Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle

Seth Barrett Tillman *

Editor's Note: This Essay is Part I of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Professor Teachout's response is forthcoming on the Colloquy this spring, and Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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Actually stable laws require a stable vocabulary . . . . Thus the magistrates of a state have a duty to see that names are not irresponsibly changed. —Richard M. Weaver, Ideas Have Consequences (1948) **   The Constitution was intended to provide structural encouragements to keep the logic and language of society as a whole from becoming corrupt, representing a technical and moral response to what they saw as a technical and moral problem. —Zephyr Teachout, The Anti-Corruption Principle (2009) ***

 

I. Why This Colloquy?

The test of great scholarship is whether it changes the way people think and the way people live. That is also true for legal academic scholarship. But, for legal academics, perhaps the greatest sign of scholarly achievement is judicial reliance upon our craftsmanship. By any measure, Professor Teachout's 2009 Cornell Law Review publication, The Anti-Corruption Principle,[1] is a success. In 2010, one short year after publication, The Anti-Corruption Principle was relied upon by Justice Stevens in his Citizens United v. Federal Elections Commission dissent,[2] just as it was cited, disapprovingly, by Justice Scalia in his concurrence.[3] If that was not enough of an accomplishment, The Anti-Corruption Principle has also been cited in practitioners' Supreme Court briefs, in other federal and state appellate and trial court briefs, and in more than thirty academic articles.[4] Finally, The Anti-Corruption Principle has entered the public discourse: George Will excoriated Teachout's article in his nationally syndicated column.[5] Now that is an achievement.

Justifying Diversity in the Federal Judiciary

Carl Tobias*

Editor's Note: This Essay is a response to Nancy Scherer, Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible? , 105 NW. U. L. Rev. 587 (2011).

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Introduction

Professor Nancy Scherer has offered a proposal to maximize diversity and legitimacy in the federal judiciary, a profound enigma that vexes judicial selection.[1] This is important because the selection process involves the very core of law and politics:[2] the President chooses nominees whom the Senate approves; once confirmed, these judges resolve controversial political issues.[3] Scherer proceeds by first examining rationales for and against a court-appointment strategy that would enhance diversity. She observes that both champions and critics of diversity share the goal of increased judicial legitimacy, although they obviously differ on how best to achieve it. Scherer then suggests a new solution, predicated on this common ground, to resolve the disagreement—urging diversity advocates to articulate the concrete benefits that expanding diversity can afford majorities and to collect and synthesize empirical information confirming these advantages.

This Essay descriptively and critically reviews Scherer's article. Although her account provides valuable insights into increasing diversity and legitimacy, it understates the crucial influence of politics. Indeed, the growing politicization of the selection process, which implicates the debate over diversity, could seriously undermine judicial legitimacy. However, President Barack Obama's approach to judicial appointments elucidates the issue and could point the way forward. This Essay thus scrutinizes Obama's judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer's provocative solution. This response ultimately discusses some promising measures beyond Scherer's recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses.

Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.

When May a President Refuse to Defend a Statute? The Obama Administration and DOMA

Carlos A. Ball[*]

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Presidents sometimes make the controversial decision not to defend a federal statute they believe is unconstitutional.[1]  It may be tempting, when assessing the appropriateness of these decisions, to adopt one of two categorical positions: either that the President should never refuse to defend a law based on his view that it is unconstitutional, or that the President has unlimited constitutional authority to refuse to defend laws on that basis.[2]

I do not believe that either of these categorical approaches is warranted.[3]  The former view insufficiently accounts for the fact that the Executive Branch, as a co-equal branch of government, has an independent duty to “interpret and implement the Constitution.”[4]  As Professor Dawn Johnsen has explained, “Congress and the President . . . are obligated to uphold, and thus by necessity to interpret, the Constitution, and the process of constitutional interpretation benefits from the thoughtful participation of the elected representatives of the people in the public dialogue about the meaning of the Constitution.”[5]

The Obama Administration’s Decisions to Enforce, but Not Defend, DOMA § 3

Robert J. Delahunty[*]

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On February 23, 2011, Attorney General Eric Holder advised Congress that the Department of Justice (DOJ) would no longer defend § 3 of the Defense of Marriage Act (DOMA)[1]—the Act of Congress that defines "marriage" for federal purposes as "a legal union between one man and one woman as husband and wife."[2]  The Attorney General stated: "[T]he President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional."[3]  The Attorney General noted that "there is substantial circuit court authority applying rational basis review to sexual-orientation classifications."[4]  Furthermore, he acknowledged that the DOJ previously defended § 3 in circuits that ultimately applied rational basis review to classifications by sexual orientation.[5]  Nonetheless, in two pending challenges to § 3 in the Second Circuit—which had not ruled on the controlling standard of review—the President instructed the DOJ not to defend the challenged section.  The Attorney General added:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.[6]

Obviously, the Obama Administration's decisions not to defend the constitutionality of DOMA—but at the same time, to enforce it—raise significant constitutional questions.