Time to Give Back the First Amendment?

Here is what our politics look like, courtesy of the First Amendment:

One night last month, Mitt Romney strode into a dining room above Central Park that was packed with dozens of his wealthiest supporters, gathered there by a group of former campaign aides, to talk about his bid for the White House.

The event was not a fund-raiser for Mr. Romney’s campaign, however, but for Restore Our Future, a political action committee founded by his allies. And only when Mr. Romney left the room did one of the group’s officials stand up to brief the donors on their plans: to raise and spend millions of dollars in unrestricted campaign donations — something presidential candidates are forbidden to do themselves — to help elect Mr. Romney president.

A far more telling statistic: just 35 donors donated more than 80 percent of the money raised by Republican-leaning Super PACs, while just 23 donors donated more than 80 percent of the money raised by Democratic-leaning Super PACs.

This is preposterous.  This is 58 donors with a heck of a lot of things to say. Whatever happened to the other 300 million?

If this is what American Democracy must look like as demanded by the First Amendment, it must clearly be time to give it back.  

Giving Back the First Amendment

To those who want to see the Supreme Court adopt a strict scrutiny standard for gender discrimination, I say, be careful what you wish for.  Adoption of any such standard would likely render Title IX unconstitutional, and myriad other federal and state laws.  This is the lesson of the Court's bizarre race jurisprudence.

My response is to give back the 14th Amendment. 

The same goes for the First Amendment.  Just this morning, the New York Times editorial once again chastised the Court's notorious Citizens United decision for allowing the infusion of so much money into our political system.  From the editorial:

When the Supreme Court ruled that the government may not ban campaign spending by corporations in the landmark Citizens United decision last year, it argued that disclosure of contributions would protect American democracy from hidden corporate agendas.

The court reasoned that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

American elections have since been flooded with corporate money. And the court’s reasoning is proving to be wrong: Shareholders of most American companies can’t determine whether corporate campaign spending is in their best interest because they haven’t been told how the companies are spending in political races.

Of course the Court was wrong.  Citizens United is not about the conservative justices' best guess about what a healthy democracy needs and wants.  It cannot even be pretended that this is so.  Instead, the case, as most others, is about ideology and the political preferences of the justices in the majority. 

If this is not an activist decision, then the concept has ceased to have any meaning.

The answer is usually that Citizens United is demanded by the First Amendment.  This is the one that bars Congress from "abridging the freedom of speech."  If the First Amendment in fact demands the conclusion the Court reached in Citizens United, then it is time to give back the First Amendment as well.  

While we are at it, we might give back a few others.  The Second Amendment is an easy target.

Writing Supreme Court Opinions

I often ask my students why they think the U.S. Supreme Court hands down written opinions. The question traditionally comes on the heels of a maddeningly if unnecessarily complicated opinion, when the justices choose to join parts of a majority opinion but not others, choosing instead to concur in part or in the judgment. Just this past week, for example, during our discussion of Thornburg v. Gingles, we encountered the following:

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. ---. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. ---. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. --. 

In Gingles, the Court was assigned the task of interpreting the recent Amendments to Section 2 of the Voting Rights Act. Setting aside for the moment the question of interpretive philosophy, why did the Court feel compelled to issue an opinion totaling close to 25,000 words, and with so little agreement among the justices? In specific reference to constitutional cases, why doesn’t the Court simply announce its judgment and nothing more, that is, why doesn’t it simply tell us who wins and who loses and save the trouble of writing opinions?

The usual answer is the guidance rationale. That is, the Court writes opinions as a guide to the future, for lower courts, the relevant political actors, and the public at large. But according to Adam Liptak’s recent piece in the N.Y. Times, this is no longer a rationale that makes any sense, if it ever did. In Liptak’s words, “In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”

What, then, to make of the justices’ penchant for expressing themselves? That is, to put the question in a way that actually makes sense: who in the world are the justices’ talking to?

