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Fan.10 (First Amendment News) — Justice Stevens’ Proposal to Amend the 1st Amendment

justice-stevensWhile the Justices busily prepared their respective opinions in the McCutcheon campaign finance case, one of their Brethren was preparing to release a book that calls on Americans to reverse some of his former colleagues’ constitutional handiwork. The forthcoming book is Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170). The author is Justice John Paul Stevens.

This short book is offered up against the backdrop of Justice Stevens’ co-authored opinion in McConnell v. FEC (2003), his dissents in Colorado Republican Federal Campaign Committee v. FEC (1996), Randall v. Sorrell (2006),  Davis v. Federal Election Commission (2008), and Citizens United v. FEC (2010), his criticism of that case in his Five Chiefs: A Supreme Court Memoir (2011), and in his various criticisms of the Court’s campaign finance jurisprudence in his print and TV interviews along with his public addresses. Moreover, it is highly likely that Justice Stevens is just as critical of the Court’s recent 5-4 decision in McCutcheon v. FEC. In short, John Paul Stevens is a man on a constitutional mission.

Quite apart from Citizens United, Justice Stevens has long had serious reservations about vindicating First Amendment claims in most campaign finance cases. Coming onto the Court shortly after Buckley v. Valeo (1976), he witnessed firsthand what Justice William Brennan and his colleagues had wrought in sustaining several of the First Amendment claims urged by  Senator James L. Buckley, presidential candidate Eugene McCarthy, and the ACLU. It left him, he recalled in Five Chiefs, with an “extreme distaste” for that precedent. That distaste, he added, “never abated, and I have felt ever since that the Court would have been best served by inserting itself into campaign finance debates with less frequency.”

Given that, he thinks it is time to resort to Article V for a constitutional remedy. Admittedly, it is (and should be) difficult to amend the Constitution. From 1789 to April 2014, some 11,539 amendments have been proposed, but only twenty-six have been ratified. But that fact has not deterred the retired Justice from Hyde Park, Chicago. Here, then, is the text of the 43 words Justice Stevens would add to the Constitution in order to amend the First Amendment.

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

(Though the publication date is not until April 22, the text of the above language, which has been confirmed to be the final text, has heretofore appeared here and here and here.)

Reactions from Select 1st Amendment Scholars & Lawyers

Professor Martin Redish, a noted First Amendment scholar who teaches at Justice Stevens’ alma mater, takes exception to this proposed constitutional amendment: “As much as I respect Justice Stevens, I believe that his proposed amendment is sorely misguided.”

  1. “Its inescapable impact would be to reduce dramatically the flow of information and opinion to the voters about political campaigns, thereby substantially undermining core goals of the First Amendment and its role as a facilitator of democracy. The simple fact is that speech costs money, and by limiting the amount of money that candidates and supporters can spend the provision would necessarily limit the flow of often valuable expression which could help the voters perform their governing function in the voting booth.”
  2.  “Moreover, Justice Stevens’ proposal would have the inescapable effect of locking in non-monetary inequalities—for example, incumbency, political connections or fame— perversely, in the name of equality. These are inequalities that have traditionally been diluted by opponents’ use of money to equalize the voters’ awareness of the candidates.”
  3.  “Finally, the provision would create an interpretive nightmare. How much money is “reasonable”? Would it differ from state to state? From campaign to campaign? And who gets to decide? Would courts invoke strict scrutiny or rational basis review of the legislature’s judgment? To give the authority of determining how much is “reasonable” to a state legislature invites the fox to watch the hen house: legislators who will stand for reelection will naturally attempt to shape the limits in a way that facilitates their continued victory. Also on an interpretive level, enormous uncertainty would be created by the task of determining who is a “supporter” of a candidate. And even if courts were somehow able to establish coherent interpretive standards for that word, is it appropriate for the Constitution to engage in what amounts to viewpoint-based discrimination by giving preferences to those who are neutral over those who have chosen to support a particular candidate?”

