McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.

The Latino Vote and the GOP-Sleeping giant or not?

Much has been written about the need of the GOP to get on board with immigration reform or risk losing the Latino vote in yet another national election.  The Monkey Cage for example asked provocatively whether the GOP stood to lose a whole "generation" of Latino voters with their foot dragging on immigration reform.  It is true that Latinos are the fastest growing minority population in the U.S. and that this group now constitutes a larger percentage of the U.S. population than African Americans.  Latinos are now 16% of the U.S. population.  But how many in this group are legally eligible based on their citizenship status, and how many who are legally eligible to vote actually turn out?

The Pew Hispanic Trust reported in 2012 that although a record 11.2 million Latinos turned out and overwhelmingly supported Obama, that group still lags behind other groups in terms of voter turnout. The Pew report stated the following:

Overall, 48% of Hispanic eligible voters turned out to vote in 2012, down from 49.9% in 2008. By comparison, the 2012 voter turnout rate among blacks was 66.6% and among whites was 64.1%, both significantly higher than the turnout rate among Hispanics.

... Latinos were also a larger share of the nation’s electorate in 2012, making up a record 8.4% of all voters, up from 7.4% in 2008. However, while 11.2 million Latinos voted in 2012, an even greater number—12.1 million—chose not to vote even though they were eligible to do so.

It may well be true as John Sides at the Monkey Cage states that sometimes voters go with the politic party that "stands with" them, but it is one thing to affiliate oneself or self-identify with a party and entirely another to register and actually turn out and vote. But can the GOP though afford to make that distinction as this group grows ever larger and especially in swing states?

The filibuster fight over the mini-Supreme Court

Brad Plummer at Wonkblog yesterday attributed the recent execution of the nuclear option that altered the filibuster in the Senate to the happenings of the DC Circuit.  Aside from the fact that the DC Circuit  is regarded by Court watchers as a stepping stone to the high Court, Plummer points out another interesting feature of the DC Circuit, namely it's particular caseload that is heavy with administrative cases.  The DC Circuit that is among the U.S. Courts of Appeals, described by some as the least known federal courts, may well be the mini-Supreme Court given this caseload and not just because of its record of sending the most nominees to the Supreme Court.

Plummer notes the following about the DC Circuit:

The D.C. Circuit is surprisingly powerful — not least because it rules on decisions made by federal administrative agencies. If people want to challenge various federal regulations in court, the cases often end up here. It's "a court with special responsibility to review legal challenges to the conduct of the national government," explained Supreme Court Chief Justice John G. Roberts, who served on the D.C. Circuit court until 2005.

Plummer adds that the DC Circuit is likely to oversee many cases on environmental policy and final regulation in the years to come.

The fact that the U.S. Courts of Appeals, including the DC Circuit, must adjudicate all cases appealed to it, while only the Supreme Court has the luxury of picking and choosing its cases has meant that the Courts of Appeals have become significant policy makers in their own right. While it is true that any decision the Supreme Court renders binds the entire nation, the high Court's caseload of about 100 cases per term means effectively that large numbers of Courts of Appeals decision making on huge swaths of law (thousands of cases per circuit) are left un-commented upon by the Supreme Court.

Add to that situation the development of a more and more elaborate and sprawling bureaucracies and you have the DC Circuit now playing a very important role in governance indeed. This situation is due to the messiness of the legislative process and sometimes the need for compromise means legislation is written in a vague manner. That vague language leaves implementation and interpretation up to sprawling bureaucracies and their staff, who are themselves not directly elected by the people. Increasingly, in many areas of administrative law, one sees government agencies themselves are driving policy changes from within and without going through the tough vetting system of the formal legislative process. What these administrative agencies from the Social Security Administration to the Veterans Administration and the Department of Homeland Security call bureaucratic rule changes end up having the force of legislation as citizens experience these changes in policy.

Additionally, the Executive branch is also turning to policymaking via rule changes.  In the present situation of party polarization and administrative gridlock, it is even more likely that a President will seek to make rules administratively instead of trying to run the gauntlet of the formal legislative process. As AP News reported a few days ago, "Obama is relying more often on making relatively minor administrative changes to America’s complicated immigration system, as the likelihood dims that Congress will overhaul the law." And as this trend continues, the DC Circuit will be at the center, providing the Third Branch check on these bureaucratic rule changes that have the effect of law. The DC Circuit's significance then is far greater than as a stepping stone to the Supreme Court.

Best practices: What organized sections can do to enhance academic networking

The problem with "networking" is that it places most of the burden on the "networker".  For reasons cited in many of the posts, it can be difficult for networkers to get into this process.  What can institutions do to facilitate the process? The political science blogs have lit up lately about the value of academic networking.  David Lake has offered his view from the senior professor perspective.  I've offered mine from the mid-career Associate Professor's perspective.  Sara McLaughlin Mitchell has put up a post about the special challenges women face in networking.  Will Moore noted that there is no one universal way to do academic networking and that a lot rests on considerations of the person's race, sex, sexual orientation and other personal characteristics.  As others have already pointed out, I agree that no amount of networking will make up for bad research.  But all of these posts do also hit the value and indeed the necessity of netoworking and note that career success and personal well being is not just about doing good research.

