Political Rights and Freedoms

8/14/2019 Political Rights and Freedoms

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Class 1

Article illustrates the complexity of political rights. Law sometimes doe not giveclear guidance how to proceed, and has to be approached with interpretation.

Procedural approach structural and procedural element of democracy. Principleof democracy as procedure.Interpretive approach - relies on fundamental values. Line between procedure andsubstance.

Elly was skeptical about interpretation of substantive moral principles. No

universal or reliable method exists. Each judge has his own moral values. Judgesare not well suited for interpretation they dont have any advantages so why shouldthey have privilege to interpret, but they are suited to interpret procedure(democratic procedure). Majoritarian democracy guiding principle for judgesinterpretation.Constitution is mostly about procedure and very little about substance. Dorfquestions whether such an amount of procedure is necessary? Besides thenumerous procedural provisions there can be still procedural reading ofconstitution. For example in US constitution not everything goes within the

reading of majoritatian democracy (It does not concentrate the power on majority).Elly overstated the case in US context and neglected some other elements whichdoes not fit to the interpretation. He does not provide the good arguments.

1. It is good because it is supported by other theory. On utilitarian groundsbecause It produces most utility for most people.

2. It is not necessary to justify democracy, because most of the people believeso, but it does not convince the minority which is not in Ellys book.

3. In situation when people are skeptic about morality or political values, bestposition to be adopted is democracy. But Dorf rejects it because if one is

skeptical about moral , he can also be skeptical about democracy.The are some difficulties in argumenting the value of majoritarian democracy(Elly fails to do so)Elly could not interpret some clauses as mechanisms of democratic interpretation(equal commerce clause)Virtual representation argument that uses Elly to justify these clauses (example:City if Manchester not represented but citizens of Manchester are represented

because these people have similar interests with others who are represented)-Even if you dont send representatives equal protection assures that your interestsare protected at the same level as other peoples.-Purpose of Commerce clause is to assure that interest of people outside the given

state are protected in the same way as residents of the state.

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Substantive indorse positions examples (moral values), prohibition of slavery,prohibition of alcohol. Not good to have them, in both cases you are not surewhether they are correct, better for constitution to stick with procedures rather thensubstantive values.Elly believed that US Supreme Court when Warren was chief justice illustrates his

approach.Footnote 4, 3 elements when rationality does not apply (Caroline Products)

Dworkins Approach

Moral Principles play a role.Valid law is found in complex way but judges go through 2 stages of intpretation.

1. Best fit when they face legislative questions they examine which solutionfits best with them but it will always be incomplete specially in

constitutional context, because it is open source and usually more then onesolution fits , therefore they do something in addition and it is :2. Best justification when we have several solutions and the question is

which is best justified.a) holistic- when they look in all system in whole

b) best light- which of the solutions is best from moral point of view, heremoral principles play a role.

This is the best approach for constitutional judges, this fits in US constitutionalhistory. There are some principles that are rooted in US constitution (I and XIVamendment)Original intent was to embed these two principles, so new generation can developand interpret them according to their moral values.

Ellys approach is not helpful because very idea of democracy is controversial.There can be different interpretations of democracy. So which of them judgesshould endorse? Even if majoritarian is an answer then it might not be valuable foreverybody. If you are a minority then loyalty to majority cannot be assured thatswhy pure majoritarian democracy is not good there must be additional elements toassure loyalty of minority. 3 elements; equal participation in voting, equal stake

(state should treat all individuals equally), moral independence (some rights inwhich state cannon intervene)If you dont have these elements, majoritarian democracy can become a tyranny.

Dorf Concludes

Although text of US constitution is not itself procedural , but if we applymethodological part of Dworkins theory then we can have justification for Ellys

point of view.

At best fit stage both theories have background from US constitutional history.When we move to best justification stage Elly has better arguments because he

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presents US constitutional history in better light and suitability of judges tointerpret constitutional procedural matters rather then substantive moral values( procedural writ large)

Take Ellys theory, apply Dworkins methodology and argue about best

interpretation methods.In order to justify process in theory you have to use many substantive elements.

Points of complexity of interpreting political rights.There are no shortcuts for judges to set aside these considerations.

Class 2

We will start with a historical tour. Our main focus will be in 1960ies. Most important decisionsin this regard were taken. Whenever the Court encounters question which is complicated theyneed to defer to the legislative or executive branch. In what sense this argument cannot beappropriate? What do you think of doctrine of deference in the practice of the Court?

Nino is telling if there are issues which havent been decided, e.g., Kalkar case in Germanyabout the nuclear power, the court should defer to the Legislature as far as it does not violate the

basic rights.

The difficulty is to which body the Court should defer. If we accept the argument certainrestrictions should be applicable to the legislature, first amendment should be read as restrictionto the Congress. When the Court interprets these articles should it defer to the Legislature, or tothe supreme which adopted this constitution. The bottom-line is, even deference cannotautomatically help you, we can see that Courts have shifted in the US cases today we are goingto go over. What is the justification in the shifting position is, we will see. What does theconstitution say about the right to vote?