“In sum, Justice Stevens’ proposal would bring about all of these nightmares—political, social, and interpretive. We would be left with a doctrinal morass and a substantial disruption of the flow of information and opinion fundamental to the operation of the democratic process. To be sure, there are problems with our current campaign system, but as Madison warned in Federalist No. 10, sometimes the cure is worse than the disease.”Unknown

Professor Steven Shiffrin, another noted First Amendment scholar, takes a different view: “The proposal of Justice Stevens directly speaks to the major evil confronting our elections and our democracy. Nonetheless, I worry that conservatives on the Court, as they have in the past, will make a distinction between commentary on issues and election commentary allowing the former, but not the latter. They have previously ruled that commentary was about issues rather than candidates even when the purpose and effect of the commentary was to influence the outcome of an election. This loophole could seriously undermine the purpose of the proposed amendment.”

Such comments notwithstanding, Justice Stevens is “confident that the soundness” of his proposal “will become more and more evident, and that ultimately [it] will be adopted.” The purpose of his forthcoming book, he tells us, “is to expedite that process and to avoid future crises before they occur.”

Not surprisingly, Robert Corn-Revere, a noted First Amendment lawyer, was also skeptical of the Justice’s amendment idea: “The idea of proposing an amendment to reverse Supreme Court decisions one doesn’t like is not new – witness the myriad amendments that purported to ‘fix’ the First Amendment in the wake of the flag burning cases Texas v. Johnson and U.S. v. Eichmann.  But such a thing is rare when it comes from a retired Supreme Court justice, and even more surprising is the degree of latitude the proposed language would give government to restrict our most basic rights. I would have hoped Justice Stevens’ long experience with Fourth Amendment jurisprudence would have suggested the danger of giving the courts power to decide which abridgements are ‘reasonable.’”

Two Opposing Views

John Nichols & Robert McChesney, Dollarocracy (2013): “Every major reform period in American history…has been accompanied by numerous amendments to the Constitution, amendments that were deemed unthinkable until almost the moment they were passed. If the problems faced at this point in the American journey are going to be solved, history suggests constitutional amendments will be a significant part of the process”

– Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”

Other Proposed Amendments to the First Amendment re Campaign Finance Issues

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Welcome Back, Professor Robert Tsai

rtsaiIt is with great pleasure that I re-introduce Professor Robert Tsai. Robert has blogged with us before, and we are lucky to have him back to blog about his work, ideas, and I hope his new book America’s Forgotten Constitutions: Defiant Visions of Power and Community. I met Robert when we are at Yale Law School together. He was sharp and engaged then and has not slowed down since. He has held two clerkships — Hugh H. Bownes, U.S. Court of Appeals for the First Circuit, and Denny Chin, U.S. District Court for the Southern District of New York. He has litigated constitutional issues before federal and state courts. As a professor his papers have twice been selected for the Stanford-Yale Junior Faculty Forum: once in constitutional theory and once in constitutional history. Professor Tsai began his academic career at the University of Oregon and then joined the law faculty of American University in 2008 and was promoted to full professor the following year. Welcome back, Robert.

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Woodrow Wilson and Justice McReynolds

98px-President_Woodrow_Wilson_portrait_December_2_1912I’m starting to go through Justice McReynolds’ papers, and one thing that I would like to figure out is how he got on the Court.

The most common story of McReynolds’ appointment goes like this.  He was a jerk as Attorney General, so when a Supreme Court vacancy opened up Woodrow Wilson took that opportunity to get rid of him.  This does not strike me as a plausible explanation.  Even if you took Supreme Court appointments lightly, which I don’t think Wilson did, I doubt that you would hand this plum to someone you could not stand.  What are the other possibilities?

1.  McReynolds, as I mentioned in a prior post, had a fine reputation as a trust buster in 1914.  This may have convinced Wilson that he was a progressive (or progressive enough).  I’m less clear on whether McReynolds was a good Attorney General–I still need to work through that.

2. The vacancy to which McReynolds was appointed was a southern seat (Horace Lurton, a Kentuckian, died).  As a result, the fact that McReynolds was from Tennessee gave him a leg up.

3.  Wilson’s wife died a few weeks before McReynolds was nominated.  Some suggest that (in his grief) Wilson simply was not thinking clearly about the nomination or any public matter at that time.

Anyway, I’m curious to see what the press had to say about the McReynolds nomination.