I've been a member of several sections in APSA and MPSA and I've noticed some best practices carried out by organized sections and individual policy entrepreneurs that work.

1.  Reach out to junior people.  The Law and Courts section of APSA has been very proactive about this. A kind word from one of the more senior people inviting a grad student or Assistant Professor to a reception or other event makes a difference.

When Wendy Martinek was section chair at MPSA several years ago, she created a book panel for my first book that was coordinated by Mark Graber who invited the other panelists.  It was an unexpected and generous gesture especially since I am not well known or at a fancy school.  When I served as MPSA section chair several years later, I did the same and went out of my way to look for a younger scholar whose book had just come out who could use the exposure.  Not that you should never have a book panel for senior scholars, but senior people don't need those author-meets-critics book panels as much as pre-tenure people. 

2.  Reach out to graduate students.  The newly formed Migration and Citizenship section has a graduate student member on the governing council.  This is a great idea and the only section I've seen do this.  The graduate student member, elected with the leadership slate of candidates, is working on programing that is of special interest to grad students, some of which is networking opportunities. 

Virtually every section at APSA and every other political science association has a graduate student paper prize or dissertation prize.  Why not put a graduate student member on those prize committees?

3.  Include new members immediately   When sections gain new members, they should integrate them immediately and put them to work on a committee.  When I joined Law and Society years ago, Howard Schweiber not only introduced me to a bunch of fellow LAS members in Chicago and at my new university but immediately stuck me on a paper prize committee.  The many committees of each organized section always need staffing.  Rather than going to the same people over and over, the sections should try to rotate the membership on these committees especially by making an effort to include new members.

Similarly, although I am new to the federalism research, the Federalism Section of APSA immediately put me on a prize committee.  When the sections do that, it makes the new person feel immediately involved, invested, and connected.  Put the new people to work quickly!

4.  The "Constitutional Schmooze" model of conference.  One of the most fun and intellectually invigorating conferences I attended was a mini-conference organized by Mark Graber.  The conference is unique in it's organization.  It invites ten law professors and ten political scientists to a location for 2 days of intensive discussions.  The invitees are a mix of senior and junior people.  The conference that originated with Mark Tushnet has now been taken over by Graber and others and runs regionally with the east coast, midwest, and west coast schmooze.  Here's an example of a recent east coast schmooze.

Graber explained that the reason he invited both law professors and political scientists is not only because the two groups don't usually talk to each other or attend the same conferences, but that the law professors wouldn't know who the senior political scientists were to be scared of them and vice versa with the junior political science people not being intimidated by the senior law professors to hold back from critiquing their work.  This model worked because the group was small, there was a good mix of junior and senior people, and there was great forethought about who to invite based on the chosen topic (that year it was constitutional interpretation).

Others like Karthick Ramakrishnan have a version of this model in a program called The Politics of Race, Immigration, and Ethnicity Consortium (PRIEC).

Like the Constitutional Schmooze series, PRIEC is a series of small meetings bringing together graduate students and more established scholars and the meetings rotate among different academic institutions that host. Unlike the Schmooze, PRIEC actually has the attendees present their ongoing research to get feedback.  There are many other groups that run mini-conferences like the Constitutional Schmooze and the PRIEC that center around different research questions and topics. 

These smaller conferences are much less intimidating to younger scholars and grad students than APSA and MPSA and they provide realistic opportunities to interact with senior scholars.  The problem is that they only come into being through the huge amount of work of a few organizers.  Perhaps academic departments could volunteer to host one of these conferences or create a similar one.  It would be an investment of resources for sure, but it would get the ball rolling and that institution could hand it off to another department the following year.

Networking is not easy.  APSA, other political science organizations, and organized sections can do their share as can other smaller groups of researchers.  This is hopefully just the beginning of a list of best practices to make the networking process smoother.

One view on how to do the contrived activity known as academic networking

Social networks is the buzz term of the day.  In academia, the networking kicks into high gear during academic conferences, but how do you do academic socializing and networking?  As Brian Rathbun blogging at Duck of Minerva (h/t Frank Thames) writes:

APSA  [the American Political Science Association annual convention] is around the corner and young academics should think about setting up meetings with people who it would be good to know.  Personal contacts are much more important than they really should be in a business where it is supposed to be the ideas that matter.  

Great.  So how do you do it?  Do you stalk big name professors in your field and try to follow them around the conference?  Do you try to set up meetings with Professor-Big-Name via email before the conference to meet them face to face?  Rathbun reported limited degrees of success using that strategy. 

His advice is instead of trying to track down the most well known professors in your field, try to get to know younger scholars.  Rathbun says, "[T]he younger, the better. It is almost always the case that the young people are the most creative and the most fun to be around. You will learn more. Young people haven’t settled into their intellectual habits and do not take themselves so seriously. "

I agree with Rathbun's advice, but would put it a bit differently.  Remember that networks should be built not only upward and vertically, but also horizontally and downward, with people coming up the ranks behind you, including graduate students.  You cannot ask Professor-Biggest-Name-in-Your-Field to read drafts of your papers (well you could, but they'd likely ignore you), but you can ask your fellow Assistant and Associate Professors as well as the close friends you made in graduate school. 

Some advice from my own experience.