Makhsuma says, it doesnt directly guarantee the right to vote but prohibits the discrimination.

Originally, the Constitution left the discretion to the states regarding how to organize elections

and how to determine the qualification of voters. The most significant developments in thisexpansion are thanks to amendments:

- The first one is the 14 amendment. It didnt directly prohibit discrimination in voting.- The 15th Amendment, which provided suffrage to black people, prohibited the

discrimination in voting based on color, race and previous condition of servitude.- The 19th Amendment gave right to vote to women, prohibiting the discrimination on the

grounds of sex in 1920.- The 24th Amendment, which was adopted in 1964, provided that the right to vote of the

citizens would not be denied or abridged by the reason of failing to pay any poll tax orother tax.

- The age limit was lowered down to 18 by the adoption of the 26th Amendment in 1971.

Despite these legislative attempts, arbitrary actions existed. The SC was unwilling to review thediscriminatory practices. Despite 15th Amendment, e.g., there was a direct discrimination through

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the instrument of white primaries till 1940ies. This excluded the blacks. American electionsystem heavily relies on preliminary election. It is quite important that citizens could elect insuch preliminary elections. The reason was partly the Constitution couldnt anticipate theimportance of the political parties. They even wanted to prevent the emergence of this kind of

parties. For this reason, the constitution was silent about this. For long time, political partieswere not active. You might think of private clubs. That is why the regulation of their internal

affairs, which were not something that government can interfere. In 1940 white primaries wereabolished.

Although these direct forms of racial discriminations were addressed, the SC was reluctant toprevent all forms of indirect discrimination. What forms of discrimination can be regarded asindirect discrimination. Wealth based of criteria, for example, people only who are paying taxescould vote. And then there was an introduction of poll taxes, which was used to trying todiscriminate on this basis. When you get the driving license you pay certain amount of money.First indirect means of indirect discrimination was wealth, taxes.Second, residence requirement. You could have a residence requirement. But this was not a mainthing. Literacy tests were major instruments of discrimination. What does the court say about

literacy?It is somehow justified. It is justified in the interests of the state, the people who could read allthese existing newspapers know about the candidates but if they dont read how can they knowabout the candidates.

Lassiter (1959). In this case, SC upheld the requirement. The court held that literacy iscompatible with the constitution. However, it was gradually eliminated from the legislature. Firstthey were suspended and then totally banned.

As to the polling taxes, there was a case, called Breedlove (1937), in which the Court upheld thepolling taxes. You see the position of the Court till 1960ies was quite lenient to the legislatureswill.In fact, these are the most possible ways of denying suffrage.The Courts active scrutiny over voter qualifications started fromReynolds v. Sims(1964), whenthe Court expressed the view that the right to exercise the franchise in a free and impairedmanner is preservative of other basic civil and political rights, and for this reason, any allegedinfringement of this right should be carefully scrutinized.

InHarper v Virginia Board of Education, the Court struck down the poll tax of Virginia. Thecourt noted that a state violates the Equal Protection Clause of 14 Amendment, whenever it

makes affluence of the voter or any payment as an electoral standard. Voter qualification has norelation to wealth.The Court noted notions of what constitutes equal treatment for purposes of the EqualProtection Clause do change[comparing Plessy v. Ferguson with Brown v. Board of Education]We have long been mindful that where fundamental rights and liberties are asserted under theequal protection clause, classification which might invade or restrain them must be closelyscrutinized and carefully confined. [See, e.g., Skinner.]Those principles aply here. For to repeat, wealth or fee paying has, in our view, no relation tovoting qualification; the right to vote is too precious, too fundamental to be so burdened orconditioned.

Gerrymanderingand malapportionment. Malapportionment appears in majoritarian electoralsystems when you have to elect from a specific district. So the country is divided into districts.The whole question is the number of citizens in each district. If they are different, then this is a

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violation. As a result, what happened in the US was exactly like this because there was nocomprehensive legislation about this issue. And what happened was that there was a balance b/wthe rural population and urban population. As you know, in rural areas, there are not many

people living. But in fact, this malapportionment there was huge ghettos which do not haveproportional voting. On the top of we have a problem of a gerrymandering. Imagine in your areayou have 40% minorities and 60 % of majorities. Imagine you want to divide this area. You can

divide it in different ways. You can divide it as a minority may comprise the majority in someportion of the given district or you can do it vice versa.

Political gerrymandering means it is done with the political parties. Then the question is thispractice constitutional?

