[EL] Proposed Constitutional Amendments -- Larry Tribe and Rick Hasen

Fri Jun 15 00:47:16 PDT 2012

First, let me begin by saying that it is always great to ring in or just
lurk on the list from afar.  Electoral doings in this part of the world
still give way to or are preceded by practices that are brutal and truly
corrupt.  Folks in this region would be thrilled to be faced with matters
of election law and constitutional debate akin to those in North America.  So,
it is refreshing and relieving to catch up.

With regard to the posts by Tribe and Rick and the responses, I do wonder
though, how far the debates have really gotten us. Sure, in response to
Rick, one can respond as Steve H. does that the issue is not the
institutions.  It is, instead, incapacity to “balance” the right and
left.  Unfortunately,
US politics is now characterized by apathy on the part of voters and
polarization on the part of elected officials.  There is no force available
to overcome either the will of the people and the electoral officials or
the systemic rules that have created this situation.

Steve notes the ancient shibboleth that politics is driven by
self-interest. But we know that.  Absent a political crisis of a scope that
we apparently cannot conceive (9/11 was not enough apparently), US politics
has spun in the direction of polarization.   Political actors take
advantage of the rules governing the political system to perpetuate the
polarization.

That said, I think Rick’s call for a congressionally imposed uniformity of
electoral structure makes a lot of sense.  The Federalist constitutional
vision was predicated on certain assumptions about human nature.  It seems
that those assumptions need revisiting nowadays because human nature seems
to be overcoming the constraints envisioned by Madison.

We should have nonpartisan districting commissions too.   Of course, moving
in this direction might put a lot of consultants out of work…

Tribe’s call for a constitutional amendment designed to “overrule” Citizens
United strikes me as, well, confusing.  It reads:

“Nothing in this Constitution shall be construed to forbid Congress or the
states from imposing content-neutral limitations on private campaign
contributions or independent political campaign expenditures. Nor shall
this Constitution prevent Congress or the states from enacting systems of
public campaign financing, including those designed to restrict the
influence of private wealth by offsetting campaign spending or independent
expenditures with increased public funding.”

Nothing in the Constitution does for bid Congress… Citizens United was a
long decision. But a key part of it told Congress to go back and write a
better law.  It has not happened yet. This is the Congress of the United
States.  It can do just about anything.  Why do its members protest so much
about the least dangerous branch across town?  I mean really.

In fact, I find it quite interesting that, in one important way, Tribe’s
suggestion contradicts the spirit of Rick’s.  Tribe says: “Perhaps the most
egregious misstep of the court’s campaign finance case law has been the
failure to trust the judgment of our elected representatives that
ever-rising sums expended in political races cheapen and thus undercut
democracy.”

If we can trust those folks, why does Rick call for centralization,
streamlining and nonpartisan election administration?  While there is no
disputing some of Tribe’s points about expenditures and contributions,
etc., it remains disheartening to see that he, too overlooks the clear, but
quiet concern stated by the court throughout the campaign spending
decisions:  we cannot completely trust elected officials to write the rules
that will govern the process by which they are returned to office.  Beginning
with Buckley, the court has evinced a fear of cartel-like behavior cloaked
in the mantel of “reform.”  This animated Citizens United too.

Just my 2 bits from the Middle East.  Cheers to all.

