[EL] ELB News and Commentary 10/14/13
Rick Hasen
rhasen at law.uci.edu
Sun Oct 13 21:44:11 PDT 2013
"Lessig Explains His 'Originalist' Understanding of 'Corruption'"
<http://electionlawblog.org/?p=55967>
Posted on October 13, 2013 9:40 pm
<http://electionlawblog.org/?p=55967>by Rick Hasen
<http://electionlawblog.org/?author=3>
Josh Blackman blogs
<http://joshblackman.com/blog/2013/10/13/lessig-explains-his-originalist-understanding-of-corruption/>.
I guess the way I would think of it is similar to Josh's: would the
Framers have considered it to be an "abridgement" of "freedom of speech"
to limit campaign spending (or contributions)? Maybe in CAC's view
<http://theusconstitution.org/text-history/2268/rick-hasen%E2%80%99s-faulty-originalism>
I'm asking the wrong originalist question, though I am focusing on the
"key words and phrases" in the First Amendment. Could be---as they say,
I'm no originalist.
I just found it curious that Larry has built his edifice around the
construct of "dependence corruption" from Federalist No. 52, but the
kind of "dependence corruption" described in that pamphlet has nothing
to do <http://electionlawblog.org/?p=55919> with the kind of
institutional skewing of politics towards donors which concerns Larry
and CAC. Further, the last part of CAC's post
<http://theusconstitution.org/text-history/2268/rick-hasen%E2%80%99s-faulty-originalism>
seems to be about traditional (quid pro quo) corruption, which Lessig in
/Republic, Lost/ says he's not concerned with. From my HLR review
<http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>:
82 If the people are not corrupt, how is the system corrupt? Lessig
explains:
[Dependence corruption is] a corruption practiced by decent people,
people we shouldrespect, people working extremely hard to do what
they believe is right, yet decent people working with a system that
has evolved the most elaborate and costly bending of democratic
government in our history. . . . This corruption has two elements .
. . . The first element is bad governance, which means simply that
our government doesn't track the expressed will of the people,
whether on the Left or on the Right. . . . The second element is
lost trust: when democracy seems a charade, we lose faith in its
process. . . .Participation thus declines, especially among the
sensible middle. Policy gets driven by the extremists at both ends.
(pp. 8--9)
I guess I'm just confused about the scope of both the originalist
argument and its connection to the First Amendment.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Lee Atwater's Infamous 1981 Comments on How the Republican Party Can
Appeal to Racists in the Party, and a Modern "Joe the Plumber"
Analogue <http://electionlawblog.org/?p=55958>
Posted on October 13, 2013 11:31 am
<http://electionlawblog.org/?p=55958>by Rick Hasen
<http://electionlawblog.org/?author=3>
Listen
<http://www.thenation.com/article/170841/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy>
(via Political Wire
<http://politicalwire.com/archives/2013/10/13/atwater_on_the_southern_strategy.html>).
And if you think this is just old news, my most retweeted Twitter post
ever <https://twitter.com/rickhasen/status/388866326929760256>was a link
the other day to "Joe the Plumber's" website (which is a repost from
another website):
BWWH3TJCYAAv-34
<http://electionlawblog.org/wp-content/uploads/BWWH3TJCYAAv-34.png>
And Jeffrey Goldberg notes
<https://twitter.com/JeffreyGoldberg/status/389456583765159936> the
raising of the Confederate flag today in front of the White House:
BWd9MsBIMAAR5AD
<http://electionlawblog.org/wp-content/uploads/BWd9MsBIMAAR5AD.jpg>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Is the Roberts Court More Activist Than Other Courts?
<http://electionlawblog.org/?p=55956>
Posted on October 13, 2013 11:19 am
<http://electionlawblog.org/?p=55956>by Rick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak explains
<http://www.nytimes.com/2013/10/13/sunday-review/how-activist-is-the-supreme-court.html>
that by the numbers of overrulings, the Roberts Court is actually less
activist. This is a point Jonathan Adler
<http://www.volokh.com/2013/10/13/roberts-court-still-less-activist-court/>has
been making for a while. (Check out also the NYT interactive graphic
<http://www.nytimes.com/interactive/2013/10/13/sunday-review/ebb-and-flow-on-the-supreme-court.html?ref=sunday-review&_r=0>.)
But I'm not sure that aggregate numbers capture it all. Consider, for
example, three First Amendment overrulings of the Roberts Court:
Citizens Unite <http://www.law.cornell.edu/supct/html/08-205.ZX1.html>d,
U.S. v. Alvarez
<http://www.scotusblog.com/case-files/cases/united-states-v-alvarez/>
(the stolen valor case), and U.S. v. Stevens
<http://www.oyez.org/cases/2000-2009/2009/2009_08_769> (the "crush
video" case).
I would say that /Citizens United/ has had a great impact on U.S.
society (for good or for bad), while /Alvarez/ and /Stevens/ have had
virtually no impact.