From "Deem and Pass" to Citizens United

The debate over health care reform is now in its final stage. The Democratic House leadership is considering use of a self-executing rule known as the "deem and pass," which Republicans criticize as ultimately unconstitutional.

This is the latest example of everything that is wrong with American politics.

It also exemplifies why campaign finance in general, and Citizens United in particular, troubles me as much as it does.

Go back to the last time Republicans held a majority in Congress, from 2005 to 2006. During that time, the Republican leadership used the same self-executing rules they now deride no less than 35 times, and even defended them in court. Needless to say, Democrats criticized them then, yet defend them now.

Similarly, yesterday's Washington Post published an editorial by Tom Scully, former administrator of the Centers for Medicare & Medicaid Services from 2001 to 2004, that criticized the price tag on Obama's health care plan:

If we want health coverage for all Americans, it has to be paid for. The tough choices needed to reduce this massive gap: Cut spending and/or raise taxes. Raise the Medicare retirement age as we did with Social Security. This year's $1.6 trillion deficit is approaching 11 percent of GDP. That's unsustainable. We can't expand health subsidies until we get the deficit under control.

In case the reader missed it, this is the same Tom Scully who, according to Bruce Bartlett, former Deputy Assistant Secretary for economic policy at the U.S. Treasury Department, "was responsible for one of the most reprehensible episodes in recent American political history." This was the passage of the "totally unfunded Medicare Part D program that will cost taxpayers roughly $1 trillion over the next decade--that's $1 trillion more than Obama's plan, which is fully paid for according to the Congressional Budget Office." According to Bartlett, Scully was critical to the passage of Medicare D, "because he personally hid from Congress critical details about its cost that would have torpedoed the legislation had those facts been known prior to the congressional vote in 2003."

Taken together, these episodes led Andrew Leonard to write that "healthcare reform hypocrisy goes supernova." Norm Ornstein similarly asks, "is there no shame anymore?"

Note the problem: politicians can say whatever they want, whenever they want to say it, yet voters rarely hold them accountable for it. How could the same practice be used by congressional leaders one term yet criticized by the same leadership in subsequent years? One view clearly points to the hypocrisy that inheres to the politics of the day. Fair enough. But a view just as strong points to the American voter and how little interest s/he pays to what happens in the world of politics. The voter does not care, a fact that politicians of all stripes know full well.

The implications are dire. The argument for competitive elections, for example, hinges on a view of voters as political animals, engaged in the politics of the day and aware of the debates around them. To have a choice, in other words, demands a reasoned choice, a rational choice among competing alternatives.

This is why the campaign finance debate should give us pause. A view of the First Amendment as expressed by the majority in Citizens United places heavy demands on the citizenry. To say that the cure for speech must be more speech implies that the listener can discern fact from fiction, right from wrong. At the very least, it implies that there is somebody at the other end of the speech paying attention.

But the health care debate teaches us exactly the opposite. The public is hardly paying attention, and sophistry is the order of the day.

This is depressing indeed.

The Chief Justice Strikes Back: Is he Right?

Chief Justice Roberts, apparently, was not happy by the fact that the President used part of his State of the Union address to express his displeasure with the Court's decision in the Citizens United case. I'm not with the Chief on this one.

As my colleague Neil Siegel has argued, the Chief is in the process of changing a fair amount of the Court's jurisprudence. When the Executive Branch strikes back, as the President did at the State of the Union, the Executive Branch is performing its checks and balances function. The hopeful consequence of this clash between the Executive and the Judiciary is that we will have a healthy debate in this country about both the judicial power and the executive power. What role should courts play in a democratic society and what are the limits of executive power? These are both important questions that we must examine continually. If the Chief does not enjoy being called out during the State of the Union address (and I can't imagine why he would enjoy it), he can, as some of his colleagues have, refuse to attend. Moreover, the beauty of our system, the Chief will get his opportunity to pushback against the Executive. The hope is that our republic will be better for it.

In Defense of the Congressional Black Caucus?