For all of them we can safely say that SCs position was that they deferred to the legislativebranch. In fact, you remember the procedural argument from the last time. Footnote inCarolines, Judge Stone believed that the Court should not enter such matters at all. If the courtshould help insular minorities rights, they should address these issues but

The Court reversed its position in major case, Baker v. Carr. In fact, this was a case about

malapportionment. It reinterpreted the question of political noninterference. It was one of thelandmark cases of Waren(?) line.

Lets start with the political questions doctrine. We have studied this doctrine in some of theclasses. Basically, this doctrine says certain questions are not justicable at court. The bestexample of political doctrine is guarantee clause( the republican form of government). The issueswhich related to republican government should be left to legislature. In Baker v. Carr, the SCchanged the position. The position the court came up with was they tried to bring certainadditional criteria These criterions were :1. when a decision requires final decision of politicalgovernment. You might say, these are circumstances when final decision of political body isneeded. 2. there should be judicially manageable standards. The Court also listed other

circumstances.

60 %majority

40 %

minorities

Blue lines are gerrymanderinglines.Red line is division b/w minoritiesand majority

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Harper v. Virginia. The important thing was how the court interpreted the right to vote as aconstitutional status. What did the court say about the ? Is it a fundamental right? It isfundamental interest in the view of 14th amendment. As long as constitution guarantees this rightas a fundamental right, it can not deny this right in a discriminative manner.

Further, the judges distinguished this case from literacy case (Lassiter). As this polling tax was

small tax and that is why dissenting judges argued, in fact, rationality test should apply. Becausethe administration wants to cover some of the expenses through these taxes. Anyway, the courtrejected this. As we are going to see there are electoral systems, in which electors need to depositsome money. After this decision all such decisions were found unconstitutional.

You know there is an approach of law and economics, or public choice theories. If you assumevoters are going to maximize the utilities for themselves. But in fact, going to poll boothstakes Public choice theory comes from the conception that your one vote makes no difference.

What were the dissenting opinions in this case?They say that the Court was trying to approach the natural law of due process. This is typical for

the jurisprudence period of Lochner. During this period the Court was libertarian and defendedthe rights of business people, property rights etc. etc. Dissenters say the Court want to reachsomewhere in the text in the article 14 of the constitution. They argue that history shows that allforms were considered constitutional and framers thought constitution prohibits such kind ofvote. These are the two important lines of attacking.

Lets move to the second case, Kramer case.It was a case for what? For what kind of elections? School district elections. So in the US theyhave a strange system of decentralized system of schools. Actually, boards, the district governorsof the education units were elected. The question the person who didnt have children and whodidnt have property could still participate in the elections. And the court said yes they should beable to vote.

The presumption of constitutionality and the approval given rational classifications in othertypes of enactments are based on an assumption that the institutions of state government arestructured so as to represent fairly all the people. However, when the challenge to the statute is ineffect a challenge of this basic assumption, the assumption can no longer serve as the basis for

presuming constitutionality. And, the assumption is no less under attack because the legislaturewhich decides who may participate at the various levels of political choice is fairly elected.Legislation which delegates decision making to bodies elected by only a portion of those eligibleto vote for the legislature can cause unfair representation.

WE turn therefore to question whether the exclusion is necessary to promote a compelling stateinterest. Appellees argue that the State has a legitimate interest in limiting the franchise in schooldistrict elections to those primarily interested in such elections and that the State mayreasonably and permissibly conclude that property taxpayers (including lessees of taxable

property who share the tax burden through rent payments ) and parents of the children enrolledin the districts schools are those primarily interested in school affairs

Section 2012 does not met the exacting standard of precision we require of statutes whichselectively distribute the franchise. The classifications in 2012 permit inclusion of many personswho have, at best, a remote and indirect interest in school affairs and, on the other hand, excludeothers who have a distinct and direct interest in the school meetings decision. The Requirementsof 2012 are not sufficiently tailored to limiting the franchise to those primarily interested in

school affairs to justify the denial of the franchise to appellant and members of his class.

Note: Kramer and Its Progeny

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One might ask whether Kramer satisfactorily why the right to vote is a fundamental interest forequal protection prposes even though there is no constitutional right to vote.

Absentee Ballots. In McDonanld v. Board of Election Commissioners (1969), the Court upheldan Illinois statute that granted absentee ballots to some classes of persons but not to unsentencedinmates awaiting trial. The Court noted that there is nothing in the record to indicate that

Illinois has in fact precluded appellants from voting, for the record is barren of any indicationthat the state might not furnish the jails with special polling boots or provide guardedtransportation to the polls It thus concluded that it is not the right to vote that is at stake here

but a claimed right to receive absentee ballots.

In OBrien v. Skinner(1974) The Court invalidated a New York Statute that did not provideabsentee ballots to persons in jail awaiting trial. The Court explained that since the statute

provided absentee ballots to persons absent from their home county, those held in jail in a countyother than their residence could vote, but persons confined for the same reason in the county oftheir residence are completely denied the ballot The Court concluded that this distinction was

wholly arbitrary.

