Author Archives: Richard Pildes

Thomas E. Perez, the Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice, is speaking today at an academic forum for students and faculty at NYU Law School.  I am the host and moderator for this event.  He will be addressing current controversies concerning enforcement of the Voting Rights Act.  This should be an exciting and major forum for discussion of current voting-rights issues. In addition to me, the panelists with whom Mr. Perez will discuss and debate these issues include the following academic experts and experienced practicioners in the voting-rights field:

Professor Guy Uriel-Charles, Professor of Law, Duke Law School

Professor Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU School of Law

Wendy R. Weiser, Director, Democracy Program, Brennan Center for Justice at NYU School of Law

Under the broad heading of Living in a Citizens United World, the NY Times has a longer-than-usual editorial entitled “When Other Voices Are Drowned Out.”  The key sentence is this:  “But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.”

The Times’s reasoning confirms a point I have made several times, including here and here, on this blog:  those, like the Times, who are concerned that “the wealthy” can “distort” democracy by “drowning out” those with fewer resources need to understand that their complaint lies with the Court’s decision in Buckley v. Valeo, not the more recent Citizens United decision.  The most famous and most cited passage in all of campaign-finance law, from Buckley, is the following:

But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors,365 U.S. 127, 13 (1961).

It is this reasoning from Buckley that directly holds unconstitutional precisely the position that the Times editorial today advocates.  Those who hold the view the Times does need to understand that their real complaint is with Buckley.  Put another way, if Citizens United were overruled tomorrow, the problem that concerns the Times would remain essentially the same.  The Times editorial should really be titled Living in a Buckley v. Valeo World.

Today’s Supreme Court decision in the Texas redistricting case is largely a win for the State of Texas, for reasons I explained in advance of the decision.  But the Court forged a “compromise” solution that was not raised or discussed at all at the oral argument in the case, nor one raised in the briefs.  It is actually not the “compromise” solution that Justice Kagan raised at the argument, but a somewhat different one the Court apparently came up with during its internal deliberations in the case.  And I fear that this compromise is going to make an already complex situation even more unwieldy when these situations arise in the future.

Until today’s decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution:  only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues.  Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well – thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question.  The Court has held that the San Antonio court has to make the predictive judgment of whether there is a “reasonable probability” that the state’s plan will fail to gain preclearance in the other federal court – the preclearance court in DC.  So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan – it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues.  This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.

There are at least two better solutions to this trainwreck situation of two different federal courts both reviewing the same redistricting plan.  First, the Court could have said that if the case is one in which the Department of Justice has already taken the legal position in the pre-clearance court that the plan does have Section 5 violations, the Texas court should be obligated to accept those objections, if there is a reasonable legal basis for them, and cure them when it creates an interim plan.  Indeed, DOJ has done exactly that in this case.  Yet one of the oddities of the Court’s opinion is that there is no mention of this fact, let alone any discussion of its relevance. I am puzzled as to why the Court said nothing about the relevance of the already-existing DOJ Section 5 objections to Texas’ plans, although the argument did not flag this issue clearly for the Court.  So the situation now is that even if DOJ has not yet taken a position on whether a plan complies with Section 5, the second court still has to make its own inquiry into that question.

If the second court is going to be instructed to reach Section 5 issues, it would be better to have its inquiry anchored in a firm baseline, such as whether DOJ has argued that Section 5 is indeed violated.  Instead, the Court’s decision instructs the second court to engage in essentially a general, wide-ranging Section 5 analysis.

The even better solution to this problem, which is not one the Court itself was asked to adopt in this case, is for the system to find a way to consolidate the two actions in a single court, which would be the pre-clearance court in D.C.  It makes little sense to have two courts addressing the same redistricting plan, in the midst of uncertainty about how the other court will act, and under tremendous time pressures.  This consolidation could be accomplished either by a statutory enactment, if necessary, or possibly by the pre-clearance court exercising powers under the All Writs Act to transfer the merits case to its jurisdiction if a pre-clearance action had already been filed.  That would be a much more creative solution than any court has yet undertaken or any litigant proposed, and courts might be reluctant to exercise such powers.  But either through statutory amendment or such use of judicial power, we would be far better off with these issues all consolidated in front of one three-judge federal court to avoid the kind of trainwreck this case represents.

And Rick Hasen has indeed sneaked in under the wire on the last day and earned the right to have me buy him a beer, which I will gladly do!