An article in today's New York Times depicts the Congressional Black Caucus as a "fund-raising powerhouse." I first saw the headline last night, when it appeared on the Times' website sometime in the evening. My initial reaction was puzzlement, yet also curiosity. How could this possibly be news?

My second reaction to all of this, to the lavish and opulent parties on the Potomac, large money contributions, and trips to a Mississippi Casino resort?

Long live the First Amendment.

That, of course, is a reference to the recent Citizens United case. The example of the CBC shows us democracy at its worst, with major corporations contributing inordinate amounts of money supporting their candidates of choice.

Here's the puzzlement: why is it news, and big news at that, for a caucus to receive contributions from major corporations? According to the headline, the corporations are seeking to buy influence, and the article describes instances when such influence leads to changes in policy on the part of caucus members. Thusly put, it sounds bad, slimy, even immoral. It might even run counter to our intuitions about how our democracy ought to work. But that cannot possibly be news. I would have thought this is true of Congress as a whole, which led to the passage of our campaign finance laws in the first place. So why the article?

One answer may be that we expect more form our black legislators, most of whom are elected from majority black districts. Under federal law, black voters must have the same opportunity as other voters to elect their candidates of choice, an opportunity that is largely afforded by these majority black districts. How to defend the creation of these districts if representatives elected from them are no different from members of Congress as a whole? Worse yet, voters within these districts often have no other choice than the incumbent representative.

In response, members of the Caucus say all the right things. "We're unbossed and unbought," says Rep. Barbara Lee, the chairwoman of the Caucus. Elsie Scott, chief executive of the CBC Foundation, acknowledges that the companies "are trying to get the attention of the C.B.C. members," yet she doesn't "think there is anything wrong with that." These companies simply want to deal with people in positions of influence. This is not to say that the caucus would turn on its constituents.

I was unmoved about all of this until I came to the last part of the article, which described the success of the rent-to-own industry within the caucus. According to the article, "few of these alliances have paid off like the caucus' connection to rent-to-own stores." The industry acknowledges as much. In an industry newsletter, the president of the rent-to-own association wrote that “[w]ithout the support of the C.B.C. . . . our mission in Washington would fail.”

This took me back to my first year of law school, when we were discussing the unconscionability doctrine and the Williams v. Walker-Thomas case. This was a case brought by a plaintiff against the Walker-Thomas Furniture Company for its predatory rent-to-own practices. The facts were pretty onerous. Plaintiff Williams had made purchases through the years totaling $1,800, and had made payments totaling $1400. She then defaulted on the contract, and the furniture store sought to repossess every item purchased by Ms. Williams, irrespective of how much money she had already paid. This was, according to the D.C. Circuit, unconscionable.

The day we discussed this case in law school remains clear on my mind. Some students argued the law, and how the economics of renting to own in poor and minority communities necessitates the Walker-Thomas repossession policy. It was either this policy, or else these poor and minority communities could not rent to own at all, because nobody would want to do business with them.

Some students, mostly students of color, responded just as vehemently against the policy. This is the part that sticks in my mind. One student in particular argued that this was outrageous and businesses would never get away with this outside minority communities. This was predatory, plain and simple. We were young and naive, to be sure, but we knew right from wrong.

Apparently, and shamefully, the CBC does not.

Part One-Working Through Citizens United: Confrontation

I've had a chance to re-read Citizens United (CU), the Supreme Court's latest campaign finance decision and upon re-reading I've found the majority much more interesting than I did on the first reading.  In a series of posts, I will work through the Court's CU reasoning.  In this post, I make the point that the Supreme Court wanted to reach the constitutional question.  Even though the Court had an option of avoiding the constitutional question, the simple fact of the matter is that the Court sought a confrontation with Congress on this issue.