Durational residency requirements. In Dunn v. Blumstein (1972) the Court expresslyreaffirmed the states power to limit the franchise to bona fide residents, but invalidated aTennessee statute conditioning eligibility to vote on one years residence in the state and threemontss residence in the country. The Court concluded that 30 days appears to be an ample

period of time to complete whatever administrative tasks are necessary to pervert fraud.

In Marston v. Lewis the Court upheld fifty day durational residence requirements noting that thethis period was necessary to serve the states important interest in accurate voter lists.

Disenfranchising felons. In Richardson v. Ramirez (1974), the Court upheld a California lawthat denied the vote to convicted felons, even if they had completed their sentences and paroles.The Court in an opinion by Justice Rehnquirst adopted an intent of the framers approach. TheCourt observed that many state constitutions in effect when the fourteenth amendment wasadopted denied the vote to convicted felons, and that section 2 of the amendment expresslyreduced the representation in the House to the extent a state denied the vote to adult malecitizens, except for participation in rebellion, or other crime. IT then concluded that theexclusion of felons from the vote has an affirmative sanction which was not present in the caseof the other restrictions on the franchise.

Enrollment requirements for voting in primaries. In Rosario v. Rockefeller, the Court upheld aNew York statute requiring voters to register their party affiliation at least thirty days before ageneral election in order to be eligible to vote in the next party primary, which might be as manyas eleven months later. The Court held that the law did not violate the right of petitioners to votein the primary of their choice because the law did not absolutely disenfranchise petitioners,

but merely imposed a time deadline, and that petitioners inability to vote in the primary oftheir choice was cause by their own failure to take timely steps to effect their enrollment. TheCourt maintained that the law furthered the important state goal of inhibiting party raiding,whereby voters in sympathy with one party designate themselves as voters of another party toinfluence the results of the other partys primary.

Several months later, in Kusper v. Pontikes (1973), the Court distinguished Rosario andinvalidated an Illinois statute that prohibited any person from voting in the primary election of a

political party if he has voted in the primary of any other party within the preceding 23 months.

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The court explained that the Illinois law, unlike the law in Rosario, locks voters into preexistingparty affiliation from one primary to the next and the only way to break the lock is to forgovoting in any primary for a period of almost two years. It concluded that such a schemesubstantially restricts an Illinois voters freedom to change his political party affiliation and isnot the least drastic means of attaining the states objectives.

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Class 3 --- The right to vote in the US: dilution of the right to vote

Reapportionment revolution!Landmark case dealing with the issue of different number of citizens in different district ofelection. Because different level of the US electoral system, the courts have to deal with a lot ofissue. The state level, it was the case the court confronted directly with malapportionment,

disapportionment.

Reynolds v. Sims case.

Six states. The main case is about Alabama. There is right to an effective vote. There should notbe diluting of this vote. One vote for one person. They rejected all the disapportionment exceptthe situations which may justify because they have a nature of political subdivision. The Firstthing we need to stress is the distinction b/w denial and dilution of vote.Malapportionment is a different problem. It is not in the form of denial but in dilution. In fact,dilution relates to the relative weight of the vote. Sometimes it is necessary to have 500 000votes, but sometimes 100 000 votes. Here we can see the latter has more weight. On the other

hand, when we have a denial vote, it pertains to the group of people, but it might be even in thecase of individuals. The court here brings one argument, the voting is preservative of other basic

political acts, it will protect the further all other rights of individuals. This is a process basedargument, one might say. The third important element in this case, is the principle, which

became later quite important in American electoral law, one man one vote. The court finallywent so far that they almost reached the pure mathematical level of equality. Fourth, theinsistence by the judges that legislators should be organized in such a way that they represent the

people but not the districts or the trees or whatever.There are two chambers. Both chambers should be organized in a way they represented the

people. For example, at state level, it is different from federal level.

Fifth, the Court allowed for certain small deviations. There is only one

Dissenting opinions.They used the historical argument. Second, judges pointed out lack of manageable judicialstandards.Heisan says it is sometimes good when court uses non-managable standards, vague standards.

The equal protection clause demands but two basic attributes of any plan of state legislativeapportionment. First, it demands that, in the light of the State own charactertics and needs. The

plan must be a rational. One. Secondly, it demands that the plan must be such as not to permit

the systematic frustration of the will of a majority of the electorate of the State. Beyond this thereis nothing in the constitution.After Reynold, there were succession of cases, districting plans. In parallel case, one vote one

person should relate to the house of representatives but not to the senate at federal election aswell.The court allowed very tiny deviations which says maximum percentage deviations.

Mathematical equality approach was administrability. The Court needed an approach which iseasy to handle.

Within 10 years at federal level almost reached the mathematical equality. In state level, 10 % of

deviations were allowed.

