Adam,
Nice post. I think that one thing that's missing from
Bauer's argument -- and often these kinds of debates
generally -- is a clear recognition of the difference
between preferred present-day policy outcomes and
constitutional rules. Bauer would seem to prefer that
the Court create a constitutional rule that
Vermont-style campaign finance laws violate the First
Amendment because he thinks that that kind of a change
to the current system would lead to an impoverished
public debate in which wealthy interests have even
more influence than they do now. But attempting to
craft constitutional rules in order to achieve
desirable policy outcomes based on present
circumstances is dangerous -- it creates a huge
potential for unintended consequences.
As a thought experiment, let's assume that Bauer is
right: the Court upholds the Vermont laws, other
states (or even Congress) follow Vermont's lead, and
the result is that it is far more difficult for groups
of all kinds to engage in politics. Even in that
scenario, the sky would not have fallen. As the
results of those laws become apparent, the legislature
could then pass additional laws to address the changed
circumstances. In a "doomsday" scenario like the one
I (fairly or unfairly) attribute to Bauer here, the
obvious answer (for progressives, anyway) would be
public finance and free air time laws, which would
allow groups of all kinds to engage in political
debates in a way that better serves the interests of
political equality than the current private campaign
finance system does. Bauer might argue that such
reforms would never be passed by a legislature that is
entrenched in the way he envisions -- but those kinds
of arguments veer so far into the realm of the
counterfactual as to be more or less meaningless. The
point here is that enshrining one particular vision of
desirable policy into the Constitution is dangerous --
as your analogy to _Lochner_ aptly implies.
Thom Cmar
thom@post.harvard.edu
--- Adam Lioz <alioz@pirg.org> wrote:
Mr. Bauer writes about the VT case: "Sparing
officeholders from political
pressure and competition merely lowers the cost to
established interests
while raising the price of influence for the
minority or novel views."
This nicely captures a main thrust of a key argument
in defense of VT's law.
High-dollar fundraising and unlimited spending have
produced a system with
notably little competition or political
vulnerability for entrenched
interests. Empirical research has demonstrated that
contribution limits do
not insulate incumbents and can help challengers
both by narrowing
fundraising disparities in certain cases (Eom and
Gross, available at
http://uspirg.org/uspirgnewsroom.asp?id2=24587) and
actually reducing
margins of victory (Stratmann, available at
http://uspirg.org/uspirg.asp?id2=8090
<http://uspirg.org/uspirg.asp?id2=8090&id3=USPIRG&>
&id3=USPIRG&).
Experience in Albuquerque, New Mexico suggests that
spending limits operate
similarly.
Of course the thrust of Mr. Bauer's post suggests
that structuring
democratic decision-making is an illegitimate
rationale for regulating
money-in-politics. Although Mr. Bauer argues from a
progressive point of
view, I would suggest that he falls prey to the
Lochner fallacy. As Cass
Sunstein has pointed out, both Lochner and Buckley
assume that there is a
pre-political (and hence just) set of relations and
that regulation merely
interferes with this natural state. But, leaving
campaigns unregulated is
anything but neutral-it benefits a particular type
of candidate, namely one
who has access to wealthy donors either because of
certain policy stances or
personal connections or (usually) both. As Burt
Neuborne has written, this
system cannot fairly be described as protecting the
autonomy of the
candidates (vs. FORCING them to spend time on
studying the issues) because,
like an arms race, candidates are not free to choose
whether to spend time
raising money or not-they are forced to dial for
dollars by the reality that
approximately 95% of the candidates who raise the
most money win elections.
I certainly agree with one part of Bob's post-let's
hope for this decision
soon so we can all stop guessing.
