Barringer Gordon, Martha Jones, Anne Twitty, Kimberly Welch and, more recently, Sarah L. H. Gronningsater. Aside from the physical and logistical challenges of researching in under-funded facilities that are not really “archives,”[2] all of us have confronted the analytic and conceptual challenges of taking the legalities latent in local court records and relating them to the “mandarin materials,” as Robert Gordon termed them, of appellate case law, statutes, and treatises.[3] But increasingly, on days when I walked past the inevitable Confederate statue to beg another circuit clerk’s permission to rummage around in the courthouse attic, I felt the presence of a different intellectual tradition than perhaps the ones we had been trained in; that we were actually following in the footsteps of earlier generations of Black historians, who had to negotiate with the gatekeepers of official records in the unfathomably harsher environment of the 1930s and 40s. Only a few of those earlier historians were professional scholars, like Luther Porter Jackson. Mostly they were lay historians—church officers, like A.M.E. Bishop Richard R. Wright,[4] or lawyer-memoirists, like Thomas Calhoun Walker,[5] or keepers of family history, like my great-great-uncle Thomas Holcomb. What they wanted to demonstrate was that, right in the maw of a nation dedicated to white supremacy, “free Negroes” and their descendants had “made a record” of achievement in education, landownership, and trade.[6] And they believed that record entitled them to “the good will and respect of [their] neighbors and fellow citizens,”[7] as Jackson put it—or what activists called “public rights”[8] or “first-class citizenship.”[9] These earlier Black historians’ linking of common-law rights to “classes” of citizenship eventually helped inform my argument about how the idea of civil rights changed. Often stuffed with thumbnail sketches and hopeful statistics about Black churches and property ownership and literacy, these works were more than mere “encyclopedic pep talks” or “storehouses of uplift ideology” in the mold of Booker T. Washington.[10] Whatever else they were, they also hinted at a history of Black legal thought, one that seemed to me to be in dialogue with questions of racial justice but not contained by them. More immediately, those early Black historians seemed to suggest that there were certain continuities across the gulf of the Civil War: that white people more or less took it for granted that Black people could own and trade things.[11] That, at least in the realm of civil rights, the transformation came gradually, raggedly, and perhaps rife with irony.

We might explain this continuity in terms of ideology—specifically, white people’s investment in the belief that law was not (just) an instrument of class power. More frequently, as Professor Graber points out, I look to Derrick Bell’s interest-convergence theory. This was a “triumph of informal property over formal law,” Professor Rose writes, where wide swaths of white southerners—including huge numbers of non-slaveowning whites—enjoyed easy access to cheap, convenient goods and services from enslaved Black people, an enjoyment procured not (just) through “brute compulsion” but through legal marginality and indeterminacy.[12] White southerners benefited precisely from the law’s refusal to speak clearly and consistently about slaves’ property and contracts. (To which I would add that there are uncomfortable resonances with the benefits American citizens enjoy from the work of undocumented immigrants today.)

Balkinization Symposium on Serena Mayeri, Marital Privilege-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Kimberly Mutcherson, The Staying Power of Marriage Inequality

3. Julie C. Suk, Promoting Equality and Marriage

4. Clare Huntington, Understanding the Roots of Today’s Marital Inequality

5. William N. Eskridge Jr., Marital Supremacy, Liberalization & Privilege

6. Douglas NeJaime, From Status to Function

7. Kristin Collins, Marital Privilege and Immigration Law

8. Serena Mayeri, Response to Commentators

Oral Argument as Eulogy

Gerard N. Magliocca

In Gideon v. Wainwright, Justice Harlan concurred that Betts v. Brady should be overruled but complained that Betts "is entitled to a more respectful burial." The same could be said for Humphrey's Executor, either on the interim docket or when Trump v. Slaughter is decided.

That said, I'm not sure whether to envy the attorney who will argue Slaughter. That person will surely lose. But going in knowing that you will lose may provide the freedom to say whatever you want. 

