Category: Politics

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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Stanford Law Review Online: Evaluating Merger Enforcement During the Obama Administration

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jonathan Baker and Carl Shapiro entitled Evaluating Merger Enforcement During the Obama Administration. Professors Baker and Shapiro take issue with Daniel Crane’s assertions in his Essay of July 18:

We recently concluded that government merger enforcement statistics “provide clear evidence that the Obama Administration reinvigorated merger enforcement, as it set out to do.” Three weeks later, in an article published in the Stanford Law Review Online, Professor Daniel A. Crane reached the opposite conclusion, claiming that “[t]he merger statistics do not evidence ‘reinvigoration’ of merger enforcement under Obama.”

Crane is simply wrong. The data regarding merger enforcement unambiguously support our conclusion and cannot reasonably be read to support Crane’s assertions. Crane’s conclusion regarding merger enforcement is inaccurate because he relies upon flawed metrics and overlooks or misinterprets other important evidence.

They conclude:

Our analysis of merger enforcement at the DOJ during the George W. Bush Administration—based on the enforcement statistics and more—showed that it was unusually lax and in need of reinvigoration. It is too early to reach a comparably definitive conclusion about merger enforcement at the DOJ during the Obama Administration, but nothing in Daniel Crane’s article seriously challenges our interpretation of the preliminary data as demonstrating that the necessary reinvigoration has taken place.

Read the full article, Evaluating Merger Enforcement During the Obama Administration by Jonathan Baker and Carl Shapiro, at the Stanford Law Review Online.

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The Partisan Foundations of Judicial Campaign Finance

The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.”  Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”

My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties.  In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections.  The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.

In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money.  The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.

In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance.  Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology.  However, decisionmaking by Republican judges is not responsive to money from liberal sources.  Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions.  The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats.  Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.

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Stanford Law Review Online: The Dirty Little Secret of (Estate) Tax Reform

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Edward McCaffery entitled The Dirty Little Secret of (Estate) Tax Reform. Professor McCaffery argues that Congress encourages and perpetuates the cycle of special interest spending on the tax reform issue:

Spoiler alert! The dirty little secret of estate tax reform is the same as the dirty little secret about many things that transpire, or fail to transpire, inside the Beltway: it’s all about money. But no, it is not quite what you think. The secret is not that special interests give boatloads of money to politicians. Of course they do. That may well be dirty, but it is hardly secret. The dirty little secret I come to lay bare is that Congress likes it this way. Congress wants there to be special interests, small groups with high stakes in what it does or does not do. These are necessary conditions for Congress to get what it needs: money, for itself and its campaigns. Although the near certainty of getting re-elected could point to the contrary, elected officials raise more money than ever. Tax reform in general, and estate tax repeal or reform in particular, illustrate the point: Congress has shown an appetite for keeping the issue of estate tax repeal alive through a never-ending series of brinksmanship votes; it never does anything fundamental or, for that matter, principled, but rakes in cash year in and year out for just considering the matter.

He concludes:

On the estate tax, then, it is easy to predict what will happen: not much. We will not see a return to year 2000 levels, and we will not see repeal. The one cautionary note I must add is that, going back to the game, something has to happen sometime, or the parties paying Congress and lobbyists will wise up and stop paying to play. But that has not kicked in yet, decades into the story, and it may not kick in until more people read this Essay, and start to watch the watchdogs. Fat chance of that happening, too, I suppose. In the meantime, without a meaningful wealth-transfer tax (the gift and estate taxes raise a very minimal amount of revenue and may even lose money when the income tax savings of standard estate-planning techniques, such as charitable and life insurance trusts, are taken into account), one fundamental insight of the special interest model continue to obtain. Big groups with small stakes—that is, most of us—continue to pay through increasingly burdensome middle class taxes for most of what government does, including stringing along those “lucky” enough to be members of a special interest group. It’s a variant of a very old story, and it is time to stop keeping it secret.

Read the full article, The Dirty Little Secret of (Estate) Tax Reform by Edward McCaffery, at the Stanford Law Review Online.

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Justice Sutherland on Conservatism

I’m reading the only (and pretty terrible) biography of Justice George Sutherland, which was written in the 1950s.  Sutherland was a gifted writer, and in this Olympic season I thought I’d reproduce this quote describing his Burkean approach to law:

“Among the games of the ancient Greeks there was a running match in which each participant carried a lighted torch. The prize was awarded not to that one who crossed the line first, but to him who crossed the line first with his torch still burning.  It is important that we should advance, but the vital thing is not that we should simply get somewhere–anywhere–quickly, but that we should arrive at a definite goal with the torch of sanity and safety still ablaze.”

