The Volokh Conspiracy

So held the Tenth Circuit on Tuesday in Sampson v. Buescher:

Colorado law requires that any group of two or more persons that has accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue must register as an issue committee and report the names and addresses of anyone who contributes $20 or more. Plaintiffs are residents of Parker North, a neighborhood of about 300 homes in an unincorporated part of Douglas County, Colorado, who opposed the annexation of their neighborhood into the Town of Parker. Plaintiffs had raised less than $1,000 in monetary and in-kind contributions for their cause when supporters of annexation challenged the failure of the opponents to register as an issue committee.

Plaintiffs contend that Colorado reporting requirements unconstitutionally burden their First Amendment right to association. We agree that Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee….

Continue reading ‘Unconstitutional to Require Registration and Disclosure for Any Committee Spending Over $200 to Support/Oppose a Ballot Measure’ »

I am at least somewhat happy to see that John Kasich was elected governor of Ohio on Tuesday. Back in 2000, I was one of about six people outside Kasich’s immediate family who supported his abortive bid for the presidency. I’m pretty sure that I was the only Kasich supporter at Yale Law School at the time!

I had liked Kasich’s efforts at budget-cutting when he was Chairman of the House Budget Committee in the 1990s, which included going after farm subsidies that benefited his home state, and wasteful military spending supported by many other Republicans. By contrast I thought that both George W. Bush and John McCain were suspect on free market issues, though I still failed to foresee how bad Bush would actually turn out to be on that score. Amazingly enough, the support of an obscure law student wasn’t quite enough for Kasich to mount a serious challenge to Bush and McCain, and his campaign quickly fizzled out.

I don’t know whether Kasich would really have made a good president, or for that matter whether he’ll be an effective governor of Ohio. I haven’t followed his career closely since 2000. I will say that time hasn’t changed my view that Kasich was significantly better than Bush, though that isn’t exactly judging him by a high standard.

Some commenters on my earlier post on the election criticize my claim that the economy determined the outcome far more than the health care bill and Obama’s other left-wing policies. I don’t deny that these factors hurt the Democrats. But the economy mattered far more.

The standard economic model of midterm electoral outcomes developed by political scientist Douglas Hibbs (which has performed fairly well for many years) predicted a 45 seat Democratic loss in the House. As Kevin Drum emphasizes, the Democrats in fact did even worse than this, losing about 15 to 20 additional seats. Hibbs’ model takes account of the “exposure” of the majority party (the number of potentially vulnerable seats they held) and of income growth. But it doesn’t directly factor in unemployment, which is worse in this recession than in any other since World War II, except for that of the early 1980s. It’s possible that high unemployment (which was high even relative to the decline in income) helped account for some of those “extra” seats.

The health care bill and other instances of leftward deviation from the views of the political center probably also accounted for some of the residual. But one can’t assign the entire excess to that factor. There are a lot of other variables in play, including Obama’s seemingly aloof “elitist” governing style, left-wing voters who may have stayed home because they thought Obama was too moderate, frustration over the state of the war in Afghanistan, and so on. Moreover, as I noted in my last post, the minority of voters who cared intensely enough about health care to consider it the single most important issue facing the country actually broke in favor of the Democrats (albeit by a modest 53% margin). And the health care bill might have been more popular if better economic performance had increased the president’s popularity, which in turn might have led voters to regard his other policies more favorably.

Let’s assume, however, that the health care bill and other unpopular left-wing policies cost the Democrats 80% of those extra lost seats. It’s still less than 30% of the loss attributable to the economy. Furthermore, I think most liberal Democrats would have been happy to sacrifice twelve to fifteen House seats to achieve a long-cherished policy goal such as the health care bill. And most conservatives would have been equally willing to sacrifice the same number of Republican House seats to prevent it.

To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54-46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.

At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.

The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”

I. The Age Gap.

People over the age of 65 voted against Prop 19 by a 68-32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51-49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.

The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50-64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.

II. The War on Drugs and Conservatism.

Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.

But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.

Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.

Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”

Even before the election ended, some liberals argued that public ignorance explains the big Republican victories that just occurred. There is, I think, some truth to that contention. For example, a recent Bloomberg poll shows that 52% of voters thought that “middle class” federal income taxes have gone up in the last two years, even though they have actually gone down. The same survey also found that 61% believe that the economy has shrunk during the past year, even though it has actually grown slightly. I doubt that the Democrats would have avoided significant losses if the majority of the public had accurate information on these two points, but those losses might well have been smaller.

I. Ignorance Cut Both Ways.

On the other hand, there are probably areas where voter ignorance helped the Democrats in this election. For example, research by economist Bryan Caplan shows that most voters have a strong “antiforeign bias” that leads them to greatly overestimate the dangers of foreign influence, trade, and investment, while ignoring most of its benefits. This may have led voters to be more receptive to dubious Democratic charges that the Republicans were using “foreign money” in the election, and to union claims that we need protectionism to save American jobs. Most voters are also unaware of the extensive role of prominent congressional Democrats such as Barney Frank in supporting mortgage lending policies that helped cause the housing bust and financial crisis.

There are also cases of ignorance that didn’t clearly help one party or another, but are still lamentable. For example, even in his home state of Ohio, 42% of voters say they don’t know enough about soon-to-be Speaker of the House John Boehner to have an opinion about him (this figure probably understates the true degree of ignorance, since many poll respondents don’t like to admit ignorance to pollsters). This mirrors public ignorance about Nancy Pelosi right before she became speaker in 2006.

II. Why Ignorance Probably Helped the Republicans on Net.

That said, the net effect of ignorance in this election probably worked to the advantage of the Republicans this year, for much the same reasons as it helped the Democrats in 2008. This year, as in most elections, the vast majority of voters cited “the economy” or “jobs” as the most important issue. Historical data strongly suggests that voters punish incumbents for bad economic conditions regardless of whether the incumbents actually caused the problem or made it worse than it would have been otherwise. As political scientist Larry Bartels explains, this is a very consistent pattern in American history. Indeed, Bartels and Christopher Achen show that voters tend to focus primarily on short term trends while largely ignoring long term ones and failing to consider the possible longterm future impact of present policies.

In this case, the voters probably held Obama and the Democrats responsible for current conditions despite the fact that they only partly caused them and that even optimal policies over the last two years would not have come close to ending the recession by this point. In my view, the Democrats’ policies did more to make things worse than better, though I recognize that there are serious contrary arguments. But even those economists who believe as I do would probably concede that there was no way to quickly end the recession.

The Obama argument, essentially, is that things would be even worse were it not for his policies. That argument may be wrong. But it is striking that voters have rejected the same claim during virtually every recession for the last 60 years, no matter what the policies followed by incumbents. It didn’t work for the Democrats in 1938, 1952, 1968, and 1980, among other cases. And it didn’t work for the Republicans in 1976, 1982, 1992, or 2008. It seems unlikely that every incumbent party that presided over a recession pursued worse policies than its opponents would have in their place. At the very least, therefore, political ignorance probably increased the magnitude of the Republican victory this year, just as it aided the Democrats in the last election.

The Democrats also adopted some other unpopular policies, such as their health care bill. But it seems clear that they would still have avoided major setbacks had the economy shown significant improvement over the last year. A recent Gallup survey found that some 58% of Americans saw the economy or jobs as the most important issue this year, while only about 7% cited health care. Moreover, the popularity the Democrats would have derived from improving economic conditions might well have spilled over to boost the ratings of their other policies, as sometimes happened for incumbents during previous economic upturns.

III. The Broader Impact of Ignorance.

The real impact of political ignorance, however, goes beyond its effect on voter decisions between the two parties as they now stand. With a much more knowledgeable electorate, the parties would probably have adopted different platforms and possibly nominated some different candidates as well. Controlling for other variables, increases in political knowledge lead voters to be more supportive of spending cuts, deregulation, and tax increases. More knowledgeable voters are also less vulnerable to deception and internally contradictory arguments.

