The Election Law Blog is a website that contains links to news stories and commentaries about major U.S. election law issues, from campaign finance to redistricting to election administration, as well as my own views on these issues. I also try to highlight important pieces of forthcoming and recent legal and political science scholarship in the field. The blog grew out of a listserv for academics and practitioners that Dan Lowenstein of UCLA and I started in the 1990s. I thought that some of the material I sent out to that list might have a wider audience, and it turns out that it has. To my great surprise, my blog should be hitting its 1 millionth visit this month.
Though I generally blog myself, I have had guest bloggers when I've been out, relying especially on Prof. Dan Tokaji of Ohio State. I also have had guest blog symposia on issues such as the Voting Rights Act renewal and major Supreme Court cases.
I try to pick cases and issues that are or are likely to be of national interest, or that raise interesting theoretical or empirical issues.
Let's zero in on that point for a moment. Am I off-base or would it be safe to say that Citizens United is a biggie?
I think that is the most prominent Supreme Court election law case to come down since the 2000 Bush v. Gore decision ending the Florida recount. Usually, these issues fly below the radar, except around election time, when everyone seems to pay attention to the minutiae of election administration and election law.
I think the opinion came as a shock to many, because most people did not expect that the Supreme Court would recognize that corporations have the right to spend unlimited sums---gained from the sale of goods, not for political activity---to try to influence the outcome of elections and to curry favor with officeholders. The opinion came at an inauspicious time for the Roberts Court, given popular distrust of corporations following a series of issues ranging from Enron, to the financial meltdown and bailouts, to the auto bailouts, to the BP fiasco.
Okay, so now we've got unlimited sums from corporations, not to mention foreign countries and their corporations, correct? But, hadn't corporations and special interests already been busy exploiting loopholes to disproportionately influence policy making even before the Citizens United decision? So, just how much will this actually change things in DC?
Not quite right. Federal law still prohibits foreign individuals and associations from spending money in U.S. elections. But under current law U.S. subsidiaries of foreign corporations may now spend. This could change if the proposed "DISCLOSE Act" passes. The Court left open the question whether the ban on foreign spending on U.S. elections is constitutional, and my guess (spelled out in a paper that will soon be posted on my blog) is that if the Supreme Court faced the constitutional question, it is likely to uphold such a ban.
Though it is true that corporations had a number of ways of influencing elections even before Citizens United, the opinion has alleviated a great deal of legal uncertainty as to what will be done. However, I don't expect a flood of new corporate money from major corporations directly. It is more likely to be funneled through groups like the Chamber of Commerce, and eventually, following additional litigation, through political committees. I expect that corporate influence over both elections and policy will increase, though it is hard to say by how much.
If nothing happens - no DISCLOSE Act, no constitutional amendment - is the campaign playing field irrevocably tilted toward deep pockets and special interests?
We're going to have to wait and see. Campaign finance reform and court reactions to campaign finance laws have had all kinds of difficult to predict and unintended consequences.
With the next round of redistricting about to start, I expect to see a lot of attempts to get the Supreme Court involved in such disputes. One key question there will be the position of the Obama Administration's Department of Justice in pre-clearing redistricting plans under the Voting Rights Act, and how the Roberts' Court reacts. In the last major voting rights case, the Court suggested a majority could find parts of the Act unconstitutional."¨ Keep your eye as well on election administration disputes, as not much has been done to fix the problems we know exist in lots of states.
You can say that again! Thanks so much for talking to me, Rick. I look forward to doing a follow-up in which we can explore other aspects of election law and their ramifications. We'll be following developments on The Election Law Blog.