Eugene Volokh's Blog, page 2616
February 14, 2012
Campaign Finance Reform and the 1968 Campaign
Ed Crane and David Keating in the WSJ>:
It is instructive to recall the 1968 presidential campaign of Minnesota's late Democratic Sen. Gene McCarthy (who was also a plaintiff in Buckley). Popular support for the war in Vietnam was declining, yet no establishment candidate was available to challenge the war—certainly not Richard Nixon. On the Democratic side, President Lyndon Johnson was escalating the conflict. McCarthy was the most outspoken and articulate opponent of the war in the U.S. Senate, but he lacked the resources to conduct a serious presidential campaign.
Had the 1974 amendments to FECA, with their $1,000 contribution limits, been in place in 1968, there would have been no "Clean Gene for President" campaign. As it was, wealthy liberals such as Stewart Mott, Stanley Sheinbaum and the recently deceased Max Palevsky stepped up to make six- and seven-figure contributions to fund the McCarthy campaign, donations worth nearly $10 million in today's dollars.
Suddenly, tens of millions of antiwar Americans had a candidate. McCarthy didn't win the New Hampshire Democratic primary, but he did so well that President Johnson, seeing the handwriting on the wall, announced he was not going to run for re-election. Such is the manner in which campaign-finance laws can affect history.
February 13, 2012
How Economists Pursue Assortative Mating at Valentine's
http://fosslien.com/heart/. Megan McArdle asks how the physical university will survive the coming disintermediation of higher education. I don't think the answer is superior learning or even superior credentials. It's assortative mating. Assortative mating works best when the cognitive elites are able to combine signaling behaviors for their superior genes, particularly for doing economics, with the physical proximity that supplies bonding behaviors and oxytocin and also the opportunity to sniff the pheromes. We need classrooms for one kind of fitness signaling and dorms rooms for another. There will be math involved. Not because it's necessarily needed, but because when economists compete for the opportunity to mate, math supplies the antlers. Vive the Red Queen. The role of the tenured professor will survive as … Cupid. (In honor of St Valentine's Behavioral Economics, comments are open.)
Our Supreme Court Amicus Brief Explaining Why the Individual Mandate is not "Proper"
We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, among others. Several other prominent legal scholars were unable to join us because they are involved with other amicus briefs in the case.
Rather than considering the full range of constitutional issues in the case, we decided to focus on why the mandate falls outside the scope of Congress' powers under the Necessary and Proper Clause because it is not "proper." We thought that an in-depth analysis of this crucial, underemphasized issue would be more useful than a brief that covered multiple issues in a more superficial way and that would overlap far more with other briefs filed in the case. As far as I know, this is the only amicus brief that focuses solely on the issue of propriety.
The problem of propriety is the main flaw in the federal government's claim that the Necessary and Proper Clause authorizes the mandate – which is otherwise the strongest constitutional argument in favor of the mandate. It is striking that the Justice Department largely ignores the issue of propriety in their brief for the Petitioners. As explained more fully in our brief, the federal government's position essentially transforms the Necessary and Proper Clause into just a "Necessary Clause." This goes against logic, the text of the Constitution, the original meaning, and Supreme Court precedent. We hope to focus more attention on this weakness in the federal government's case.
Washington State Governor to Sign SSM Bill at 11:30 PST
You can watch the signing here. The legislative success was the result, as in New York, of persuading a handful of Republicans and almost all Democratic state legislators to support marriage for same-sex couples.
It's considered very likely that gay-marriage opponents will force a popular vote on this issue this November. Same-sex couples won't be able to marry until and unless that initiative is voted down. Washington voters rejected an attempt to ban legal rights for gay families a couple of years ago, but "marriage" will be a tougher slog.
UPDATE: In case you missed it, you can watch the signing speech here. It is powerful.
Proposition 8 Through the Prism of Lawrence v. Texas
The Ninth Circuit's opinion in Perry v. Brown pushes hard to apply Romer v. Evans to the Prop 8 litigation. The panel noted that the grant of full marital and parental rights to same-sex couples, while simultaneously denying them the word "marriage," excised gay couples and their children with "surgical precision." But such narrowness was not the problem in Romer; it was the breadth of a law denying a single class all civil-rights protections proved troubling. Narrowness is usually a virtue in rational-basis review. How, then, does one explain why a very precise law is unconstitutional?
