The Voting Rights Act in Winter: The Death of a Superstatute

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, The Voting Rights Act in Winter: The Death of a Superstatute, Univ. Ind. Legal Studies Research Paper No. 278 (2014).

Abstract:  The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to first understand how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this article we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. We outline three paths for the future of voting rights policy: rebuilding a new consensus over the racial discrimination model; forging a new consensus over what we call an autonomy model; or reconceiving voting rights in universal terms.

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State’s Rights, Last Rites, and Voting Rights

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, State’s Rights, Last Rites, and Voting Rights (2014) (forthcoming Nw. Univ. L. Rev.), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377475.

Abstract:  There are two ways to read the Court’s decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

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Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics

Bertrall L. Ross II, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics, 101 Calif. L. Rev. 1565 (2013).

Abstract:  Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

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The Year of the Super PAC

Michael S. Kang, The Year of the Super PAC, 81 Geo. Wash. L. Rev. 1902 (2013).

Abstract:  2012 was the year of the Super PAC. In the first presidential election cycle since their development, Super PACs raised almost one billion dollars and enabled the very wealthy to channel money into campaigning like never before during the post-Watergate era. However, still so early in the Super PAC’s evolution, 2012 offered only a taste of what comes next. Super PACs of the future will not serve merely as voice amplifiers for candidates and parties, as they typically seemed in 2012. Super PACs, and related 501(c) entities, enable very wealthy individuals to avoid the usual coordination costs of mass politics and bypass the major parties, a capacity that they will learn to exploit for their independent ends.

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Political Law

 Spencer Overton, Political Law, 81 Geo. Wash. L. Rev. 1783 (2013).

Abstract:  Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community” — a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington University Law School’s Political Law Symposium, which brought together a diverse group in an attempt both to advance political law as a field and to build political law community.

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Unteachable: Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act

Kareem U. Crayton and Terry Smith, Unteachable:  Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act (2013), available at http://ssrn.com/abstract=2361495.

Abstract:  In this paper, we analyze the Supreme Court’s decision in Shelby County, Alabama v. Holder, which declared unconstitutional the coverage formula for Section 5 preclearance. We conclude that Shelby County is a radical departure not only from the Supreme Court’s Voting Rights Act jurisprudence but also from canons of statutory construction more generally. While the Court’s decision has adverse implications for both separation of powers doctrine and minority voting rights, the authors propose an expeditious fix to the coverage formula that would likely pass constitutional muster.

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Sore Loser Laws and Congressional Polarization

Barry C. Burden, Bradley Jones & Michael S. Kang, Sore Loser Laws and Congressional Polarization (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354168.

Abstract:  To enhance explanations for party polarization in the U.S. Congress, we focus on an unappreciated legal structure known as the sore loser law. By restricting candidates who lose partisan primaries from subsequently appearing on the general election ballot as independents or nominees of other parties, these laws give greater control over ballot access to the party bases, thus producing more extreme major party nominees. Using several different measures of candidate and legislator ideology, we find that sore loser laws account for as much as a tenth of the ideological distance between the major parties.

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Voting Rights Disclosure

Spencer Overton, Voting Rights Disclosure, 127 Harv. L. Rev. F. 19 (2013).

Abstract:  In “Beyond the Discrimination Model On Voting,” 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all Americans.

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The Constitutional Structure of Voting Rights Enforcement

Franita Tolson, The Constitutional Structure of Voting Rights Enforcement (2013) (forthcoming Washington Law Review), available at http://ssrn.com/abstract=2303155.

Abstract:  Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but in answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

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Severability & Electoral Silver Linings after Shelby, Citizens United, and Bennett

Ciara Torres-Spelliscy, Severability & Electoral Silver Linings after Shelby, Citizens United, and Bennett, Stetson University College of Law Research Paper No. 2013-11 (2013) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322180.

Abstract:  This short essay addresses severability in recent U.S. Supreme Court cases about election law: Shelby County v. Holder, Citizens United v. FEC, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. The glass is actually half full because the high court tends to leave most of the laws they are reviewing intact.