With a much more knowledgeable electorate this year, the Republicans would have been less likely to pretend that we can greatly cut government spending and balance the budget without touching entitlement programs or raising taxes on anyone. And they would not be making the nonsensical argument that “government should keep its hands off my Medicare.” The Democrats, for their part, might not have pretended that we can adopt massive spending increases on health care and other areas, leave entitlements largely untouched, and avoid fiscal crisis without raising taxes on anyone but “the rich.” Voters in both parties would understand that unconstrained entitlement spending is a major cause of our looming fiscal crisis. The resulting party platforms would still be far less libertarian than I would personally prefer. But I think they would have been a considerable improvement over what we actually got.

UPDATE: CNN exit polls show that 62% of voters thought that the economy was the most important issue facing the country, and 53% of this group voted for Republican House candidates (44% picked the Dems). By contrast, only 18% said that health care was the most important issue, and 53% of them actually voted for the Democrats. This further reinforces my argument that the election turned primarily on the state of the economy, and that the health care bill, despite its unpopularity, was only a minor factor in the Democratic defeat.

Not all the electoral returns are in yet. But one outcome is very clear: The Republicans have taken control of the House of Representatives, and therefore we will get a return of divided government. I advocated divided government in 2006 (when its return forced Bush to curb some of his excesses and adopt a more rational policy on Iraq), and 2008 (when its loss eventually resulted in the massive expansion of government that I feared). I think my reasons also hold good this year: divided government tends to restrain the growth of the state, and that when the two parties share power, they curb some of each other’s abuses.

I should also note that nearly all of the major government-restraining legislation of the the last thirty years (e.g. – the 1981 and 1986 tax reforms, the 1996 welfare reform, the deregulations and spending restrictions of the late 1990s) were passed under divided government, whereas nearly all the major expansions of government during that period (e.g. – Bush’s massive prescription drug bill, Obama’s stimulus and health care bills) were enacted under united control (the TARP bailout in late 2008 is the one big exception). This is probably not an accident and is consistent with historical experience. I’m not exactly optimistic about what either Obama or the new Republican House majority will do. But I do think that prospects for limiting government are far better today than they were just a few months ago. And the return of divided government is a crucial reason why. At the very least, we are unlikely to see any massive new government programs enacted, as happened under both united Republican control in the Bush era and united Democratic control under Obama.

The Washington Post reports on controversy surrounding allegations that Democratic Party operatives worked behind-the-scenes to get a third-party “Tea Party” candidate onto the ballot in New Jersey’s Third Congressional District in order to help re-elect first-term Congressman John Adler (What? You thought this post was about someone else?).  The Post story draws on a report Friday in the Courier Post quoting unnamed “Democratic operatives” explaining how the “Tea Party” candidate was recruited and supported so that he would siphon votes from Adler’s Republican challenger in November.  Adler denies he had anything to do with the third-party candidate.

In response to the story, Adler’s challenger, former Philadelphia Eagles offensive lineman Jon Runyan, put out this statement responding to the story and decrying the “unethical” and “perhaps even . . . illegal” conduct by those behind the “fraudulent” third party campaign.  Said Runyan, “I would ask for an apology, but frankly, an apology from someone like Congressman Adler would be so meaningless that it’s not worth seeking.”

The Sunlight Foundation reports on Rep. Maxine Waters’ (D-CA) innovative approach to raising campaign funds: selling endorsements to other politicians.

The Los Angeles-area representative, who faces ethics charges in the House for intervening on behalf of a bank in which her husband had invested heavily, has found a way to take large sums of money from state and federal political committees that seemingly exceed FEC contribution limits, but are perfectly legal under the federal election law. The Waters campaign did not respond to requests for comment.

Waters, who has been in Congress for more than three decades, routinely sends out mailers endorsing a list of other candidates and ballot initiatives she supports. In the 2010 cycle, she has raised more than $295,550 out of a total of $497,300 through these mailers. And getting on one of her slate mailers doesn’t come cheap—to be featured on the “Citizens for Maxine Waters” slate, candidates pay anywhere between $250 and $45,000.

A commenter pointed to this OpenSecrets.org page, which seems to report that 70.8% of all federal contributions (not independent expenditures) in 2007-2008 came from business, and only 2.7% from labor (though put together the Democrats still got more than Republicans, both looking at total money and at PAC money; that’s relevant to the original post that prompted the comment).

