All of which are American Dreams.
It started today in a gchat with the line: “Here's how you kill Citizens United.”
I’d had voting rights on my mind because, that afternoon, the office was due for a presentation from Michael Waldman, President of the Brennan Center for Justice at NYU, a titanic and pretty much omnipresent organization when it came to the issue of voting rights, or at least beating back the forces of darkness seeking to restrict, dilute or altogether eliminate the right of Americans (of a certain stripe) to vote in their elections. And buried beneath much of those thoughts was frustration at the effectiveness with which conservative entities, state legislatures, as well as folks like Ed Blum, had managed to so successfully launch their salvos. From a certain vantage point, they resembled a well-oiled military force striking at highly valuable targets to maximize damage, like a game of Eschaton while the rest of the players are hopelessly and powerlessly watching world domination happen on their watch.
It’s snowing on the territory.
Also percolating in the stew was the importance of down-ballot elections. The two most important races so far weren’t primaries in Super Tuesday or Mega Tuesday or whatever, but two races for prosecutor: Cook County State’s Attorney, a race which saw the dethroning of Anita Alvarez, the prosecutor who purposely suppressed video footage of Laquan McDonald for a year while Chicago mayor Rahm Emanuel ran for reelection; and the primary race for Cuyahoga County Prosecutor, a race which knocked out Timothy McGinty, the Cuyahoga County Prosecutor who had declined to file charges in the shooting of 12-year-old Tamir Rice in 2014. The transgressions of Anita Alvarez have been laid bare in damning and explicit detail, and McGinty’s actions guaranteed electoral blowback on his part. What was truly remarkable, particularly in the case of the Cook County race, was the activism that attended it. A multitude of groups, including the Black Youth Project 100 and the Chicago chapter of Black Lives Matter, had campaigned and protested for months prior and had spent a grand total of $1000, all of which ended up unseating a political figure many had grown to see as toxic.
All politics is local.
I’d long complained to friends and colleagues that Presidential elections suck up all the oxygen so that there’s no more mental real estate for the down-ballot contests, for seats on local boards of education, for seats in city council, for seats in the state legislature, etc. That is where so much of the essential governance gets done, the dirt as well as the gold. State legislatures are the ones that pass laws allowing guns to be carried on college campuses (Texas). State legislatures are the ones passing restriction after restriction on access to contraceptives (Ohio, Texas again, and many, many others). State legislatures are the bodies passing restrictive access-to-the-ballot laws (North Carolina, freakin’ Texas again, etc.) and state legislatures are where budgets are put forward that end up crippling local economies and introducing the apocalypse (Louisiana), etc.
With the Brennan Center talk coming up, I stopped by a colleague’s office to talk through some thoughts and, in the elevator, made cryptic reference to overturning Citizens’ United and the futility of a constitutional amendment and the importance of state legislatures.
The plan, as I outlined to another friend after the talk and book-signing, goes a little something like this. (And what makes this a particularly fortuitous time is the recent death of Justice Antonin Scalia and the prospect that his replacement may join the Supreme Court’s liberal bloc.)
Step One
First, a state legislature passes a law banning corporate contributions by way of political action committees, or, really, a law that in some way impinges on PACs and their ability to mobilize resources, perhaps most effective if it comes in the form of something attacking “electioneering communication” or, more plainly, television commercials. It could be something as simple as imposing a cap (however nominal) on election-related expenditures. As far as constitutional rights, the US Constitution acts as a floor, not a ceiling, so laws that seek to expand rights are generally deemed constitutional, whereas those that seek to restrict them are, at least theoretically (certainly not in practice), struck down as unconstitutional. Which brings us to Step Two.
Step Two
A PAC, or perhaps some individual directly affected by the state law, could file a lawsuit in federal court challenging the state statute’s constitutionality. To have standing, the aggrieved party must have suffered an injury as a direct result or such injury must be immediately impending.* It’s easy to see how this might be the case in an election year or with the immediate advent of any race wherein a PAC or an individual donor would be active. The land is ripe for this because states that have instituted public financing of elections**, in one form or another, are in the minority. And even in those cases, public financing is an option and not a mandate. While it does make it easier for the Everyman to run for local office, it is not really too much of an impediment to those who have the resources, which is why gubernatorial contests, even in states where public financing would apply, are so flush with cash.***
Now, the stereotype would be that such a bill as proposed in Step One would pass through a majority Democrat legislature and the aggrieved party would be a conservative group.
