Scholarship highlight: Kirsten Nussbaumer, The Election Law Connection and U.S. Federalism

Kirsten A. Nussbaumer has just uploaded a revised draft of her piece The Election Law Connection and U.S. Federalism . The intersection of elections and federalism is a personal fascination of mine, and she highlights its uniqueness in the American system:

Addressing the comparative-federalism literature, this article offers a sketch of how the unique character of U.S. election law may have shaped U.S. federalism as a whole -- hypothesizing that the extent to which each level of government has controlled the other's electoral arena may have partly determined each government's relative policy autonomy, and thereby impinged upon the direct constituency relationship between each level of government and its voters.

The article proposes that we view "the election-law connection" between state and federal officials as a central field where 'federalism happens' -- where the making and implementing of a shared election law has given rise to linked electoral incentives and intergovernmental networking, expressed most notably in strategic relationships that are keyed to state and local decision-making forums.  Over time, the law of U.S. federal elections has exhibited complex patterns of mutual dependence between federal and state officials, but the dominant pattern has been a state-tilted story of subnational control over federal election law -- to the extent that it may be meaningful to conceptualize the election-law connection as a 'constituency relationship' that tends to work to the benefit of the state and local actors who exercise control over the federal electoral arena.  This electoral dependency of federal officials may have created a tendency towards greater federal respect for the institutional prerogatives of state and local governments, though the relationship is dynamic and contingent, interacting with other interests and factors such as the prevalence of divided or unified party government at the national and state levels.

The argument -- while offered as an exercise in deductive theory-building more than empirical conclusion -- is illustrated with recent election-law examples, especially intergovernmental communications about congressional redistricting that exhibit patterns of federal-to-state lobbying (a decentralized or 'downward' pattern not previously considered in the scholarly literatures).  The election-law connection is also explored through a reading of two canonical texts in the literature on "political safeguards of federalism" (Herbert Wechsler 1954, Larry Kramer 2000), joining their insights about constitutional history and political parties with the election-law-focused account here (itself, a friendly amendment to that theory), while contending that the "political safeguards" explanation of U.S. history is more plausible when combined with a relational, strategic understanding of election-law incentives.

Finally, the constituency conception of the election-law connection gains added plausibility through a consideration of the large gap between, on the one hand, Congress's arguable preemption power over federal elections and, on the other hand, the historical patterns of relative congressional abstention in formal law-making, and the federal legislative tendency to de-centralize many partisan and factional conflicts about election law.

 

New work: "Disfavored Candidates and the Democracy Canon"

The Florida Law Review Forum kindly invited me to offer a response to Chad Flanders's recent article, "Election Law Behind a Veil of Ignorance" (PDF).​ Here's my response (PDF), "Disfavored Candidates and the Democracy Canon." And here's the opening:

"Democracy" is a chameleon-like word, used almost everywhere and meaning almost anything. Chad Flanders's thoughtful article in part disciplines the meaning of "democracy" when it draws an important distinction between popular democracy and legislative democracy when interpreting election statutes and evaluating the applicability of the Democracy Canon. Indeed, in statutory interpretation, we often justify canons by democratic values, particularly the accountability of the representatives who promulgate those statutes.​

Recent election law cases in the Harvard Law Review

The Harvard Law Review often has excellent summaries of recent notable cases. The April 2013 issue has two summaries of note in the area of election law.

Fourth Circuit Holds that Ban on Corporate Direct Contributions Does Not Violate the First Amendment. United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012), cert. denied, No. 12-579, 2013 WL 656067 (U.S. Feb. 25, 2013), 126 Harv. L. Rev. 1707 (2013).

​Eighth Circuit Grants Injunction Against Minnesota Reporting Requirement for Independent Corporate Political Expenditures. ​Minnesota Citizens Concerns for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) (en banc), 126 Harv. L. Rev. 1715 (2013).

Scholarship highlight: Michael McConnell, In Defense of Citizens United

Michael W. McConnell, In Defense of Citizens United (forthcoming Yale Law Journal)​.

Professor McConnell ​emphasizes he is not an opponent of reform efforts:

Unlike some defenders of Citizens United, I am not hostile to efforts to reform our system of campaign finance, which is a disgrace. I believe the current system favors incumbents and breeds an unhealthy collaboration between government and powerful entrenched economic interests, both labor and corporate, at the expense of small business, ordinary citizens, free enterprise, and the forces of economic change. I find the majority’s sunny dismissal of the corrupting influence of independent expenditures wholly unpersuasive. In the past I have proposed campaign finance reforms that avoid these pitfalls, would serve better to democratize elections, and would pass constitutional muster.​

At 2-3.​

His first point looks at the Press Clause. He notes problems with the Press Clause in attempts to regulate corporate spending to speak on behalf of a candidate; I excerpt one point here:​

Although I am unaware of any litigated cases on the point, it probably does not matter whether a newspaper or documentary producer is non-profit. Because the Press Clause forbids the licensing of the press, it would seem to follow that the government has no authority to regulate the financial structure or source of funds of an organization as a condition to the right to publish.​

At 9.​

​His second point challenges the contribution-expenditure distinction. He notes there is a majority on the Court that would abolish the distinction, but that this majority fractures on Congress's proper role in regulating contributions and expenditures. I'll just pick one of his points here as he critiques the conclusion in Buckley v. Valeo that (and this is greatly simplified) a contribution to a candidate can be limited because any contributions symbolizes allegiance to the candidate:

To say that contribution limits impose no significant restraint on speech is like saying that a 15-minute limitation on labor picketing would be fine, on the theory that once the picketer has engaged in the “symbolic act of picketing” there is no point in keeping it up.​

At 33.​

A thoughtful read.​