Richard L. Hasen

Voting Without Law

This article examines the plausibility and implications of a norm-based explanation for voting. Part I reviews rational choice models for voting, contrasts the rational choice models with the social norms hypothesis and examines the empirical evidence regarding the existence of a norm of voting. As Part I demonstrates, rational choice explanations have offered only a tautological explanation of why people vote: People vote when the psychic benefits of voting exceed its costs. Unlike the rational choice explanation, a norm-based explanation of voting can explain plausibly why some people vote, as well as explain aggregate changes in voter turnout over time. Although the norms hypothesis is plausible, evidence supporting the hypothesis is sketchy and may be consistent with alternative explanations for voting. The analysis in Part I illustrates a general proposition that norm-based explanations are about as easy to conjure up as they are difficult to prove. Assuming that a norm of voting has served to overcome collective action problems for only certain groups in the United States, and assuming that the norm has eroded over time even among these groups because of a decrease in social connectedness, arguably the state should take on the role of social sanctioner of last resort through a compulsory voting law. Part II of the is Article examines the substitutability of state- and societal-based mechanisms for social control in the voting context. In particular, this Part considers whether compulsory voting laws could serve as a good substitute for a norm of voting. Part II demonstrates that state and societal-based methods of control are not always substitutable. Enactment of a compulsory voting law in the United States, even if desirable as a method of overcoming collective action problems, and even if proven effective as a means of increasing turnout in other states, is unlikely to occur because of a widely held libertarian belief against government interference in the decision to vote.

Parties Take the Initiative (and Vice Versa)

Conventional wisdom holds that the initiative process weakens the role of parties in democratic politics. However, this wisdom depends on the assumption that the parties do not use the initiative process to further their own agendas. Although that assumption may have been accurate historically, this Article presents empirical evidence that the parties, at least in California, have begun to exploit the initiative process to both encourage voter turnout and refine party stances on issues.Part and parcel of the conventional wisdom that initiatives weaken parties is the idea that the courts should view initiatives that regulate the parties with suspicion. This Article argues, to the contrary, that because parties are able to exploit the initiative process, there should be no special judicial scrutiny of initiatives regulating parties.

Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers

This Article proposes a market-based alternative to our current unpopular regime for financing federal election campaigns. Under the proposal, each voter receives vouchers for federal elections to contribute either to candidates directly or to interest groups; with limited exceptions, only funds from the voucher system could be spent to support or oppose candidates for elected federal offices. Using public choice theory, Professor Hasen argues that the voucher plan would promote an egalitarian political market in which each person has roughly equal political capital regardless of preexisting disparities in wealth, education, or organizational ability. After demonstrating that the current campaign finance regime favors wealthy and well-organized interests at the expense of the poor and those with diffuse interests, the author identifies four distinct benefits of the voucher proposal. First, the voucher proposal minimizes the role of wealth in the political process and facilitates the organization of those individuals who currently lack political capital. Second, the proposal is likely to promote a stable transition to a more egalitarian political order and a more chaotic, though fairer, legislative process. Third, the voucher proposals market orientation registers the intensity of voter preferences well. Finally, the proposal has a realistic chance of being enacted and of passing constitutional muster. The author concludes by demonstrating the superiority of the voucher plan under the four criteria to non-voucher public financing of Congressional campaigns, proportional representation, and group-based political solutions

Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission

The Supreme Courts recent decision in McConnell v. Federal Election Commission marks the culmination of an effort begun in 2000 to shift the Courts campaign finance jurisprudence in an important, though potentially dangerous, direction. Under pre-2000 jurisprudence, the Court (with one notable exception) upheld campaign finance laws only when the government demonstrated with a reasonable amount of evidence that the laws were at least closely drawn to prevent corruption or the appearance of corruption. The new jurisprudence, while purporting to apply the same anticorruption standard, does so with a new and extensive deference to legislative judgments on both the need for campaign finance regulation and the proper means to achieve it. There are signs that this shift is not merely the slipping of existing standards, however. Rather, it appears that the Courts jurisprudence is moving in the direction proposed by Justice Breyer, toward upholding campaign finance laws that promote a kind of political equality, what Justice Breyer termed a general participatory self-government objective.This apparent shift might be welcome news for those who believe that the Court had been too restrictive of efforts to limit the role of money in politics in order to promote greater political equality. But the means by which the Court has undertaken the shift have proven problematic. The Court has continued to entertain the fiction that it is adhering to the anticorruption rationale of Buckley v. Valeo. The result is jurisprudential incoherence and a lead opinion in the most important campaign finance case in a generation that appears to pay only cursory attention to the First Amendment interests that must be balanced in evaluating any campaign finance regime. Part I briefly surveys the pre-McConnell campaign finance jurisprudence, contrasting Buckley and the pre-2000 cases on the one hand, with the Courts three post-2000, pre-McConnell cases on the other. The recent trend, even before McConnell, is inconsistent with the Buckley rationale, at least as Buckley has been understood traditionally. The Court has replaced a general skepticism of campaign finance regulation with unprecedented deference to legislative determinations on both the need for regulation and the means to best achieve regulatory goals. Part II uses three examples from the McConnell joint majority opinion to demonstrate how the case fits into the new deferential post-2000 campaign finance jurisprudence. Part III points to signs apparent in the post-2000 jurisprudence and intensified in McConnell that the Court is moving toward endorsing the participatory self-government rationale for campaign finance regulation. Part IV argues that that if indeed the Court is moving toward endorsement of the participatory self-government rationale, it should do so more carefully. Thus far, the Court has given only lip service to the requirement that it balance competing interests and police campaign finance measures for legislative self-dealing. The part concludes by examining the danger that the Court eventually will eviscerate the distinction between contributions and expenditures without taking into account a key requirement of the participatory self-government rationale: the need for vibrant election-related participation by a wide group of non-governmental actors.

