First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the United States and United Kingdom

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides of the Atlantic. This is especially true in regard to the regulation of political campaigns.This article challenges that assumption, and argues that America’s more libertarian approach to the legal regulation of political speech does not pose a barrier to fruitful comparative work in this area. It does so by comparing the law of the US to that of the UK. Specifically, it organizes reform proposals being considered in the US and UK into a common taxonomy, and sets out the legal standard governing each type of proposal in each country. Considering each country’s law through this organizational structure allows us to see that the legal differences between the US and UK, while significant, rarely bar the types of changes being considered in either nation. Indeed, the two countries have much to learn from each other’s efforts in this area, and lawmakers, regulators, and scholars should not hesitate to engage with the experiences of their transatlantic peers.In reaching this conclusion, the paper makes three distinct contributions. First, by clustering reform proposals into a taxonomy, it provides a structure for comparative work that will be useful not just in the US and UK, but in all countries working to bring their election laws fully into the internet era. Second, by providing an in-depth yet accessible guide to the legal structures undergirding election law in the US and UK, it provides a useful tool for scholars attempting to understand these systems. The US system in particular is often quickly dismissed by other nations, but without a deeper understanding of how and why US law has ended up as it has those nations risk inadvertently following in its footsteps. Finally, it identifies several concrete areas where the US and UK can benefit from each other’s expertise, thereby providing a roadmap for regulators, lawmakers, and reform advocates in both countries

In Defense of Ideology: A Principled Apporach to the Supreme Court Confirmation Process

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation process. Second, Professor Ringhand explains how an ideologically based approach to the confirmation process is not just unobjectionable, but can in fact play a normatively desirable role in ongoing efforts to construct alternative constitutional narratives, narratives that attempt to guide or justify the use of judicial review while also incorporating a realistic understanding of the capacities of the Supreme Court. She concludes by reviewing the historic use of ideology in the confirmation process, and discussing several additional benefits that could result from the more open acknowledgment of the role ideology has-and does-play in that process

Defining Democracy: The Supreme Court\u27s Campaign Finance Dilemma

In deciding campaign finance cases, the Supreme Court often has stressed that its role is limited to protecting First Amendment rights and does not include promoting any particular vision of democracy. This paper questions whether these tasks are in fact divisible in campaign finance cases. It concludes that they are not. The interest asserted by the government in campaign finance cases is, inevitably, the need to improve or protect the government\u27s vision of democracy. Evaluating the relative importance of that interest requires judges to rely on some background theory of democracy: judges simply cannot determine what constitutional weight to give the government\u27s asserted interest in promoting a democratic ideal without first relying on some baseline understanding of what that ideal should be. The Court has never directly confronted this issue, however, insisting instead that it is merely protecting rights without making normative judgments about democracy. This paper calls on the Court do confront its democracy-defining role directly, and suggests a decision- making paradigm the Court could use in doing so

Defining Democracy: The Supreme Court\u27s Campaign Finance Dilemma

In deciding campaign finance cases, the Supreme Court often has stressed that its role is limited to protecting First Amendment rights and does not include promoting any particular vision of democracy. This paper questions whether these tasks are in fact divisible in campaign finance cases. It concludes that they are not. The interest asserted by the government in campaign finance cases is, inevitably, the need to improve or protect the government\u27s vision of democracy. Evaluating the relative importance of that interest requires judges to rely on some background theory of democracy: judges simply cannot determine what constitutional weight to give the government\u27s asserted interest in promoting a democratic ideal without first relying on some baseline understanding of what that ideal should be. The Court has never directly confronted this issue, however, insisting instead that it is merely protecting rights without making normative judgments about democracy. This paper calls on the Court do confront its democracy-defining role directly, and suggests a decision- making paradigm the Court could use in doing so

I\u27m Sorry, I Can\u27t Answer That : Supreme Court Confirmations, Judicial Independence, and Positive Legal Scholarship

