Volume 13, Issue 2
REPRESENTATION, POWER, AND CORRUPTION
Senator Elizabeth Warren
Jeffrey D. Clements
This Article examines a proposed constitutional amendment that would authorize contribution and spending limits in federal and state elections in order to secure the political equality of Americans and combat systemic corruption. After reviewing the Supreme Court’s approach to applying the First Amendment freedom of speech to campaign finance laws in recent decades, I describe the proposed constitutional amendment and its legislative history to date. Then I situate the amendment’s guiding idea—political equality—as an enduring principle of our constitutional framework, including the First Amendment. I propose that the Court has failed to “settle” a First Amendment doctrine that excises politi- cal equality from consideration of how election spending relates to free speech, and explain how the proposed amendment would better serve First Amendment values and strengthen American representative democracy. Finally, I anticipate some of the post-ratification effects of the amendment.
Do you need a scandal to pass ethics reforms in a state? Or can you pass an effective ethics commission without elected officials creating some momentum by breaking the law? This Article reviews how one state, New Mexico, grappled with creating an ethics commission for decades. Enacting ethics commissions that hold state legislators and other elected officials accountable in a public way is a difficult but critical task for advocates across the country.
Karl A. Racine & Elizabeth Wilkins
The United States currently has a President who, unlike those who came before him, refuses to extract himself from extensive business entanglements at home and abroad. Those entanglements violate the Emoluments Clauses of the Constitution. They also pose serious threats to the integrity of our democracy. This article briefly lays out the legal argument for why the President’s actions violate the Constitution. It also demonstrates that these clauses are judicially enforceable, and the states are well-positioned to enforce them. While the lawsuit brought by the D.C. Attorney General’s Office, alongside the Maryland Attorney General’s Office, against the President clearly articulates how the President is violating the law, this article seeks to excavate the norms and principles that the laws protect and why their violation threatens our system of government.
The Roberts Supreme Court has, or to be more precise the five most conservative members of the Roberts Court have, spent the last twelve years branding and rebranding the meaning of the word “corruption” both in campaign finance cases and in certain white-collar criminal cases. Not only are the Roberts Court conservatives doing this over the strenuous objections of their more liberal colleagues, they are also breaking with the Rehnquist Court’s more expansive definition of corruption. The actions of the Roberts Court in defining corruption to mean less and less have been a welcome development among dishonest politicians. In criminal prosecutions, politicians convicted of honest services fraud and other crimes are all too eager to argue to courts that their convictions should be overturned in light of the Supreme Court’s lax definition of corruption. In some cases, jury convictions have been set aside for politicians who cite the Supreme Court’s latest campaign finance and white-collar crime cases, especially Citizens United v. FEC and McDonnell v. United States. This Article explores what the Supreme Court has done to rebrand corruption, as well as how this impacts the criminal prosecutions of corrupt elected officials.
Nicholas O. Stephanopoulos
Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, which amounts to perhaps the most hyperpartisan era in our country’s history. I then explore how redistricting law has responded to the ebbs and flows of partisanship. In the earlier timeframe, courts (properly) focused on nonpartisan line-drawing problems like rural overrepresentation and racial discrimination. In the hyperpartisan present, on the other hand, courts have (regrettably) refrained from confronting directly the threat, partisan gerrymandering, that now looms above all others. Instead, courts have either shut their eyes to the danger or sought to curb it indirectly through the redeployment of nonpartisan legal theories.
Daniel P. Tokaji
This Article examines the Supreme Court’s voting, speech, and religion decisions in the 2017–18 Term, arguing that their unifying feature is the denial of systemic equality. In a series of end-of-Term constitutional rights decisions, the Court resolutely insisted on viewing equality in atomistic terms. In so doing, the Court ignored and even exacerbated systemic inequalities in each of these realms. In his last Term on the Court, Justice Kennedy was part of the majority in all of these decisions.
Andrew Manuel Crespo
In their recent book “To End a Presidency,” Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question—why impeach?—through the broader lens of criminal jurisprudence, which perennially confronts a related and familiar question: why punish? That latter question typically attracts a range of responses, which can be organized into three basic categories: Sometimes, punishing a criminal is thought to have concrete benefits, such as protecting the rest of society from future harm. Alternatively, punishing a criminal might be viewed as a morally required response to a wrongful act, irrespective of concrete benefits. Finally, punishment might be viewed as an important sociological practice, whereby society expresses the values it holds most dear and attempts to heal itself when those values are transgressed.
As this essay’s introduction explains, impeachments and criminal prosecutions are not identical proceedings nor do they pursue perfectly identical aims. But still, the trio of explanations offered to justify criminal punishment can help illuminate the complex judgments driving the question of impeachment. Accordingly, the three sections of this essay examine impeachment through the lens of those three theories of punishment, organizing arguments for and against impeachment along utilitarian, retributive, and sociological axes. In so doing, the essay exposes the vexing and inescapable questions that underlie impeachment and criminal punishment alike—questions that may well be unanswerable, but that must be grappled with all the same.
Matthew B. Lawrence
This Article identifies a problem with contemporary U.S. health care that contributes to “balance billing,” the absurd complexity of medical bills, and other visible and invisible health care consumer harms. Casting medical providers as bill collectors misaligns incentives for both health insurers and providers in ways that make the market for health insurance particularly bad at trading off health care’s medical consequences with its often severe social, financial, and psychological consequences. As a result, such “social consequences” go unchecked or even exacerbated by an entity—the health insurer—who controls when, where, why, and how insureds must pay medical bills. This “social consequences problem” in health insurance provides a much-needed normative foundation for existing and proposed health insurance consumer financial protections. But the social consequences problem infects all aspects of medical billing for insureds and existing reforms address only its most visible symptoms. The Article therefore calls for and proposes systemic solutions.