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.
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.
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.
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.
Donald Trump is not the most usual candidate in this campaign season. That distinction belongs to Lawrence Lessig, a professor at Harvard Law School and now a candidate for the Democratic Party’s nomination. It is unusual for a professor to choose the Presidency as his starter office and doubly so when he is running on a single issue—reform of the electoral system. Perhaps triply so, when he promises to resign immediately after getting his reforms enacted.
While I admire citizens of accomplishment who are willing to put themselves forward, some of Lessig’s core ideas pose a threat to free speech and indeed to liberal democracy itself. In his book, Republic Lost, Professor Lessig argues that the Framers believed that elections should make the government dependent upon the people alone. That dependence, according to Lessig, was the basic principle of republican government at the time. As result, Congress can legitimately regulate campaign expenditures to prevent “the distortion” that would occur from permitting legislators from becoming dependent on those who make campaign contributions or expend large sums of money on elections.
Lessig tries to use the rhetoric of republican government to recast the equality argument against permitting citizens to spend independently on campaigns or make substantial contributions to candidates. These interventions, according to this argument, make some citizens more politically influential than others. But Lessig’s focus on dependence demonstrates why an equality argument cannot be rooted in the original Constitution.
The Constitution emphatically does not provide any measure for deciding how public opinion becomes “distorted.” The constitutional dependence of representatives does not come from their being in sync with the opinions of their constituents on any set of issues but on their getting the most votes at periodic elections.
The most comprehensive study of the ideology in the legal profession ever has just been published. It confirms what most people have already intuited: lawyers as a whole lean strongly to the left. Within the profession, a few characteristics predict that a lawyer will be even farther left than the median. Females and government attorneys are even more liberal, and no category is farther to the left than law professors. So much for diversity in legal education.
But what is most interesting about the study was its comparison of the ideology of lawyers with that of other key professions. Academics as a whole are substantially more left-wing than lawyers, and journalists in the print media are even slightly more left-wing than academics. Thus, we now know that there is a shared ideology of what we might call the scribal class – those who seek to alter the world by their use of information and rhetoric.
This scribal class wields enormous political power.
Let us, for a moment, imagine someone who breaches the no-fly zone over the U.S. Capitol, calling forth bomb squads, triggering investigations at the FBI and NORAD, to protest perceived violations of the Second Amendment. Could the editorial pages of Washington find a limb high enough from which to hang him?
Probably not. But if a mail carrier pulls the same stunt to advocate restricting the First Amendment in the name of campaign finance reform—as gyrocopter pilot Doug Hughes did in April, for which he was indicted last week—his apologia is printed on the op-ed page of the Washington Post.
McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right. In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.” The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.
To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents. But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.
But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government.
It is remarkable that four of the leading likely candidates to become the next President of the United States have had close relatives who were Presidents or were serious candidates for President. The dominant Democrat, Hillary Clinton, is married to Bill Clinton. On the Republican side, Jeb Bush who is perhaps a slight frontrunner, counts both his father and brother among former Presidents. Mitt Romney, the Republican nominee for President in 2012, is also the son of George Romney, a prominent candidate himself. And Rand Paul is the son of Ron Paul, a perennial candidate for President.
In a relatively meritocratic nation, how can our candidates for President have such a hereditary cast? Perhaps it just happens that, of the 200 million adults in the United States, four of the best qualified candidates are close relatives of other Presidents or presidential candidates? But there is a less happy answer: our campaign finance system provides advantages to the politically well connected and hardly anyone is as well connected as the close relatives of those who have been Presidents or have run substantial campaigns.
This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.
A central doctrinal question in the case is whether the Court will apply its overinclusiveness/under inclusiveness test to these regulations.