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The Causal Context of Disparate Vote Denial

Janai S. Nelson, The Causal Context of Disparate Vote Denial, 54 B.C. L. Rev. 579 (2013).

Abstract:  For nearly 50 years, the Voting Rights Act of 1965 and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. However, modern vote denial practices that have a disparate impact on minority political participation increasingly fall outside the Act’s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, arguably the Act‘s most powerful provision, have also narrowed to fit the shifting landscape. Section 2’s “on account of race” standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the robust contextual analysis that the Voting Rights Act contemplates. The “causal context” test proposed here is anchored to the “core values” of Section 2 mined from the legislative history of the Act, particularly the “Senate factors.” The causal context analysis relies on proof of explicit or implicit bias, as well as circumstances internal and external to elections that give rise to disparate vote denial, without requiring proof of intent. This approach is historically consistent with the Act’s totality of the circumstances test and cognizant of courts’ increasing demands for proof of a causal link within disparate impact jurisprudence. Moreover, the proposed causal context analysis is consonant with recent federal proceedings evaluating the racially disparate impact of voter ID laws, voter purges, early voting restrictions, and other forms of modern vote denial.

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The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure

Ciara Torres-Spelliscy, The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure, Stetson University College of Law Research Paper No. 2013-16 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282576.

Abstract:  In traveling across the country to talk about the impact of the Supreme Court’s 2010 decision in Citizens United, I frequently encounter resistance from audiences when I suggest that the Securities and Exchange Commission (“SEC” or the “Commission”) has a vital role to play in providing greater clarity about corporate money in the American political process. One version of this objection is: “you’re asking the wrong thing of the wrong agency.” This paper is meant to provide a fulsome explanation about why the SEC should continue its leadership in fighting pay-to-play corruption by requiring transparency of corporate political spending across the board.

Some may think regulating money in politics is outside the SEC’s wheelhouse. But this is a mistaken view. Contrary to common misconceptions, securities regulators had to grapple with the problem of corporate money in politics four decades before Citizens United. In actuality, the SEC has been sitting at the nexus of campaign finance law and corporate securities law since the mid-1970s. In addressing this issue, I first explore the investigations conducted by the SEC of public companies following the Watergate scandal, which revealed that corporate treasury funds had been given to President Richard Nixon’s 1972 reelection campaign. The SEC found that the money that went to Nixon’s campaign was just the tip of the iceberg. The SEC discovered that hundreds of American companies had made political payments to both political parties in American elections as well as significant payments to politicians abroad, much of these political payments were made secretly in ways that hid them from investors. Following this discovery, the SEC was instrumental in pushing Congress to pass the Foreign Corrupt Practices Act to require more corporate transparency as well as to outlaw bribery of foreign officials by US businesses.

The next major intervention of the SEC into the regulation of money in politics came in the 1990s when SEC Chair Arthur Levitt made fighting pay to play in the municipal bond market a top priority for the Commission. The SEC found that contracts to underwrite municipal bonds were often being awarded to those investment companies that had given sizable campaign contributions to state and local elected officials. Many investment companies, it appeared, were “paying to play” in the profitable municipal bonds market – essentially, rigging the awarding of government contracts. To stop this practice, the SEC through the Municipal Securities Rulemaking Board (MSRB) promulgated Rule G-37 to clamp down on pay-to-play corruption. Finally in 2010, after a string of further embarrassments in the public pension fund market sent numerous elected officials to jail for kickback schemes, the SEC acted again to curb pay to play in this market as well. This time the SEC promulgated Rule 206(4)-5, which restricts the amount of campaign money investment advisers can give to public officials in charge of investments for public pensions.

This piece argues that just as the SEC acted in these three previous cases to prevent corruption in the capital markets whether the source was foreign or domestic, federal state or local, the Commission likewise has a duty to step up to the plate to provide sensible new rules for corporate political spending again post-Citizens United. Citizens United is the Supreme Court case from 2010 which allow corporations to spend an unlimited amount of money in state and federal American elections. Already, millions of dollars that can be traced from publicly traded companies has been spent in the 2010 and 2012 federal and state elections. Unfortunately, there are hundreds of millions of dollars being spent in the federal election alone that cannot be traced. Investors and voters are left in the dark about how much of this money is from public companies.