1) Build contacts with people who are your peers and those coming up the ranks behind you.  There are smart people at all levels of the profession and who graduate from all kinds of schools, not just marquee institutions.  Seek out those, regardless of their rank or pedigree, who you think are smart and with whom you are simpatico with regard not just to subject matter and methodology, but also temperament and sense of humor (or lack thereof).  Don't be a snob.  It's a tough business. You need fellow travelers to laugh and commiserate with you through the trials and tribulations--not just to help you climb the career ladder.

The networks should not only be used for yourself.  More than once I have tapped my networks not to benefit myself, but to help one of my students get into a graduate program or an Assistant Professor with tenure by helping them select the list of external reviewers.  It's not that I was going to lobby my contacts for my Assistant Professor friend, it's that I knew these people to be conscientious, and tough but fair readers because they had taken my work seriously when I was (and still am) unknown.  Like Nancy Pelosi reputedly does, keep a mental rolodex in your head of the people you have done favors for so you can tap them on someone else's behalf later.  Strong networks are built through mutual respect and mutual obligations.  Interdependence is not a bad thing!

2) People who you assume will help you, may not.  Others who you least expect to help, might.  This was a tough and surprising lesson I had to learn.  Having come from the very generous University of Texas at Austin where as a Ph.D. student I had access to their highly ranked law school resources and faculty, I naively assumed that's how it would be everywhere. 

When I was an Assistant Professor at a different university with a law school, I asked if I could have access to the law school version of Lexis/Nexis.  I was denied.  I asked if I could get a courtesy joint appointment in name only (I had no wish to go to their holiday party or go in their fancy faculty lounge) so I could get access to that resource.  "No, that's not possible at all," was the answer.  I completed my research including my first book and a law review article by having to do wide workarounds the law school resources I was barred access to on my own campus.  University of Texas Law's view seemed to be that if anyone uses their resources and publishes something, then it is a tide that lifts all boats; these other guys didn't see it that way.

On the flip side, I emailed two very prominent law professors, rockstars in the legal academy, for help with one of my book manuscript chapters.  Yes, it took multiple follow up emails and months, but both eventually graciously read my chapters, gave me feedback, and provided invaluable confirmation from a senior scholar that my research was on the right track.  On the same book project, another senior political scientist also read multiple chapters for me.  I had never even met two of them in person until months after they helped me.  I was a young and completely unknown Assistant Professor at a non-fancy university and these much more established people helped me.  I was so grateful and humbled.

3)  Be gracious.  Totally true story.  One of the senior law professors who helped me with my chapter got quite a surprise several years later.  He was interviewing with a member of the Obama Administration transition team for a high level position in the immigration bureaucracy.  The interviewer said, "Oh, Professor, I am such a big fan of your work and I understand we have a mutual friend in common."  The Professor was expecting the name of a U.S. Senator or federal judge to drop from her lips.  Instead the interviewer said, "You know, Anna Law?"  Professor Big Deal, in a moment of candor, asked, "Anna WHO?"  And the interviewer said, "Anna Law has told me how helpful and generous you were with her book project."  The man nearly fell off his chair.  The DC staffer is married to one of my colleagues.

When people make a reasonable request of you, be gracious.  If you cannot help them because you are swamped, tell them so and perhaps advise them of a better time (3 months from now?) when you might be able to help, or help them in a more limited way ("I can't read your whole chapter, but maybe we can talk in the phone and you walk me through your argument and I'll give you some feedback" or "Is there a particular section of the paper you'd like me to read and comment on since I can't read the whole thing?").  Don't just blow off the request or dismiss them because you think they are small potatoes.  A few kind words costs you nothing.

4)  Keep trying.  As many senior scholars and otherwise good people who have helped me along the way there are, there have been an equal number who have ignored my requests for help completely, said dismissive or demeaning things to me, or were just plain mean.  There will be those people.  But just like applying for fellowships and grants, you have to keep trying and keep asking for help.  Not everyone will dismiss you and there are nice people out there.

5)  Pay it forward. No one makes it solely on their own in this business.  If you received help from someone in the past, help someone else coming up the ranks behind you.  You were once that graduate student, adjunct, and Assistant Professor. 

There's not only one way to do it.  I found a strategy that worked with my introverted personality and I have been enormously blessed with many mentors.  Good luck, all!

Mixing politics and research: responses to NSF cancellation of a political science grant cycle

It is happening:  politics is invading public research funding decisions in a major way.  The National Science Foundation, a major grant provider for political science research, has cancelled its next funding cycle citing uncertainty about their budget.  The federal grant agency, which funds many kinds of science and social science research, one of which is my home discipline of political science, found itself under fire from Republican lawmakers who were targeting the political science program.  The New Republic has reported a clearly political motive for the attack.  Back in March, Timothy Noah at TNR wrote:

The real reason the NSF’s political science program is being eliminated is that Republicans are ideologically hostile to its content, not its cost. Jeff Flake, the Republican congressman from Arizona who sponsored a similar bill that cleared the House last year, dislikes the program because it spent “$700,000 to develop a new model for international climate change analysis.” Senator Tom Coburn, the Republican from Oklahoma who sponsored the Senate amendment, doesn’t like it because he’s tired of reading studies about the public’s distaste for the filibuster, the GOP’s most cherished nullification tool.

