No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.

A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.

. . .

I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Politifact fact-check: the Ninth Circuit is, in fact, the most reversed federal court of appeals

Recently, cable news personality Sean Hannity commented that the Ninth Circuit is the "most overturned court in the country." Politifact rated that claim as "false." But Politifact's analysis is seriously flawed and suffers from selective analysis of the evidence, and misrepresentation of the evidence in other respects.

I recently had the opportunity to appear on NPR's AirTalk to support a proposal from Arizona Senator Jeff Flake's office to split up the United States court of Appeals for the Ninth Circuit. The "Judicial Administration and Improvement Act of 2017" would keep California, Oregon, Hawaii, and some U.S. territories in the Ninth Circuit. It would create a new Twelfth Circuit out of Arizona, Nevada, Montana, Idaho, Washington, and Alaska.

One reason for splitting the circuit is systemic dysfunction in the Ninth Circuit. It has 29 active judges, (but four vacancies at the moment) nearly the size of the 30-member Arizona Senate (to speak on terms for those from the Grand Canyon State). That's nearly twice as large as the 17-member Fifth Circuit. It's little wonder that decisions take longer (often much longer) to issue from the Ninth than anywhere else. Splitting the circuit would help create a new "Mountain Circuit" that would function fairly effectively, and the new Ninth Circuit would remain the largest circuit in the country.

More judges might help the Ninth speed along cases, but it would not help its high reversal rate. That's because the court lacks the ability to self-correct with true en banc procedures; the entire 29-member court can't really assemble, and it's left instead to a lottery of some subset of these judges to correct errors from three-judge panels. And in a lottery of three judges among 29, some combinations are sure to be greater outliers than others. Splitting the circuit would allow it to have true en banc procedures and minimize reversal rates.

The Ninth Circuit's legacy is cemented by instances like October Term 1996, when it went 1-for-28, the stuff of legend. The Ninth Circuit is reversed more often perhaps because its size accounts for poorer outcomes.

So, to Mr. Hannity's claim that the Ninth Circuit is the "most reversed." While there are arguments raised in the Politifact piece that "most reversed" may have limited normative significance, that's a separate argument. (But, Politifact can't help itself to weigh in on the normative claim, concluding, "More broadly, experts say this statistic is a poor way of comparing courts.") Instead, as a matter of pure math, is the Ninth Circuit the "most reversed"?

Politifact says no. The answer is resoundingly yes.

Politifact chooses a cohort of data from 2010 to 2015 to conclude that the Ninth Circuit is the third-most reversed, behind the Sixth and Eleventh Circuits. But why pick this window of time?

I used the same analysis with slightly different data--Politifact uses the SCOTUSBlog Stat Pack, which is slightly simpler and less comprehensive in time than the Harvard Law Review statistics, which I opted to use (and may result in some slight variations of the numbers). Because of changes to the Harvard Law Review statistics system, I also didn't have ready access to Eleventh Circuit data between OT1994 and OT1996.

The chart below displays the cumulative reversal rate, which includes opinions from the Supreme Court that reverse a court, vacate an opinion from a court, or reverse in part or vacate in part. It is the cumulative reversal rate based on the term listed: so, for instance, OT2014 data is the cumulative reversal rate for OT2014 & OT2015; OT2013 is the cumulative reversal rate for OT2013, OT2014, and OT2015. I ran the figures for the Sixth, Ninth, and Eleventh Circuits.

View fullsize

It would be hard for Politifact to manufacture a window that more perfectly enables it to refuse Mr. Hannity's claim. If you begin to include any earlier terms, the Eleventh Circuit quickly falls behind the Ninth in reversal rates; by including a 12-year window back to OT2004, the Ninth Circuit is the most reversed, and holds that trend back through cumulative data to at least OT1994.

Now, there are, of course, many ways to slice such data. Is the Ninth Circuit relatively better than it has been? (Answer: yes, but not by much--its cumulative reversal rate since OT2012 was around 80%, not much better than the rate of around 82% since OT1994). Is the Ninth Circuit not as bad as other circuits in recent years? (Answer: yes, but only with a fairly limited window of time.)

But for Politifact to so brazenly rate Mr. Hannity's claim as "false" displays its choice to evaluate his claim through a single and precise window--perhaps to achieve a result that the fact-checker desired to reach.

Below are charts for the 9th Circuit and 6th Circuit reversal rates dating back to OT1994.

9th Circuit	rev/vacate	total	rev rate
OT1994	14	17	82%
OT1995	11	13	85%
OT1996	27	28	96%
OT1997	14	17	82%
OT1998	14	18	78%
OT1999	9	10	90%
OT2000	13	17	76%
OT2001	14	18	78%
OT2002	18	23	78%
OT2003	19	25	76%
OT2004	16	19	84%
OT2005	15	18	83%
OT2006	19	21	90%
OT2007	8	10	80%
OT2008	15	16	94%
OT2009	11	15	73%
OT2010	19	24	79%
OT2011	18	24	75%
OT2012	12	14	86%
OT2013	10	11	91%
OT2014	10	15	67%
OT2015	8	10	80%
Total	314	383	82%

6th Circuit	rev/vacate	total	rev rate
OT1994	4	7	57%
OT1995	2	4	50%
OT1996	2	3	67%
OT1997	3	3	100%
OT1998	2	4	50%
OT1999	3	4	75%
OT2000	5	7	71%
OT2001	9	10	90%
OT2002	5	7	71%
OT2003	6	8	75%
OT2004	7	11	64%
OT2005	6	8	75%
OT2006	4	7	57%
OT2007	2	3	67%
OT2008	5	5	100%
OT2009	7	7	100%
OT2010	5	6	83%
OT2011	5	5	100%
OT2012	2	2	100%
OT2013	9	11	82%
OT2014	4	5	80%
OT2015	3	4	75%
Total	100	131	76%

Additionally,  and inexplicably, the Politifact analysis includes this absurd claim:

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

Just as it would be wrong to look at the total number of reversals--the Ninth Circuit is the largest circuit, and we would expect it to have the most raw reversals (and the most raw affirmed opinions) over a period of years, such as 314 reversals in a little over 20 years, which dwarfs all others--it would be just foolish to look at a single year's data for which circuit had the highest reversal rate. While it sounds impressive that the Ninth Circuit was "never" the "highest" in a single year for 12 years, Politifact's own reporting in this same piece explains why a single year's data is a silly metric:

In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

There are plenty of years where a single circuit's record is 0-1, or 0-2, giving it a 100% reversal rate; meanwhile, the Ninth Circuit, with an appeals load of at least 10, and often more than 15 cases, it almost assuredly guaranteed at least one decision affirming what the court did.

Politifact's fact-check, then, is false.

It's worth emphasizing that what bearing this particular claim has on the merits of a decision to split the Ninth Circuit into smaller courts is a different matter. There are many good reasons for dividing the Ninth Circuit up, which I discussed in my AirTalk interview, and which Mr. Flake's offices will surely raise to his constituents.

On the precise point raised by Mr. Hannity, however, he is, at least in some measure, quite right--the Ninth Circuit is, in recent history, the most reversed federal court of appeals.

Please notify me of any errors in the data!