City of Mobile v. Bolden

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City of Mobile used at large voting system. There were three districts. And one third of thecity was black people. Justice Stewart observed that the claim that at-large electoral schemesviolate the equal protection clause is rooted in their winner-take-all aspects, their tendency tosubmerge minorities. Stewart noted that, despite this feature, multimember legislative districtsare not unconstitutional per se. Rather, he maintained, they are invalid only if their purpose is

invidiously to minimize or cancel out the voting potential of racial or ethnic minorities Aplaintiff , in other words, most prove that the disputed plan was conceived or operated as apurposeful device to further racial discrimination.

Legislator introduced result test. First one was, non-retrogression gerrymandering cannot beless beneficial to minorities. and amelioration you should try to design the electoral districts ina way which is beneficial to the minorities.

Totality of circumstances test analyse issue is complex and it should contain totality of issues.They introduced 7 criteria. In this criteria, first, whether there is a history of discrimination. 2.how much it is polarized. Whether black or whites. 3. at large voting schemes, unusually large

sth sth. 4. whether in primary elections there has been restrictions in the participation ofminorities. 5. the extent members of the minorities affect such areas, education, employment . 6

political campaigns is 7 the extent of minorities who are elected to the public office in thejurisdiction.

This legislation lead to eventually the creation of quite a lot of majority and minority districts.Districts where minority is actually majority.

Here we come another problem, which court encountered. This is the constitutional problem inShaw v. Reno case

Race is considered to be the only . the principal of color blind. For voting it doesnt matter.There is no other explanation other than race. The problem here is in a sense reverse. In previouscases, it was the representatives of the electoral schemes. Here petition was not initiated by.Minority majority districts. It is the representatives of majority claims he has been in minority

because of the amendments to the voting rights act. So another aspect of the problem was thisprocess of creation of electoral districts. The plaintiff argued that the creation of such bizarredistrict is a constitutional problem. 1. is this a problem of dilution? No. Bizarre shape of theelectoral system was racially motivated. For this reason it is unconstitutional.

Miller v. Johnson.

The court elaborated its opinion. The difference was in the status of appearance. Her argumentsounded bizarreness of the shape is sufficient ground for invalidating districting plan. Bizarreshape and invalidation and said that bizarreness of the shape was one characteristics, whichcan make you conclude that such design is the race. But it is only one reason.

Bush. VeraShaw II case

Judicially manageable standards, like bizarreness of the shape. They look very suspicious andstands out very well.

The issues are similar.

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Class 4

Plan for today is to get to the German cases. There is an important case - Bush v. Gore.

Davis v. Bandemer

They hired a company to do districting based on the computer technology. Should courtinterfere in this type of gerrymandering? If yes, is this issue justiciable? And based on what typeof standard should court decide the case?The whole result was based on the single election. And you cannot rely on this only event. IT isnot enough to make a conclusion. What were the dissenting opinions?Some of them disagree with justiciablity. Justice OConner said the Court cannot resolve thiskind of issues. No judicially manageable standard. More liberal judges dissented in anotherdirection. They afforded another standard. In order to achieve illegitimate aim in a deliberatelyand arbitrarily manner.

Another case from 2004, Vieth v. Jubelirer case. Partisan gerrymandering incumbantants draw

the electoral districts in such a way they always win. Once you are elected you always getelected. As far as incumbatants go, 284 were reelected. Only 16 were not able to reelected.Partisan gerrymandering is part of the explanation. Some authors started arguing this is

becoming . . It eliminates political competition. The result of this case was kinda interesting:4-1-4. Some judges said the issue is not justiciable. 4 judges believed the issue is justiciable butthey split into three groups offering three standards what the court should do. Finally JusticeKennedy told the issue is justiciable but there is no judicially manageable standard. So the

problem remained. The Court is waiting for some development.

Structuralists approach. One of the main authors is Richard Pildes. This long paper that wehave, it is in fact written by structuralist. On the one hand, we have Hasen approaches. He thinksthe court should address this issues based on the rights contained in the constitution. Rightsoriented approach.

Structuralist argue the Court should interfere or control monopolization, self-entrenchment.

The big difference Hasen wants the Courts to be minimalists in the interpretations. They shouldfocus on core political rights and principles. Reduction of influence of wealth. Core rights social and political consensus.

By introducing intermediary institutions. What is meant by that? The creation of boundary

commission. Non partisan commission which are supoosed to the districting. How thiscommission work in the UK context. They also use the same system. But there are notcontradicts. There are no conflicts. Boundaries are determined by non-party commission, whoare representatives of judiciary, speaker of parliament. Structuralists are arguing about this moresubstantial revision. This is one type of structuralist argument.What do you think about it?