But the prominent labels are misleading, as the text of the page itself acknowledges:

[B]usiness contributions tend to be overstated. Because CRP uses employer/occupation information to categorize donors, and because just about everyone works for a business, contributions from members of labor unions and ideological groups are often classified under business.

Recall that federal law doesn’t allow direct contributions by corporations and unions (Citizens United is unlikely to change that, I think; but in any event, such direct corporate and union contributions weren’t allowed in 2007-2008). It does allow contributions by PACs, but the bulk of the contributions were from individuals. When you contribute to a federal campaign, you have to list your employer, and the aggregate data on contributions by economic sector focuses on the status of that employer. So if you’re a loyal UAW member who works for Ford, your contribution will be attributed to Ford, and be listed under the automotive subsector of the business sector — not to the union. Likewise, if you work for IBM but are contributing based on your ideological predispositions (e.g., you support pro-choice candidates, or environmentalist candidates, or pro-Obamacare candidates), that too would be counted as a business sector contribution.

So read the fine print carefully on such reports, and keep in mind that “business” contributions are generally not contributions by corporations (which are forbidden) or by corporate PACs (which are limited) — they are contributions by individuals who happen to work for businesses, some of whom are contributing to support the interests of their business and some of whom aren’t.

A CNN article by Jeffrey Toobin asserts, among other things, that

The political effect of, if not motivation for, the [Citizens United] decision was clear: Citizens United looks to be a big win for Republicans, who are the likely beneficiaries of the newly lubricated corporate largesse.

But is that really so? In California, one of the 26 states where independent expenditures for and against candidates have long been legal, a recent Fair Political Practices Commission report suggests that — among the top 10 independent spending committees, which together spent nearly half the total amount that was independently spent — unions probably outspent corporations by roughly 2 to 1 (click on the link for more details). [UPDATE: For greater precision, I added the material between the dashes, which I had originally omitted in this post, though I had included it in the post I linked to.]

Of course, perhaps things are different in other states (I haven’t seen any data from other states), and perhaps they will end up being differently in federal elections (no-one can know for sure until it happens). I’d love to see any more data on the subject, of course. I’d also love to see how lopsided union independent spending is in favor of the Democrats, and how lopsided corporate independent spending is in favor of the Republicans. If, for instance, unions spend overwhelmingly to elect Democrats while businesses split their spending more evenly (true for contributions by PACs to candidates, but I can’t say whether it would also be true for independent expenditures from unions’ and corporations’ general treasuries), then the net effect might favor Democrats even if corporations spend more total than unions do.

I asked Jeffrey Toobin whether he had more data on this, but he replied that his statement was an inference from two circumstances: (1) Corporations are generally much richer than unions. (2) Unions and union supporters have generally expressed upset at Citizens United, while business groups have generally expressed pleasure. And the inference seems plausible.

On the other hand, the inference is hardly dispositive. Corporations might be less inclined than unions to spend their wealth on independent expenditures, for instance, perhaps because corporations think that when they are identified as the funders, many listeners will be turned off from the message. And the overall tenor of unions and business groups’ statements may more reflect their political alliances than accurate predictions of the decision’s effect. It makes sense that those on the Left who are skeptical of the position of the liberals on the Court (and in the academy), and those on the Right who are skeptical of the position of the conservatives, would be more likely to stay quiet. And while this too is speculation on my part, it is supported by the one solid piece of evidence that I have: the California data.

So let me say again: I’d love to see whatever other data there might be in the 26 states that have long had a Citizens United-like regime in which corporations and unions were free to speak in favor of and against political candidates. Perhaps it will show that California was an anomaly, or perhaps it will yield results much like California’s. But it seems to me that before we hypothesize that Citizens United will clearly give more of an edge to Republicans, we ought to consider the data. And the data that I’ve seen so far actually points in the opposite direction.

UPDATE: When it comes to federal campaign contributions — not independent expenditures — corporate PACs outcontributions labor PACs by more than 4:1. But I’m not sure that data on money-limited contributions by PACs (PACs may only donate relatively small sums to each candidate under federal law) tell us much about unlimited independent expenditures by corporations and unions themselves; that’s why I’d like to see data, such as California’s, on actual independent expenditures from general corporate and union treasuries.

