Thursday, July 21, 2016

Some thoughts inspired by
Ciara Torres-Spelliscy: The strange legal marriage of the anti-choice movement and campaign finance

  What I got from this thoughtful article was two main points:
1, There is a connection, personified by James Bopp, between the pro-life cases which seek to roll back Roe v Wade, and the campaign freedom cases, which have rolled back Austin and are continuing to chip away at McConnell v FEC.
2. Citizens United, the most important challenge yet to McConnell,  offers a solution to the facial/as applied paradox, which in turn helps those litigating for abortion rights.

In this short longish blog post I want to make two points:
1. The campaign freedom cases in a way provide a foundation supporting Roe v Wade. I haven't seen anyone talking about this, but I've been aware of it for years.
2. She's right that CU offers a way out of the facial/as applied paradox,and this can be applied to issues including voter ID.

First let me explain a bit about what I mean by the facial/as-applied paradox. Courts are great at writing opinions full of flowery language about the rights and interests of plaintiffs, or in criminal cases defendants, yet in the end the plaintiff is denied effective relief, or the defendant is hanged, or otherwise sentenced, because courts have dozens of docket control doctrines for denying relief that justice seems to require. Some of these doctrines have to do with standing and justiciability, while others are about whether the court has the power (and inclination) to grant a useful remedy.

Salerno says that a court can never grant facial relief if  somewhere, somehow, there is one set of circumstances such that the rule being challenged could be constitutionally applied. It's a bit like Karl Popper's idea of falsification. On the other hand, an as-applied challenge sometimes at best fixes a problem for that one particular plaintiff who sued, only they can't get damages, and their exact circumstances rarely recur, so even winning can be pointless. So that's the paradox, that most real world election disputes don't cover 100% of cases, but can't be effectively addressed by having each aggrieved voter sue for themselves alone. One solution, as we saw this week in Frank v Walker, is for courts to grant class action status to groups of voters. But that has its own pitfalls.
So I'm going to get to a discussion of how CU solves this problem, but let me get back to the first point.

 Jim Bopp was a small town former prosecutor in Indiana, active in conservative politics, when a right to life group needed a lawyer. They found Jim. One of the things about being a lawyer is that it's a lot easier to litigate a case you already know than to reinvent the wheel taking on something new.
I saw a video today about a law firm that sent its lawyers to truck driving school, because they do a lot of trucking cases. (I'm a bad lawyer, but I'm a worse truck driver.) Bopp had found a niche and has struck with it over the years and is now the world expert on express advocacy, major purpose,and other arcane aspects of campaign freedom cases. He also continues to support restrictions on abortion, although I haven't followed that aspect of his career as closely - it's not my issue.
He and I don't see eye to eye on everything but I regard him as a hero. His work on campaign freedom has been really important.

One of the foundations of the campaign speech cases is NAACP v Alabama ex rel. Patterson (1958).
That case, along with Bates v Little Rock and Talley v California, held that there is a first Amendment right of privacy, which can be violated by disclosure or disclaimer regimes that have the real purpose of punishing and deterring campaign speech and political association, as well as contribution limits, expenditure limits, or other action by government to prevent citizens from altering or abolishing government via free and open elections.

Bopp and others have built on this line of thought in cases like MCLF, WRTL I and II, McCutcheon, Free Enterprise, Western Tradition,  and so forth. In Citizens United, the plaintiffs switch horses in midstream, dumping Bopp, and the express advocacy and anti-disclosure parts of the case did not get pursued aggressively, and lost, but the bigger target was overruling Austin, so that corporations could now spend directly on candidate elections.

Roe v Wade is an odd case in some respects. It holds the right to privacy, grounded in the 1st 4th and 9th amendments at least, is so important it authorizes the killing of millions of babies ever year,
But the same right is so unimportant it doesn't authorize a woman's right to smoke dope, or have to husbands, or trade sex for money, or dozens of other things we might expect a really strong right of privacy to support. It's sort of an orphan. So it helps that  there have been people like Jim Bopp out there building a strong line of cases showing a first amendment right to privacy, for campaign speech, for freedom from disclaimers, limits to disclosure, limits to spending limits,and so forth.
A skilled brief writer could go through these cases and find a quote in each that would support a person's right to control her body, or to protect doctor-patient communications.
It an irony that I don't know if the Pro-Life camps have given much thought to. I could see Justices Ginsberg or Kagan or Sotomayor reading an amicus making these points and borrowing these citations for an opinion. Torres-Spelliscy is the sort of advocate who could write that brief.

Anyway, on to my second point. In Citizens United, the court took an as-applied challenge, and used it to grant facial relief, overturning Austin and allowing corporations to spend directly on candidate elections. It discussed and explained that courts have that power,and are not straightjacketed by rigid distinctions between facial and as applied challenges. The recent texas abortion case built on that approach.

My litigation efforts have been mostly in the campaign freedom area. But a closely related area is voter ID. Generally I support the right of the little guy to register to vote, vote, put a sign in his yard, sign a petition, run for office,and so forth, without being treated like a criminal. Voter ID programs treat the typical voter as suspect, guilty of voter fraud until proven innocent beyond a reasonable doubt. In Crawford v Marion County, the Supreme Court denied a facial challenge, because as a pre-enforcement challenge the plaintiffs did not yet have evidence. Yet when I others have tried to bring as-applied challenges, it is seen as useless since it's only one vote at a time. So I haven't been able to get counsel, and as I mentioned I'm a bad lawyer, so these cases failed on technicalities and missed deadlines.

The lesson of CU, and the Texas abortion case, is that a plaintiff with an as-applied challenge is not barred from asking for sweeping relief. The lesson of this week's voter ID cases in Wisconsin and Texas is that courts are more likely to grant more limited relief, softening rather than ending the unconstitutional programs. But that's progress. CU didn't wholly overturn McConnell or strike down BCRA. It chipped away at it, taking a huge bite along with cases like Davis that just took a nibble.
Voter ID can be defeated with a death of 1000 cuts, but only if there is a sustained litigation campaign, along the lines of what Bopp has done with express advocacy.

I am currently being represented by the Indiana ACLU in my most recent voter ID dispute, where I was again refused a provisional ballot and this time got it on video. But it's a very limited representation; apparently they are just going to send a letter nicely asking the county not to do it again, at the risk of getting another letter. I am thrilled to be getting this much help, but I'm still seeking counsel to represent me in a lawsuit for damages. I need the money, I have the evidence,and it could be the first of many cuts to begin to soften what Stephens and Posner have admitted is an unconstitutional regime. I can be reached at gtbear@gmail.com. I don't expect that this plug will bear any fruit. I need to learn to make an elevator pitch to more concisely pitch my case.
But when I read the Torres-Spelliscy  article, it got me to want to write down these thoughts I've had that, 

1. the campaign freedom cases brought by the pro-life groups are providing precedential support for Roe v Wade's idea of a right to privacy, and

2. that Citizens United's take on the facial versus applied approach to litigation has applications for voter ID. That's all for tonight. 

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