Bush v. Gore

Outcome of the election in Florida. The result in Florida was very close, really 100 of votesseparated the candidates. They used machines, which punched the card for election. This piece of

the paper called chad. Sometimes this chad is missing. There is a problem of counting. Whenyou do machine counting, all these chads are counted as invalid votes. More than 2-3%. Youneeded to do manual hand count. Gore was hoping for manual counting. You know, legislators

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in Florida was supporting Bush. Florida Supreme Court was supporting Gore. Florida court useda standard, which is a clear intent of the voter. If there is a clear intent of the voter. Then it wascalculated. Eventually, decision of the Florida SC went to US SC for review. THE decision wasa split decision 5-4. More or less, this decision was partisan division. Although, in specific cases,the Court said that, in fact, the decision of the Florida SC is unconstitutional. This is a clearintent. This standard was imprecise. It might lead to inconsistent counting approaches.

Ultimately it will have discriminatory effect. However, the decision of the SC was hunted downDecember 12. If Florida wanted to use the safe harbour, they needed to do that December 18.Because of short of time, it is impossible to do a recount. Because of the tight deadlines, recountin practice was stopped and banned. You see this is a controversial decision. Some liberal judgesalso believed this standard also vague. However, This was really the most controversial. Moreliberal judges argue that even this is so, recount should be done for the purposes of the equal

protection clause. Just US SC should have asked Florida SC to design more clear standard. If thedeadline was not close, then by December 18 representatives to court. However, after therecount, there might be another delegation to be sent. At the end, legislators should decide.

Even it doesnt meet the deadline, and the Congress will ultimately decide. THE second part of

the Judgment was quite controversial. There was no necessity for the court to stop therecounting. One possible counter argument is following: equal protection clause is adopted to

prevent discriminate against certain group of people.

Cass Sunstein advocated The Courts should not create theories but under-theorized agreements.

GERMAN ELECTIONS

Personalized proportional electoral system. It is quite controversial system. First, electoralthreshold of 5 % in order to have stable parliamentary majoritary.

Each citizens have two ballots. First, she votes for a candidates, second for a party. When youvote for a candidate there is a constitute. When you vote for a party, there is party list. Even a

party will not get a candidate elected for a constitute, it still can create some section of theParliament based on how many percentage in the election it got for a party list.

Class 5

The idea of Rationized parliamentarism was to stabilized the government to avoid governmentaland parliamentarian crisis. There was electoral law. Also there was also rules as to structure of

the parliamentary to stabilize the parliamentary.

There were strict rules of political responsibility of government before parliament. For example,constructive vote of confidence, which means if the parliament decides to remove the chancellor,they first should appoint the new chancellor.

In 2005 there was a constitutional court decision about dismissal of the parliament. The presidentdissolved the parliament. Some MP asked the CC to repel the dissolution of the parliament.

In addition to formal requirement to dissolve the parliament in 1983, CC established that thereshould be material reason, some sort of crisis. In 2005 FCC said that it is up to government to

decide if there is some crisis.

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Two articles have key importance: article 23, and 38, which states that deputies for theparliament are elected in general, direct, free, secret elections.

This article is quite important because of the 5 qualifications. Each of them has specific meaning.General means it cant be held based on the religion, sex, race or similar criteria.Direct election means preclusion of electoral colleges like in the US.

Equal elections are quite specific, equality of parties, voters. It played very significant role in thefinancing of the parties. Equality also includes the idea one person and one vote.Secret ballots do not seem kind of important idea. But it was. In the US we dont see suchexpress requirement. The practice was very problematic in the beginning. When you go to poll

booth, there are a numerous candidates and they try to convince you, and give you a ballot.

Maastricht case

The logic of the decision of FCC was not welcomed by lawyers in the EU. Because FCC statedthat it has a power of review EU legislation which affects German citizens.

The problem was a competence competence. Who should check the balance of competencesb/w EU and MS. In fact, German court challenged the competence decision.

The court defended the vision of certain rights. The court started its analysis, from article 20 to38. Which spelled out power is derived from people. Problem comes when prerogatives ofGerman Parliament are transferred to EU institutions. And the Court says there is a limit oftransfer. When the transfer is so substantial. And here the competence-competence question.

- Limited powers- Predictability, transparency of the powers

Bavarian Case

National minority might be only reason for deviation from 5 % threshold.

National Unity Election case 1990

Details are little

Equal suffrage case

These are the cases are analogues to one vote for one person the US cases.

There are 300 member seats in the parliament. In proportionment I an II are for the exactly thesame problem, the number of people in different districts. Also the constitutionalityActually, the problem in Germany is slightly different from the US. In the US, it immediatelyleads to the dilution of the weight of the votes.

Class 6

This was not sufficient ground for invalidation of the results of the specific election. The courtadvised to change the electoral system in the future but didnt the hold the law unconstitutional

and do not say the results of the election not valid. They do not make mathematical equality asAmericans do.

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even if you have malapportionment districts the result will not be much different. Forinstance, someone might use district constitute, someone might use the party list. The Effect ofthe malapportionment is mitigated in Germany in this way. It is not that affecting as in it is in theUS.The last case is about foreign voters. This was a case before Maastricht treaty entered into force.In local elections right to election of individuals other than German citizens were found

unconstitutional. Later they amended the constitution to incorporate EU standards about the localelections.