Response to Commentators

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Serena Mayeri

I am immensely grateful to each of the symposium participants for taking time to engage so thoughtfully with this book, and for the countless ways their intellectual influence and personal generosity enriched the project over the dozen-plus years of its gestation. I can’t possibly do justice here to each set of comments, much less the authors’ own scholarly oeuvres and impact, so offer just a few reflections on some of the themes their posts raise.

Jawboning Late Night: A Lesson in How Corporate Consolidation Creates Free Speech Problems

Guest Blogger

Daniel Browning

ABC Pulls Kimmel Off the Air

On Wednesday, September 17^th, ABC announced its decision to pull “Jimmy Kimmel Live!” off the air indefinitely following Kimmel’s monologue about Charlie Kirk’s assassination.

Disney’s decision came shortly after FCC chairman Brendan Carr made the following thinly veiled threats against ABC. Carr also called on licensed broadcasters to “push back on” networks and “preempt” content that does not serve local communities. Sure enough, Nexstar, which owns many ABC affiliate stations, announced that it would “preempt ‘Jimmy Kimmel Live!’ for the foreseeable future.” ABC suspended Kimmel shortly thereafter.

Jawboning and the First Amendment

As other commentators have observed, Kimmel’s suspension appears to be a paradigm case of “jawboning”—where the government indirectly censors expression by pressuring some private intermediary to censor the expression directly.

Just last year, in N.R.A. v. Vullo, the Court reaffirmed that government jawboning can violate the First Amendment whenever it coerces a private intermediary to censor speech. In Vullo, a state official offered not to prosecute an insurance underwriter, Lloyd’s, for regulatory infractions in exchange for Lloyd’s’ agreement to sever ties with the N.R.A. The Court held that, by offering the inducement in order to punish the N.R.A.’s speech, Vullo had engaged in unconstitutional coercion.

After Vullo, the constitutionality of government exhortations for private intermediaries to interfere with a third-party’s speech turns on whether the government’s communication is persuasive (constitutional) or coercive (unconstitutional).

Why the Kimmel Case Raises Important First Amendment Issues

Other commentators have called for Kimmel to bring a First Amendment challenge against the government, on the theory that FCC Chair Carr’s threats against broadcasters were unconstitutionally coercive.

In some ways, this does seem to be an easy case. Carr makes vague comments that appear to threaten networks and broadcasters, and ABC suspended Kimmel shortly thereafter. Thus, Kimmel might have an easier time establishing standing than did the various plaintiffs in Murthy v. Missouri. The Court in Murthy held that the various plaintiffs lacked standing, in large part, because they could not show that government pressure caused their injuries. The social media platforms, Justice Barrett reasoned, “had independent incentives to moderate content.”

In other ways, though, the Kimmel case raises to the fore important complexities that the Court has not adequately addressed in its jawboning jurisprudence.

Doctrinally, the coercion/persuasion rule, as developed in Bantam Books and Vullo provides very little guidance to courts in adjudicating jawboning claims. Conceptually, there is a huge gap between government communications that could rightly be labeled “persuasive” and communications that could be called “coercive.”

Consider an example that arose in the Murthy litigation—President Biden’s comment that social media platforms were “killing people” by allowing users to spread misinformation. Persuasion or coercion? I, for one, couldn’t say. The problem here is that there are myriad forms of government pressure that are neither persuasive nor coercive—but are rather somewhere in between.

While Vullo settles the question in clear cases where government pressure can be easily identified as coercion or persuasion, it leaves courts without clear guidance in cases, perhaps like the one here, where government pressure occupies the space between coercion and persuasion.

The much larger, more systemic problem, however, is that the modern corporate law infrastructure makes jawboning both much more effective and much more difficult to challenge in court.

Because traditional media is increasingly owned by a small handful of firms, government jawboning is increasingly likely to prove effective, for two reasons.

First, the government can hold out a regulatory carrot (as relevant in the Kimmel case, approval of an acquisition) in exchange for “voluntarily” censoring expression. For corporate executives, the cost of censorship will be much cheaper than the cost of drawing the government’s ire, especially as the arms race to add subsidiaries creates more nodes at which the government can leverage its regulatory authority.