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MPSA Annual Conference

I wanted to note briefly that I’m sorry I was unable to present at the Midwestern Political Science Association last week. I was scheduled to talk about Bingham on a Reconstruction panel, but my wife and I recently had a baby, and I had to cancel my talk as a result. If you see me around here less often in the coming months, that’s the reason.

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FAN 9.3 (First Amendment News) — S. Ct. Denies Review in Campaign Finance Case

Just 25 minutes ago the Supreme Court denied review in Iowa Right to Life Committee, Inc. v. Tooker.  

Though Erin Murphy and Bobby Burchfield were in the limelight for their victory in McCutcheon, James Bopp (the noted campaign finance lawyer) was hardly out of the picture. He had, after all, another campaign finance case up his sleeve, and what seemed to be a good one at that.Unknown

The claims in Iowa Right to Life were twofold: (1) Whether an Iowa ban on political contributions by corporations (and certain business entities), but not by unions, violates the Equal Protection provision of the Fourteenth Amendment, and (2) Whether such a corporate-contribution ban runs afoul of the First Amendment. The facts of the controversy involved an attempt by the Iowa Right to Life Committee (a non-profit corporation) to contribute $100 to Brenna Findley, a candidate for Iowa Attorney General. Iowa law, however, prohibits such corporate contributions, but does not bar unions from making political contributions. This disparity in treatment notwithstanding, the U.S. Court of Appeals for the Eighth Circuit upheld the law and later declined to rehear the case en banc, whereupon James Bopp petitioned the Supreme Court to hear the case.

After suggesting that there was a conflict of law in several lower courts and that the Supreme Court should grant review to reconcile them, Bopp argued that “corporations and unions are similarly situated regarding their interest in making political contributions. Yet in Iowa, corporations, but not unions, are banned from making political contributions. Iowa must justify this disparate treatment. And Iowa must do so under strict scrutiny, both because fundamental rights are involved and because the corporate-contribution ban is content-based.” On the First Amendment side of the constitutional ledger, Bopp had to work around a hostile 2003 precedent, Federal Election Commission v. Beaumont, a case which he argued and lost to none other than Paul Clement (the co-counsel in McCutcheon). That ruling, decided before the advent of the Roberts Court, established that a direct contribution prohibition to nonprofit advocacy corporations is consistent with the First Amendment. For his part, Bopp argued forcefully that “Beaumont is on shaky precedential ground in the light of Citizens United.”

But it all proved to be of no constitutional moment: cert. denied.   

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Welcoming Back Jeffrey Kahn to the Blog

This month, we are lucky to have Professor Jeffrey Kahn back with us for another guest blogging stint. Professor Kahn joined the SMU Law faculty in Fall 2006.  He teaches and writes on American constitutional law, Russian law, human rights, and counterterrorism.  In 2007-2008, he received the Maguire Teaching Fellow Award from the Cary M. Maguire Center for Ethics and Public Responsibility at SMU for his seminar, “Perspectives on Counterterrorism.”  In 2008-2009, he was named a Colin Powell Fellow of the John Goodwin Tower Center for Political Studies. In 2010, he received SMU’s Outstanding Faculty Award, a university-wide award given each year to a junior, tenurefaculty-kahn-track faculty member for excellence in teaching, curricular development, and scholarship.  In 2011, the year he was tenured and promoted to associate professor, he received the Law School’s Excellence in Teaching Award.

His latest research on U.S. legal topics focuses on the right to travel and national security law.  His most recent book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists(University of Michigan Press, 2013), critically examines the U.S. Government’s No Fly List.  Among other publications, his articles have appeared in the UCLA Law ReviewMichigan Law Review, and the peer-reviewed Journal of National Security Law and Policy.

Professor Kahn has been incredibly busy since his last guest visit. This past fall, he was the third O’Brien Fellow-in-Residence at the Centre for Human Rights and Legal Pluralism at McGill University’s Faculty of Law.  This semester, he is a Visiting Professor at Washington & Lee School of Law. Professor Kahn recently served as a testifying expert witness in the first federal trial of the constitutionality of the No Fly List and federal watchlist system.  The plaintiff, Rahinah Ibrahim, won the bench trial and the Justice Department decided not to appeal (having lost two prior appeals in the case to the Ninth Circuit). The paperback edition of his book on terrorist watchlists, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists(University of Michigan Press, 2013), is scheduled for release later this spring.

