What is the Rule of Law Good For?

Andrew Koppelman

Posted 5:12 PM by Andrew Koppelman [link]

Which Democratic candidate is the most electable in the electoral college?

Ian Ayres

Ian Ayres and Zachary Shelley

In a recent coauthored LA Times op-ed, we discuss the importance of polling on head-to-head matchups with Trump for determining electability of the Democratic primary candidates. Using state-level polls on these matchups with Trump, we find that Joe Biden and Bernie Sanders would be expected to defeat Trump in the general election. These two candidates would be expected to flip 106 and 84 electoral votes, respectively. Democrats only need to flip a net of 38 electoral votes from 2016 in order to win.

We note, however, that Joe Biden has the largest electoral college lead of these candidates, which provides a buffer against the possibility that polls incorrectly measure Trump’s support (as was the case in 2016).

The graphs below show how several candidates (including Elizabeth Warren and Pete Buttigieg, who have dropped out of the race) poll compared to Clinton’s 2016 election results.

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Posted 1:58 PM by Ian Ayres [link]

Why it’s hard for Warren to endorse either Biden or Sanders

Andrew Koppelman

Posted 12:57 PM by Andrew Koppelman [link]

Meltdown? On Rhetoric and Causation

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Guy Charles

Rick Hasen is a prolific scholar (and a wonderful interlocutor).  He is not only one of the most thoughtful scholars in the field of election law, he seems to write a book every other year.  He has a great eye for identifying the issues of the moment, he has a prodigious command of relevant information, and he has an ability, which is rare among most legal academics, to distill complex issues in a manner that makes sense to non-academics.  His latest project, Election Law Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, displays these skills in ample abundance.  Rick’s timing could not have better. Or worse?  His book, predicting an election law meltdown, came out just as, it seemed, the Iowa Caucuses were experiencing the election administration version of the ten plagues of Egypt.  Rick relies on a series of vignettes and real-world events to show how the confluence of “four factors—voter suppression, pockets of incompetence, foreign and domestic dirty tricks, and incendiary rhetoric—undermines public trust in the fairness and accuracy of American elections and creates high risks for the 2010 elections and beyond.” (10).  The book is engaging, moves quickly, raises a number of important points, and is extremely accessible.  I want to focus on two issues in particular that the book raised for me, one about rhetoric and the other about causation. 
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Posted 9:30 AM by Guest Blogger [link]

There's No "I" in Supreme Court

Gerard N. Magliocca

The Chief Justice is mistaken if he thinks that solo press statements criticizing comments by elected officials will do any good. He should end this practice immediately.

Put bluntly, the Chief Justice lacks the stature necessary to convince the public when he is not speaking in an opinion. He is not Charles Evans Hughes, who was the Governor of New York, the Secretary of State, and a presidential nominee. Nor is he Earl Warren, the three-term Governor of California and a vice-presidential nominee. They might have been able to pull off what Roberts is trying to accomplish, though I'm dubious even they would have succeeded.

Consider the most successful example of a Chief Justice speaking out publicly about judicial independence: Chief Justice Hughes' 1937 letter to the Senate Judiciary Committee attacking President Roosevelt's Court-packing plan. What made that letter work was that Hughes got Louis Brandeis and Willis Van Devanter to join him (without telling the other Justices, who might have dissented). Three Justices appointed by different Presidents representing different points of view made a powerful statement. A letter from the Chief Justice alone would have been less convincing and, probably, counterproductive.

In short, the Chief Justice should convince his colleagues to join his admonishments. If he cannot, then he should take a vow of silence.  
Posted 9:55 PM by Gerard N. Magliocca [link] (32) comments

Asymmetrical Hardball and Criticizing Supreme Court Judges

Mark Tushnet

Posted 9:07 PM by Mark Tushnet [link]

The Paradox of Political Problem Perception (or if you will, Persily's Paradox)

Nate Persily

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).
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Posted 9:30 AM by Nate Persily [link]

Critical Legal Studies in Historical Perspective

Mark Tushnet

Posted 11:15 PM by Mark Tushnet [link]

President Trump, the CDC Budget, and Fiscal Irresponsibility

David Super

            The President’s critics have savaged his response to the novel coronavirus outbreak.  Certainly his obsession with the stock market, his assignment of his science-resistant Vice President to lead the coronavirus task force, and his efforts to restrict the flow of expert information are deeply disappointing.  The exploitation of this crisis to promote more ill-targeted tax cuts and anti-immigrant measures is shameful.  The world lost its chance to prevent a coronavirus pandemic when one illiberal regime prioritized avoiding political embarrassment over the public health; ours seemed determined to repeat that mistake. 