A Nature article speculates that the Political Science program director at NSF may have strategically cancelled the upcoming grant cycle hoping some of the politics will blow over. Specifically, the director may be hoping that the proposals that NSF certify only research that is "'groundbreaking' of 'the finest quality,' does not duplicate any other federally-funded research, and will 'advance the national health, prosperity, or welfare, and ... secure the national defense'", will be removed by the next grant cycle.  Many have noted that these criteria would replace the NSF's rigorous peer review process.  I would argue that given the subjective criteria laid out, it does something worse, it subjects political science research (for no other discipline has been singled out to meet this standard) to a political litmus test.

In case there is any further question about the politically motivated nature of the attack on the Political Science program in particular at NSF, John Sides at the Monkey Cage reported that when he called a staffer on the House Committee on Science, Space, and Technology to ask what political scientists could do to help preserve NSF funding, he was told the they were looking for, "'bite-sized' stories about political science research, and especially research that would be appealing to more conservative members of the committee. " (original emphasis)  Sides followed up and asked for examples that might meet that criteria and the staffer "suggested research about national security, transparency, and how to make government smaller and/or smarter." 

To paraphrase Madison in The Federalist Papers No. 10, the proposed solution is a remedy surely worse than the disease itself.  Political Science, and the academy in general, are in trouble if our ability to preserve NSF funding is contingent upon our adeptness in shoehorning research into a conservative frame.

I and others in my discipline have argued that the merits of NSF funding is its ability to fund graduate students and facilitate ambitious research involving expensive datasets or extensive fieldwork--all subject to a very rigorous peer review process.  Sides noted that according to the House staffer he spoke with, such arguments and those about the general utility of political science research are not as useful as identifying specific projects that dovetail with conservative concerns, although he noted that even then it may not convince.  There is also the structural constraint that apparently most universities that obtain NSF funding are in states with Democratic Senators, so the electoral pressures brought might be limited in effect. 

Surely political scientists collectively who study politics and government institutions can figure out a multi-pronged response given these structural constraints.  I'm talking to you: parties scholars, game theorists, historical instituionalists, interest group scholars, and political behavioralists.  This is real world problem should be a comprehensive exam question.

For now, what can we do?  We can still contact all our elected representatives using this portal here.  Indeed I live in a state with two Democratic Senators, but my hope is that my letter will educate them about the need for NSF research, the importance of the peer review process, and the politics of this push, so that they understand what's at stake as well to better defend the program.

Who appoints the FISA Court members? What checks and balances?

With Edward Snowden's revelations that the NSA activities were authorized by the FISA Court and the Administration's pointing to the FISA Court as providing judicial oversight for these actions, naturally attention has been brought to this secret court whose proceedings and decisions are entirely unavailable and therefore unverifiable to the public.  Apparently the FISA judges are very unhappy about how they have been portrayed in the press as rubber stampers now that information has come out in multiple places that the FISA Court almost never says no to the Administration.  Many news outlets and political analysts have taken the FISA Court to task for not appearing to apply any sort of restriction on Executive action.

The FISA Court was suffering enough of an image problem before it was learned via Ezra Klein's recent posting about how FISA Court members are chosen.  We all knew they were sitting federal judges, but until Klein's column, I did not know that all of them are appointed by the Chief Justice.  There is no Senate confirmation or any other check on the Chief Justice's choices to the FISA Court.  He is the lone decider.  Even if we assume that the ideology of the judge does not matter, an assumption that would run counter to reams of political science research about the strong influence of ideology saying otherwise, there is still a problem.

Today, Geoffrey B. Stone outlines the challenge with having the Chief Justice appoint the FISA Court members:

Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.

So it is a safe guess that the partisan composition of the FISA Court judges in no way mirrors or even approximates the partisan distribution on the federal courts.  In fact political science research shows that Democratic and Republican judges have very different views about affirmative action, and abortion.  I'm in the process of tracking down studies on the effect of ideology on national security issues.

July 7, 2013 update.

The New York Times today published a story about more of the FISA Court's functions. In one chilling paragraph, Eric Lichtbau wrote:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Yesterday, Michael McGough published an oped in the LA Times suggesting that FISA Court appointees be chosen by the President and confirmed by the Senate, just as the members of the Federal Circuit are. I agree. If the FISA court is going to operate in secret, not allow an adversarial process and not allow scrutiny of it's decisions, at the very least it's members should be appointed with a process that is more than just the unilateral say-so of the Chief Justice.

Two academic implications that flow from a "permanent war on terror"

Glenn Greenwald today blogged about U.S. officials acknowledgement of the permanent nature of the war on terror.  He reports that Michael Sheehan, assistant secretary of defense for operations, stated that the war on terror was going to last "at least 10 to 20 years" from today.  Counting the ongoing war on terror, that began after the 9/11 attacks, Greenwald notes that we are apparently in the middle of a 30 year war. As I read his article, two thoughts came to mind.

First, is the implications for civil liberties, but a specific aspect of it.  A whole generation of people, my undergraduate students, will have lived a large portion of their lives with the U.S. actively fighting the war on terror.  Greenwald puts it this way:

Each year that passes, millions of young Americans come of age having spent their entire lives, literally, with these powers and this climate fixed in place: to them, there is nothing radical or aberrational about any of it. The post-9/11 era is all they have been trained to know. That is how a state of permanent war not only devastates its foreign targets but also degrades the population of the nation that prosecutes it.

