Law Commons^™

Democratic Erosion And The United States Supreme Court, Jenny Breen

Utah Law Review

For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …

Free Speech Has Gotten Very Expensive: Rethinking Political Speech Regulation In A Post-Truth World, John A. Barrett, Jr.

St. John's Law Review

(Excerpt)

Protecting free speech has been a foundational principle of American democracy since the nation’s founding. A core element of free speech has long been a prohibition on regulating political speech. The principle behind this protection holds that citizens are free to make whatever political pronouncements they wish and that their speech shall remain free from government suppression. Even within the limited exceptions to unfettered political speech, like defamation or libel, the speech is not banned but may merely result in liability. A premise underlying this view is that competing viewpoints, by being made available to us all, will allow …

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive …

Politics At Work After Citizens United, Ruben J. Garcia

Scholarly Works

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Lobbying And The Petition Clause, Maggie Blackhawk

All Faculty Scholarship

Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Voluntary Campaign Finance Reform, John C. Nagle

John Copeland Nagle

No abstract provided.

First Amendment And "Foreign-Controlled" U.S. Corporations: Why Congress Ought To Affirm Domestic Subsidiaries' Corporate Political-Speech Rights, Scott L. Friedman

Vanderbilt Journal of Transnational Law

Political spending in the modern-day, prolonged election cycle continues to exceed historic proportions. With money equated to speech, whether the First Amendment entitles certain contributors to engage in this political activity remains an open question. Unlike France and Israel, which prohibit corporate contributions, and Canada and the United Kingdom, which turn to public funding for campaign finance, the United States has pushed candidates to rely on political party contributions, personal wealth, and the generosity of individuals, political action committees, and corporations. Concerns about corporate and foreign influence on politics have been especially salient during this lengthy economic downturn, as shown …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton

Publications

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the government's …

Voluntary Campaign Finance Reform, John C. Nagle

Journal Articles

Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …

Washington's Ballot Restriction For Minor Party Candidates: When Is A Primary Not A Primary?, Emily Calhoun

Publications

No abstract provided.

The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun

Publications

No abstract provided.