            A narrower but still important question that has arisen about whether the President has cut the budget of the Centers for Disease Control.  The Guardian ran a piece by former Labor Secretary Robert Reich entitled “Coronavirus is bad enough – Trump's cuts have made the danger far worse,” although its text describes only cuts the President has proposed for next fiscal year.  Some fact-checkers have criticized Democratic presidential candidates for speaking as if those cuts had already been enacted. 

            CDC’s budget illustrates a broader pattern that has replicated itself numerous times across the federal budget.  To see this, we should examine the CDC’s budget over the past ten years.  This exercise has value beyond the immediate crisis because the CDC is representative of federal government activities more broadly:  few people think much about it most of the time but we urgently want it to be strong and effective when a crisis arises.  Were the current crisis of a different type, we would be focusing on some other agency with the same sense of urgency. 

            In fiscal year 2010, the main CDC account received $6.7 billion.  There is no reason to believe that was the “right” number under any particular set of norms, but it is far enough back to provide a useful point of comparison for subsequent events.  (I am focusing on the main CDC account rather than the total CDC budget to focus on activities most relevant to the current crisis and to filter out some, although by no means all, of the volatility resulting from one-time needs and from activities being transferred into or out of the CDC’s budget.  The story is not significantly different if one aggregates all CDC accounts.  All figures here are in budget authority.) 

            By 2012, the CDC’s budget had shrunk to $6.5 billion as Republicans took control of the House of Representatives.  House Republicans extracted reductions in non-defense discretionary spending from President Obama as their price for approving increases to the debt limit.  Another concession they won was the Budget Control Act of 2011, which resulted in across-the-board discretionary cuts (“sequestration”) in 2013.  That reduced the CDC to less than $6 billion, an 8.8% cut in a single year. 

            For the next several years, many domestic discretionary programs stayed close to their sequestration levels, sometimes with modest inflation adjustments.  The CDC might well have suffered a similar fate but for the Ebola epidemic in west Africa.  Because the CDC possessed much of the federal government’s expertise on communicable diseases, President Obama and Congress routed a large part of the funding for this country’s response to Ebola through the CDC.  Its budget returned to $6.7 billion in 2014 and shot up to $8.7 billion in 2015.  These increases were facilitated by two-year bipartisan agreements that traded cuts in entitlement spending for a modest relaxation in caps on defense and non-defense discretionary spending. 

            As the crisis receded, the CDC’s budget fell to $7.6 billion in 2016 and $7.2 billion in 2017.  In theory, fiscal year 2017 should have been the last year whose funding President Obama would have negotiated with Congress; in fact, he and congressional Republicans never came close to agreement and final spending levels were set in May 2017 by President Trump and Congress.  Although the nominal level for 2017 was greater than that for 2010, it actually provided the CDC with significantly less purchasing power:  adjusting the CDC’s 2010 budget for inflation would have required almost $7.5 billion by 2017. 

            OMB Director Mick Mulvaney, a former congressional “deficit hawk”, recently admitted that Republicans care about deficits only when a Democrat is in the White House.  Sure enough, they have been relatively lenient with discretionary spending for both defense and non-defense accounts since President Trump took office.  One can see this in the CDC’s budget, which rose to $8.0 billion in 2018 before sliding to $7.3 billion and $7.6 billion the last two years.  This year’s CDC appropriation is roughly $200 million less than in 2010 after adjusting for inflation.  It is virtually the same in nominal terms, and a bit less than $400 million dollars after adjusting for inflation, relative to the 2016 figure in the last annual appropriation President Obama signed.  A truly apples-to-apples comparison would require removing spending on the Ebola crisis from the 2016 figure and spending on the opioid crisis from current figures as well as adjusting for transfers of funding and responsibility.  That would require a deep dive into the fine points of the CDC’s budget but probably not change the bottom line much. 

            It therefore seems fair to say that the CDC has been financially weakened under President Trump’s watch, although not dramatically so.  On the other hand, the White House’s furious denials that he cut the CDC are a bit hard to accept when he has repeatedly tried to do just that.  His budget for fiscal year 2021 calls for cutting the CDC budget to $6.4 billion, a 21% cut in purchasing power from 2010 and a 24% real cut from the 2016 level.  Last year, his budget would have cut the CDC’s budget to $6.1 billion.  The year before that, his budget proposed cutting the CDC to $5.2 billion.  And his first budget proposed $5.9 billion for the CDC.  If the CDC’s budget has only shrunk by moderate amounts under President Trump, it certainly is not for his lack of trying to do much more. 

