The Volokh Conspiracy

You can read the indictment here.  The Washington Post reports on the indictment.  [Update: You can now read my Slate column on the Edwards indictment.  I also talked about it on "To the Point" with Warren Olney.]

I’m not at all sure that if Edwards is convicted that the campaign finance charges will stick.  There may even be constitutional issues.

I will be writing more about this, especially over at the Election Law Blog.  My blog is down right now, maybe because of a surge of traffic from being linked by this NY Times editorial on the Virginia contributions case.

The single subject requirement is a technical rule that is often used to invalidate voter initiatives, either before or after they go to the ballot. Critics of the rule have claimed that it cannot be enforced in an objective, consistent way because the definition of a “subject” is infinitely elastic. Our article, based on our examination of 765 judicial votes in single subject cases during the period 1997–2006, strongly supports the critics: in states with aggressive enforcement of the single subject rule, judicial decisions are strongly predicted by whether or not a judge is likely to agree with the substance of the initiative under review based on his or her partisan affiliation.

The novelty of this evidence is that the influence of a judge’s political preferences grows as enforcement of the rule becomes more aggressive, and that the effect is huge — perhaps unprecedented in the literature on judicial voting which typically finds modest effects. Our evidence does not imply that partisan decisionmaking is deliberate or inherent to the judging process, but rather that it is an outcome that emerges when judges are put in position where neutral principles are not available to guide their decisions.

The question, in light of this, is where do we go with the single-subject rule? One approach might be to try to design more objective rules for counting the number of subjects, as recently attempted by Robert Cooter and Michael Gilbert. (See also our short piece critiquing Cooter and Gilbert, and their reply.)

We are glad to see creative efforts that go down this path, but are pessimistic about its likelihood of success. Judges and legal scholars have tried for decades to come up with objective tests, but our evidence shows that these efforts have failed to produce a doctrine that can be enforced in a neutral and consistent manner, and indeed, existing attempts to discriminate have led to decisionmaking that looks increasingly partisan.

We are also pessimistic about efforts to craft a “better” single subject rule because it is not even clear that restricting initiatives to a single subject is a good thing. We noted in our initial post that existing political economy theory does not support the claim that logrolling is always a bad thing. And it seems noteworthy that there is not a single empirical study to our knowledge that shows the public has been harmed from multiple-subject initiatives.

One possibility is to abandon the single-subject rule. The politicization of judging that accompanies aggressive enforcement of the single subject rule undermines the rule of law. To the extent that decisions depend on the identity of the judges that hear a case, initiative proponents face a form of judicial roulette, which might deter them from paying the high costs to initiate a measure in the first place. Some critics might not mind this outcome, but the single-subject rule is intended to perfect the initiative process rather than suppress it.

By discouraging sponsors from offering the people choices at the ballot box, the electorate will end up with fewer options, and as suggested by a stream of research, the resulting policy choices will be less in line with the will of the majority. Politicization of the rule also threatens to undermine the direct democracy process itself by undermining the belief that the initiative process is equally available to people of all political stripes.

If the single subject rule is to be retained, as there is every reason to believe it will be, our article suggests that neutrality and consistency would be better advanced by adoption of a restrained or deferential posture. In some sense, this would bring the single subject rule for initiatives into conformity with legislative practice. Most states have some form of a single subject rule for state legislatures. Judges, wisely in our opinion, have tended to approach that requirement deferentially, in part because of a recognition that logrolling is not always a bad thing, and in many situations is necessary to form coalitions that allow legislation in the public interest to be advanced.

We believe a deferential approach to the single subject rule is a prudent course of action at this point, given the current lack of objective standards that can discriminate between good and bad logrolls. The dangers that the single subject rule is purported to address are exaggerated, and the hope of alleviating these modest dangers is unlikely to outweigh the costs of aggressive enforcement.

A popular tactic for fighting a ballot initiative is to claim it violates the single subject rule, leaving it to a panel of judges to decide its fate and possibly prevent it from reaching the voters. To understand the role of the single subject rule in initiative politics, then, we have to understand how judges make their decisions. The challenge facing judges, as we discussed in our previous posts, is that the definition of a “subject” is inherently subjective and infinitely malleable. In the absence of an objective definition, how do judges make their decisions?

To assess what factors influenced how judges decide, we examined 765 votes in 154 single subject cases during the decade 1997–2006 by the supreme and intermediate appellate courts in California, Colorado, Florida, Oregon, and Washington. These states are heavy initiative users, and contain a mix of aggressive and restrained stances toward the single subject rule.