On Judging, Race and the Game of Basketball

I was at a girls high school basketball game last week when the most amazing thing happened. It was a game between my local high school, middle class and predominantly white, and a high school from Indianapolis, which happens to be predominantly black. The teams reflected their schools' student bodies and were mirror images of one another. The local team only had two black players, and the visiting Indianapolis team had only one white player. Their respective fans at the game were mirror images as well.

This game helped me understand many things, most notably the Ricci firefighters case, the Supreme Court's continued attacks on the use of race in public life, and even the recent Citizens United case.

However indirectly, this game is the reason the Voting Rights Act will not be among us much longer.

The game began uneventfully and remained so for some time. Over the span of a few short minutes, however, the complexion of the game changed and the Indianapolis team surged to a double-digit lead. One player in particular was clearly the best player on the floor. She could do anything she wanted. The game seemed over, and this was only the second quarter.

Then the tide changed, and it was then when things got curious.

Things got chippy, play tightened, and the local team began to chip away at the lead. What had been a 15 point lead became 9, then 5, and towards the end of the fourth quarter the game was close once again. I could give away one punch line, as it appeared in the local paper the next day. To paraphrase: the local girls high school team played with guts and great courage, hung in there, and ultimately won a hard-fought battle.

Or I could give you an alternative reality, the one deeply felt by the players and fans from the visiting team.

Go back to that time in the game when the visiting team held a double-digit lead. From that moment forward, there is no question that the complexion of the game changed. I wish I could say that one team began playing harder than the other. What I saw, and what fans from the visiting team saw as well, was a number of calls by the referees go against the Indianapolis team. Not just a few calls, mind you, but just about every close call. Whether a foul, a walking violation, or who knocked the ball out of bounds, the calls went largely to the home team.

I happened to be sitting close to a man who had traveled all the way from Indianapolis to watch the game. He was neither happy nor afraid to show it. He was clearly frustrated, at one point yelling "let us compete;" at another, "you're not letting us play!" But he was not alone. The coaches soon showed their frustration as well, and so did the players. The star player never stopped playing, mind you, but by the end of the game, you could see that her demeanor changed. She was still smiling, but it was not a confident, assertive smile. By then, it was more of an incredulous smile. She knew she was beat and there was nothing she could do to stop it. As for the fan, the last straw came with 20 seconds left, when the refs called a phantom traveling violation on the Indianapolis team. The man got up from the bleachers, mumbled some choice words, and stormed off.

This game offered alternative realities. From the same set of facts, one side rejoiced in their hard-fought victory, the other left angry and feeling cheated. The fans and players saw and experienced completely different games. If asked, both sides would argue the other side is crazy for feeling the way they did.

In the end, there was only one reality that mattered: the referees'. They made the calls, disputed or not, and there was no way to appeal them.

Now, I don't think they were biased, at least not overtly. They did happen to be white, all three of them, and most of their calls did happen to go against the Indianapolis team. But by most objective markers, something was awry (at one point, for example, the foul differential was 7 fouls to 1). One side felt it deeply; the other was indifferent, maybe incredulous.

I could not help but think of Chief Justice Roberts' balls and strikes analogy during his confirmation hearings (he would only call cases as he saw them, no differently than calling balls and strikes). If only judging were that simple.

More troubling still, what to do when our realities differ as markedly as they sometimes do, and often along racial lines?

Thoughts on Citizens United

I am a big fan of the First Amendment. A big one. What's not to like about its ringing endorsement of free speech, religion, and assembly?

But I am also a big fan of democracy and fair elections.

That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.

The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."

Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?

One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.

A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.

Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."

In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?

Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.

This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."

Something in our jurisprudence has indeed gone awry.

Citizens United on the Way?

At the close of oral argument yesterday, the Supreme Court marshal announced that the justices would hold a special session on Thursday at 10:00am. It appears that the long wait for the Court's ruling in Citizens United v. Federal Election Commission will finally come to an end.

Nothing gets me more excited than seeing professed fans of judicial modesty carving up federal laws and molding them to their liking while overturning long-standing, settled precedent. With a straight face.

I for one can't wait.