I blogged a few days ago about the difficulty I confront in the classroom of teaching the concept of privacy to my undergrads who are already of the Facebook/Twitter generation where everything previously private is now shared publicly.  My students simply don't see what the big fuss about surveillance is and their view is, "If I have done nothing wrong, what does it matter if the government monitors me."  My teaching challenged aside, adding to the effect of ubiquitous social media, I share Greenwald's concern that a permanent war on terror will desensitize citizens from being vigilant about their civili liberties and civil right being eroded.

Second, academia is a little slow on moving to cover the effects of the existing, much less the permanent war on terror.  I have in mind a specific subfield in the legal academy and political science, the subfield that studies war powers, the politics and law behind the war powers clause in the U.S. Constitution Article I Section 8 granting Congress the right "to declare war", and Article II Section II which names the President "Commander in Chief of the armed forces".

I served as discussant on a panel at the 2013 Midwest Political Science Association convention in Chicago in which 4 scholars presented their papers on War Powers.  Although the scholars on the panel were doing historical work, I challenged them to explain how that entire subfield of study had been changed by modern warfare and the endless war on terror, with it's drones, which renders a traditional battlefront obsolete (h/t Anne Harrington), and with combatants like Al Quaeda who come from no particular country, wear no identifiable uniform, and do not respect the rules of war. Has public support of the war on terror been lukewarm but not outwardly oppositional because war is now more antiseptic and the burden of war only falls on the families of the voluntary armed forces?  Has this situation translated into wider latitude to the Congress to defer and the President to expand executive power? My questions drew no answers.

I thought perhaps that maybe I was asking the wrong group of war powers scholars this question because my panel was composed of people who studied war powers historically, not in the present.  So imagine my surprise when I went to Lexis/Nexus and checked law reviews and found only ONE article which had war powers and war on terror in the title.  It's been 12 years since the war on terror began and the academy has been just as unquestioning of the expansion of executive power as the public.  What's going on?

Why I resigned as pre-law adviser after a decade of pre-law advising

In most political science departments, there is a person that teaches and researches U.S. constitutional law, the federal courts, and/or judicial behavior.  Many political science majors think they have to major in politicalscience to go to law school.  (They are mistaken, but that's another post.) At teaching schools, as opposed to research universities, many of us who specialize in public law (the qualitative side of law) and/or judicial politics (the quantitative side of law) are also expected to serve as the pre-law adviser, often with no teaching release or other compensation. 

For 9 years at DePaul University, I was one of two pre-law advisers in the political science department.  I met with students who were interested in law school, talked to them about how to pick a law school, file applications, and write compelling personal statements.  I have edited many of these statements as well.  I carried out the pre-law advising on top of my 30 plus advisees that would come in for technical advising.  (Technical advising involves sorting through curriculum questions for the students, not career advice or mentoring.  "Can I take Math 101 and 103 to meet the quantitative reasoning requirement?" "Does Sign Language count as a foreign language.")

At Brooklyn College, I continued with the same duties but was also part of a "pre-law team" , a group of advisers and administrators that met through the year to devise programing and strategies that would get students to law school and raise the Brooklyn College LSAT average to be competitive with other senior CUNY schools.  Brooklyn College was good enough to give me a one course teaching release for my efforts.  Last week I resigned as pre-law adviser after 10 years of advising.  The main reason is that as the Kurz Chair, I have substantial public programing and publishing duties that I need to concentrate on.  But pre-law advising was never the favorite part of my job.  As the years went by, and as the legal job market cratered, I had more and more misgivings about sending my students to law school.

It always struck me as silly to assume the public law/judicial politics person should be the pre-law adviser.  Many of us study law and legal institutions, but we have no J.D.; rather we have a Ph.D, which entails entirely different training.  In my case, I made a specific choice not to go to law school, which is not to say I have no legal training, because I did take a handful of law classes at my Ph.D. institution, the University of Texas at Austin.  Many J.D./Ph.Ds in political science have both degrees but have chosen not to practice law.  What is strange is to have someone who made a conscious choice NOT to go to law school for whatever host of reasons, advise students about law school.  I was quite literally no more qualified to dispense advice about law school than any of my other colleagues in the department.  Teaching and researching about law has little to do with law school.  I had never prepared for or taken the LSAT. Why not hire many of the unemployed JDs to fill this role?

But the main reason serving as pre-law adviser in the last 10 years has becoming more and more dispiriting is the market trends of the legal field.  It used to be that getting a law degree was a reliable vehicle for upward mobility for persons not born into wealth and that you could make quite a decent living.  But those days are long gone and it has not been true for awhile.  I posted a while ago about the trend that more and more people going to law school and saddling themselves with an average of $100,000 in debt, only to find fewer and fewer legal jobs out there.  There is also a correlation between one's likelihood of landing a decent law job and the ranking of the school you graduated from.  Many within the legal academy led by Brian Tamanaha, a law professor himself, have been very critical about the ethics of law schools continuing to churn out graduates with high student loan debt, knowing there are few jobs.  Many media reports also document the deceptive marketing practices of law schools who inflate their employment statistics in an effort to mislead prospective students. The headline of a recent Salon article flat out said, "Law school is a sham."

