EXCLUSIVE!! Sneak Preview: The Court Rules in Randall v. Sorrell

Oh, are they excited in the community of campaign finance lawyers, waiting and waiting with baited breath for the Supreme Court's decision in Randall v. Sorrell. Well, The Lonely Centrist has obtained a sneak preview of the Court's decision. It turns out that the Justices issued 9 - count 'em, 9 opinions. Here are some excerpts. Remember, these opinions are still in draft, and could change.

Roberts, C.J., (joined by Justices Alito and Kennedy), concurring in part and dissenting in part: "Given that no Vermont legislators have turned themselves in for violations of the state's Corrupt Practices Act or other laws, we have to conclude that either corruption is not so great a problem as the State now claims, or that the legislators cannot be trusted to act to cure corruption, in which case we owe little deference to their claims in this case..."

Stevens, J., concurring in part and dissenting in part: "When I was in law school, we didn't have these kind of these cases. Skies were bluer back then, and people only thought of Vermont when they were eating cheese. Which isn't to say we don't make pretty good cheese up in Minnesota, too...."

Scalia, J., dissenting for the hell of it: "I'm surrounded by fools. I can't believe these guys got appointed to a muni court, let alone the Supreme Court."

Kennedy, J. concurring in part and dissenting in part: "I conclude that contribution limits this low are unconstitutional, except that sometimes they are not unconstitutional. Or is it that these limits are constitutional, except that in later cases they might not be. I don't want to be too categorical here. Help, my head is about to explode."

Souter, J., (joined by Justices Breyer, Stevens, and Ginsberg) concurring in part and dissenting in part: "What Justice Breyer said." [ed note - the opinion then continues for 47 pages].

Thomas, J., (joined by Roberts, Alito, and Scalia, except for footnote 37 and part III. B. 2.), concurring in part and dissenting in part: "In the elections of 1796, the following individuals contributed to the campaign of John Adams: Abigail Adams...

"In the election of 1800, Thomas Jefferson received contributions from 1019 Americans, specifically, ...

"During the 1795 debate over passage of the National Post Road Act, Madison repeatedly stressed the importance of ... ."

"From this history I conclude that the stigmatization faced by black Americans cannot be eradicated except through the immediate..."

Ginsberg, J., joined by Justices Breyer, Stevens, and Souter: "What Justice Breyer said, although I'm more concerned about the impact of today's ruling on women... ."

Breyer, J. (joined by Justices Stevens, Souter, and Ginsberg): "Of course there are arguments on both sides, but why should I have to sit through them? On vacation last summer I read the 20th century philosopher Robert Fulghum. Fulghum argued that most important things in life can be learned by age five. Since Fulghum's writings harken back to an earlier, simpler time, we can assume that they are applicable to the thinking of the Founders as well, who lived in such an earlier time. Undoubtedly from this we can discern that the Constitution is really intended to reflect the thinking of five year olds. If I were five years old, what I would want in this situation, or indeed in any other, is a constitutional rule reflecting what it is that I want to be the result. Therefore, the conclusion must be that the Founders wanted Americans to get what they wanted. And since I am a Supreme Court Justice, formerly a member of the Harvard Law School faculty, and smarter than everyone else [fn6 - Gosh, I run rings around Scalia, don't I], who better to determine what Americans really want? Thus, ... "

Alito, J., concurring in part and dissenting in part: "What would Harriet think? ... "

We'll see if things change before the final decision is released.

The World's Best Art

From the Wall Street Journal: http://www.opinionjournal.com/extra/?id=110008540

No further comment necessary.

Arrogance

Norm Ornstein, resident goo-goo at the American Enterprise Institute, has his knickers in knots because Republicans aren't talking about "real issues."

According to Ornstein, Congress is "embarrassing itself" and by "dropping any real focus on the immediate issues facing the country at home and abroad to waste weeks of precious and limited floor time on the diversions of banning same-sex marriage and flag burning."

He continues, "Can anyone say with a straight face that these issues are more urgent than energy, health care, the budget deficit, homeland security, pensions, hurricane preparedness, the war in Iraq or the balance between fighting terror and protecting civil liberties?"

Worse yet, these are "doomed diversions." They aren't going to pass, so why waste time on them. Instead, Ornstein has found something Congress should be working on: "reform." Prescisely, "election procedure and reform."

Ornstein, I should note, is not alone - all over Georgetown and the Upper West Side of Manhattan, elite opinion is appalled. Thomas Friedman sniffs that "Congress ought to stop debating gay marriage and finally give us a framework to maintain a free flow of legal immigration." Such is the tone in cocktail parties and among the upper crust most everywhere.

The question, of course, is, "why isn't gay marriage, or flag burning (or elimination of the estate tax, another issue Republicans are chastised for bringing to a vote) important?" Because Ornstein and Friedman don't think so? To many Americans, these are extremely important issues. And as to Ornstein's complaint that they won't pass, why is that? It's because they are important enough to some members of Congress to filibuster. That's why they don't pass. If the state of the law in these areas is so unimportant, why don't Ornstein's groupies in Congress - wake up, Senator McCain - just vote for these changes, get 'em done, and move on to those "important issues."

Note, too, that Ornstein doesn't ask whether anything is likely to be passed on the issues that are important to him. I mean, what exactly is Congress going to do on the war in Iraq? Is there any chance of Congress passing a meaningful energy bill?