Professor Kahn’s latest work is a contribution forthcoming in a title in Springer’s Ius Gentium series edited by ABA President James Silkenat.  The essay evaluates Russian rule-of-law shortcomings through the lens of my experience as one of the experts selected by former Russian Constitutional Court Justice Tamara Morshchakova to contribute a report on the conviction of Russian oil oligarch Mikhail Khodorkovsky, who was recently released.

 

 

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Thanks and Some Additional Comments

I wanted to thank Frank Pasquale for organizing and hosting this symposium and all of the participants for the time they took reading The Economic Dynamics of Law and providing their thoughts. I wanted to say a little about the most recent posts, even though it’s possible that something more might appear before the weekend is out.

I’m happy to accept Livermore’s suggestion that systemic risk avoidance and keeping open a robust set of economic opportunities can be thought of as an incompletely theorized agreement about goals. He may be right that in fact avoiding systemic risk is efficient, but I doubt that all climate disruption cost-benefit analysis (CBA) would necessarily reveal that. Showing that most current CBA would call for some action on climate disruption does not suffice to show the congruence between CBA and avoidance of systemic risk taking into account collateral negative consequences (which is narrower than taking into account all costs under my normative framework). First, there is a historical problem. Prominent early CBA and much of the CBA from a few years ago would not invite vigorous measures to address climate disruption (although some CBA did early on). Even today, there may be a discrepancy between what scientists tell us we need to minimize significant risk, a phase-out of fossil fuels, and what some of the CBA is telling us. CBA is basically guesswork, and does not yield a reasonably specific answer when substantial uncertainties exist. Read More

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The Civil Rights Act of 1964

I just finished reading Clay Risen’s terrific book on the debate that culminated in the enactment of what he calls “The Bill of the Century.”  Here are some things that I learned:

1.  “Judge” Howard Smith, the segregationist chairman of the House Rules Committee, famously amended the Act to include “sex.”  I’ve always understood that this was a poison pill that failed to derail the bill.  It turns out, though, that Smith was a strong advocate for (white) women’s rights throughout his career.  So he may have been sincere (or at least have had mixed motives).

2.  Much of the debate early on centered on whether the Act should rely on the Commerce Clause or on Section Five of the Fourteenth Amendment.  The Commerce Clause was chosen for a couple of reasons, but one factor that I had not considered was that the Fourteenth Amendment was seen as a “Republican” way of handling the problem whereas the Commerce Clause was seen as the “Democratic” way.  That just shows how far we’ve come in the last fifty years.  Nobody today thinks of the Fourteenth Amendment in partisan terms.

3.  The book argues that LBJ gets too much credit for the passage of the Act, and that many other people (Hubert Humphrey, Mike Mansfield, Nick Katzenbach, Everett Dirksen) did more.  I think this assessment is correct, though I’m much more skeptical of the book’s implication that JFK would have gotten the Act passed had he not been killed.  Partly I suppose that’s because I’m not a JFK fan (for one thing, he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.)

 

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Notes from Abbrevia: A Response to Bottlenecks

Imagine two worlds. In one world—let’s call it Expansia—a writer writes 260 thoughtful and engaging pages exploring his chosen topic. In the other world—Abbrevia—a writer has at most 1000 words of blog post to respond to the first writer.

Welcome to Abbrevia. Responding adequately to Joey Fishkin’s wide-ranging and incisive book Bottlenecks is no easy task. Doing so in a blog post is impossible. Undoubtedly the right answer to this quandary is to take Fishkin’s work as a jumping off point for a related set of ideas. This is an ideal approach for a blog post. Alas, dear Reader, this contribution to the symposium takes a different tack. What follows is my attempt to identify five of my favorite things about Bottlenecks, and then to list five of my lingering questions.

