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 United States has within its constitutional

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 U.S. 651 (1884)."

http://supreme.justia.com/us/110/651/case.html



How the Yarborough Court grounded its reasoning:



THE KU KLUX CASES, 110 U.S. 651, 666-67 (1884):

"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

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 U.S. 651, 667]   has been

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

United States has within its constitutional 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."



"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 U.S. 651, 658]   of which is superior to the general government,

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 US v Classic (a case that ought to have been,

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 United States. Is there therefore no

power in congress to protect the treasury by punishing such theft and

burglary? Are the mails of the United States, and the money carried in

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 United States, and the laws which confer that

jurisdiction. [110 U.S. 651, 659]    [...]"



"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 US 651, 657 (1884); In re Coy, 127 U.S.

731 (1888), Logan v. United States, 144 U.S. 263 (1892); Wiley v.

Sinkler, 179 U.S. 58, 64 (1900); Swafford v. Templeton, 185 U.S. 487

(1902); United States v. Mosley, 238 US 383 (1915);, Hague v. C.I.O.,

307 U.S. 496, 508 (1939), U. S. v. CLASSIC, 313 U.S. 299 (1941). And

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. U. S. v. CLASSIC, 313 U.S. 299 (1941) [citing Ex parte

Yarbrough, supra; Logan v. United States, supra]"

-- U. S. v. CLASSIC, 313 U.S. 299 (1941)



--

Paul R Lehto, J.D.

P.O. Box 1

Ishpeming, MI  49849

lehto.paul@gmail.com

906-204-4026 (cell)

--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul@gmail.com
906-204-4026 (cell)
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