Now we are moving to context of the UK, where the courts are not that active. The Parliamentwas key actor. And in the resolutions in relations to voting rights and so on. Lets start with thesecond paper, which is called The twileight of Westminister? Electoral Reform and ItsConsequences.The paper argues there are some important changes. Before we can appreciate the changes, wed

better start with the attributes of this form.What are the main features of this voting system?It is a single manner system. The candidate who get the most votes is elected by this district. It isnot important if he takes the majority of the votes. It is like majoritarian, plutarian electoral

system.

- strong executive/ dominating legilsture;- parliamentary sovereignty;- first past the post????- Unitary state

There is no strong division with the parliament and the government. And most of the governmentmembers might be also MPs. It is a very stable form of government. It means also you donthave coalition government.We go to the issue of classical model that requires unitary state.This type of westmenister model was initially elaborated with contrast to another form ofgovernment, called consensus introduced by famous political scientist Liphart. (majoritarianmodel v. consensus model)

Consensus module: Starting from Benelux countries where you haveproportional representation,- usually coalition government;- Quota arrangements for political pariticapation in the government giving ot the main partiescertain percentage of the seats in the government or sth like that.- certain veto powers. Some parties enjoy veto parties in taking political decisions.

- The issues like constitutional review- Independent Central banks

This is the classical contrast drawn by Liphart.

As you can see there is no such sharp line b/w governing party and opposition part. You couldhave coalition parties, broad coalition parties and so. Broad coalition refers to situation like inGermany.Well. Generally, on this module the parliament and government are more independent of eachother. Westminister module, we have executive governance.The latter form, parliament is more active. Parliament is doing sth different sometimes which is

different from what government has suggested.

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These are the main contrasts. And under majoritarian module, the UK was classified asmajoritiarian type of democracy. Some other countries also followed it, like New Zealong,CommonWealth smaller members.Pippa Norris argues that the UK is moving away from the classical wesminister module and

particularly visible are challenging of unitary state. You know, there is a process of devolutiongoing on. When labor party came to power. This devolution in Scotland, and Wales the results

of the upcoming election will be interesting. This situation, in which Scottish nationals becomestronger. Unitary aspect of the state is more and more questioned by XXX.When we looked at the strong executive and legislative branch, we still think nothing ischanging. Parliamentary sovereignty you might say it is remaining but it is giving up some

power under Human Rights Acts. Under this Act, the Courts could check the compatibility ofnational legislation with ECHR. More importantly, actually, the limits on parliamentarysovereignty comes from EU legislation, requirements of direct effect, supremacy and so on. Andagain, if you consider seriously, pure sovereignty of the Parliament doesnt exist. For EuropeanParliament exist proportional elections. PR electoral system, in other words.

The question which this paper addresses whether the first past post system should be remained or

not. Probably this is the most important element in keeping this module. The question is, is itworth to keep this module?Especially the third party, in this system, is in very disadvantageous position. Examine labor

party got 30 % vote, 36 % of the seats. The Conservative party got 23 % of votes and, 3 % of theseats. And some other party got 42 % of the votes and 60 of the seats. The third party who gotthe lowest is in the worst position.This is the background against which we had the arguments presented in this paper. Lets startthe arguments for the first past the post system. Why should it be preserved?The first argument is that the single member district creates close link b/w representatives andvoters. This argument of closeness. The majoritarian system creates very close link ofaccountability. IT is always clear who should be held responsibility, which this system is based.At the end of the day, if the voters think, the representatives couldnt perform well, then the

party will be sent to hell. When it is with coalition, it is difficult to taint the blame solely on oneparty.This approaches is from empirical perspective, which majoritarian system has an advantagewhich creates a closer link b/w representatives and voters, subsequently, which, leads tosatisfaction of the voters.

One of the tests he used to what extent people know the names of their representatives. Therewas no conclusive evidence in his point. Some representative systems of the type, we see, inGermany. They enjoy the same benefit as the system of first past the post. The Test shows that

difficult to conclude but as to voter satisfaction, the approaches were sophisticated, in thissystem, it seems that electors in other types of democracies, well, you have the UK, US,Australia, so these are the most oldest democracies, to what extent these are not due to otherfactors. Anyway, there were evidences, first past the post was somehow base for it.

If you take the structuralists seriously, you in fact, you will have to take on board about empiricalcharacteristics of the if you want to you have to know more about the this processworking, it will become important for a judge to decide voting rights, political process. The pointis, as this article shows, empirical data doesnt give you final conclusion which states oneelectoral system is better than others. At least, we might say, there is no conclusive evidence for

the first past post system. But it produces certain advantages which can be disregarded as well.Do you have questions or comments that you think have to be discussed further? What is thealternative system for Australia?

