Response: Commandeering Information (and Informing the Commandeered)

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos\u27s first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution

The System of Campaign Finance Disclosure

This Essay considers Professor Gilbert’s model as the core element in a dynamic system of campaign finance disclosure. First, it recognizes several useful contributions of the model’s framework of informational costs and benefits. In the simplest analysis, disclosure increases the information available to voters by adding source revelation to campaign speech. However, the reality is more complicated. Disclosure can have a chilling effect that decreases the amount of campaign speech by imposing administrative and exposure burdens on speakers. As Professor Gilbert shows, this cannot end the analysis. What matters is not just the magnitude of the chilling effect on speech, but the net “information tradeoff” between the decrease in campaign speech and the increase in source revelation, both of which are informative to voters. Second, this Essay builds upon the information tradeoff in several directions, drawing on other scholars’ perspectives of campaign finance as a complex system of dynamic interactions. It refines the speaker’s cost-benefit function in the information tradeoff at the level of the individual disclosure rule, extends the information tradeoff analysis to dynamics involving multiple individual disclosure rules at the regime level, and considers the aggregate information tradeoff from multiple interacting regimes at the system level. The Essay concludes by suggesting that, given the difficulty of determining the information tradeoff at the rule, regime, and system levels, analysts, policymakers, and courts should more often recognize the value of second-best solutions to campaign finance disclosure

Response: Commandeering Information (and Informing the Commandeered)

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos\u27s first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution

Outside Influence

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the political community principle applied in Bluman v. Federal Election Comm’n as an exception to the otherwise universal speaker-neutrality rule of Citizens United v. Federal Election Comm’n. It draws parallels between efforts to police national and state boundaries in politics, and the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations of outside influence across a range of political activities. Part I reviews the structural and historical basis for the constitutional concern about outside influence. Part II considers the gnarled doctrinal roots of Bluman, and how they might help support state, as well as national, safeguards against outside influence. Part III proposes an important state interest in regulating, but not excluding, outside influence in state and local politics, and suggests some applications of the principle to outside influence in several spheres of political activity

Politics and The Public Benefit Corporation

Politics has given “social welfare” a bad name. In a year featuring important election-year debates over a great recession, health care coverage, fiscal austerity, and, well, “social welfare,” six of the top ten New York Times stories of 2012 containing that term concerned campaign spending from undisclosed funding sources . The juxtaposition of social welfare and dark money is unfortunate beyond semantics. It reflects a broader confusion between tax law and election law, as well as between federal and state regulation. For decades, Congress has tried and failed to legislate a coherent regime for the tax exemption and disclosure of political contributions and expenditures. From 501(c)(4) organizations to 527 organizations and back again, and from soft money to PACs to independent expenditures, federal law continually channels and rechannels essentially fluid political activity through a series of leaky regulations administered by ineffective enforcement agencies. Meanwhile, at a time when the vast majority of Americans find it increasingly difficult to make their voices heard and dollars count in politics, the regulatory complexity of organized political participation is that of the tax code squared by campaign finance law

Recalibrating Campaign Finance Law

This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration of contribution limits and disclosure thresholds. Part III explains how a recalibration of campaign finance laws in some jurisdictions might bring these regulations into alignment with the constitutional justifications for-and policy goals of-our system of campaign finance laws. Recalibration offers an important opportunity for both opponents and proponents of regulation to ensure a better fit between the means and ends of campaign finance law

The Hercules of Helena: Justice James C. Nelson and the Jurisprudence of Principle

The late legal philosopher Ronald Dworkin conceived an ideal American judge, “a lawyer of superhuman skill, learning, patience and acumen.”1 He also is a judge of principle, with a strong philosophical bent. Like all good judges, he accepts the conventional rules of law in his jurisdiction, and follows the precedent established by his predecessors to the extent a prior case controls a current case. Most cases are easy cases for this judge and others, and fit well within the conventional rules and established precedent. A very good judge, in Dworkin’s view, looks beyond the immediate rules and precedent to ensure the case also fits within the legal system as a whole. Some cases, however, are hard cases that fit more than one reading of the rules and precedent, even after canvassing the whole legal system. In those cases the judge of principle looks outside the rules and precedent, turning instead to the political theory he finds at the foundation of the legal system. The judge searches that theory for the principles that best justify the law, chooses the reading of the law most consistent with those justifying principles, and elaborates the rule and justification in his decision. For his labors Dworkin calls this judge of principle “Hercules.”2 Helena is not Olympus, and retired Montana Supreme Court Justice Jim Nelson is not Hercules. No human judge is. Yet over his nearly two decades on the Montana Supreme Court, Nelson exemplified Herculean judging in both its strengths and its weaknesses. Past issues of the Montana Law Review have celebrated Justice Nelson’s dedication to the idea of law. As the editors wrote in a prior volume, the University of Montana School of Law is indebted to Justice Nelson for his “remarkable dedication to Montana’s law students,” including teaching as an adjunct in 2000 and 2013, “his frequent visits to law school events, and for his intense and sincere interest in students’ legal and ethical education.”3 This review, invited by the editors, considers the judicial career of Justice Nelson in both quantitative and qualitative dimensions.4 It begins with an empirical assessment of Nelson’s judicial record in Part I. After a brief biographical sketch, it considers metrics of ideology and influence on the Montana Supreme Court, and situates Justice Nelson among his colleagues.5 The review continues with an analytical assessment of Nelson’s judicial philosophy in Part II. Focusing on constitutional cases, it examines the development of two principles, personal autonomy and equal dignity, central to his reading of the Montana Constitution. Part III synthesizes the empirical and analytical assessments and identifies some limits to Justice Nelson’s jurisprudence of principle. The review concludes by proposing some tentative conclusions about Justice Nelson’s legacy

Captive Regulators, Captive Shippers: The Legacy of McCarty Farms

Captive Regulators, Captive Shipper