The Paranoid Style and Senator Whitehouse


Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.

In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his  opening statement,  he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology.  How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service”  continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.

Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.

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Our Laws Should Encourage Business Leaders to Become Cabinet Secretaries

One of the best disruptions of Donald Trump has been his decision to nominate many officials to the Cabinet who have been enormously successful in business. Such appointees have run major organizations and thus can use their substantial management experience to impose order on the sprawling government bureaucracy. They also bring the perspective of business into the heart of government. A commercial republic can thrive only if, from time to time, officials set about lifting off the dead weights that democratic practices tend to place on the economy.

It is thus disheartening, if not surprising, that many Democrats in the Senate now want to eliminate most of the tax law that facilitates the transition of business people to government.  This law permits appointees to an administration to defer their capital gains on the stock they must sell to avoid conflict of interest. It thus encourages wealthy individuals to take government posts, because otherwise they would face an unpalatable choice: Pay a huge capital gains bill or hold on to stock that would create conflicts of interest in their new positions. The legislation greatly aids in eliminating conflicts of interest, because in exchange for the tax deferral, appointees must put their money in treasuries or index funds.

Thus, it is not an interest in good government, but in insular government that is behind the push to change this law.

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Criminalizing Politics


Kimberly Strassel has written a timely, bold, and important book explaining why a great many people are supporting Donald Trump for President. You wouldn’t know it from the book’s title, however, because the title — The Intimidation Game: How the Left Is Silencing Free Speech — reflects Ms. Strassel’s mission, which is to reveal the full extent of the threat to free speech and small d democracy brought on by the coordinated efforts of the political left since 2010 to silence conservative opposition.

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Bernie’s Avengers


Situated at the corner of Fairfax and Wilshire in Los Angeles, the iconic Johnie’s Coffee Shop was where Mr. Pink plotted a diamond heist in Reservoir Dogs and where Walter offered to obtain The Dude a toe in The Big Lebowski. But it has never witnessed malfeasance like the villainy that has unfolded there over the last few weeks. Johnie’s has been converted into a hub of unregulated advocacy for Bernie Sanders’ presidential campaign.

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Campaign Finance Restrictions Help Trump

Campaign finance reformers worry a lot about the influence of money in politics. But big money was not decisive this season. Jeb Bush had over $100 million in his campaign chest and associated Super PAC but went nowhere, at a cost of over $500 per voter. Ben Carson was well-funded and flopped. Over in the Democratic primary race, the less flush candidate came near to pulling off an upset against a powerful legacy candidate.

But even more importantly, this campaign season shows that celebrity can count for more than money. Donald Trump may be a billionaire, but he spent very little money up to this point compared to the other major candidates. What fueled his candidacy was celebrity. He had one of the most ubiquitous names in real estate for decades and one of the most watched reality shows on American television.

He was able to leverage that celebrity to secure vastly more free media exposure than any other candidate. With a savvy born of years in the New York media market, he knew exactly how to spin the Fourth Estate. The media was more than happy to return the favor. Trump makes great copy. And not only that, at least some in the largely liberal press corps were happy to see him split the Republican Party.

The more abstract point is that restricting money in campaigns, far from being a safeguard, increases the political power of celebrity.

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Why the Roberts Court Is Right about Campaign Finance and Free Speech

The Roberts Court’s decisions on campaign finance are its most important, because campaign regulation shapes the elections that affect all policy outcomes. No issue has generated more unyielding divisions on the Court. A fault line generally divides the principles of one set of the Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—from those generally in dissent—Justices Ginsburg, Breyer, Sotomayor, and Kagan currently (and Souter and Stevens when they were on the Court).

I have a new paper that explains the division of the justices. The majority believes that campaign finance regulations should be analyzed under free speech principles established in other contexts. The latter generally seeks to decide campaign finance regulation issues by considerations unique to campaign finance regulation.

This doctrinal disagreement plays out at a variety of levels. The Citizens United majority protected corporations in the context of campaign finance regulation as the Supreme Court has in other areas of the First Amendment. The dissenters would not have. That majority rejected as interests asserted for the regulation, like concerns over distortion or equality, when they were rejected elsewhere in First Amendment jurisprudence. The dissenters would have accepted such interests as justifications. The Justices also disagreed on the doctrinal tests to be applied to assess the bona fides of campaign finance regulation. The Citizens United and McCutcheon majorities applied traditionally stringent tests for justifying intrusion on First Amendment interests. The dissenters would have given deference to the legislature.

Finally, the majority and the dissenters persistently disagreed on the structure of the First Amendment itself.

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Confessions of a Campaign-Finance Racketeer

Dirty Money

The year was 1988, the first presidential election in which I was eligible to vote, and the trauma is still nearly too much to recount. The duo, brothers, arrived at my dormitory room at the University of Texas, hauled me from the intensity of my studies and dragged me to a polling place, where one wrenched my left arm behind my back and the other bodily placed the right on the voting machine and, depressing the lever, made my choice. As they released me into the chill and black of a November night, I demanded their names. “Koch,” they replied, their snarls announcing they made no apologies and felt no remorse.

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The New York Times Gets Money and Politics Wrong


Nicholas Confessore’s long front-page article in Monday’s New York Times, “Rauner and his Wealthy Friends Are Remaking Illinois,” raises concerns about the power of rich individuals to influence elections. The article both subtly and overtly argues that rich people are using their money to overturn the kind of government citizens of Illinois want.  But it actually shows the importance of preserving the First Amendment right to push back against the ingrained biases of the government and the media, like the New York Times itself.

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Money Can’t Buy Me Love


The 2016 presidential contest will put the lie, but probably not the kibosh, to the case for campaign finance regulation.  The contest’s results thus far—which, granted, is not very far—indicate what common sense says: money cannot protect candidates for whom citizens do not want to vote, nor are excessive sums necessary for those to whom the electorate is drawn.

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In Praise of John Roberts and His Reformulation of Political Questions

I am less critical of Chief Justice John Roberts than many other conservatives and libertarians. I do disagree with some of his decisions, as I disagree with some decisions by every justice, but there are far more that I agree with than disagree. When there is no clear precedent on the subject, like the recent recess appointment case, he generally goes with the original meaning. And even when there is lot of precedent he often slaloms with the skill of a gold medalist through the precedents to move the law toward the original meaning. See Free Enterprise v. Public Company Accounting Oversight Board.

One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.

But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofksy v. Kerry. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text.

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