Sincerely,
Adam Lioz
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On
Behalf Of Rick Hasen
Sent: Wednesday, June 21, 2006 10:11 AM
To: election-law
Subject: Electionlawblog news and commentary 6/21/06
"The Arizona NVRA Decision"
Dan Tokaji has this
<http://moritzlaw.osu.edu/blogs/tokaji/2006/06/arizona-nvra-decision.html>
post on Equal Vote. A snippet: "My initial
impression is that the court's
interpretation of the NVRA is incorrect. In
particular, I don't think the
court's reasoning squarely confronts the strongest
argument against what
Arizona seeks to do under Proposition 200."
"The Vermont Case and the Control of Public Policy"
Bob Bauer has this new post
<http://www.moresoftmoneyhardlaw.com/news.html?AID=744>
.
"Ruling delights Loma Linda slow-growth group"
The San Bernadino County Sun offers this
<http://www.sbsun.com/news/ci_3960934> report,
which begins: "LOMA LINDA -
A judge's reversal of her earlier decision has a
conservation group hopeful
about the future of their initiative to limit
development in the city's
South Hills. 'It's just what we wanted and asked
for,' said Fredric D.
Woocher, an attorney representing Save Loma Linda in
the case. 'It allows
the processing of the initiative to go forward.
Hopefully, there will be an
election on it in November."" This case is a follow
on to the Padilla v.
Lever litigation, which is being heard en banc in
the Ninth Circuit
tomorrow.
Opinions on the Voting Rights Act Renewal
The Dallas Morning News offers this
<http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/D
N-voting_21edi.ART.State.Edition1.2221293.html>
editorial, Renew the Voting
Rights Act, and this
<http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/D
N-butler_21edi.ART.State.Edition1.2142ec9.html>
oped by Katharine Inglis
Butler, The Voting Rights Act is Unfair to Southern
States and Texas. See
also this ACLU
<http://www.civilrights.org/issues/voting/details.cfm?id=44510>
Press
release, urging a vote on a "clean" amendment, this
<http://www.fortwayne.com/mld/newssentinel/news/editorial/14867809.htm>
editorial urging renewal from Knight Ridder, and
Bilingual
<http://article.nationalreview.com/?q=OWE1Y2E5NjY0NmI4YzE1NTdjMGE3OGM2N2U4Yz
k2ZjI=> Bailout by Peter Kirsanow.
This AP
<http://www.dfw.com/mld/dfw/news/breaking_news/14867447.htm>
report
says that both
<http://electionlawblog.org/archives/005977.html>
amendments
being proposed today on the floor of the House have
little chance of
passage.
Florida's Manual Recount Rules for Touch Screen
Voting Machines Don't
Violate the Constitution
So holds
<http://www.ca11.uscourts.gov/opinions/ops/200416280.pdf>
the 11th
Circuit. Link via Howard
<http://howappealing.law.com/062006.html#015501>
Bashman.
"Bailouts and the Voting Rights Act: Observations
About Rick Hasen's
Proposals"
Gerry Hebert offers these interesting observations
<http://www.clcblog.org/blog_item-34.html> on the
proactive bailout
proposal.
UPDATE: Luke Peterson emails:
When it comes to the bailout provision of the VRA,
it is hard to argue with
Gerry Hebert. I would like to add one point to
Hebert's counter-arguments to
Hasen's proactive bailout proposal, and then add a
significant addition to
Hebert's proposal.
First, it should be remembered that prior to the
1965 VRA, the DOJ faced the
impossible burden of investigating and litigating
for injunctive action
against discriminatory devices, policies, and
practices. The task proved too
great a burden for the DOJ's limited resources.
Precisely for this reason
was Section 4 included in the Voting Rights Act. In
1982, Rep. Hyde's H.R.
3198 & 3473 introduced the notion of a bailout with
set criteria that would
allow a covered jurisdiction to bailout at any time
if it met the criteria;
thus providing an incentive to jurisdictions to seek
full compliance with
the VRA. Hyde's proposal would also have eliminated
the coverage mechanism
and preclearance requirements for all jurisdictions
except those that would
be covered by the language minority provision. The
House Judiciary committee
accepted (though in a dramatically altered form)
Hyde's argument that an
attainable bailout should be provided in the Act.