            Moreover, this is in no way a complete accounting of President Trump’s treatment of the CDC.  Agencies can be undermined in many different ways.  President Trump’s first CDC director resigned after it was disclosed that she had bought tobacco stocks after taking her position, creating an untenable conflict of interest.  President Trump’s current CDC director’s appointment was opposed by some public health organizations based on accusations of scientific misconduct and his advocacy of HIV/AIDS policies based on religious teachings rather than science.  I am not qualified to assess the merits of these concerns. 

            The broader lesson here is that our current approach to funding federal programs is not just irrational but dangerous.  No one – and certainly not generalists like voters, journalists, Members of Congress, and Presidents – can possibly know what all the agencies in the federal government do.  We thus have no basis for assuming that continual cuts to funding for non-defense discretionary programs can be achieved without harm.  Today, in light of the coronavirus epidemic, starving the CDC looks foolish.  Were the headlines instead about collapsing bridges, or contaminated food, or leaking nuclear power plants, our parsimony with other agencies would get the attention.  One of the most frustrating aspects of the Benghazi embassy tragedy is the near-universal failure to mention the role of deep cuts in diplomatic security funding. 

            We need to abandon the ill-informed, and often tragically wrong, assumption that there is always fat to be cut in federal programs.  Where specific excesses are identified, or where we decide we want to curtail a particular activity, by all means we should cut.  But budgetary caps requiring unidentified cuts in federal programs’ purchasing power are much more likely to hollow out agencies we may need than they are to eliminate actual waste.  

@DavidASuper1
Posted 6:14 PM by David Super [link]

Choosing a Vice President

Sandy Levinson

One of the most truly dubious features of a generally defective Constitution is the vice presidency.  Under the original scheme, which was exposed as making no sense even by 1796, when the establishment of a party system was well underway, electors would vote for the two people they believed best equipped to become president.  This made a modicum of sense in the absence of political parties, but no sense otherwise, so we ended up with Adams and Jefferson in 1796.  And then, of course, there was the fiasco of the 1800 election, with the tie vote and Burr's (and the Federalists') machinations to deprive Jefferson of his victory.  That was rectified by the Twelfth Amendment, but it in fact legitimized picking second-raters as VPs as part of a political strategy to gain support from key states or blocs.  Is it a coincidence that the first three VPs to become president because of death or assassination were John Tyler, Millard Fillmore, and Andrew Johnson, all of whom would be on a list of our worst presidents?  We've done better in the 20th century, but recall some of the idiotic choices of running mates, including, most memorably for anyone alive today, McCain's unforgivable choice of the totally incompetent Sarah Palin in 2008.  Whatever explained Donald Trump's choice of Mike Pence, it was certainly not a defensible belief that he was truly equipped to be President (unlike, one has to admit, Dick Cheney, a person with truly appalling views but with the experience one seeks in a president, as was the case, for that matter, with Reagan's decision to choose Bush as his own running mate in 1980.

I find myself thinking of such things because of the fact that it now appears quite likely that the two candidates in November will be septuagenarians.  One should at ponder the possibility that the VP will succeed to the office because of the death of a then-octogenarian.  So that brings me to the increased speculation about whom various Democratic candidates might choose as their running mates.  Chuck Shumer has suggested, for example, that it would be a really good idea to pick an African-American woman.  One of the persons he suggested was Kamala Harris; the other two, however, were Stacey Abrams and an obscure member of the House of Representatives.  Let me suggest that he could not possibly believe that the latter two are equipped to become President at the present time, even if one concedes, arguendo, that isn't the case with Sen. Harris.  I greatly admire Ms. Abrams; I wish very much she had chosen to run for one of the two now-open Senate seats in Georgia.  I can easily see her as a national leader in the future.  But it simply is not serious to say that she is capable of entering the Oval Office right now.  Barack Obama, whom I avidly supported over Hillary Clinton, certainly could have been more seasoned in terms of relevant experience.  It speaks very well for him that he chose Joe Biden, who complemented him in many important ways.  Obama was truly serious in picking a VP; I fear that Senator Shumer is not.  Or, to be fair, he is serious only about winning back the White House, a worthy goal.  But single-minded focus, however understandable, is also a symptom of what Jack aptly terms "constitutional rot" inasmuch as it is evidence of reckless indifference about the actual ability of the person named to take on the awesome responsibilities of a president on literally a moment's notice.

