Faculty Bibliography

Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded. No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption. The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it. The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld. The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart. The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.

In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no." As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.

In the aftermath of Obergefell, it quickly became a sign of sophistication to treat Justice Kennedy’s opinion with knowing condescension. The decision may have been a political masterstroke, many thought, but it was a doctrinal dud. Kenji Yoshino’s Comment demonstrates just how glib these detractions are, and eloquently explains how Kennedy’s opinions in Obergefell and its predecessor cases have revolutionized the Court’s fundamental rights jurisprudence. In this Response, I offer my own characterization of Kennedy’s contribution. As I see it, Obergefell’s chief jurisprudential achievement is to have wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity – and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public education. Equal dignity, a concept with a robust doctrinal pedigree, does not simply look back to purposeful past subordination, but rather lays the groundwork for an ongoing constitutional dialogue about fundamental rights and the meaning of equality. Obergefell is an important landmark, but it will not be – and should not be – the last word.

In this essay, I consider the U.S. Supreme Court's recent decision in Wilkie v. Robbins, 127 S.Ct. 2588 (2007), holding that no federal action for damages may be brought by a cattle rancher in Wyoming against officers of the U.S. Bureau of Land Management for destroying his cattle and dude ranch business in deliberate retaliation for his refusal to give the Bureau an easement over his land without compensation by the Bureau and without its invocation of the federal power of eminent domain. The Court conceded that the rancher had no effective federal remedy other than such a damages action against the cumulative impact of the sequence of retaliatory actions taken by the federal officials and that the only remedies available to the rancher - suits under state tort law and under the federal Administrative Procedure Act - although potentially capable of redressing some of the individual actions taken by BLM officers against the rancher, could not have effectively prevented or redressed the "death by a thousand cuts" brought about by those officers. It conceded as well that Congress had neither precluded the judicial recognition of a federal cause of action for damages nor provided the kind of substitute that would displace such a cause of action under the doctrine of Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). The Court reasons, however, that such a cause of action would present the federal judiciary with line-drawing difficulties that might not successfully prevent a flood of litigation and that, on balance, the case for recognizing such a cause of action was not established. This essay argues that this analysis represents an unacknowledged retreat from a well-established line of precedent under Bivens and that the analysis is unpersuasive even on its own terms, noting that the predicted flood of litigation had not materialized under the 140-year-old federal statute, 42 U.S.C. §1983, that created a cause of action for damages against conduct identical to that of the BLM agents in this case if committed by state rather than federal agents. The essay explores the incentives created by Wilkie v. Robbins for intentional circumvention of the Takings and Just Compensation Clauses by federal agents and addresses the dangers thereby created for any meaningful protection of private property sought by the Federal Government, as well as the dangers created for the meaningful protection of other constitutional rights against deliberate erosion by federal agents. Finally, the essay argues that the Bivens issue should not have been reached at all by the Supreme Court because it was demonstrably beyond the appellate jurisdiction of that Court and of the Court of Appeals in this interlocutory pre-trial appeal from a lower court ruling denying qualified immunity to the defendant officers even on the premise that their conduct, if in clear violation of established federal constitutional rights, would have given rise to damages under the Bivens doctrine.

The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.

Re-published as: ♦Public Rights, Private Rites♦, 6 The Green Bag 289 (2003).

Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one-ballot, one-vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Florida would in some sense be less than the "weight" of others, that would not by itself describe the sort of deviation that would suffice to invalidate - either conclusively or presumptively - a scheme designed to ensure the legality and completeness of the total vote count. Strikingly, under the Court's own equal protection theory, the vote count previously certified in Florida - a tally that, because of the Court's decision to stop the recount in its tracks, effectively determined the outcome of a Presidential election - would itself be a manifest denial of equal protection, in light of the many votes that remained uncounted, and the undisputed fact (common to virtually every statewide method of voting and manner of tallying votes) that the voting process and the vote-count itself included a dizzying array of arbitrary and/or easily correctable inequalities. I argue that the Court's failure to grapple with the underlying equal protection issues, or to grasp the breathtaking implications of its equal protection holding (including the inconsistency between that holding and the outcome that it endorsed in Florida itself), evince the almost embarrassing bankruptcy of the rationale that the Court's majority adopted and that Professor Lund defends. Part II argues that Bush v. Gore presented a question that most likely never should have been decided by a federal court. Properly applied, justiciability is inextricably linked both with the institutional context in which judicial intervention is sought (including the remedial character such intervention would have to take) and with the substantive constitutional principles that undergird the allegedly "political" question at issue. Unless it is demonstrable that the political and administrative process itself is so structured that the political branches cannot be trusted to abide by constitutional norms preventing an impermissible form of exclusion or dilution of an identifiable individual's or group's rights of political participation without adequate opportunity for timely correction within the process itself, the case for judicial intervention that pretermits the political process is extremely weak. There is thus a strong connection between the veritable culture shock set off by the Supreme Court's intervention in the presidential election of 2000 and the proper characterization of the Court's action as a violation of the implicit "political process" doctrine that has governed our national life without much interruption from the outset. The structure of the Florida Supreme Court's recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.

In this paper, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of peace as well as war, are to be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. We further explain why the specter of civilian habeas review will necessitate legislative involvement, and detail the significant equal protection problem with the Military Order.

In this paper, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of peace as well as war, are to be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. We further explain why the specter of civilian habeas review will necessitate legislative involvement, and detail the significant equal protection problem with the Military Order.

