Category: Politics

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Minnesota Marriage and Political Strategy

I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.

There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.

Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.

Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.

Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)

And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.

So, one other moral of this story: when it comes to referenda, be careful what you wish for.

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This is what evil looks like

Close Gitmo ribbon A newly published Memoir from Guantanamo provides a stunning, vivid, and highly personal description of things that the United States has done — sleep deprivation, temperature extremes, beatings, humiliation — to dozens of people who have never been charged with any crime. No wonder so many Guantanamo detainees are now on hunger strike. I guess President Bush was right that the Iraq war would show us an axis of evil. I just didn’t realize that would consist of my own country’s actions.

It’s time to do the right thing, Mr. President. Let’s close Guantanamo.

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“The Divine Institution of Marriage”: An Overview of LDS Involvement in the Proposition 8 Campaign

I’ve just posted to SSRN my article in the forthcoming St. John’s Journal of Civil Rights and Economic Development. This article is part of the recent Symposium on Same-Sex Marriage at St. John’s.

My article is largely descriptive, setting out in some detail the LDS (Mormon) church’s actions and statements relating to Proposition 8. It chronicles a significant amount of factual material that has not been discussed at all in the existing legal literature. It may be especially relevant to people who have an interest in Proposition 8, same-sex marriage issues, gay rights issues generally, or LDS church issues generally. Full abstract follows past the jump: Read More

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Defending Citizens United?

My thanks to Danielle and her co-bloggers for inviting me to share some of my thoughts.  This is my first foray into blogging, and I’m thrilled to join you for awhile.  I’d like to start by discussing a current project, which examines the internal governance of corporate political activity.  Comments, suggestions and critiques are most welcome.

Corporate political activity has long been an exceptionally contentious matter of public policy.  It also raises a hard and important question of corporate law:  assuming corporations can and will engage in political activity, who decides when they will speak and what they will say?  In several cases, the Supreme Court has provided a relatively clear, albeit under-developed, answer:  “[u]ltimately, shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.”  (First Nat’l Bank of Boston v. Bellotti, cited with approval in Citizens United v. FEC).

This corporate law aspect of the decision has attracted substantial criticism alongside widespread calls for major reforms to corporate and securities laws.  Some argue that the Supreme Court misunderstands the reality of modern corporate law, insofar as shareholders have little practical ability to constrain managerial conduct.  Others question why political decisions should be made by either shareholders or managers, rather than some broader group of corporate stakeholders.  A third group claims that political activity is just another corporate decision protected by the business judgment rule.  Thus, empowering shareholders in this regard would improperly encroach on the board’s plenary decision-making authority.

Yet, despite these concerns, there may be pragmatic and normative merit to the Supreme Court’s approach.  In a current paper – “Democratizing Corporate Political Activity” – I present a case for shareholder regulation of corporate political activity through their power to enact bylaws.  I’ll describe the argument in more detail in subsequent posts, but, briefly, I present three normative justifications for this governance structure.  First, it may mitigate the unusual and potentially substantial agency costs arising from manager-directed corporate political activity.  Second, it may increase social welfare by: (i) reducing deadweight losses and transaction costs associated with rent-seeking; and (ii) making corporations less vulnerable to political extortion.  Third, if corporate speech can shape our society’s distributional rules, corporate law should not interpose an additional representative filter in the democratic process.  That is, we should not assume that investors – merely by purchasing stock in a public company, often through an intermediary such as a mutual fund – grant managers the unilateral authority to engage in political activity on their behalf.

With that said, I should be clear upfront that there are important challenges and objections to each of these arguments.  I will describe the main concerns as I proceed.

The next post will lay out the Supreme Court’s vision of corporate political activity, and explain why the shareholder bylaw power best fits the Court’s description of shareholder democracy in this context.

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Senator Rand Paul Drones On

Concurring Opinions readers might get a kick out of the fact that, at one point in his twelve hour, old school filibuster of John Brennan’s nomination as CIA director this evening, Senator Rand Paul reads aloud from my 2011 online essay in Stanford Law Review on the domestic use of drones.  Video of the clip here.  I suppose it beats a phone book!

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The Stanford Law Review Online: School Security Considerations After Newtown

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

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For Transparency Sake?

Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government.  The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era.  Now, four years later, drastic change in government secrecy has not materialized.  Let’s take DOJ’s release to two Congressional intelligence committees the OLC memo authorizing the use of drone strikes to kill American civilians abroad considered terrorists.  According to the New York Times, the administration had until now refused to even officially acknowledge the existence of the documents, which had been reported about in the media.  This recent revelation is just one example of what we say–a commitment to transparency–is not what we do.  Consider that in a 2010 memo, the DOJ endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.”  Despite this stated goal and the stated goals of the Open Government memorandum, the Sunlight Foundation reports that DOJ is “withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012.”  That is not to say that we have made no progress.  As the Sunlight Foundation explains, the Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online whereas Bush administration’s published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005.

Shane on Noel Canning

The recent DC Circuit opinion invalidating the President’s recess appointments to the NLRB may alter the balance of power between the branches as much as INS v. Chadha did. Peter Shane (no great fan of executive power grabs) makes the case:

[In Chadha, the Supreme Court said that the Constitution] gives Congress only one way to legislate: Majorities in both the House and the Senate must agree on a text to enact, and the president must sign it, or two-thirds of each House must vote to override the presidential veto. Neither the House, nor the Senate is entitled to make law all by itself. In a January 25 ruling, however, the U.S. Court of Appeals for the DC Circuit pretty much assured the Senate exactly that power. Even worse, it afforded that power not to a majority of senators, but to a minority. . . .

Read More

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Schneier Calls Out Papers on How Terroristist Groups End

Bruce Schneier noted some research by Rand about How Terrorist Groups End. The abstract

Abstract: How do terrorist groups end? The evidence since 1968 indicates that terrorist groups rarely cease to exist as a result of winning or losing a military campaign. Rather, most groups end because of operations carried out by local police or intelligence agencies or because they join the political process. This suggests that the United States should pursue a counterterrorism strategy against al Qa’ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force.

likely rings true to many who question the use of drones etc. (The comments on Bruce’s page get into some of this point).

To me the fact that RAND put the paper out is interesting. I can never tell whether RAND or what RAND is about. It would seem that claims that RAND is only going to support the government’s goals might be challenged here. Also Bruce calls out the work of Max Abrahms who in 2008 and 2011 addressed these ideas as well. I urge you read the 2008 post and here is the 2011 abstract

The basic narrative of bargaining theory predicts that, all else equal, anarchy favors concessions to challengers who demonstrate the will and ability to escalate against defenders. For this reason, post-9/11 political science research explained terrorism as rational strategic behavior for non-state challengers to induce government compliance given their constraints. Over the past decade, however, empirical research has consistently found that neither escalating to terrorism nor with terrorism helps non-state actors to achieve their demands. In fact, escalating to terrorism or with terrorism increases the odds that target countries will dig in their political heels, depriving the nonstate challengers of their given preferences. These empirical findings across disciplines, methodologies, as well as salient global events raise important research questions, with implications for counterterrorism strategy.

Bruce was cool enough to include a link to the paper.