The United States Constitution grants to the Senate the duty to provide its “advice and consent” to the appointment of Supreme Court Justices. Just how senators should exercise that duty, however, is deeply contested. Much of the dispute about the Senate\u27s role involves the appropriate scope of questions the senators should ask, and what nominees should be expected to answer, at the confirmation hearing held by the Senate Judiciary Committee. Opponents of vigorous senatorial questioning argue that such questioning infringes on the independence of the judiciary; proponents argue that the nominees\u27 failure to answer probing questions hinders the Senate\u27s constitutional obligation to meaningfully consent to nominations. Professors Robert Post and Reva Siegel recently have jumped into this dispute by proposing that Supreme Court nominees properly can be expected to answer questions about how they would have voted in cases the Supreme Court has already decided. This approach, they argue, avoids inappropriately infringing on judicial independence while enhancing the ability of the Senate to meaningfully consent to nominations. This Article engages positive legal scholarship to support Post and Siegel\u27s conclusion that objections to their proposal are not easily justified by the concerns about judicial independence on which they purport to rest. In doing so, this Article examines the confirmation hearing transcripts of the nine Justices who comprised the final Rehnquist Court. I determine how often these nominees were willing to provide opinions about previously decided Supreme Court cases, for which cases they were willing to provide such opinions, and which cases they refused to discuss, on the basis that doing so would compromise their judicial independence (or impartiality) in future cases. I find that these nominees, in fact, provided opinions about many previously decided Supreme Court cases, and that there was some surprising variety in the cases on which the Justices, both as a group and as individuals, would and would not opine. I also show that much of this variation cannot be attributed to the distinction drawn by the nominees themselves between the propriety of opining on “settled” versus “unsettled” cases. The actual practice of these recent nominees thus supports Post and Siegel\u27s conclusion that concerns about the decision-making independence of the Justices, even taking the nominees\u27 own views of what that independence requires into account, do not appear to be what is animating objections to their proposal. I then consider whether those objections are nonetheless justified by concerns that adoption of the Post-Siegel proposal would compromise the institutional independence of the Supreme Court as a court, by effectively conditioning confirmation on the nominees\u27 opinions about specific cases, thus giving the Senate undue influence over a purportedly “co-equal” branch of government. Drawing on both the actual practice of the Rehnquist Court nominees and existing legal and political science scholarship, I argue that these objections also are suspect, in three distinct ways. First, the actual practice of the nominees is not supportable on that basis. Second, existing political science scholarship shows us that adoption of the Post-Siegel plan is unlikely, in any event, to increase the type of “politicization” of the confirmation process that underlies this concern. Third, existing positive legal scholarship seriously casts doubt on the very premise on which the institutional independence objection rests. This scholarship also, however, suggests an alternative vision of judicial independence, one fully compatible with the Post-Siegel proposal, which is itself both normatively desirable and grounded in a more realistic understanding of the role the Supreme Court actually plays in our governing system. I thus conclude that the Post-Siegel proposal, if accepted by senators and nominees, has the potential to bring some much needed realism and clarity to the Senate\u27s role in the Supreme Court confirmation process, without posing a significant threat to either the individual decision-making independence of Supreme Court Justices or to the institutional independence of the Supreme Court

Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law

In Bluman v. FEC, the court held that foreign nationals could be prohibited from making even independent expenditures because such expenditures risked inappropriately influencing the choices made by American voters. The result in Bluman is correct, but the court’s reasoning is wrong. Foreign financing bans are constitutional not because foreign speech may “inappropriately” influence voters, but for the same reason all successful restrictions on political speech are constitutional: because of the risk they pose to the appearance or actuality of corrupting the conduct of public officials. The sense of indebtedness or ingratiation independent expenditures can induce in elected officials may be a contextually appropriate part of responsive self-government when done by domestic actors but has no place in the interactions between elected officials and foreign financiers and is well within the power of Congress to prevent

Unravelling the US Presidential Election

One of the most perplexing things about US elections is the extent to which we litigate what in much of the rest of the world are routine nuts and bolts questions about how elections work. I had first-hand experience with this during the 2000 presidential election when I was living in the UK. Why, I constantly was asked, is the US Supreme Court deciding your presidential election? It’s a good question, and also a timely one given how the current presidential election is unfolding

Book Review: Comparative Election Law

Review of the book Comparative Election Law by James A Gardner, ed. (Cheltenham: Edward Elgar Publishing, 2022) 544 p

Aliens on the Bench: Lessons in Identity, Race and Politics From the First Modern Supreme Court

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator\u27s vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? Obviously, who sits on the Court matters, but why is the hearing itself important? The premise of this Article is that the confirmation process-or, more precisely the confirmation process of nominees perceived as racial outsiders-matters in part because such confirmations provide a high profile arena in which we as Americans fight to constitute our national identity. While all Supreme Court confirmations provide a platform for our ongoing debates about constitutional values, confirmations of racial outsiders do more. They provide a forum in which a more fundamental, and certainly more visceral, question arises: just who are we the people ? I open my examination of these issues by looking at the confirmation of Felix Frankfurter. Frankfurter\u27s was our first truly modem confirmation hearing: it was the first at which both the nominee and the witnesses provided unrestricted testimony, in an open session, exposed to the full glare of a highly-interested media. It also, perhaps not coincidentally, involved a nominee who was perceived at the time as a racial outsider