This new era of corporate political spending raises a similar problem of transparency for investors as the previous three cases and threatens the integrity of our capital markets. This is why the SEC should act on Petition No. 4-637 to establish clarity of how much money is being spent by public companies for exactly which political causes, candidates and parties.

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Campaign Disclosure in Direct Democracy

Michael S. Kang, Campaign Disclosure in Direct Democracy, 97 Minn. L. Rev. 1700 (2013).

Abstract:  Not long ago, Justice Sandra Day O’Connor declared disclosure the “‘cornerstone’ to effective campaign finance reform,” but campaign disclosure laws now are under legal and political attack as never before. In several prominent cases, plaintiffs challenged campaign disclosure laws in direct democracy, alleging a likelihood of harassment as a result of compelled disclosure in today’s Internet age. Although the legal challenges so far have been unsuccessful, the Supreme Court has invited further challenges along the same lines on an as-applied basis. What is more, legal scholars who once universally agreed on disclosure’s value now call increasingly for scaling back compelled campaign disclosure. Campaign disclosure thus has emerged as a new front in election law, with direct democracy as the main battleground.
The new attacks on disclosure are explained by recent political and technological developments in campaign finance. On the political side, the sudden transformation of campaign finance law after Citizens United re-set the stakes for campaign finance reform by stripping away so much of longstanding campaign finance regulation, leaving disclosure laws as one of the most prominent regulatory elements still in place. Opponents of regulation once in favor of “deregulate and disclose” no longer feel compelled to settle for disclosure now that the “de-regulate” component of their former approach has already taken place. On the technological side, the Internet dramatically decreased the costs of acquiring disclosed information, which is now at the touch of a finger away from anyone with web access. The lower cost of information has made it simpler to pursue political opponents identified by their disclosed activity, particularly within the contentious single-issue politics of direct democracy.

In this Article, I argue that recalibration of campaign disclosure laws in direct democracy may well be advisable in light of these developments but are best addressed legislatively, not judicially. Legislatures are better positioned than courts to calibrate the extraction of useful information of voters against competing interests in privacy and potential harassment based on that compelled disclosure. Disclosure laws serve as an important source of voter information about the political merits of ballot measures by revealing their most intense and well-known supporters and opponents. In direct democracy, such in-formation is particularly helpful to voters in figuring out how to vote because the familiar voting cues upon which they rely in candidate elections, such as party identification and an incumbent’s past performance, are not as salient or simply unavailable.

What is more, broader privacy worries about campaign disclosure are, even in the Internet age, fairly limited as best we can tell so far. The low-grade chilling and harassment alleged in recent challenges to campaign disclosure laws in direct democracy are the type of generalized worry that any citizen is susceptible to suffer and amenable to redress through the political process. With the changing dynamics of campaign disclosure in the Internet age, courts should let legislatures do their jobs in adapting the law appropriately to a problem that they have proper incentives to monitor.

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Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights

Ciara Torres-Spelliscy, Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights, 74 Mont. L. Rev. 101 (2013).

Abstract:  This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.

The Roberts Supreme Court’s asymmetrical treatment of corporations and unions was on full display in the 2011–2012 term. American Tradition Partnership, Inc. v. Bullock coupled with Knox v. Service Employees International Union, Local 1000 demonstrates that a double standard persists between corporations, who are now privileged speakers in the Court’s eyes, and unions, who are currently disfavored speakers. The Supreme Court imposes different degrees of consent from corporations’ and unions’ constituent parts before they electioneer. Under U.S. law, corporations are not required to get consent from their shareholders before the corporate entity speaks politically using corporate funds. By contrast, public-sector unions must receive nonmembers’ consent before political spending in certain circumstances.