1. For starters, a stylistic note: Bottlenecks is beautifully written. It’s full of accessible prose, pithy articulations of complex philosophical ideas, and evocative imagined worlds that illustrate key concepts. Some of these imagined worlds Fishkin invents, and some he culls from the philosophical canon; in both cases, his alternative universes are far more effective than my Expansia and Abbrevia. The “big test” society is emblematic: This is a world, drawn by analogy to Bernard Williams’ warrior society, and not so very far from our own, in which everyone’s opportunities for many different kinds of lives are all determined by a single evaluation at a particular age. The big test makes vivid the idea of a bottleneck, which limits opportunities both for those who fail (because they can’t reach the opportunities on the other side) and for those who pass (because it shapes their preferences and ambitions).

2. Relatedly, Bottlenecks is a story about equal opportunity with far more emphasis on the opportunity than the equality. For everyone who ever wondered if equality theory or antidiscrimination law is leading us towards the dystopian world of Vonnegut’s Harrison Bergeron—where everyone is literally weighed down in direct proportion to her talents, whether mental or physical—Fishkin’s account offers a lucid answer: We should care about equality to the extent that it serves the goal of expanding individual opportunities (and inclinations) to pursue diverse concepts of the good—to become, per Raz, “‘part author of his life.’” An illustrative passage is this:

“A pluralistic opportunity structure . . . provides the structural conditions for the kind of freedom that makes autonomy possible. It is the difference between seeing only one path that leads to anything of value—a path one must pursue at all costs—and seeing many paths, leading to different lives marked by different combinations of forms of human flourishing, so that one must decide for oneself what to value and pursue.”

Reducing inequalities is thus instrumental to freedom, rather than the primary end we are seeking—at least as I read Fishkin.

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Now What? Applying the Economic Dynamic Approach to Financial Reform

Echoing the earlier commentators, I commend Professor David Driesen on his important contribution to legal scholarship and public policy with The Economic Dynamics of Law. I am hopeful that the economic dynamic approach can be used in the academy and on the front lines of financial reform.

As Driesen observes, the centerpiece of financial reform in the U.S., the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) “mandates only minimal structural reform.” Moreover, efforts persist to rollback, dilute and delay the modest improvements accomplished through Dodd-Frank. The result has been to emphasize bank-collapse intervention tools without sufficient focus on prevention. Consider that this modest reform effort began while the 2008 crisis was still fresh in mind. As memories fade and passions cool, the ability to enact structural reform diminishes.

And, this is exactly where use of an economic dynamic analysis is needed. Let me present just one real-life fact pattern. This coming Tuesday morning, the U.S. House of Representatives Committee on Financial Services has scheduled a hearing entitled, “Who’s In Your Wallet: Examining How Washington Red Tape Impairs Economic Freedom.” The invited witnesses are the general counsels of five federal financial agencies, including the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the National Credit Union Association, and the Office of the Comptroller of the Currency. In the memo announcing the hearing the following agenda is described:

“Among other things, the hearing will examine how federal financial regulatory agencies evaluate the costs and benefits to consumers of their regulatory, enforcement, and supervisory actions. The Committee will explore whether products or services are no longer being offered to consumers because of agency actions and the steps federal regulators take to measure the impact on consumers if they no longer have access to specific products or services as a result of regulatory action. The Committee will also consider the procedures or standards agencies follow in determining whether to engage in formal rulemaking under the Administrative Procedures Act.”

The intent appears to be to treat as a cost the potential failure to satisfy individual preferences in the present without considering broader costs and harms that particular financial products can create for individuals and the system at large. As Driesen describes in Chapter 2, by emphasizing allocative efficiency, “the law of financial regulation ceases to function as a means of avoiding a depression, and instead becomes thought of as a product of balancing a proposed regulation’s benefits against its costs.”

Consumers may have had preferences for very low-money-down, negatively amortizing mortgages for which there would or could be a payment shock upon recast.  And many did show those preferences (even when the bank in-house marketing studies showed the product had to be pushed on them with minimal disclosure). However such toxic products and others led to millions of foreclosures and bank safety and soundness problems, and ultimately a global financial meltdown.

It will be interesting to see whether the witnesses on Tuesday reject the assumptions underlying how the hearing has been framed and instead apply an economic dynamics approach to their testimony and answers.