They roundly rejected,
however, the notion that the coverage formula be
virtually eliminated
because it would be a return to the "pre-1965
litigative approach" that
proved impossible for the DOJ.
I believe that the proactive bailout would place a
similar burden on the DOJ
as was felt under the "pre-1965 litigative
approach." I believe the task of
determining who may qualify for a bailout may prove
as onerous as the
pre-1965 task of determining who was violating the
previous voting rights
acts.
What is needed then is a proposal that provides
better incentive to
jurisdictions to seek bailout, while not placing an
excessive burden on the
DOJ.
I agree with Hebert's proposal, but would risk going
one step further. I
propose that the preclearance provision be
eliminated and replaced with a
quarterly report to the DOJ. Jurisdictions would not
be required to preclear
changes, only to report them, while the DOJ would
retain the right to
investigate and overturn voting changes which it
determines to be
discriminatory. In this report covered jurisdictions
would be required
detail all voting changes, the rationale behind
them, and a detailed report
on the jurisdiction's progress toward the bailout
criteria as currently
constituted.
There would be a number of advantages to such a
system. First, while a
quarterly report on all voting changes would be at
least as burdensome as
preclearance of all changes, because none of the
changes must be precleared
before they can go into effect, this would spell a
significant reduction in
the extent of federal intrusion into state autonomy,
thus strengthening the
renewed sections' chances of surviving judicial
scrutiny.
Secondly, because the quarterly reports will be
nearly identical to the fact
finding report that jurisdictions seeking bailout
must produce, there would
be a significant incentive to meet the bailout
criteria so that they can
file a single bailout request rather than quarterly
reports on an indefinite
basis.
Finally, as recent controversies have demonstrated,
there is significant
fear that the DOJ has ceased to impartially consider
preclearance requests.
If such truly is the case, or were to become the
case, preclearance would be
an undesirable mechanism for enforcement of the VRA
because it would then
become a shield to jurisdictions seeking to pass
discriminatory voting
changes. A quarterly report would rather make
proposed voting changes a
matter of record, force jurisdictions to explain
their motives, and allow
for public pressure on the DOJ if it fails to
investigate a change that
appears discriminatory.
I appreciate Hasen's proposal, above all for the
spirit in which it is
proposed. I feel that a proactive bailout is an
excellent idea, but would
place an excessive burden on the resources of the
DOJ. I hope the House will
give Hasen's proposal the consideration it deserves
and that this will be
the beginning of the debate the VRA renewal has
needed and, thus far,
lacked.
Tokaji: Why Process Matters
The present version of the Voting Rights Act
reauthorization bill (H.R. 9
<http://renewthevra.civilrights.org/view_from_hill/hr9.pdf>
) would make a
significant change to the legal standard under
Section 5
<http://www.usdoj.gov/crt/voting/42usc/subch_ia.htm>
. While this change is
important, I suggest in this post that the lively
debate over VRA renewal
has overemphasized the standard for preclearance
while underemphasizing the
importance of the preclearance process. That
process, which isn't changed by
the proposed amendment, creates a considerable risk
of partisan manipulation
and may not be adequate to protect minority rights
from the most pressing
threats. Congress would thus be well-advised to take
a hard look at the
preclearance process as well as the standard.
I start with the proposed amendment to change the
standard for granting or
denying preclearance. The amendment purports to
reverse the Supreme Court's
decision in Georgia v. Ashcroft, by providing that
compliance with Section 5
should be judged by a proposed redistricting plan's
impact on "the ability
of any citizens of the United States, on account of
race or color ... to
elect their preferred candidates of choice."