In his sur-response to my essay "The Unbearable Wrongness of Bush v. Gore," Professor Lund expends an enormous amount of energy on a barrage of technical, literalist defenses of both his own "Carnival of Mirrors" essay and of the Court's per curiam opinion in that case, while failing adequately to engage the substance of my argument with respect to the Supreme Court's perplexing equal protection holding in that case - namely, that the per curiam opinion conspicuously failed to identify any individual voters, or groups of voters, who were treated unequally by the Florida Supreme Court's ballot-counting scheme. Lund continues to place undue, and almost exclusive, reliance on Reynolds v. Sims and its progeny. But he does not dispute my argument that Reynolds cannot reasonably be read to indict the sorts of deviations present in the Florida court's recount order, because otherwise Reynolds would have the practical effect of calling into constitutional question a myriad of election practices throughout the land that States have used, without objection, in virtually every statewide election in memory. If this is the logical implication of Professor Lund's reading of Reynolds - and he has not provided any sustained argument why it is not - then that alone is reason to question whether such a reading of Reynolds (which provides virtually the entirety of Professor Lund's defense of Bush v. Gore) is remotely plausible. It takes little sophistication - only a resistance to sophistry - to recognize how far one must twist equal protection law to make it fit Bush v. Gore's mold. My principal reply emphasized the Court's inexplicable failure to grasp the sweeping implications of its equal protection holding for the outcome that it effectively mandated in Florida itself. Professor Lund responds that, in fact, there is nothing so inexplicable about the Court's opinion because the remedy in Bush v. Gore did not "foreclose the Florida court from ordering a new recount." Although it is, of course, technically correct that the U.S. Supreme Court did not order the Florida Supreme Court in so many words to toss in the towel, there can be no gainsaying that the wholly theoretical window the Court failed to slam shut was hardly the sort of opening through which anyone would dare to crawl. Moreover, the Court's asserted hard-and-fast December 12 deadline consisted of a palpably disingenuous cobbling together of stray comments in Florida Supreme Court opinions to yield an implausible construction of state law that should have been all the more disfavored because it would and did result in a violation of equal protection under the Court's own theories in Bush v. Gore. The Court could not deny the Florida court's conclusion that hundreds of ballots had been lawfully cast under Florida law yet had not been tallied in the State's certified count. Ignoring these ballots to satisfy what the Court imaginatively viewed as a mandatory safe harbor provision systematically and arbitrarily "diluted" to zero the weight of hundreds of votes for no reason other than the inadequacy of the vote counting machines in their home counties.

Analyzes U.S. President George W. Bush's order for establishing military tribunals for noncitizen terrorist. Criticism of the order; Extension of the tribunal's jurisdiction beyond "violations of the laws of war" to encompass violations of all "other applicable laws"; Fact that martial law and military tribunals have been held unconstitutional for civilians residing in the U.S. so long as the civil courts were open.

My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's "one person, one vote" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervention in Bush v. Gore itself. Nor can the decision be explained by any newfangled equal protection doctrine, or by reference to procedural or substantive due process. Therefore one cannot escape the conclusion that Bush v. Gore rests on about nothing more than the simple intuition of a majority of the Court that Florida's procedures for deciphering ballots, common though they may be, just won't do because they offend the Court's own notion, more aesthetic than constitutional in character, of how ballots should be tabulated. Much of the remainder of the article is devoted to addressing the possible sources of the Court's unease about the "intent of the voter" standard under which similar looking ballots might be interpreted differently at different times and places, and demonstrating that the Court's unease either is constitutionally unwarranted or, if warranted, would point not to ending the recount but to invalidating the entire election, certainly in Florida and perhaps throughout the nation. The Court added insult to injury by denying the State of Florida the opportunity to remedy the defects that the Court identified - and, remarkably, the Court did so through an indefensible reading of Florida's own state law, which the Court implausibly claimed the Florida Supreme Court had construed to require an end to the vote - counting less than two hours after the Court issued its decision. Nothing in One can read the Florida statutes backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 - at whatever cost. Worse still, reading the laws of Florida, as the Court did, to mandate this purchase of electoral security at the price of tossing out into the sea thousands of ballots, many of which clearly expressed the intent of the voters who cast them, would by the Court's own lights have been flatly unconstitutional. Part V shows that the Bush challenge to the recount presented a political question for resolution by Congress rather than a justiciable question for an Article III court. A court ordinarily need not and should not decline from considering a pre-election constitutional challenge to a state system for conducting presidential elections; but challenges to a state's actions in the course of a particular presidential election - challenges like this one that reach the Court so close to the election that it appears no decision other than one stepping on Congress's Twelfth Amendment toes seems possible - should be regarded as nonjusticiable. The Bush v. Gore Court simply but mistakenly took for granted its authority to weigh in and essentially to decide the presidential election. Moreover, the Court's stretching of the constitutional fabric was not necessary to protect the nation itself from being torn apart. Part VI explains why my critique of the Supreme Court's holdings does not presume partisan motives, arguing that what the Court did is perfectly understandable in terms of several unfortunate pathologies generally manifested in its recent jurisprudence. This Court exhibits a regrettable staggering belief that it alone is capable of confidence in its own ability to define and prioritize values of constitutional magnitude and decide which measures are needed to realize those values. High on that list of values is the preservation of a stable political order and of an appearance of regularity. Low on that list is an energized, politicized, unruly electorate struggling to find its way toward concrete outcomes in such forms as the election of a president. The Court's self-confidence in its own infallibility in matters constitutional is matched only by its disregard for the meaningful participation of other actors in constitutional debate. As many of the Court's recent decisions have demonstrated, the Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with "We the People" as the ultimate source of sovereignty in this republic. Part VII discusses comments on the exceptionality of Bush v. Gore. Finally, Part VIII draws some lessons for the future, concluding that the real challenge is not to strip the Justices of their power but to expose and erase the flawed vision of our Constitution that has animated so many of their recent decisions and to reinvigorate the work of democracy in a way that can give the lie to that vision, inspiring the successors of today's Justices, if not them, to join in a more noble constitutional venture.