| Subject: Re: [EL] Caperton, Citizens United, & Clarence Thomas |
| From: Bill Maurer |
| Date: 2/17/2011, 6:17 PM |
| To: Paul Lehto |
| CC: "Smith, Brad" <BSmith@law.capital.edu>, "election-law@mailman.lls.edu" <election-law@mailman.lls.edu> |
Actually, I support both Citizens United and
Yarborough. Nothing in the former undermines my belief that Congress can
outlaw beating people to prevent them from voting or paying them not to vote or
to vote a certain way. The Court in Yarborough was talking about the
actions of the Klan during reconstruction and not, say, the possibility that Mugwumps
United might use money to put out a praxinoscope presentation about why people
shouldn’t vote for James G. Blaine.
-----Original
Message-----
From: Paul Lehto [mailto:lehto.paul@gmail.com]
Sent: Thursday, February 17, 2011 6:06 PM
To: Bill Maurer
Cc: Joseph Birkenstock; Allison Hayward; Smith, Brad;
election-law@mailman.lls.edu
Subject: Re: [EL] Caperton, Citizens United, & Clarence Thomas
On
2/17/11, Bill Maurer <wmaurer@ij.org> wrote:
>
I find it interesting that you equate the publication of a book,
>
pamphlet or political advertisement to be the equivalent of the
>
"violence and corruption" at issue in Yarborough, which was the
>
following:
>
the offence charged in this indictment is that the defendants conspired
>
to intimidate Berry Saunders, a citizen of African descent, in the
>
exercise of his right to vote for a member of the Congress of the United
>
States, and in the execution of that conspiracy they beat, bruised,
>
wounded and otherwise maltreated him; and in the second count that they
>
did this on account of his race, color, and previous condition of
>
servitude, by going in disguise and assaulting him on the public highway
>
and on his own premises.
It
was the US Supreme Court in Yarborough that equated racial violence
and
the free use of money, finding it just as absurd to suggest that
Congress
lacked the power to prevent violence in elections as it would
be
to suggest that Congress lacked the power to prevent the corrupting
influences
of the "free use of money." That court found that Congress
clearly
had the power to ensure free and fair elections, and it was
just
as obvious to that Supreme Court that similar power existed to
resist
the corrupting influences of the free use of money in
elections.
As
previously mentioned, the constitutional power relied upon in US v
Classic
is one that reaches individual private action and not just
state
action. As you know, only a few provisions, like that outlawing
slavery
in the 13th amendment, have been held to reach private
individual
action as opposed to mere state action.
>
Somehow, I think Congress's power under article I, section 8, subsection
>
18 to protect the right of suffrage under the Fifteenth Amendment
>
survived the Citizens United decision.
The
claim made in Citizens United is that Congress lacks the power
under
the Constitution (the First Amendment, specifically) to do
anything
but allow the "free use of money." I freely grant that the
comments
in the Yarborough case are not the case's holding, but remind
everyone
that the Court did say it would raise the gravest of concerns
to
suggest that Congress lacked the power to do anything to structure
elections
free from the corrupting influences of the "free use of
money."
Reasonable
people can easily disagree about where the proper line of
regulation
ought to be drawn. But the claims being made in Citizens
United
and supporting Citizens United are far more radical and go to
the
very power or ability of Congress to do anything. We've all heard
the
Congress "shall make no law" mantra quoting a portion of the First
Amendment
in favor of Citizens United quite a bit. Supporters of
Citizens
United have a deep disagreement with the basic approach of
the
Yarborough court. But contemporary major election law cases are
being
litigated largely through a First Amendment lens and are
ignoring
cases like Yarborough and US v. Classic that anchor
congressional
regulatory power to ensure free and fair elections in
other
sections of the Constitution, without any any real attempt to
distinguish
these cases, much less a robust discussion of them.