That doesn’t have to be the case. See, this is not a genuine dispute. This is strategic litigation. The catch in Step One is that the bill gets passed with the intention that its constitutionality will be challenged. Its passage is coordinated to run right into the arms of a lawsuit.
Step Three, the lawsuit:
For this to work, the lawsuit has to be predicated on a federal complaint, so that the federal court can assert what’s known as federal-question jurisdiction. For the federal district court to get this kind of subject matter jurisdiction to hear the case, the plaintiff must have alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. If the complaint correctly alleges that the new state law is a violation of the plaintiff’s First Amendment rights, particularly as elaborated in the Citizens’ United case, then you’ve got the necessary ingredients for a federal court case.
Now, here’s where you need to get lucky, as things are kind of out of your hands. And you can’t really seek out a judge you can guess will go the way you want, as that would be forum-shopping and, well, you’re not really allowed to do that.
The case gets brought before a federal judge and you hope and you pray, as the defendant in this case (because you did pass the law in question), that the law gets upheld as constitutional. It’d be nice to win, as that would at least help keep the façade of a genuine dispute up. And the reasoning elaborated in the opinion could be helpful in the next step. But either way, win or lose, the next step is already predestined.
Losing side appeals to the appropriate Circuit Court of Appeals.
Again, no matter the result, whether the law gets upheld or struck down, losing party appeals to the Supreme Court, and THAT is when it’s essentially out of your hands.
Step Four: Really go for gusto before SCOTUS.
If SCOTUS grants cert, then it’s on like Donkey Kong and you have to really argue your case on the merits. And here’s where you really hope that SCOTUS rules the law in question constitutional. Now, this assumes that Scalia’s replacement will be his ideological opposite, or at least that 5th arm of the liberal bloc, itching for a shot at perhaps the worst Supreme Court decision of the 21st century.
What the implications of a holding wherein the law is ruled constitutional are is up in the air. Either the holding is narrowly tailored to the specific contours of that law and opens up the gate for other state legislatures to pass similar legislation or SCOTUS uses the occasion to put the flamethrower to all of Citizens United forcing Congress to legislate caps on spending as regards “electioneering communication”. Or literally any number of unforeseeable outcomes.
This could impact just about every aspect of coordination in which PACs and Super PACs are implicated. Those organizations that do direct mailing, spending on television commercials; hell, it could even set the stage for a system of nationwide public financing, meaning that not only would local and state elections be thus restricted but national elections as well.**** This could significantly reduce the amount of spending in congressional campaigns as well as presidential ones. And, whoa...
Not even remotely a full-proof plan, but it doesn't rely on the sheer futility of a Constitutional amendment, nor does it require Democrats to make widespread gains down-ballot and in state legislatures across the nation. It keeps the pieces in play as limited as possible, but can stand to be tightened still. It's rough and I've been rambling.
If states can be so vicious and vehement in restricting the rights of voters, maybe they can also be laboratories where such rights are expanded.
I need to calm down. I think I might watch another episode of The Walking Dead.
* Think an abortion rights claim in the case of a pregnant plaintiff.
** Public financing is, in essence, a mechanism by which campaigns are funded from monies in the government budget. This could entail a direct subsidy to political parties or a matching device for certain types of private donations (often small donations) or, yet still, exemption from fees of government services (e.g. postage) and many other systems as well. In essence, it would be taxpayer money funding elections. In the US, Arizona, Maine, and Connecticut have passed public financing initiatives for local office under the auspices of “Clean Elections” laws.
*** Also, governorships are the premier incubation chambers for future presidential candidates. So, there’s that.
**** Or you could be a fundraising demigod like 2008 Barack Obama. If I remember correctly, Obama became the first major-party presidential candidate to turn down public financing in the general election since the system was created in 1976.