Ornstein's own history belies his elitism. For years, public polling has shown campaign finance reform to be a low priority issue with the public, and for many years in the 1990s, it was clear - as with gay marriage or flag burning todya - that no law could pass because it would be filibustered. Yet campaign finance reform throughout the 90s was a mantra for Ornstein, and I don't recall him being critical of President Clinton when the latter threatened to bring Congress into special session to debate the issue. That's because Ornstein thought campaign finance reform was important, and believed that votes were important to pin people down, and build long term pressure for the change.

Back to the present, the odd thing is that I basically agree with Ornstein/Friedman et al. Flag burning doesn't do much for me one way or the other. I don't see gay marriage as a priority issue; I favor a middle road immigration approach that actually increases levels of legal immigration, etc. etc. But it is up to me - and to Friedman and Ornstein and all - to convince people that these issues are more important than gay marriage or flag burning or repealing the estate tax. Mere assertion is not argument. It is more of the elitism, arrogance, and disdain for ordinary Americans that dominate "reform" politics, top to bottom.

Here's a dumb idea

The Los Angeles Times has an editorial today pumping the National Popular Vote Campaign, which the times admits is an effort to "undermine the Constitution[]."

Basically, the scheme is thus: a bunch of states (ideally, for the supporters, all the states) will pass laws agreeing to appoint only presidential electors who will support the winner of the national popular vote, thus doing an end run around the electoral college.

Now, I think the electoral college has worked pretty well. I mean, we're right up there with the longest running democracies, we're pretty wealthy, pretty stable, all that. The electoral college usually chooses the national popular vote winner (I think there would be an obvious problem if it routinely chose someone else), but occasionally chooses someone else - and why have it if it never deviated from the popular vote? Of course, that is the point for these guys - they don't want it.

One thing that the electoral college does is help build national unity by demanding that a president try for broad appeal. If we look at the 3 post-civil war elections that have gone against the national popular vote, in all three cases the loser of that popular vote was probably the more genuinely national candidate. In 1876 and 1888, the Democratic nominees (Sam Tilden and Grover Cleveland) won the popular vote by piling up huge margins in the deep south, where, remember, many blacks who almost certainly would have voted Republican were improperly prohibited or intimidated from voting. There is no denying a deep regional separation in the country at the time, but even considering that, the Republican candidates were more truly national candidates.

Then we jump forward to 2000. Many of you will have seen the map of county votes - Bush won the overwhelming majority of the nation's counties, with Gore piling up large margins on the coasts and a few large cities. Of course, goes the cry, each vote should be worth the same. But the fact is, representatives do represent trees and acres - or at least people who live amidst certain trees and on certain acres. It seems to me that it would be very bad for democracy when one could literally drive coast to coast and virtually anywhere in the interior without leaving a county that voted for Bush, yet not have Bush be president. The big cities already dominate the nation's culture and financial markets. It is not healthy that they should essentially rule over an agricultural hinterland. Remember what I said earlier - it wouldn't be healthy to have the opposite result all the time, either. But I think it's probably good for the nation that a candidate with broad geographic appeal, such as Bush, can win over Gore, with a narrowly packed electorate.

Anyway, let's disect the Times:
States join forces against electoral college
A piecemeal approach may be the only way to kill the anachronistic institution.
June 5, 2006

A PROPOSED EXPERIMENT with majority rule has generated plenty of naysayers who
apparently think that some nations are simply too immature to let people
directly choose their own leaders.

Is that really what opponents think? Not creating any straw men here, are we?

But we say the United States is ready
for real democracy.

Because the current system is so undemocratic, and has been such an obvious failure, I guess.

The experiment is the National Popular Vote campaign, which intends to undermine
the Constitution's anachronistic Electoral College.

I applaud the Times honest language - "undermine the Constitution."

If the campaign succeeds, future presidents will take office only if they win
the popular vote nationwide.
The ingenious scheme was developed by John R.
Koza, a Stanford professor who also invented the scratch-off lottery ticket.

Well, if inventing the scratch off lottery ticket doesn't make you an expert on democracy and government, I don't know what does.

Here we snip a bit. So as not to violate copyright, I think.

The beauty of this approach is that each state is constitutionally allowed to allot its electoral votes as it sees fit.

But what will the voters of California think if, in 2008, the Republican wins the national popular vote by 49-48.5, but loses the electoral college vote; and California, having voted Democratic by say, 61-39, has to switch its electoral college votes to make sure the Republican is elected?

Another snip.

The Electoral College doesn't skew just election results; it skews elections.

Or better put, it decides elections. That's what it is supposed to do, you dummies.

Candidates know they don't have to campaign in states that either clearly favor
them or clearly don't; they have to focus only on swing states. In the 2004
campaign, Bush and Kerry spent a great deal of time brushing up on agricultural
policy and other issues of vital concern in Iowa, while ignoring matters
important to people in states such as California, Texas and New York.

Is there really any evidence of this? Clearly issues of importance to Iowa got discussed, but is there really reason to believe that issues Californians care about were ignored? What do they care about? The War on Terror and in Iraq? I think that got discussed. Government spending and taxes? I seem to recall the candidates talking about that. The economy? Global warming, drilling off the coasts, or in ANWR? I think those were issues. Now it's true they didn't talk much about "undermining" the Constitution by end-running the electoral college, and I guess that's a big issue out in California, but other than that... .

Frankly, I don't understand this desire to tinker with the electoral college. I don't think the Times really believes that the majority must always win, every time. They're not demanding an end to plurality based, winner take all elections. They're not demanding the Bill of Rights be abolished. All of us are aware of many instances where people represent units of unequal size, such as the U.S. Senate, for one. Seems to me it has worked pretty well.