On Fri, Jun 15, 2012 at 8:44 AM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> [I am separately sending a nearly identical version of this post to the
> conlawprof list as well. If you are a member of both lists, you will
> receive both. My apologies.]****
>
> ****
>
> I thought it would be worthwhile to note the specifics of these proposed
> constitutional amendments.****
>
> ** **
>
> Prof. Tribe’s proposal is intended to reverse Buckley, Citizens United,
> and Ariz. Free Enterprise v. Bennett, but would appear to grant the federal
> and state governments nearly unlimited authority over campaign speech (so
> long as the authority is exercised in a content-neutral way):****
>
> “I propose an ambitious amendment along the following lines:****
>
> “Nothing in this Constitution shall be construed to forbid Congress or the
> states from imposing content-neutral limitations on private campaign
> contributions or independent political campaign expenditures. Nor shall
> this Constitution prevent Congress or the states from enacting systems of
> public campaign financing, including those designed to restrict the
> influence of private wealth by offsetting campaign spending or independent
> expenditures with increased public funding.”****
>
>
> http://hive.slate.com/hive/how-can-we-fix-constitution/article/the-once-and-for-all-solution-to-our-campaign-finance-problems
> .****
>
> It seems that the first sentence would authorize limitations on
> contributions and independent expenditures, without any floor at all.
> Arguably, Congress or a state legislature could completely prohibit
> contributions and independent expenditures. Even if “limit” is not
> interpreted to include “prohibit,” the amendment would allow contributions
> and independent expenditures to be limited to small amounts, presumably
> such small amounts that no effective mass communication of a message would
> be possible. ****
>
> Prof. Tribe does say “some financial investment is essential for almost
> all forms of speech, and I am not prepared to abandon all First Amendment
> scrutiny of regulations imposed on financial backing of political
> expression. What’s crucial is that regulations treat content neutrally,
> regardless of whether they address speech itself or the funding of speech,
> and regardless of the speakers at which they aim.” I don’t see how a
> requirement of content neutrality provides any protection of the right to
> make “some financial investment” in order to communicate a message. I would
> also think that laws targeting campaign speech would by their nature fail
> to be content neutral; I suppose what is meant is that they should be
> “candidate neutral.” (It also is less than clear how news media and book
> publishers would be dealt with under this proposal, to the extent that
> their communications endorse, praise, or criticize a candidate.)****
>
> ** **
>
> At the same time, the proposed amendment would not seem to cut back on the
> current right of **candidates** to spend unlimited amounts of their own
> funds. I don’t see how spending by a candidate can be said to be an
> “independent … expenditure.” The second sentence of the proposed amendment
> would allow the federal or state governments to provide extra funding to
> candidates who face wealthy self-funded candidates, but it certainly would
> not require such funding. By providing a supposed antidote to such
> self-funding, the second sentence suggests that the wealthy will be able to
> self-fund their campaigns.****
>
> Perhaps there needs to be a very strong emphasis on Prof. Tribe’s phrase,
> “along the following lines.”****
>
> ** **
>
> Rick’s proposed amendment (copied below), deals with the problems of
> partisan election administration. It is certainly more defensible than
> Larry’s, though list members have pointed out various problems with it. I
> wonder, though, whether it would constitutionalize the current practice of
> states awarding electoral votes by popular vote, or give the commission the
> power to do so? After all, it provides for the commission to establish “the
> place and manner of holding elections for president.” Perhaps the amendment
> thus implicitly includes a requirement that there be such elections in each
> state or gives the commissioners power so to require. (I wouldn’t have a
> problem with an amendment requiring states to choose electors by popular
> vote, but it ought to be explicit in the text of the amendment if it is
> intended.) And how much power would the commissioners have? Would the
> commission be authorized to mandate that presidential electors be by chosen
> by district or perhaps allocated proportionately? Does the third sentence
> limit the scope of the first? ****
>
> ** **
>
> Finally, does the combination of “10-year terms” with their holding of
> office “during good behavior” implicitly reject the idea that “during good
> behavior” is a way of describing life tenure in an office, subject to
> removal only by impeachment?****
>
> Here is Rick’s proposed amendment (
> http://hive.slate.com/hive/how-can-we-fix-constitution/article/end-the-voting-wars
> ):****
>
> “Article 1, Section 4 should be amended to read:****
>
> “The time, place, and manner of holding elections for senator and
> representative, and the place and manner of holding elections for
> president, shall be established by the U.S. Elections Commission. The
> commission shall receive adequate funding from Congress. It shall establish
> rules and regulations for uniform national elections consistent with the
> goal of ensuring that all eligible voters, and only eligible voters, shall
> be entitled to cast a vote which shall be accurately counted. The (three)
> commissioners shall be nominated by the president for 10-year terms,
> subject to confirmation by a three-quarters vote of the United States
> Senate. Commissioners shall hold their offices during good behavior, and
> shall, at stated times, receive for their services, a compensation, which
> shall not be diminished during their continuance in office.”****
>
> ** **
>
> Mark S. Scarberry****
>
> Professor of Law****
>
> Pepperdine Univ. School of Law****
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Mark Rush
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