Because there is no objective definition of a subject, we were interested in the possibility that judges are led, perhaps subconsciously, to find a single subject violation when they don’t like the substance of an initiative. In addition, because aggressive enforcement of the single subject rule requires judges to take a stronger position on the number of subjects than restrained enforcement, we were curious if single-subject decisions are more connected with political preferences in states with aggressive judicially created single-subject tests compared to states with restrained tests.

As we explain below the fold, we found some very interesting empirical results.

Continue reading ‘Judges’ Political Preferences Seem to Explain Voting in Single Subject Cases in States with “Aggressive” Single Subject Test’ »

Following up on this post, I have posted the supplemental briefs filed in this case. The government takes responsibility for not citing what it claims is controlling legal authority on the issue before it: the constitutionality of the 100-year-old ban on direct corporate contributions to candidates.

Meanwhile, a petition en banc has been filed in an Eighth Circuit campaign finance case. Though that case raises the same issue, the en banc petition does not seek review of the panel’s decision that is bound by the Supreme Court’s opinion in Beaumont upholding the constitutionality of the ban. [Disclosure: I have a similar issue pending in the Ninth Circuit, defending a City of San Diego campaign finance law.]

In yesterday’s post, we explained the basics of the “single subject” rule: initiatives may contain only one “subject” or they are unenforceable. The rule leads to controversy because the concept of a “subject” is not self-defining and state courts have developed different single subject tests.

Regardless of terminology, most courts seek to justify their rules based upon only two reasons: preventing logrolling and minimizing voter confusion. In this post, we explain why both of these justifications are weak.

Logrolling

Without a single subject rule, a person could propose an initiative marrying two completely separate questions, such as a tax break and gun control. The concern of courts is that forcing voters to vote on this package will subvert the majority’s will. The single subject rule, if it treats tax breaks and gun control as separate subjects, would prevent such logrolling.

We do not disagree that preventing the packaging of certain initiated legislation prevents logrolling, but we are far less sure that logrolling is necessarily a social ill. In our article we provide a game theoretic explanation for why this is so. Here, we explain the intuition behind our explanation, and direct readers to the paper if they want more precision and detail.

Continue reading ‘The Weak Theoretical Justifications for the Single Subject Rule’ »

Eugene blogged last week about United States v. Danielzyck, a criminal case in which a federal court held the law barring direct corporate contributions to candidates to be unconstitutional.

Today, the court on its own motion asked for briefing on whether it should reverse its own ruling in light of direct Supreme Court authority on point. I explore the court’s order in a post on the Election Law Blog. More from the Wall Street Journal‘s Washington Wire.

Many thanks to Eugene for giving us the opportunity to blog about our article, Aggressive Enforcement of the Single Subject Rule (pdf) which appeared recently in the Election Law Journal‘s special symposium issue honoring the scholarship of election law pioneer, Dan Lowenstein.

The single subject rule — a requirement that initiatives embrace only one subject — is a favorite tool for groups seeking to strike an initiative from the ballot. And it is frequently criticized by initiative proponents as giving judges a license to strike down initiatives for potentially arbitrary reasons. Our paper explores the theoretical rationale for the single subject rule, and more important, provides evidence showing that court rulings in certain single subject cases closely conform to the policy leanings of the judges that hear the cases.  For example, a judge’s views on the merits of gay marriage may play into whether to strike down an initiative on single subject grounds that bars both gay marriage and civil unions.

Our paper investigates the connection between the rule and judges’ policy preferences by studying the decisions of state appellate court judges in five states (California, Colorado, Florida, Oregon, and Washington) during the period 1997–2006. Courts used the rule to strike down or remove initiatives from voter consideration in at least 70 cases during the period 1997–2006 in those five initiative states. Our main finding is that decisions in single subject cases are heavily influenced by a judge’s partisan inclinations, but that the amount of partisan influence depends on whether the state’s judicial doctrine directs judges to apply the single-subject rule aggressively or with restraint.

In our post today we will focus on the history of the single subject rule and how courts say they are implementing it. Tomorrow we will examine theoretical problems with the rule.  On Thursday we will present our empirical evidence, and on Friday we will conclude by discussing the normative implications of our work.

Continue reading ‘Introducing the Single Subject Rule for Initiatives’ »