The 2011 Supplement to the The Law of Democracy:  Legal Structure of the Political Process (3rd ed.), written by Samuel Issacharoff, Pamela Karlan, and Richard Pildes, is now available.  Foundation Press has graciously made the Supplement available without charge to casebook users.  You can download the Supplement here on the Foundation Press website; click on the link for “2011 Update Memo.”

Much of the initial reaction to the Edwards indictment from experts in campaign-finance law has been critical or skeptical of the government’s theory. But in my view, the reaction has not been critical enough. Some skeptics think the problem with the government’s case is figuring out what the “true motives” of Edwards and his supporters were when they gave large amounts of money to keep his affair secret. If their motives were to benefit Edward’s campaign, then perhaps this money was an illegal campaign “contribution;” if their motives were anything else, like preserving Edward’s family relationships, then the money was not a campaign contribution. On this view, the government has a difficult, but not impossible, problem on its hands only because sorting out mixed motives in a situation like this is extraordinarly complex. This is Rick Hasen’s view of the case: the government’s case is difficult, but plausible, because if the government can prove Edwards and the donors “really intended” the money to benefit his campaign, then a crime will have been committed.

But I believe the government’s case is even more tenuous than Hasen’s view suggests. What constitutes a “campaign contribution” under the federal election law for criminal-law purposes must be defined in objective terms. The definition of a “contribution” cannot turn on the subjective motive of the actors involved. There are a limitless number of ways supporters of a candidate can spend money that could indirectly benefit the electoral prospects of that candidate. Whether any of these means are “contributions” or not should depend, for purposes of criminal law, on objective facts, not on whether those involved intended to benefit some candidate. For example, if a candidate has published an autobiography, a supporter could buy up thousands of copies of the book and help turn it into a bestseller, which could enhance the candidate’s stature and visibility. Most forms of this kind of indirect activity will cost more than the $2300 cap on campaign contributions (at $25 a book, buying 93 books would exceed that cap). But the courts are unlikely to accept the view that whether buying up these books constitutes a crime turns on whether the purchases were motivated by a desire to help the campaign or, instead, a belief in the correctness of the ideas expressed and a desire to share those ideas with others. Motives are irrelevant. The FEC has already recognized this in the flip-side of the Edwards case; when a donor gives money directly to a candidate, this will be treated as a contribution, regardless of whether the donor says my real motive is to give a gift to the candidate, not a campaign contribution. But just as subjective intent cannot turn a contribution into something else, it cannot turn something not a contribution into one. There are two points here: (1) not every form of spending that indirectly benefits a candidate is, in legal terms, a “campaign contribution;” (2) determining which forms of spending are contributions cannot turn on whether the actors involved are motivated to help the campaign or not — especially in the criminal-law context, where due process considerations require that potential defendants have clear notice of whether their conduct constitutes a crime or not.

The question in the Edwards case is thus whether money given to support a mistress is, under the law, a campaign “contribution,” period, regardless of trying to sort out why the money was given. Based on my knowledge of the election laws, I find it hard to believe the courts will answer yes to that question. For one, the money involved here was not a substitute for money the campaign itself might otherwise have spent; indeed, if Edwards has used campaign money to support his mistress, that would itself have violated the criminal law. So the donors did not save the Edwards campaign from spending money it might otherwise have spent. Criminal prosecutions under the federal election laws are extremely rare to begin with; the government has never brought a criminal case involving an expansive notion of “contribution,” let alone one as expansive as this case involves. Indeed, even in the civil context, the FEC has never tried to stretch the definition of “contribution” this far. The money spent here is almost certainly not a “contribution” within the meaning of the election laws, at least for criminal-law purposes. I believe at least nine out of ten election-law experts would have been of that view before this prosecution was announced. But even if there is uncertainty about that, the Constitution prohibits criminal prosecutions under statutes that are too vague to provide fair notice about the boundaries between lawful and criminal conduct.

The confusion on this issue might be a result of the fact that specific intent is necessary to establish a criminal violation of the federal campaign finance laws. Thus, the government must generally prove that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge. But the fact that intent is necessary doesn’t mean it’s sufficient: the payments either are contributions, within the meaning of the law, or they are not. Whatever motivated the donors or Edwards cannot turn spending that is not a contribution into a contribution. I have no sympathy as a moral matter for John Edwards, but regardless of his motives, I doubt the courts are going to accept the view that he can be prosecuted for criminal violations of the federal campaign-finance laws — regardless of whether he or his donors intended to benefit his campaign through the payments.