 

The typical LSAT score at DePaul is between 140-150.  There, the DePaul students commonly attended John Marshall Law School, Northern Illinois Law School, Kent, or Thomas Cooley Law School.  Each year, a few would also get into DePaul, Loyola, U. of Illinois Urbana-Champaign, and maybe one or two each year would get into a school in the top 15 law schools.  The pattern was similar at Brooklyn College with an average LSAT score of about 146, with many getting into New York Law School, Brooklyn Law School, some others would get into second tier law schools like American or Villanova, and a handful into NYU, Columbia, and the elite law schools.  (You'd need a score of 160 or higher to be eligible to apply to top 20 schools.) 

This pattern did not sit well with me.  About 2007, I had a conversation with my other pre-law advising colleague at DePaul, David Barnum.  He and I independently reached the same conclusion that we didn't feel right encouraging our students to go to 2nd and 3rd tier law schools knowing the amount of student loan debt they would assume, and then knowing they were heading into a brutal job market where the ranking of your school often determines the job you get and whether you get a job at all.  A famous New York Times article published in 2011 noted that grads of even top 10 law schools were having trouble in "the grimmest job market in decades."

About one fourth of DePaul's students are first generation college students and/or first generation immigrants.  That percentage is even higher at Brooklyn College.  These students are often my best students because of their level of effort and seriousness of purpose--like all young people, they are full of hopes, dreams, and optimism.  They are also the ones that can least afford to saddle themselves with $100K of debt, the median law school debt students graduate with, and risk unemployment after that.  The law schools accused of deceptive practices, mainly 3rd tier law schools desperate to fill their classes and put tuition paying students in chairs, are preying on the hopes, dreams, and optimism of this population. That combined with the ideology of the American Dream, that "anyone can make it", has been a boon for 2nd and 3rd tier law schools who are expanding their hiring of faculty and infrastructure since the recession began.

Feeling that we would be remiss and unethical not to do otherwise, David Barnum and I at DePaul began actively warning students of the job market and advising them of the tremendous student loan debt they would incur.  The pre-law program at Brooklyn College was not as aggressive about  advising students about debt and the legal job market, and it is still pushing law school in various ways through career panels and LSAT prep courses run by the Career Center. Administrators seemed more concerned about raising LSAT scores rather than just discouraging people from heading into the law school game of chance.  (The Career Center does not advertise prep courses for the GRE.)

I never told any student not to go to law school.  I would hand them the New York Times article and told them to do their own research and to assess whether the high debt and uncertainty in the job market was an acceptable amount of risk for themselves.  Many students did just that and came back and thanked me for alerting them to the dismal state of affairs.  Many more got angry at me and said that I had "killed their dreams." Market forces bigger than me destroyed their dream.  I'm just the messenger.  It's time for someone else to be pre-law adviser.

The politically motivated attack on political science NSF funding and who it really hurts

As a member of the Midwest Political Science Association, I received an email from the leadership informing us, "On March 20, 2013, the Senate passed a modified amendment to H.R. 933to restrict NSF funding for Political Science to research projects that promote the 'national security or the economic interests of the United States.' The original amendment would have entirely removed all funding for political science research, and in a few months, there will be another effort in Congress to do just that." 

Earlier, I wrote a posting about the motivations of the current effort to defund National Science Foundation grants for political science.  Long story made short:  it appears that it is politics as usual.  Several GOP senators don't like the kind of research coming out of political science, specifically the fact that some of that research findings is contrary to their ideological views.

In this posting I want to make clear who is actually being harmed by defunding or severely restricting funding to political science, and that group is political science graduate students in training to get their Ph.Ds.  A large number of NSF grants are for "dissertation improvement", and are only for graduate students, not professors.  If one is a graduate student doing expensive and ambitious research which requires: extensive domestic or international travel (domestically, think multi-city/multi-state travel), or you need to purchase an expensive data set, or you need expensive equipment (cameras, recording equipment, transcription equipment), or services (transcription or translation services), often the NSF dissertation improvement grant is the only source of funding you can apply to. 

Most academic departments cover their students' tuition and living expenses, but not funding needed to actually carry out the research.  Graduate programs may have small grants, about $1000 or so would be considered extremely generous (and rare), available to fund graduate students doing this kind of research and Ph.D. students are expected to apply for outside funding like NSF.  So if NSF funding was restricted or dramatically cut back on, the group hurting the most would be graduate students. 

Restricting or contracting NSF funding would of course hurt professors engaged in research, but not to the extent that it would harm graduate students.  NSF grants to professors cannot be used for salary except summer salary; it also cannot be used for teaching release.  Either way, a tenure-track or tenured professor will still get a paycheck.  The NSF funding to professors can only be used for research expenses including hiring graduate students to help carry out that research.  In addition to Teaching Assistantships, Graduate Research Assistant-ships are a crucial source of basic income for graduate students.  

Perhaps this is the intent of those seeking to defund political science NSF grants, defund the messengers and their next generation if you don't like the research they are doing.

If you wish to write your Member of Congress and President Obama urging them to preserve NSF funding to Political Science, please click on the link here.