Indeed, I think it is highly desirable if the various remaining candidates indicate well before Milwaukee whom they will pick as their running mates.  And, as I've argued earlier, I wish that candidates for the presidency would also indicate during the campaign their intended cabinets.  We have drifted into a terrible form of an elective monarchy, something none of the candidates wish to talk about even as they justifiably denounce the sociopath in the White House as unfit for the office.  But, frankly, that's like shooting fish in a barrel.  It allows us to pretend that there are not truly serious problems with our entire constitutional order that need to be addressed.

Actually, though, my preference would be that the VP, assuming we choose to retain that office in my constitutional convention, be chosen after the election along the lines set out in the 25th Amendment:  I.e., the new president, even before inauguration (which I hope would be sooner than the present January 20) would nominate a VP, who would have to be confirmed in a joint session of the House and the Senate by a majority vote.  This would, I am relatively confident, assure the selection of someone competent to enter the Oval Office if need be.  I would also make the VP fireable by a similar vote, since I see literally nothing to be said for giving the VP the same assurance of tenure in office as the president now has.  (I would, of course, much prefer a process by which we could also fire a president in whom we had lost confidence.)
Posted 12:17 PM by Sandy Levinson [link] (34) comments

Formal procedures matter!

Sandy Levinson

The major disagreement between Jack and myself, spelled out in our epistolary exchanges in Democracy and Dysfunction, concerns the relative weight we assign to political culture as against formal institutions and rules. Both of us agree that each is important, but then we go our own ways in terms of assessing the strength of the two.  I do think it is appropriate on Super Tuesday, though, to emphasize the importance of two formal procedures.  One is the fact that in order to gain any delegates at all, a candidate has to receive at least 15% of the total vote.  Another is the increasing prevalence of "early voating," which, by definition, means that many voters (like myself--I voted two weeks ago, very happily for Elizabeth Warren) cast their ballots without knowledge of future events that might have made a difference.  In my case, it is irrelevant that Klobohar, Buttegieg, and Steyer have dropped out since I voted, but I can imagine many voters for whom that is not true.  If states had ranked choice voting, then the problem would be dissipated, but save for Maine, that is not currently the case.  So it is thinkable--we'll find out later today, that Warren will get almost 15%, but be deprived of any delegates by the fact that the now-irrelevant votes will nonetheless be key parts of the denominator establishing the baseline for the 15%.  I don't know what the solution is.  Everything is a question of tradeoffs, but it is now obvious that decisions made by the DNC, in blissful ignorance of concrete realities of the situation--is this what decisionmaking behind a veil of ignorance leads to?), coupled with the prevalence of early voting especially in large states like California and Texas, can have real consequences.
Posted 11:42 AM by Sandy Levinson [link] (6) comments

Too Little Hope, Not Enough Gloom

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).



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Posted 9:30 AM by Guest Blogger [link]

Fiduciary Creep

David Pozen

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Posted 11:28 AM by David Pozen [link]

The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Franita Tolson

I very much appreciate the opportunity to review Professor Rick Hasen’s timely and thoughtful book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.  The book does a great job of identifying some of the most pressing threats to our election system, and I do not think that voters sufficiently appreciate the seriousness of these threats.  Many individuals assume that our democracy can survive these challenges because the system has survived challenges.[1]  Professor Hasen challenges this assumption in important ways, presenting current threats as uniquely situated to cause enduring damage to our political system.  According to Professor Hasen, “The synergy of…four factors—voter suppression, pockets of incompetence, foreign and domestic dirty tricks, and incendiary rhetoric—undermines public trust in the fairness and accuracy of American elections and creates a high risk for the 2020 elections and beyond.”[2]
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Posted 9:30 AM by Guest Blogger [link]

Hasen's Timely Warning

Stephen Griffin

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

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Posted 9:30 AM by Stephen Griffin [link]

The Centrifugal Forces of Democracy

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Dan Tokaji
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Posted 9:30 AM by Guest Blogger [link]

Bernie Sanders's intellectual sleight-of-hand

Sandy Levinson

I have indicated quite a few times since 2016 my distaste for Bernie Sanders's purported self-identification as a "revolutionary," given his absolute unwillingness to address in any way the extent to which it is the Constitution of 1787 that most truly "rigs" the constitutional order in favor of the status quo.  The only two explanation for that refusal is either abject ignorance (and commitment to a simplistic Marxism that looks at any and all formal institutions as mere epiphenomena when compared with the one things that is really important, i.e., class structure) or political cupidity.  For better or worse, his flamboyant willingness to embrace the label of democratic socialist and to offer some (merited, by the way) praise of Fidel Castro even while (equally justifiably) denouncing his regrettable excesses, unfortunately suggests that ignorance or ideological rigidity is more likely to be the explanation than more ordinary political opportunism.