There's been considerable debate among academics and
advocates over whether
this change is a good idea. These competing views
are nicely represented in
this recent
<http://www.moresoftmoneyhardlaw.com/news.html?AID=742>
exchange between Bob Bauer and David Becker, as well
as in several of the
posts appearing in this
<http://electionlawblog.org/archives/cat_vra_renewal_guest_blogging.html>
ongoing conversation. Briefly (and at the risk of
oversimplification), the
debate focuses on whether it's acceptable to trade
off "safe" minority
districts, in which racial minorities have a high
likelihood of electing a
candidate of choice, for "influence" districts in
which there are enough
minorities to influence the selection of a candidate
but not enough to
control that selection. Georgia v. Ashcroft gives
some flexibility for
states to make such trade-offs.
While I think that this debate over the Section 5
standard is consequential,
I'm not sure the stakes are quite as high as it
might at first appear.
That's because the proposed amendment leaves much to
be defined -- as did
Georgia v. Ashcroft.
It's important to bear in mind that the Justice
Department and the courts
will ultimately determine how an amended Section 5
standard is interpreted.
And the phrases "ability ... to elect" and
"preferred candidates of choice"
leave plenty of room for interpretation. Does the
ability to elect mean
minorities' ability to control the outcome? By
themselves? And does
"preferred candidate[] of choice" mean only the
first-choice candidate? I
expect that the courts, including the Supreme Court,
will ultimately
interpret these terms in a way that leaves
considerable flexibility for
covered jurisdictions. If anything, the new Supreme
Court -- with Justice
Alito and Chief Justice Roberts replacing Justice
O'Connor and Chief Justice
Rehnquist -- is likely to have a stronger
inclination to protect state
sovereignty than the old Court. A state-sovereignty
orientation would
presumably lead the Court to read the new standard
in such a way as to allow
state and local jurisdictions flexibility (assuming,
of course, that it
upholds Section 5's constitutionality).
Take, for example, a state in which two of ten
congressional seats are
presently "safe" black districts, in which
minority-preferred candidates
have a near-certain chance of being elected. Should
the state be permitted
to get rid of one of those safe districts, to create
two others in each of
which a minority-preferred candidate has a 50% of
being elected? Or to
create three districts, in each of which a minority
preferred candidate has
a 33% chance of being elected? I suspect that the
Court will allow
trade-offs of this sort, if and when the matter
comes before it.
As a practical matter, however, application of the
new standard will
initially lie in the hands of the U.S. Department of
Justice. It's therefore
not just the courts -- in fact, not mainly the
courts -- that will be
interpreting and applying the new Section 5
standard, assuming that it
remains in the reauthorization bill and that its
constitutionality is
upheld. That power will instead lie, in the first
instance, with the Justice
Department.
This brings me to an aspect of Section 5 that has,
in my opinion, received
too little attention: the process that's followed in
preclearing proposed
electoral changes. Section 5 allows covered
jurisdictions to obtain
preclearance through either the Justice Department
or a federal court
(specifically, the U.S. District Court in
Washington, D.C.). In the vast
majority of cases, covered states and counties
choose to seek preclearance
from the Justice Department, which is much less
costly and cumbersome than
going to court. And in the overwhelming majority of
those cases, including
redistricting cases, preclearance is granted.
This is a process that leaves considerable room for
partisan manipulation.
In the 1990s, ideological conservatives and some
Democrats claimed that the
Justice Department was engaged in such manipulation,
under the Bush I
Administration. Specifically, it was alleged that
Justice wrongly denied
preclearance, in order to compel the creation of
districts in which
minorities constituted a majority (or even a
supermajority) of the
population. While there's considerable debate over
the Justice Department's
motives, and over the extent to which the creation
of such safe minority
districts helped Republicans, it's generally
believed that they derived some
benefit.
The 2000s have again seen claims that the Justice
Department is manipulating
the preclearance process, although those complaints
now come from a
different quarter. This time, the claims focus on
controversial decisions of
the Bush II Justice Department to preclear the Tom
DeLay-backed Texas
redistricting plan and Georgia's photo ID bill.