With the Supreme Court unlikely to change legal positions on this issue until the Court’s composition itself changes, the responsibility to foster more equitable regulations for corporations is left to the American electorate, Congress, the States, and executive agencies, such as the Securities and Exchange Commission (“SEC”), which must work within the boundaries of current precedent. The Supreme Court’s ruling in Knox requiring opt-ins for union political expenditures provides an additional basis for arguing that publicly traded American corporations should likewise marshal shareholder consent before corporate political expenditures are made.

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Corruption Temptation

Guy-Uriel E. Charles, Corruption Temptation (2013) (forthcoming Cal. L. Rev.), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272189.

Abstract:  This Commentary, forthcoming in the California Law Review, is a response to Larry Lessig’s Jorde Lecture, forthcoming in the same journal. I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Lessig wants us to think about. I argue that Lessig’s real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted.

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Mapping a Post-Shelby County Contingency Strategy

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, Mapping a Post-Shelby County Contingency Strategy, 123 Yale L.J. Online 131 (2013).

Abstract:  This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the VRA after Shelby County v. Holder. We argue that voting rights activists ought to be prepared — because of developments in constitutional law, or politics, or political practice — for a future in which section 5 is not part of the voting rights landscape. If the Court strikes down section 5, an emerging and fragile ecosystem of private entities, non-judicial institutions, and organized interest groups of various stripes, may be willing and able to mimic the elements that made section 5 an effective regulatory device for protecting the rights of voters of color. In this model, the primary actors are private or civic intuitions. We term this “the private protection model.” 

In other contexts, these civil society or third-party groups might be identified as nongovernmental entities. They include public-interest groups, advocacy organizations, political parties, political committees and the like. For ease of exposition we broadly identify them here as institutional intermediaries. 

These institutional intermediaries may be well positioned to address the vexing questions posed by voting rights policy in a period of transition: How much racial discrimination do we have? Who are the bad actors? Should we have a universal voting rights policy, a race-based one, or one that protects against disenfranchisement motivated by partisanship and ideology?

As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights, now and in the future.

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The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint

Janai S. Nelson, The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint, 65 Fla. L. Rev. 111 (2013).

Abstract:  This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage – felon disfranchisement. A deeply racialized problem, felon disfranchisement is additionally and independently a legislative judgment as to which citizen’s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving states’ interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disfranchisement is assailable under the Supreme Court’s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disfranchisement is motivated by viewpoint discrimination. The justifications for felon disfranchisement laws reflect a misguided perception of how a voter’s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court’s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multi-scalar impact of felon disfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disfranchisement, and, perhaps, the underlying motivations for the practice.

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The Partisan Foundations of Judicial Campaign Finance

Michael S. Kang & Joanna Shepherd, The Partisan Foundations of Judicial Campaign Finance (2013) (forthcoming Southern California Law Review), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2129583.

Abstract:  In this comprehensive empirical analysis of judicial campaign finance, we find a predictive relationship between contributions to judges and judicial decisions favorable to contributors, but we also conclude that the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger partisan foundations of modern judicial elections. The Republican and Democratic Parties broker the connections between contributors and their candidates, and we argue in our work that parties, not elections, seem to be the key to money’s influence on judges.

We identify broad liberal and conservative political coalitions, allied roughly with the Democratic and Republican Parties, whose collective contributions exercise systematic ideological influence on judges who receive their money. Although the Supreme Court recognized the potential for judicial bias in cases involving major campaign contributors, we find that campaign finance predicts judicial decisions not simply in the most extreme cases, but systematically along partisan lines across the range of cases. We argue, based on our findings, that parties play an indispensable, but so far underrecognized role in connecting campaign contributions and judges.

Just as importantly, however, we identify a striking partisan asymmetry in judicial campaign finance between the major parties. While Republican judges respond only to campaign finance contributions from conservative sources and do not appear to be influenced by those from liberal sources, Democratic judges are influenced by campaign support from both liberal and conservative sources and thus are uniquely cross pressured from opposite directions. Our analysis, as a result, shows that the influence of campaign finance helps reinforce Republican conservatism and destabilize Democratic liberalism in judicial decision making, netting out in a conservative direction between the two parties.