I’d had voting rights on my mind because, that afternoon, the office was due for a presentation from Michael Waldman, President of the Brennan Center for Justice at NYU, a titanic and pretty much omnipresent organization when it came to the issue of voting rights, or at least beating back the forces of darkness seeking to restrict, dilute or altogether eliminate the right of Americans (of a certain stripe) to vote in their elections. And buried beneath much of those thoughts was frustration at the effectiveness with which conservative entities, state legislatures, as well as folks like Ed Blum, had managed to so successfully launch their salvos. From a certain vantage point, they resembled a well-oiled military force striking at highly valuable targets to maximize damage, like a game of Eschaton while the rest of the players are hopelessly and powerlessly watching world domination happen on their watch.
It’s snowing on the territory.
Also percolating in the stew was the importance of down-ballot elections. The two most important races so far weren’t primaries in Super Tuesday or Mega Tuesday or whatever, but two races for prosecutor: Cook County State’s Attorney, a race which saw the dethroning of Anita Alvarez, the prosecutor who purposely suppressed video footage of Laquan McDonald for a year while Chicago mayor Rahm Emanuel ran for reelection; and the primary race for Cuyahoga County Prosecutor, a race which knocked out Timothy McGinty, the Cuyahoga County Prosecutor who had declined to file charges in the shooting of 12-year-old Tamir Rice in 2014. The transgressions of Anita Alvarez have been laid bare in damning and explicit detail, and McGinty’s actions guaranteed electoral blowback on his part. What was truly remarkable, particularly in the case of the Cook County race, was the activism that attended it. A multitude of groups, including the Black Youth Project 100 and the Chicago chapter of Black Lives Matter, had campaigned and protested for months prior and had spent a grand total of $1000, all of which ended up unseating a political figure many had grown to see as toxic.
All politics is local.
I’d long complained to friends and colleagues that Presidential elections suck up all the oxygen so that there’s no more mental real estate for the down-ballot contests, for seats on local boards of education, for seats in city council, for seats in the state legislature, etc. That is where so much of the essential governance gets done, the dirt as well as the gold. State legislatures are the ones that pass laws allowing guns to be carried on college campuses (Texas). State legislatures are the ones passing restriction after restriction on access to contraceptives (Ohio, Texas again, and many, many others). State legislatures are the bodies passing restrictive access-to-the-ballot laws (North Carolina, freakin’ Texas again, etc.) and state legislatures are where budgets are put forward that end up crippling local economies and introducing the apocalypse (Louisiana), etc.
With the Brennan Center talk coming up, I stopped by a colleague’s office to talk through some thoughts and, in the elevator, made cryptic reference to overturning Citizens’ United and the futility of a constitutional amendment and the importance of state legislatures.
The plan, as I outlined to another friend after the talk and book-signing, goes a little something like this. (And what makes this a particularly fortuitous time is the recent death of Justice Antonin Scalia and the prospect that his replacement may join the Supreme Court’s liberal bloc.)
Step One
First, a state legislature passes a law banning corporate contributions by way of political action committees, or, really, a law that in some way impinges on PACs and their ability to mobilize resources, perhaps most effective if it comes in the form of something attacking “electioneering communication” or, more plainly, television commercials. It could be something as simple as imposing a cap (however nominal) on election-related expenditures. As far as constitutional rights, the US Constitution acts as a floor, not a ceiling, so laws that seek to expand rights are generally deemed constitutional, whereas those that seek to restrict them are, at least theoretically (certainly not in practice), struck down as unconstitutional. Which brings us to Step Two.
Step Two
A PAC, or perhaps some individual directly affected by the state law, could file a lawsuit in federal court challenging the state statute’s constitutionality. To have standing, the aggrieved party must have suffered an injury as a direct result or such injury must be immediately impending.* It’s easy to see how this might be the case in an election year or with the immediate advent of any race wherein a PAC or an individual donor would be active. The land is ripe for this because states that have instituted public financing of elections**, in one form or another, are in the minority. And even in those cases, public financing is an option and not a mandate. While it does make it easier for the Everyman to run for local office, it is not really too much of an impediment to those who have the resources, which is why gubernatorial contests, even in states where public financing would apply, are so flush with cash.***
Now, the stereotype would be that such a bill as proposed in Step One would pass through a majority Democrat legislature and the aggrieved party would be a conservative group.