His unwillingness to support getting rid of the filibuster, should he win and have a Democratic Senate, is dispositive evidence that he is totally unserious about governing.  Mario Cuomo famously said that one campaigns in poetry and governs in prose.  Bernie speaks only his own form of poetry, unfortunately.  Assuming he can win, the most likely result is a massive disillusionment on the part of his young supporters, most of whom know almost literally nothing about the details of the American political process--in part because Bernie is so completely unwilling to educate them.  That, coupled, with the fact that it is truly delusional to believe that he is a plausible two-term president (the same is true, of course, of Joe and Mike) means that 2024 would be even more chaotic than things now, and by 2024 a smart Trumpista, instead of the ignorant oaf who now inhabits the White House, will lead to a crushing defeat of whatever remains of the Democratic Party.

But Bernie is also offering a most dubious argument when he suggests that a "first-past-the-post" plurality winner system is an accurate indicator of "the people's choice."  No!!!  Boris Johnson was not the choice of the English people.  56% of them indicated a preference for someone else, but the first-past-the-post system gave him an overwhelming victory that he has the effrontery to claim is a "mandate."  Abraham Lincoln got the White House only because of the Electoral College, having received 39.8% of the popular vote.  His argument about "ballots, not bullets," settling the issue of slavery int the territories was, alas,  demagogic gibberish.  For better or worse (I think for worse), we don'e have a national referendum system in this country, and his particular number of ballots ended up being far from majority ratification of his position on extension of slavery into the territories. (That he was morally correct is beside the point if one is using the language of popular sovereignty.)  His presidency was an artifact of a ridiculous system for choosing presidents, whatever one thinks of Lincoln substantively as a President.  I think it is clear that he was far more serious about governing than Bernie appears to be, but who knows, since another feature of our awful system is that candidates run basically to be an elective monarch without having to tell us until it is too late whom they will pick not only as VP, but, in many ways more importantly, as cabinet members.  And Lincoln did pick, or accept, the awful choice of Andrew Johnson to be his second VP, perhaps because, like too many politicians, he wanted to believe he was immortal.

If Bernie comes in with, say, 45+% of the delegates, earned by getting 45+% of the popular vote in the Democratic primaries, then he will have a good argument, even if not a knock-down one, to get the nomination, since he would undoubtedly be the second choice of enough delegates (presumably those pledged to Warren) to make a plausible claim to majority approval.  But if he has the support of, say, only 33%, it's an entirely different all game.  At that point, the super-delegates, who are actually experienced not only in practical politics, but also in discerning people who might actually have relevant political skills, should feel absolutely free to select the person they believe to be the best candidate.  My own hope is that that would be Elizabeth Warren, but who knows? In any event, the argument that serious participation by the super-delegates would contravene "the people's choice" is meretricious nonsense.  If one accepts the self-evident truth that Donald Trump was not "the people's choice" with his 46% of the popular vote, then one should be equally skeptical of self-serving arguments by Bernie and his supporters.
Posted 7:48 PM by Sandy Levinson [link] (42) comments

E.R.A. Puzzles

David Pozen

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Posted 11:43 AM by David Pozen [link]

The Easy and Not So Easy Fixes to an Election Meltdown

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Ciara C Torres-Spelliscy


Ciara Torres-Spelliscy is a Professor of Law at Stetson, a Brennan Center Fellow and the author of Political Brands. You can reach her by e-mail at ctorress at law.stetson.edu.

Posted 9:30 AM by Guest Blogger [link]

Arguing with Nihilists as the House Burns

Joseph Fishkin

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

One oddity of writing a book like Election Meltdown is that the worse things get, the better it is for the book. That is, the more conspicuously our election system actually does melt down, the more Rick Hasen’s book feels relevant, urgent, even prescient. Rick is a good small-d democrat and an altogether decent human being, so I’m certain he was not especially tempted to hope for anything like the Iowa Caucus meltdown. But good lord. As it happens, I had just started reading his book while the caucus was collapsing under the weight of its own incompetence and I felt like I was reading a field guide.
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Posted 9:30 AM by Joseph Fishkin [link]