The Surprisingly Complex Case Against Theft

Explaining the efficiency of laws against theft is a more complicated matter than it first appears to be. Fred McChesney (1993), responding to a 1990 article by Lewin and Trumbell, argues that theft is inevitably inefficient when the indirect costs of the activity are considered. McChesney traces his analysis to a 1967 paper by Gordon Tullock, in which Tullock discussed the inefficiency of theft, rent-seeking, and monopolies. Richard Posner (1985; 1992) provides a different line of reasoning that focuses on the direct costs of theft. He claims that, because the market is adept at transferring goods to their highest valued use, those who bypass the market -- thieves -- on average value the goods they steal less than the owners. Neither analysis of theft, however, is entirely sufficient to explain its inefficiency.As Part I of this paper explains, the Tullock-McChesney resolution is flawed. Notwithstanding the existence of indirect costs, theft is efficient if incurring those costs avoids incurring larger transaction costs from a voluntary sale and the thief values the goods more than the owner does. More generally, an efficiency analysis requires comparing the indirect costs of legalized theft with the transaction costs of market sales. In Part II, we make this comparison. Unsurprisingly, theft is inefficient, though for more complex and less certain reasons than the Tullock-McChesney thesis suggests: because indirect costs *usually* would exceed transaction costs and because indirect costs *often* would not avoid incurring transaction costs. The surprising result of our model is that Posners theft analysis, while correct in a static model, turns out not to matter much to the dynamic inefficiency of theft. In equilibrium, very little of the costs of theft would be from transfers to lower valued users. Thus, we ultimately agree with Tullock and McChesney that the real problem with theft is its indirect costs. Finally, in Part III we discuss how this analysis bears on the criminal rules that define when involuntary takings constitute theft.

Constitutional Avoidance and Anti‐Avoidance by the Roberts Court

At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of “constitutional avoidance.” That doctrine (also known as the “avoidance canon”) encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court - without objection from single Justice - embraced a manifestly implausible statutory interpretation to avoid the constitutional question. A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the Court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court’s actions, ranging from the most charitable to least charitable reading of the Court’s motives. First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court’s movement of the law in its preferred policy direction. While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

The Party Line

113 ON DECEMBER 10, 2003, the Supreme Court issued its decision in McConnell v. Federal Election Commission, undoubtedly the most widely anticipated decision in election law in many years. The Court upheld the constitutional validity of nearly all of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold law or the Shays-Meehan law), striking down only a few relatively minor provisions. In the words of Richard Briffault, one of our contributors in this issue, the decision was “a stunning triumph for campaign finance reform.” McConnell invites those of us with an interest in election law to look back at what Congress and the Court have done and to assess their actions’ continuity with or departure from past practices and understandings. It also invites us to look forward to the likely consequences. In this special issue, our Symposium on the McConnell decision makes what we believe is a major contribution to the needed deliberation and debate. Although much valuable commentary has already appeared in the general press, you hold in your hands the first in-depth consideration of McConnell and its implications by a broad and diverse cross-section of experts. Our Symposium begins with commentaries by Senators John McCain and Mitch McConnell, the most prominent supporter and the most prominent opponent of the BCRA. Each has commanded widespread respect from friend and foe alike for effective leadership in behalf of deeply held convictions. Their contributions are followed by our three lead articles, written by two law professors and one political scientist, each of whom has contributed importantly to the debate on campaign finance over the years: Lillian BeVier of the University of Virginia Law School, Richard Briffault of Columbia Law School, and Michael Malbin of the Campaign Finance Institute. The Symposium is rounded out by 25 shorter but still substantial commentaries. The authors represent a wide variety of professional backgrounds, partisan affiliations and views on campaign finance. For convenience, here is a listing broken down by professional position:

Ninth Circuit Erred in Allowing Recall Election with Punch Card Votes

Among the many lawsuits filed during the unprecedented California gubernatorial recall election, the one that garnered the most attention was the case challenging the use of punch card voting in six California counties. In that suit, plaintiffs argued that the election should be delayed because the allegedly higher error rates of punch card voting compared to other systems in California denied those voters in punch card counties their equal protection rights under the California constitution and also violated the Voting Rights Act. Professor Hasen argues that the original Ninth Circuit decision delaying the election until punch card voting could be eliminated was correct, and the later en banc decision allowing the election to go forward with the selective use of punch cards was unfortunate, though understandable given the closeness of the recall election. Hasen argues that under the Supreme Courts decision in Bush v. Gore, the selective use of punch card voting constitutes an equal protection violation. The en banc court did not reach the issue. Hasen concludes that the en banc decision does not preclude other plaintiffs from bringing similar challenges in the future, and that the window remains open for voting reform lawsuits until the Supreme Court interprets Bush v. Gore otherwise.