So my question is whether there have been more /significant/ overrulings
by the Roberts Court than prior courts. I don't know the answer, and to
answer it I'd have to start by having a good, consistent definition of
"significant." I'll have to think about this for a while, and I don't
at all know how the Roberts Court would fare under this measure, but I
do think that this point is not captured in Adam's article or Jonathan's
posts.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Judge Posner's Voter ID Flip-Flop Slammed by Attorney Talking to
Indiana Law Blog <http://electionlawblog.org/?p=55954>
Posted on October 13, 2013 11:14 am
<http://electionlawblog.org/?p=55954>by Rick Hasen
<http://electionlawblog.org/?author=3>
See here
<http://indianalawblog.com/archives/2013/10/ind_decisions_j_120.html>:
Finally, the *ILB* asked an attorney familiar with the case for a reaction:
For Judge Posner now to admit he was wrong but then blame the
lawyers for not giving him enough information by which he could
evaluate the suppression claims takes real chutzpah. He was well
aware of the history of race and class-based voter suppression in
this country. He also had no record of voter fraud in front of him,
yet placed no burden of proof on the State while holding Crawford's
attorneys to an impossible standard.And if they presented him with
such an anemic record, why did Judge Evans, and later Judges Wood,
Williams and Rovner en banc, who looked at the same evidence, get it
right while Posner got it wrong?
The consequences of this mistake were immense. Had Posner switched
his vote, Judge Sykes may have as well, and the odds of SCOTUS
hearing this case decline exponentially. Indiana's law would thus
not have become a model for other voter suppression laws across the
nation, and /Crawford'/s majority opinion may have been written by
Judge Evans, striking down Indiana's law. That would have
dramatically altered the course of election law and set a completely
different tone and direction, particularly in light of Posner's
prodigious reputation.
UPDATE: MORE <http://www.bradblog.com/?p=10303#comment-509455> from
Crawford Plaintiffs' attorney Bill Groth.
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Posted in voter id <http://electionlawblog.org/?cat=9>
"CAC on 'Bad Originalism" <http://electionlawblog.org/?p=55952>
Posted on October 12, 2013 5:00 pm
<http://electionlawblog.org/?p=55952>by Rick Hasen
<http://electionlawblog.org/?author=3>
Josh Blackman weighs in.
<http://joshblackman.com/blog/2013/10/12/cac-on-bad-originalism/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Brown nixes Democrats-friendly initiative reform measure"
<http://electionlawblog.org/?p=55950>
Posted on October 12, 2013 4:13 pm
<http://electionlawblog.org/?p=55950>by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/govbeat/wp/2013/10/12/brown-nixes-democrats-friendly-initiative-reform-measure/>:
"California Gov. Jerry Brown (D) has vetoed a measure that would have
severely limited the ability of wealthy activists and corporations to
use paid signature gatherers to get initiatives on the ballot."
Here is Brown's veto statement
<http://gov.ca.gov/docs/AB_857_2013_Veto_Message.pdf>. I viewed the
measure as likely unconstitutiona
<http://www.law.uci.edu/news/in-the-news/2013/djournal_hasen_092513.pdf>l.
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Posted in direct democracy <http://electionlawblog.org/?cat=62>,
petition signature gathering <http://electionlawblog.org/?cat=39>
"Keynote Address of Prof. Richard L. Hasen Given to the Voting Wars
Symposium, March 23, 2013? <http://electionlawblog.org/?p=55948>
Posted on October 12, 2013 4:09 pm
<http://electionlawblog.org/?p=55948>by Rick Hasen
<http://electionlawblog.org/?author=3>
I have posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2339193> on SSRN
(forthcoming, /Journal of Law and Politics/). Here is the abstract:
This is a lightly edited version of the keynote address Professor
Hasen delivered to the Journal of Law and Politics: The Voting Wars
symposium held at the University of Virginia on March 23, 2013. The
address draws from his book, THE VOTING WARS: FROM FLORIDA 2000 TO
THE NEXT ELECTION MELTDOWN
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>,
published by Yale University Press in the summer of 2012.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>
"Rick Hasen's Faulty Originalism" <http://electionlawblog.org/?p=55945>
Posted on October 12, 2013 4:05 pm
<http://electionlawblog.org/?p=55945>by Rick Hasen
<http://electionlawblog.org/?author=3>
CAC:
<http://theusconstitution.org/text-history/2268/rick-hasen%E2%80%99s-faulty-originalism>
Professor Rick Hasen accuses our client, Harvard Professor Lawrence
Lessig, of practicing "bad originalis[m]
<http://electionlawblog.org/?p=55923>" in urging the Justices of the
Supreme Court, in /McCutcheon v. FEC/, to hold that the federal
aggregate contribution limits combat corruption, as the Framers of
the Constitution understood that term. This is a serious charge.
Hasen is one of the leading lights of election law, and his
arguments deserve close consideration. But Hasen is not an
originalist, and his arguments about what is "good" and what is
"bad" originalism, and his account of the Constitution's text and
history, all fall flat.
Sam Bagenstos <https://twitter.com/sbagen/status/389116623161790464>:
"[CAC's] argument isn't an appeal to the kind of originalism
conservative justices say they practice."
For more on the problems with the dependence corruption originalism
argument of Lessig and Teachout, see Bruce Edward Cain, Is Dependence
Corruption the Solution to America's Campaign Finance Problems?
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2267187>, Cal. L.
Rev. (forthcoming 2013); Seth Barrett Tillman, Citizens United and the
Scope of Professor Teachout's Anti-Corruption Principle
<http://ssrn.com/abstract=2012800>; The Original Public Meaning of the
Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout
<http://ssrn.com/abstract=2012803>(both in Northwestern Law Review Colloquy)
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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