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Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics

Ciara Torres-Spelliscy, Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics, 12 Conn. Pub. Interest L.J. 2 (2013).

Abstract:  At first blush, the SEC’s regulation of money in politics may seem to fall outside of its jurisdiction, but this is a mistake. This view ignores three previous times when the SEC stepped in to curb pay to play: (1) in the municipal bond market in 1994; (2) in the public pension fund market in 2010; and (3) in investigating questionable payments post-Watergate from 1974 to 1977. The result of the first two interventions led to new Commission rules and the third intervention resulted in the Foreign Corrupt Practices Act (a federal statute).

When these three previous SEC interventions into the role of money in politics are examined, a principled model emerges for when the Commission’s regulatory intervention is appropriate. The principled model, hereinafter known as the “Money in Politics Model,” has the following characteristics: there must be (1) a potential for market inefficiencies; (2) a problem that is not likely self-correct through normal market forces; (3) a lack of transparency; (4) a material amount of aggregated money at stake; and (5) a high probability for corruption of the government.

The Money in Politics Model’s characteristics were present in the all three past SEC interventions. As will be explained in more detail below, in the municipal bond market and public pension funds, there was an endemic problem of pay to play between state elected officials and businesses eager to contract with them for lucrative fees. The post-Watergate investigation revealed even more profound problem of secret corporate funds used for political contributions domestically and bribes of foreign officials abroad.

So does the post-Citizens United world of corporate political spending rise to the same level as these three previous examples? Does post-Citizens United political spending fit the SEC’s Money in Politics Model and merit the SEC’s intervention? This article will argue that the Model fits and the SEC should act.

The SEC is not new to the inherent conflicts of interest between business and government, especially when elected officials have the ability to make private contractors in the financial services industry rich through commissions and fees. The risk of corruption is intrinsic in such a situation. Here corruption is best captured by the definition as “the misuse of public … office for direct or indirect personal gain.” What is new as of January 2010, thanks to Citizens United, is the potential for every publicly traded company to try to influence the government not just through traditional lobbying, but also through campaign expenditures. This new problem merits a new SEC intervention to reveal the campaign activities of public companies.

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America’s Top Model: The Wisconsin Government Accountability Board

Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board (2013) (forthcoming U.C. Irvine Law Review), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201587.

Abstract:  The United States is an outlier among democratic countries when it comes to the institutions charged with running our elections. Most other democratic countries have an independent election authority that enjoys some insulation from partisan politics in running elections. In the United States, by contrast, partisan election administration is the near-universal norm at the state level. In most states, the chief election authority — usually the Secretary of State — is elected to office as a nominee of his or her party, while in almost all the remaining states the chief election official is appointed by partisan officials.

There is one conspicuous exception to the partisan character of election administration at the state level: Wisconsin’s Government Accountability Board (“GAB”). Established by the Wisconsin state legislature in 2007, the GAB has responsibility for election administration, as well as enforcement of campaign finance, ethics, and lobbying laws. Its members are former judges chosen in manner that is designed to ensure that they will not favor either major party. This makes the GAB unique among state election management bodies in the U.S.

Is there any hope for nonpartisan election administration in an era of intense political polarization? This article considers this question by examining and assessing the performance of Wisconsin’s GAB. It concludes that the GAB has been successful in administering elections evenhandedly during its first five years of existence and, accordingly, that it serves as a worthy model for other states considering alternatives to partisan election administration at the state level. Part II discusses the origins and history of the GAB, putting it in the context of other electoral institutions in the U.S., as well as electoral institutions in other democratic countries. Part III discusses the most important election administration issues that have come before the Wisconsin GAB since its creation, including fierce partisan debates over voter registration and voter identification, errant reporting of election results in a very close state supreme court race, and contentious recall elections of the Governor and prominent state legislators. Part IV concludes by evaluating the GAB’s performance during these trying times and considering whether the Wisconsin model can and should be exported to other states.

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