In an op-ed in today's Los Angeles Times, I suggest a connection between Perry and Lawrence v. Texas, which struck down the Texas "Homosexual Counduct" law. While Perry was as an equal protection case, the due process holding of Lawrence actually seems closer to the "surgical precision" concern than does the equal protection holding in Romer. Here is an excerpt from the op-ed:
If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court's decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.
The sorry history of this country's legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.
Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described "country lawyer" who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.
"I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason," he recalled thinking, obviously still baffled. "And nobody could explain to me why."
In Lawrence, the court ruled that the state could not impose the majority's moral code on homosexuals. It could not "demean their existence or control their destiny" by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.
But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.
What if Kelo v. City of New London Had Gone the Other Way?
My new article "What if Kelo v. City of New London Had Gone the Other Way?" is now available on SSRN. It is part of an Indiana Law Review symposium on "What if? Counterfactuals in Constitutional History." Here is the abstract:
Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of "economic development." This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.
Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.
Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.
Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.
February 12, 2012
Will Tort Lawsuits be the Downfall of the NFL?
The National Football League has been the most successful professional sports league in the US over the last several decades. But economists Tyler Cowen and Kevin Grier argue that tort suits over concussion injuries might lead to its downfall:
Before you say that football is far too big to ever disappear, consider the history: If you look at the stocks in the Fortune 500 from 1983, for example, 40 percent of those companies no longer exist…. Sports are not immune to these pressures. In the first half of the 20th century, the three big sports were baseball, boxing, and horse racing, and today only one of those is still a marquee attraction.
The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away…. The end result is that the NFL's feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.
This is a plausible scenario for the demise of professional football. But Cowen and Grier ignore an important countervailing factor: If tort lawsuits start to pose a serious threat to college and professional football, the NFL and other powerful interests that benefit from the sport won't take it lying down. They will use their considerable lobbying clout to push for changes in tort law. Majority public opinion could well be on their side. Football is an extremely popular support, and many people might reason that the threat of concussion is just one of the risks that players voluntarily take on when they choose to participate in the sport.
Over the last twenty years, many states have enacted strong tort reform laws in order to curb dubious lawsuits that threaten the business climate in their jurisdictions. The reformed states include even the once-notorious "tort hellhole" of Alabama. If tort lawsuits start threatening the NFL, big-time college football, or even high school football in states like Texas, we might well see a new round of reform laws.
It's possible, of course, that concussion injuries could lead to such a wave of public outrage that the NFL and Division I college football programs will be unable to resist the tide. But I am skeptical. Most fans already know that football is a dangerous sport, and that doesn't seem to bother most of them much.
Further Confirmation of Kerr's Law
New polling shows a majority of Americans, and even a majority of self-described liberal Democrats, support drone strikes against suspected terrorists and keeping the Guantanamo Bay detention facility open. The Advocacy Center for Equality and Democracy comments:
the polling data suggests that a significant number of people who identify as belonging to a political party (a) change their values to conform to the policies of their party, and/or (b) change their values to oppose the leader of the other party. Either is totally inconsistent with a citizen's role in a democracy.
More here and here. This is further confirmation of Kerr's Law (as is much of the opposition to the individual mandate from those who used to support it).
Debating the Individual Mandate
Last week, I was a participant in the 2012 Fordham Debate at the University of Utah's S.J. Quinney College of Law. The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University. For those interested, here is the video of the debate. Time permitting, I'll write up a synopsis of my remarks as well.
More on Gay Marriage Bans and Judicial Minimalism
In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.
Dale argues that the sex discrimination argument is flawed because "(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn't sufficiently attuned to the Court's sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses 'real differences' between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple)." On the first point, I think this "obscurity" is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.
On Dale's second point, it is essential to recognize that bans on same-sex marriage do not actually "track 'real differences' between men and women." Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.
Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might "lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas." In his view, Bowers was an unmitigated "calamity" for gay rights because it "was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law." As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on a important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That's a net gain for the side that lost the case if that side was the one trying to change the status quo.
Dale ends by suggesting that "Bowers 'laid the groundwork' for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day." This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.
A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.
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