Second, the consolidation of smaller firms into large mega-firms (like Disney) decreases the cost to the government of targeting disfavored expression. The government only needs to pressure a small handful of firms rather than many.

The corporate landscape that makes jawboning more effective also makes it more challenging for speakers to bring successful First Amendment jawboning claims.

It can often make good business sense for highly consolidated and diversified firms to censor speech even irrespective of government pressure. For example, before deciding to suspend Kimmel, Disney CEO Robert Iger reportedly was hearing from advertisers who feared a conservative firestorm and from Disney employees who reported receiving threats. And because Disney owns an array of subsidiaries, Disney executives had to worry about a Kimmel-related boycott of their theme parks, cruises, merchandise, and other programming. These non-governmental pressures very well could’ve given Disney executives “independent incentives” to suspend Kimmel.

So What Can be Done?

Doctrinally, the  Court in jawboning cases should focus more on whether the government harbored an unconstitutional motive—whether the government intended to censor unfavorable expression—than on whether the government’s communication could be labeled coercive or persuasive. In the alternative, the Court should provide further guidance on how to determine whether the government’s communication with the private intermediary rises to the level of unconstitutional coercion.

More systemically, we should begin to think about corporate consolidation and oligopoly as a free speech problem. As firms become more consolidated and diversified, traditional media, which is crucial for public discourse, becomes more vulnerable to indirect government censorship.

A more durable solution than relying on courts to police government jawboning would involve, first, consumers increasing the costs to firms of capitulating to the government. This bottom-up solution, which would require citizen-consumers to mobilize to protect free speech values, has already proven somewhat effective in the boycott of Target over ending its DEI policies. Indeed, there is some evidence that consumers have already begun to penalize Disney for their capitulation.

Second, taking a more top-down approach, a future Democratic administration should charge the FCC and FTC with considering the free speech implications of corporate consolidation and diversification.

Daniel Browning is a JD Candidate at Yale Law School and a PhD Candidate at Princeton University.  You can reach him by e-mail at Daniel.browning@yale.edu.

Marital Privilege and Immigration Law

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Kristin Collins 

Serena Mayeri’s excellent new book Marital Privilege charts the transformation of marriage as a central fixture in American law and social policy from the 1960s to 2003. Starting in the 1960s, various groups and individuals challenged marriage’s hold on Americans’ options for family formation, their sex lives, and their access to state created entitlements and benefits. These challenges were not part of an organized political or legal movement, as one often finds in stories of legal transformation, but they were numerous and sustained. Liberal feminists challenged the sex-asymmetrical rights and duties that marriage entailed. Black feminists were focused on securing greater autonomy in deciding whether and when to have children – in or out of marriage – and sought supportive communities rather than government surveillance. Mothers and fathers argued that the status designation of illegitimacy harmed children, in part by creating a legal presumption that their fathers had no interest in their wellbeing. Individuals who sought to form non-traditional families challenged family-based zoning laws and housing regulations that were premised on the marital family norm. Lesbian and gay couples struggled for legal recognition and rights in just about every domain of life. Perhaps most famously, individuals who sought to marry across the color line challenged restrictions on interracial marriage.

With these challenges to the regulation of marriage and its legal primacy in view, Mayeri identifies a puzzle: For a good 40 years, as marriage’s place in American law and social policy was contested from multiple directions, and as marriage rates declined, marriage nevertheless remained (and remains) a privileged status in American law. How to explain this outcome? Mayeri argues that even as challenges to marriage’s primacy succeeded in eliminating its more pronounced discriminatory features, those challenges also helped to sustain the privileged legal status of marriage. Moreover, she concludes, as “marriage declined among less affluent Americans, marital status law intensified racial and economic inequality.”

Mayeri offers abundant evidence to support her thesis, but she is also quick to acknowledge that the historical sources she has amassed tell a complicated story. Not only were the sundry challenges to marital status law uncoordinated, many of the key players in her book disagreed about the role that marriage should play in social policy and how its contours should be determined and policed. Here, I will add to the complexity of this story by focusing on a specific field of regulation: immigration.