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Defining Gridlock

After playing with several ideas on gridlock for a symposium that I’m participating in this Fall, I’ve settled on more of a “first-principles” approach to the problem.  So let’s start with this:  What do people mean by gridlock?  I think that there are four possibilities.

1.  There is a national consensus about what to do but our dysfunctional political institutions prevent that consensus from being enacted.

2.  Party discipline prevents elected officials in Washington from reaching necessary compromises and then persuading voters to accept those agreements as a consensus.

3.  Our political structures are preventing a national consensus from forming.

4.  There is no consensus in the country.

My view is that the real problem is #4.  #1 is an issue (mostly about the filibuster) but only at the margins.  Trying to change #2 is probably futile, assuming that you even believe that we suffer from too much party discipline. #3 is also an issue (take gerrymandering or campaign finance regulation), but an overrated one.

Of course, if there just is no consensus in the country on major issues, there is nothing that clever lawyers can do about that without violating some basic principles of representation.  The only solution is to persuade voters.  It does happen–consider how public opinion has changed on a variety of topics.  It just takes time and effort.  Anyway, I think that will be the theme of my paper.

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Has the Obama Justice Department Reinvigorated Antitrust Enforcement?

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Daniel Crane entitled Has the Obama Justice Department Reinvigorated Antitrust Enforcement?. Professor Crane assesses antitrust enforcement in the Obama and Bush administrations using several empirical measures:

The Justice Department’s recently filed antitrust case against Apple and several major book publishers over e-book pricing, which comes on the heels of the Justice Department’s successful challenge to the proposed merger of AT&T and T-Mobile, has contributed to the perception that the Obama Administration is reinvigorating antitrust enforcement from its recent stupor. As a candidate for President, then-Senator Obama criticized the Bush Administration as having the “weakest record of antitrust enforcement of any administration in the last half century” and vowed to step up enforcement. Early in the Obama Administration, Justice Department officials furthered this perception by withdrawing the Bush Administration’s report on monopolization offenses and suggesting that the fault for the financial crisis might lie at the feet of lax antitrust enforcement. Even before the AT&T and Apple cases, media reports frequently suggested that antitrust enforcement is significantly tougher under President Obama.

For better or worse, the Administration’s enforcement record does not bear out this impression. With only a few exceptions, current enforcement looks much like enforcement under the Bush Administration. Antitrust enforcement in the modern era is a technical and technocratic enterprise. Although there will be tweaks at the margin from administration to administration, the core of antitrust enforcement has been practiced in a relatively nonideological and nonpartisan way over the last several decades.

He concludes:

Two points stressed earlier should be stressed again: (1) statistical measures of antitrust enforcement are an incomplete way of understanding the overall level of enforcement; and (2) to say that the Obama Administration’s record of enforcement is not materially different than the Bush Administration’s is not to chide Obama for weak enforcement. Rather, it is to debunk the claims that antitrust enforcement is strongly dependent on politics.

This examination of the “reinvigoration” claim should not be understood as acceptance that tougher antitrust enforcement is always better. Certainly, there have been occasions when an administration would be wise to ease off the gas pedal. At present, however, there is a high degree of continuity from one administration to the next.

Read the full article, Has the Obama Justice Department Reinvigorated Antitrust Enforcement? by Daniel Crane, at the Stanford Law Review Online.

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Stanford Law Review, 64.6 (2012)

Stanford Law Review

Volume 64 • Issue 6 • June 2012

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Stanford Law Review Online: The Money Crisis

Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

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Consensus and the Constitution

Last week, I mentioned my proposal for a bipartisan executive as a way to defuse partisan conflict in Washington. Earlier this week, in his Ideas column in the Boston Globe, Leon Neyfakh considered the possibility of a bipartisan executive, as well as other remedies that have been proposed for the dysfunction in our national government, including Sandy Levinson’s “Undemocratic Constitution” and the “unbundled executive” of Christopher Berry and Jacob Gersen.

As Neyfakh observes, whether or not we adopt any of these proposals, our consideration of them may lead us to reforms that can make for a more effective political system. With my book, I want people to pay more attention to the connection between dysfunction in Washington and the framers’ decision in favor of a single rather than plural executive.

A bipartisan executive not only could address the problem of partisan conflict, it also would respond to the problem of the imperial presidency. The failure of external checks on presidential power makes an internal check desirable. The framers weakened legislative power by dividing it and requiring it to be shared by a House and Senate. We can rebalance power between the executive and legislative branches by dividing the executive power and requiring that it be shared.