Still, if you do think that the results for independent expenditures post-Citizens United would mirror results for PAC contributions pre-Citizens United, then those would favor Democrats. Labor union PAC contributions favored Democrats by a 92%-8% margin and corporate PAC contributions favored Republicans only by a 51%-49% margin, so that the sum was a 57%-43% margin in favor of PAC contributions to Democrats.

FURTHER UPDATE: Commenter Blar points out that in 2004 and 2006, Republicans got substantially more corporate+union PAC money than Democrats. In 2002, the corporate+union PAC numbers were nearly evenly split.

Stephen Colbert tried to run a corporate-sponsored campaign for the Presidency in 2008, only to be foiled by election laws.  In teh wake of the Citizens United ruling, he’d like to try again, Politico reports.  But if he plans to run another “hail to the cheese Stephen Colbert Nacho Cheese Doritos 2008 presidential campaign” he’s in for a bit of a surprise.  While Frito-Lay could air ads in support of Colbert’s candidacy, it still can’t fund his campaign directly or coordinate its expenditures with the Colbert campaign, nor can Colbert promote a real candidacy on his show, as that would entail direct financial support from Comedy Central’s corporate owner, Viacom.  So much for leaving the other candidates in the dust, the “nacho cheese dust.”

The Supreme Court’s opinions in Citizens United v. Federal Election Commission, including the syllabus, are a whopping 183 pages. There are five opinions in all.  Justice Kennedy’s opinion for the Court, concurring opinions by Justice Scalia (joined by Alito and Thomas in part) and Chief Justice Roberts (joined by Alito), and opinions concurring in part and dissenting in part by Justice Thomas and Justice Stevens (joined by Justices Ginsburg, Breyer, and Sotomayor).  We’ve got a lot of reading to do.

UPDATE: Just a quick summary.  The Court held 5-4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8-1 (Thomas dissenting).  Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech.  According to Justice Kennedy, the Court is re-embracing the principle that a speaker’s corporate identity is not a sufficient basis for suppressing political speech, as held in pre-Austin cases.  It would appear this holding applies equally to unions.  While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government’s interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United.  The opinion also includes a substantial discussion of stare decisis, and why such considerations counseled overturning prior precedents.

FURTHER UPDATE: For some early commentary, see SCOTUSBlog, Rick Hasen’s Election Law Blog and NRO’s Bench Memos.

LAST UPDATE: Just for fun, here are the page counts:

• Syllabus – 7 pages
• Justice Kennedy’s Opinion for the Court – 57 pages
• Chief Justice Roberts’ Concurring Opinion – 14 pages
• Justice Scalia’s Concurring Opinion – 9 pages
• Justice Stevens Opinion Councurring-in-part, Dissenting-in-part – 90 pages
• Justice Thomas – 6 pages

Radio talker Ed Schultz clarifies his comment from last week that he’d vote ten times in Massachusetts if he could get away with it.  From the Radio Equalizer:

An apology right off the top here on the Ed Schultz show today, great to have you with us. I misspoke on Friday. I’m sorry, I’m sorry. I meant to say, if I could vote 20 times, that’s what I’d do (guffaws) . . . .

They want me off the air, of course they do! This Radio Equalizer guy or whoever the hell he is, they dissect every word, they’ll take a clip out and they’ll say he said this. Let me be very clear – I’m not advocating voter fraud, I’m just telling you what I would do. That’s how bad I want Scott Brown to lose!

When  Rush Limbuagh suggested that his listeners vote in the 2008 Democratic presidential primaries — so-called “Operation Chaos” –  MSNBC’s Dan Abrams called it “un-American,” and others suggested it might be “criminal.”  I wonder what Abrams thinks about MSNBC’s own Ed Schultz, who last week declared he would commit voter fraud to prevent Scott Brown from winning the special election to fill Ted Kennedy’s old Senate seat in Massachusetts.  Discussing the election on his radio show this past week Schultz said :

I tell you what.  If I lived in Massachusetts I’d try to vote ten times . I don’t know if they’d let me or not but I’d try to.  Yeah, that’s right.  I’d cheat to keep these bastards out.  I would.  Because that’s exactly what they are.

It’s pretty shocking to hear a prominent media personality embracing voter fraud like that, but there you have it.