Criminalizing Politics

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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

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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

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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

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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

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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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The Candidate of Coercive Democracy

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.  

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America’s Class Divide: Scribes v. Producers

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.

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