Who granted certiorari on the two gay rights cases and why

The Supreme Court is not only an esteemed body in U.S.,  but it also has the unique luxury of picking and choosing the cases appealed to it.  Unlike the lower federal courts which must adjudicate all cases properly appealed to it, the U.S. Supreme Court has the privilege of defining its own workload and sifting through the 7,000+ appeals to the Court each year.  In Court lingo, it is called a grant or denial of certiorari.  If the Court grants a case certiorari or "cert" for short, it has decided to decide your case.  (It must then move to decide the merits of the case.)  The grant or denial of certiorari s a mysterious and little understood process and the Justices are under no obligation to explain why they granted or denied a case.  All we know for sure is "The Rule of 4", at least four justices must vote to grant a case cert.

Yesterday, Adam Liptak of the New York Times wrote an eye-opening article about which justices likely voted to grant the two recent gay marriage cases cert and why they did so.  The article is instructive because Liptak does a particularly good job explaining the strategic considerations that justices have in their mind as they weigh a grant of cert.  He speculated on their motivations based on their questions and statements during oral argument.  His conclusion is a bit surprising.  He writes, "As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject." I felt like the Law and Order "Dun Dun" gong went off to follow that sentence.

Liptak's conclusion was contrary to my thinking.  I was frankly expecting an aggressive grant by one of the liberal justices who wanted to settle the issue with some finality.  An aggressive grant is a calculated cert grant made by a Justice who wishes to weigh in on an issue and believes they have the votes to be in the winning majority on the merits.  But if Liptak is right, then this is still an aggressive grant, albeit by the most conservative justices, in contrast to a defensive denial (a denial of cert vote based on the caluclation that you do not have enough votes to win on the merits for your preferred position).

This development is sure to reignite the debate about the undemocratic nature of the Court.  "Nine old men with old ideas" is how FDR derided the Court that continuously frustrated his New Deal policies.  If Liptak is right, and I believe he is, then the age-old political science question of counter-majoritarianism once again arises.  It goes to the undemocratic nature of the Court and the charge goes something like this, "Why do we permit 9 unelected people from 'a narrow background' to decide hot button issues for the rest of the country" (to paraphrase Justice Kennedy).  But really, if Liptak's scenario is right, then it goes something like this, "Why do we allow a small group of people, who are totally unrepresentative of the U.S. popuation, to have the power to thwart the majority's will because their personal and ideological views of gay marriage led them to rule against it?"  (For indications of personal views influence on gay marriage, refer to Scalia's speculation that the science is yet unclear about the effect on children raised by gays and Alito's charge of the newness of gay marriage that he said was newer than cell phones or the internet---both rationales not based in law.)

To be fair, the countermajoritarian debate about the Court in political science is not about the Courts working in opposition to public opinion directly, but rather that the Court can overturn the laws written and passed by democratically elected legislatures and executives. 

It's unfortunate that we won't really know until the Justices release their papers long after their death and when I won't be around. Between the Chief Justice switching his vote in the Affordable Care Act case and these cases, those are going to be quite some juicy papers!

Don't like the message? Defund the messenger: Political Science singled out for NSF defunding

Senator Tom Coburn (R-OK) has had a beef with my discipline for quite some time.  He claims political science is trivial compared to scientific research and therefor no federal funds via the National Science Foundation should be spent on it.  He said that the funds should go to the National Cancer Institute instead.  Actually, what is trivial is the $10 million dollars each year that the NSF spends on political science research.  As The Economist notes, the $10 million to political science is a drop in the bucket compared to the $5 billion that goes to the National Cancer Institute.  Coburn says that only political science research that can show that the research will strengthen national security or the economy, setting a standard that no other discipline funded by governement funds has to meet.

The American Political Science Association has responded and in a statement, the association wrote:

Singling out any one field of science for elimination is short-sighted and misguided, and poses a serious threat to the independence and integrity of the National Science Foundation. And singling out political science for elimination from the national science agenda would be a remarkable embarrassment for the world’s exemplary democracy...Political science research addresses questions that are fundamental to our national interest...Political science is the only discipline devoted to learning how to make democracies work better. 

On Wednesday, Coburn's amendment was adopted by a voice vote in the Senate.  It was the fourth time that a Republican had singled out my discipline for NSF defunding since 2006. 

What is going on?  Politics is what is going on.  Apparently NSF funded research has questioned the efficacy of the filibuster and has documented the effects of climate change.  As The Economist wrote, "In all of these cases, the research risked calling into question the wisdom of policies supported by the Republican Party. In none of the cases did Republicans argue that the studies were flawed. They appeared to simply object to financing research that might contradict their point of view."  One could construe this as a broader GOP disdain for scholars and expertise.  Or it could be as The Economics blog noted, that this part of the soul searching of a party that has lost 5 of the 6 popular votes in national elections, a party that has lost its way.  The overall grant rate at NSF is 9%, the research that gets funded is good because it has gone through rigorous review processes--maybe too good.

More on the use the misuse of social science in influencing Supreme Court decisions

What IS social science good for?  As Mark Twain once wrote, "There are lies, damned lies, and statistics."  Sometimes social science is trotted out to distract and obfuscate when the real issue at stake is pretty straightforward, you know, like fundamental fairness.  Earlier this week, I wrote about a conservative group trying to manipulate social science research all in an effort to influence the Supreme Court's two upcoming gay rights decisions.  Then came George Will this Friday who railed about the "shaky science" behind same sex marriage.  Every example Will provided is of some scientific study that purports to evaluate either the effect of family structure on child rearing or the state's interest in defining marriage based on a state "purpose." 