Internal memos leaked to the
Washington Post reveal that the decisions to
preclear both changes was made
against the recommendations of career staff, who
concluded that they would
harm minority voters.
In an important respect, these new concerns are more
serious than those
raised in the 1990s. In the 1990s, the allegations
of partisanship had to do
with "false negatives" -- that is, with the Justice
Department's supposedly
wrongful decision to deny preclearance. But such
false negatives are subject
to correction: a covered entity may seek judicial
preclearance from the
district court in Washington (albeit at considerable
expense) if it believes
that Justice has erred in denying preclearance. On
the other hand, where the
Justice Department erroneously grants preclearance
-- a "false positive" --
there's no judicial remedy. That's because the
Justice Department's decision
to grant preclearance is final and not subject to
judicial review.
One point on which those across the political
spectrum ought to be able to
agree is that the present preclearance process is
subject to partisan
manipulation. In a sense, this reflects an oddity
that has always existed
under Section 5 -- specifically, that an enforcement
agency (the Justice
Department) is charged with performing an
adjudicative function. This
process worked pretty well for many years, mostly
because Democratic and
Republican administrations were both committed to
discharging their duties
faithfully, in a way that would promote equal
participation and
representation by racial minorities. More recent
developments, however,
raise serious doubts about whether Justice can be
trusted to administer its
preclearance duties evenhandedly, without regard to
partisan consequences.
These doubts are only exacerbated by the
proliferation of partisan election
administration rules like Georgia's photo ID law,
which threaten to impede
participation by racial minorities -- to the benefit
of the party in control
of both the state house and the White House.
Although it's less clear what should be done to fix
the problem of partisan
manipulation in the preclearance process, there are
at least three changes
that Congress should consider. One is to make
Justice Department decisions
to grant preclearance judicially reviewable. This
would undoubtedly increase
the costs of preclearance, but would reduce the risk
of partisan
manipulation of the process.
Another possibility, suggested
<https://ssl.tnr.com/p/docsub.mhtml?i=20050926&s=gerken092605>
by Professor
Gerken, is to replace the current "top-down" model
with a "bottom-up"
approach. Under this approach, civil rights groups
instead of the Justice
Department would have the initial duty of monitoring
changes and negotiating
with covered entities if they object. This approach
could reduce
preclearance costs, and could be effective if civil
rights groups are
compensated for their efforts. But it wouldn't
eliminate the risks of
partisan gamesmanship, since the Justice Department
would still have to
serve as a "backstop" making preclearance decisions
when civil rights groups
and covered jurisdictions can't arrive at a
negotiated agreement.
A third possibility is to take authority over some
preclearance decisions
out of the Justice Department's hands, and place it
in a bipartisan agency
-- one that, for example, consisted of two Democrats
and two Republicans --
with a majority required in order to grant
preclearance. In the event of a
deadlock, the dispute would ultimately wind up in
court. This would probably
drive up the costs of preclearance, since more cases
would likely be
resolved judicially rather than administratively. On
the other hand, it
would guard against the considerable risk of
partisan manipulation,
especially false positives, that exists under the
current process.
As I've discussed at greater length in a forthcoming
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896730>
article, I
think some combination of these three options is
probably optimal.
Alternatively, Congress might consider more limited
measures of promoting
transparency in the Justice Department's
decisionmaking, along the lines
that Mark
<http://www.acslaw.org/files/Section%205%20decisionmaking%201-30-06.pdf>
Posner has suggested. Whatever the approach
ultimately selected, it's
imperative that the preclearance process and not
just the standard receive
attention.
--Dan Tokaji
Witnesses Announced for Latest Senate Judiciary
Committee Hearing on VRA
Renewal
This
<http://judiciary.senate.gov/hearing.cfm?id=1955>
looks like a very
interesting hearing. So far, the Senate hearings
have been very substantive
and interesting, and certainly presenting a greater
diversity of views than
the House hearings.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
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