That doesn’t have to be the case. See, this is not a genuine dispute. This is strategic litigation. The catch in Step One is that the bill gets passed with the intention that its constitutionality will be challenged. Its passage is coordinated to run right into the arms of a lawsuit.
Step Three, the lawsuit:
For this to work, the lawsuit has to be predicated on a federal complaint, so that the federal court can assert what’s known as federal-question jurisdiction. For the federal district court to get this kind of subject matter jurisdiction to hear the case, the plaintiff must have alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. If the complaint correctly alleges that the new state law is a violation of the plaintiff’s First Amendment rights, particularly as elaborated in the Citizens’ United case, then you’ve got the necessary ingredients for a federal court case.
Now, here’s where you need to get lucky, as things are kind of out of your hands. And you can’t really seek out a judge you can guess will go the way you want, as that would be forum-shopping and, well, you’re not really allowed to do that.
The case gets brought before a federal judge and you hope and you pray, as the defendant in this case (because you did pass the law in question), that the law gets upheld as constitutional. It’d be nice to win, as that would at least help keep the façade of a genuine dispute up. And the reasoning elaborated in the opinion could be helpful in the next step. But either way, win or lose, the next step is already predestined.
Losing side appeals to the appropriate Circuit Court of Appeals.
Again, no matter the result, whether the law gets upheld or struck down, losing party appeals to the Supreme Court, and THAT is when it’s essentially out of your hands.
Step Four: Really go for gusto before SCOTUS.
If SCOTUS grants cert, then it’s on like Donkey Kong and you have to really argue your case on the merits. And here’s where you really hope that SCOTUS rules the law in question constitutional. Now, this assumes that Scalia’s replacement will be his ideological opposite, or at least that 5th arm of the liberal bloc, itching for a shot at perhaps the worst Supreme Court decision of the 21st century.
What the implications of a holding wherein the law is ruled constitutional are is up in the air. Either the holding is narrowly tailored to the specific contours of that law and opens up the gate for other state legislatures to pass similar legislation or SCOTUS uses the occasion to put the flamethrower to all of Citizens United forcing Congress to legislate caps on spending as regards “electioneering communication”. Or literally any number of unforeseeable outcomes.
This could impact just about every aspect of coordination in which PACs and Super PACs are implicated. Those organizations that do direct mailing, spending on television commercials; hell, it could even set the stage for a system of nationwide public financing, meaning that not only would local and state elections be thus restricted but national elections as well.**** This could significantly reduce the amount of spending in congressional campaigns as well as presidential ones. And, whoa...
Not even remotely a full-proof plan, but it doesn't rely on the sheer futility of a Constitutional amendment, nor does it require Democrats to make widespread gains down-ballot and in state legislatures across the nation. It keeps the pieces in play as limited as possible, but can stand to be tightened still. It's rough and I've been rambling.
If states can be so vicious and vehement in restricting the rights of voters, maybe they can also be laboratories where such rights are expanded.
I need to calm down. I think I might watch another episode of The Walking Dead.
* Think an abortion rights claim in the case of a pregnant plaintiff.
** Public financing is, in essence, a mechanism by which campaigns are funded from monies in the government budget. This could entail a direct subsidy to political parties or a matching device for certain types of private donations (often small donations) or, yet still, exemption from fees of government services (e.g. postage) and many other systems as well. In essence, it would be taxpayer money funding elections. In the US, Arizona, Maine, and Connecticut have passed public financing initiatives for local office under the auspices of “Clean Elections” laws.
*** Also, governorships are the premier incubation chambers for future presidential candidates. So, there’s that.
**** Or you could be a fundraising demigod like 2008 Barack Obama. If I remember correctly, Obama became the first major-party presidential candidate to turn down public financing in the general election since the system was created in 1976.