All of those examples miss the point of why the lawsuit, especially the suit challenging DOMA in U.S. v Windsor, is being brought.  The Fourteenth Amendment guarantees equal protection of the laws.  Edith Windsor is not suing for the right to marry per se or about her fitness  to raise children.  In this case the issues is about the discrimination of the laws that she faced because of the multitude of legal benefits and privileges (estate tax laws specifically), more than 1,300+ of them, that attach to the federal government's definition of "marriage". 

Conservatives in recent years seem to have moved away from arguing the unnaturalness of gay marriage, although many still point to scripture as a source of their objections, but Will needs to be careful about impugning social science research on this topic.  His shrill warnings about the lack of "decisive evidence" and "resting uneasily on the shiftable sand of premature social science conclusions" about gay unions sounds eerily like the fearful arguments presented against the unnatural social experiement of interracial marriages.

Besides, why is it incumbent on gays to prove the gay marriage is not harmful to society or children?  Why is it an accpeted axiom that straight marriages are beneficial?  Has anyone checked the divorce rate of tradtional marriage?

Commissioning social science studies just to influence the Supreme Court

Conservative groups have, in multiple amicus briefs, cited a "scientific" study to try to influence the Supreme Court on its upcoming California Prop 8 and DOMA cases.  (h/t Zach Cook) This week, that study about "family structures" that purported to show that straight parents were better at raising children than gay parents ran into serious trouble.  The study that had already been debunked and repudiated by other academics. But it was revealed by Zach Ford at ThinkProgress that the study had departed from standard procedures for refereed journals that are designed in part to guard against conflicts of interests.  For academia, double-blind review in which neither the author(s) or reviewers know each others idenities, is the gold standard to verify the quality, accuracy, and originality of research.  Ford's article reviews that the study was manipulated at various points in the review process specifically to produce results that would "prove" that gay parents should not be raising children.  The ultimatel hope of the conservatives guiding and funding this study was that it would be proof to influence the Supreme Court on issues of gay marriage.

The notion that the Supreme Court would be influenced by a social science study is intriguing.  I suppose ever since the Brandeis Brief was introduced in Muller v Oregon (1907), lawyers and interest groups have endeavored to bring non-legal data to bear in legal cases.  The efficacy of this tactic, except in Muller and the now famous doll experiment in Brown v Board (1954), is in question.  Supreme Court justices, as smart as they are, are only trained in law.  They have no formal or systematic training in statistics, economics, or social science.  How on earth would they know which study to believe, especially in a contested area where studies with findings pointing in different directions can be found?  As a political scientist that also studies law, I almost never see law reviews cite social science studies.  Despite all the calls for interdisciplinary studies, there is very little cross-pollination of the disciplines going on.  Am I to expect that this pattern is broken at the Supreme Court?  Any social scientists with empirical data on this question of how often the Supreme Court cites social science studies?

"9 unelected people from a narrow legal background" deciding for all

Yesterday, Justice Kennedy worried that the Supreme Court, composed of "9 unelected people from a narrow legal background" were increasingly deciding the most controversial issues for our society.  An example of recent and current cases before the Court include:  the Affordable Care Act, gay marriage, the Voting Rights Act, and immigration.  Kennedy's view is that in a democracy major policy issues such as those should not be decided by 9 unelected persons and persons who are totally unrepresentative of the larger population given their narrow background and life experiences.  Justice Kennedy should be commended for his self-awareness of the place of the Supreme Court in our democracy.  I have seen no recent justices agree with his view.

Political science has much to say about Kennedy's concerns.  The problem Kennedy refers to is a classic one that is still being debated in the discipline.  It is the countermajoritarian problem, or the question of whether it is wise in a democracy to have 9 unelected men and women make decisions that  can overturn and void the decisions of democratically elected legislatures.  There are many answers to that question, but the three main camps are:

1)  The Court is not undemocratic.  We need an unelected branch in order to police the excess of the other two branches; the federal judiciary by design is supposed to help the government contol itself.  Therefore, the unelected nature of the judiciary actually furthers democracy because in some instances, it is only the federal judiciary that will do the right thing and protect those (politically unpopular minority groups) who cannot protect themselves when the other two branches are unable or unwilling to.  (See Federalist Papers no. 78 and U.S. v Carolone Products Footnote 4)

2)  The Court is not likely going to be out of step with prevailing views.  There is no way that the Supreme Court will be long out of step with the majority coalition (or governing party) or the public.  The Supreme Court is often part of the governing coalition given that on average presidents appoint 2 justices to the Supreme Court.  As for the public, the Supreme Court realizes much of its legitimacy derives from public support; therefore it is unlikely to be charging out far ahead of public opinion.

3)  Stop asking whether the Court is democratic or not.  And a final take on the coutnermajoritiarian question by one of my favorite scholars and people says that debating whether the Supreme Court is democratic or not is misunderstanding the role of the Supreme Court in American politics. One should think of the Court more like a firefighter or EMT in that Court is actually doing a public service for our democracy in taking political hot potato issues that the two other branches are unwilling or unable to decide.