--Paul
R. Lehto, J.D.
>
-----Original Message-----
>
From: Paul Lehto [mailto:lehto.paul@gmail.com]
>
Sent: Thursday, February 17, 2011 8:04 AM
>
To: Bill Maurer
>
Cc: Joseph Birkenstock; Allison Hayward; Smith, Brad;
>
election-law@mailman.lls.edu
>
Subject: Re: [EL] Caperton, Citizens United, & Clarence Thomas
>
>
>
>
On 2/16/11, Bill Maurer <wmaurer@ij.org> wrote:
>
>>
Craig and Joe make interesting points regarding the interpretation by
>
>>
some of the Tillman Act. But Citizens United did not overturn the
>
>>
Tillman Act. So, it did not overturn "a century of law," if we
assume
>
>>
that what is being referred to as the "law" in that statement is the
>
>>
Tillman Act. Whether one calls Citizens United a reversal or
>
revolution in "law" or "dicta" or "principle" or
"philosophy", it is
>
nevertheless clear that even more than a century of it was overturned by
>
Citizens United (see case quotes below). We all know that not just the
>
holding but also the principles of CU are already cited in follow-up
>
cases arguing for the reversal of additional law beyond that expressly
>
discussed and reversed by CU.
>
>
>
>
To illustrate in part how far back the reversal or revolution goes,
>
>
see for example, the unanimous 1884 Supreme Court Ex Parte Yarborough,
>
>
which equated Ku Klux Klan violence with the unregulated or "free use
>
>
of money" as being two prime examples of election corruption so
>
>
shocking that it would be gravely dangerous to think the Constitution
>
>
contemplates no power to regulate these corruptions of "free"
>
>
elections - i.e. elections free from force, fraud, and undue
>
>
influence. You can check my characterization of the case against the
>
>
short quote and the extended quote below from Yarborough, as well as
>
>
the final quote from US v. Classic (1941) citing Yarborough with
>
>
favor, and pointing out that the election powers, unlike most
>
>
Constitutional powers, reach individual private action and not just
>
>
state action:
>
>
>
>
Whether the case quotes below are deemed dicta, philosophy, holding or
>
>
principle, it's unlikely such strongly worded concepts as those below
>
>
would pass the editing pens of all the justices in the final paragraph
>
>
of the case without it representing their actual belief.
>
>
Personally, I conclude that framing this discussion or debate here in
>
>
terms of whether or not a "century" of "law" was
"reversed" is a red
>
>
herring that disguises the importance of Citizens United.
>
>
>
>
Here is Ex Parte Yarborough, discussing Klan violence in elections and
>
>
the power to regulate threats to the integrity of elections:
>
>
>
>
"If the recurrence of such acts as these prisoners stand convicted of
>
>
are too common in one quarter of the country, and give omen of danger
>
>
from lawless violence, the free use of money in elections, arising
>
>
from the vast growth of recent wealth in other quarters, presents
>
>
equal cause for anxiety.
>
>
>
>
"If the government of the
>
>
domain no authority to provide against these evils -- if the very
>
>
sources of power may be poisoned by corruption or controlled by
>
>
violence and outrage, without legal restraint -- then indeed is the
>
>
country in danger, and its best powers, its highest purposes, the
>
>
hopes which it inspires, and the love which enshrines it are at the
>
>
mercy of the combinations of those who respect no right but brute
>
>
force on the one hand, and unprincipled corruptionists on the other.
>
>
The rule to show cause in this case is discharged, and the writ of
>
>
habeas corpus denied."
