Defining Officers of the United States

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion. The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part…

Read More

Who are Officers of the United States? The Inadequacy of the Buckley Standard

Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not.  Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause. For many years, the question of…

Read More

Rights Should Not be Restricted on the Basis of Appearances

A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not. The New York Times wrote a recent story about various Republican state legislators who are taking up this new rationale for voter identification legislation. The reporter’s implicit message is that such a justification is flimsy. And I tend to agree. If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality.  Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.

But the Times reporter never mentions that the Supreme Court itself has justified campaign finance law on a very similar perception rationale. Since Buckley v. Valeo, legislatures are permitted to regulate campaign expenditures and contributions, which the Court recognizes as protected by the First Amendment, if doing so is needed to avoid corruption or the “appearance of corruption.”

Why should perceptions justify restrictions on free speech rights and not voting rights?

Read More

Plutocrats Protected


Last summer, Jonathan Rauch, a senior fellow at the Brookings Institution, published a short e-book, Political Realism: How Hacks, Big Money, and Back-Room Deals Can Strengthen American Democracy. The over-the-top title notwithstanding, it made a concise, reasoned case against well-intentioned political reforms—including campaign-finance reform—that actually undermine rather than strengthen citizen participation in the republic. It is important to attract readers, so provocative titles certainly matter, and Rick Hasen makes his own attempt with Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. It is a dig at the Supreme Court’s 2010 opinion in Citizens United v. Federal…

Read More