>
>
Ex Parte Yarbrough, 110
>
>
http://supreme.justia.com/us/110/651/case.html
>
>
>
>
How the
>
>
>
>
THE KU KLUX CASES, 110
>
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"It is as essential to the successful working of this government that
>
>
the great organisms of its executive and legislative branches should
>
>
be the free choice of the people, as that the original form of it
>
>
should be so. In absolute governments, where the monarch is the source
>
>
of all power, it is still held to be important that the exercise of
>
>
that power shall be free from the influence of extraneous violence and
>
>
internal corruption. In a republican government, like ours, where
>
>
political power is reposed in representatives of the entire body of
>
>
the people, chosen at short intervals by popular elections, the
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>
temptations to control these elections by violence and by corruption
>
>
is a constant source of danger. Such has been the history of all
>
>
republics, and, though ours [110
>
>
comparatively free from both these evils in the past, no lover of his
>
>
country can shut his eyes to the fear of future danger from both
>
>
sources. If the recurrence of such acts as these prisoners stand
>
>
convicted of are too common in one quarter of the country, and give
>
>
omen of danger from lawless violence, the free use of money in
>
>
elections, arising from the vast growth of recent wealth in other
>
>
quarters, presents equal cause for anxiety. If the government of the
>
>
>
>
provide against these evils,-if the very sources of power may be
>
>
poisoned by corruption or controlled by violence and outrage, without
>
>
legal restraint,-then, indeed, is the country in danger, and its best
>
>
powers, its highest purposes, the hopes which it inspires, and the
>
>
love which enshrines it, are at the mercy of the combinations of those
>
>
who respect no right but brute force on the one hand, and unprincipled
>
>
corruptionists on the other."
>
>
>
>
"That a government whose essential character is republican, whose
>
>
executive head and legislative body are both elective, whose numerous
>
>
and powerful branch of the legislature is elected by the people
>
>
directly, has no power by appropriate laws to secure this election
>
>
from the influence of violence, of corruption, and of fraud, is a
>
>
proposition so startling as to arrest attention and demand the gravest
>
>
consideration. If this government is anything more than a mere
>
>
aggregation of delegated agents of other states and governments, each
>
>
[110
>
>
it must have the power to protect the elections on which its existence
>
>
depends, from violence and corruption. If it has not this power, it is
>
>
left helpless before the two great natural and historical enemies of
>
>
all republics, open violence and insidious corruption.
>
>
>
>
More recent cases, like
>
>
but was not, expressly discussed or overruled in New York Board of
>
>
Elections v Lopez) have cited Yarborough with favor:
>
>
>
>
UNITED STATES V CLASSIC (1941) citing Ex Parte Yarbrough / Ku Klux
>
>
cases, among others, says:
>
>
>
>
"We know of no express authority to pass laws to punish theft or
>
>
burglary of the treasury of the
>
>
power in congress to protect the treasury by punishing such theft and
>
>
burglary? Are the mails of the
>
>
them, to be left at the mercy of robbers and of thieves who may handle
>
>
the mail, because the constitution contains no express words of power
>
>
in congress to enact laws for the punishment of those offenses? The
>
>
principle, if sound, would abolish the entire criminal jurisdiction of
>
>
the courts of the
>
>
jurisdiction. [110
>
>
>
>
"That the free choice by the people of representatives in Congress,
>
>
subject only to the restrictions to be found in 2 and 4 of Article I
>
>
and elsewhere in the Constitution, was one of the great purposes of
>
>
our Constitutional scheme of government cannot be doubted.
>
>
Obviously included within the right to choose, secured by the
>
>
Constitution, is the right of qualified voters within a state to cast
>
>
their ballots and have them counted at Congressional elections. This
>
>
Court has consistently held that this is a right secured by the
>
>
Constitution. see Ex parte Siebold, 100 US 371 (1870); Ex parte
>
>
Yarbrough, (Ku Klux Cases) 110
>
>
731 (1888), Logan v.
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>
Sinkler, 179
>
>
(1902); United States v. Mosley, 238 US 383 (1915);, Hague v. C.I.O.,
>
>
307
>
>
since the constitutional command is without restriction or limitation,
>
>
the right unlike those guaranteed by the Fourteenth and Fifteenth
>
>
Amendments, is secured against the action of individuals as well as of
>
>
states.
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>
Yarbrough, supra;
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>
--
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>
>
>
--
>
>
Paul R Lehto, J.D.
>
>
P.O. Box 1
>
>
>
>
lehto.paul@gmail.com
>
>
906-204-4026 (cell)
>
>
--
Paul
R Lehto, J.D.
lehto.paul@gmail.com
906-204-4026
(cell)