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The professor will give the answer next time because it is too complex. You dont have onevote, but you have 7 votes. You may give these votes to one person. Or you can distribute thesevotes among other candidates.

The UK have had problems of boundaries of districts for several centuries. In 1832 there was anAct which eliminated the rotten electoral district. There were malapportionment. There were

some electoral systems, which were private! These problems were eliminated party in 1832.

Simply the right to vote was distributed among more citizens. Primary extention came afterWorld War, when they give the suffrage to women.The issue of electoral districts were resolved permenantly in 19XX. There was a commissionwhich was created to divide the districts. Well, for instance, the Parliamentary there are four

boundary commissions for N.Ireland, Scotland, , they comprise of chairman, and for thecommission of England, in fact, this is the speaker of the House. You know the speaker in theUK. He is meant to be the impartial, non-partisan figure. And then members of the commissionare judges and public servers. The UK has a strong independent public servers. They are for thisreason very independent. They carry out periodic reviews. Every 10 years to carry out the review

of boundaries. In this review, they followed the certain rules. First, they need to give notice tothe constituency. Then they have to establish a quota, an average number of voters in the givendistricts, all voters are divided with total number of voters which is roughly 70 000 people. Andthen there are certain rules, for instance, you cant have more than certain number of seats forEngland, and there are certain number of Wales, Scotland this is the other rule the commissionfollows. Ther is a rule of deviation.. in order to respect the boundaries there was only oneinterests, you have local government boundaries, the reason for geographical dispersal for havingmore compact district. It hasnt produced any significant amount of legislation. There is notenough interesting cases to discuss. almost the end of 20 century. There were only 2-3decisions were challenged. All were not successful. The courts declined the decisions of thecommission. The only standard the courts can apply is wetness bury test of in order to beable to overturn the decision. One of them for instance, sth, which no reasonable man can do.Other formulations which are more helpful. The statue should pursue a kind of very rational

purposes, the means should not be as the schoolteacher for cover of hair, e.g., . In non of thesethese decisions, you can demonstrate such kind of unreasonobless. You can see the system is

preserved very well. In fact, it is not always to have judicial review. Especially, review of theparliamentary acts. for having both fair and efficient results. IS it possible to export to, in asense, are there lack ofThese commissions are intermediate actors. The Whole question is can we have such anindependent commission? In the UK, we have independent judiciary, independent public servers.In many countries if you dont have such kind of institutions, probably it is hopeless try to set up

such a commission. The result will not be satisfactory. So you cant import this module intoother countries.

Right not to vote

First Heather Lardy explaining that there is no right not to vote.Where right to vote is compulsory works better usually.

There is a link b/w the Conception of negative liberty and right not to vote. Her argument isneither right to vote or not to vote is not negative liberty. She is arguing that we have to rejectthis argument. But she says we need to look at other theories, such as freedom of non-

domination.

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Class 7

One of the effects of involvement of courts, you will get judgments from international courts inthe context of the UK. Mathew v. the UK. (Gibraltar case)

The right to vote in a sense is granted by the ECHR.

Whether the EP elections can be counted as an election for the UK in the context of the ECHR.The Court rightly told that the UK should count as a part of legislation. There was also issue ofdistricting of Gibraltar because of its small number of population.One of the risks not having judicial review, such cases might end up in international courts.

The US Cases

It is impossible to decide all the cases based on the rights, reasoning whether it is a violation ofthe First Amendment or not. The rights argument are important but not always decisive.

The Article by Richard Pildes.

We can look at 141-170 pages. He provides cases. Structuralists argument is important. Butsince we havent read this, well turn to cases.

Primaries. The idea of primaries. Not unique, but quite typical for the US. This system ofprimaries emerged in the beginning of XX centuries. States started this practice because theywere afraid elections are becoming corrupted.

Primary is a procedure when candidates for general elections are determined. These candidatesthen are moved forward in the general elections. In other countries holding primaries is not somuch widespread. This nomination is done by the parties themselves. Leadership of the partydetermines the candidates, in many cases. Or the party convention determines the candidates.

The interesting thing for the US is that primaries are obligatory in the most States. The secondthing we should know is that it is a product of first past the post electoral system. But there is sthwhich is called golden rule of political science. First articulated by French scientist BorisGerange. I dont know how to spell the French name.

First past the post produces the two party system. We already know why this happens. The thirdparties because are put in bad position. Voting for the third party becomes irrational.

There is a further complication. This complication is that when you have two parties, there isanother kind of theory, which comes from public choice associates with Antidolanes(he arguedthat if there are two parties, they merges??? . This theory is well spread in the US). So whenyou combine three factors, the primaries start to make sense. If you have such a system whichentranges two parties at least it allows some sort of competition within the party, when youdont have so many competition among the parties. This opening of the system is also somedemocratic idea behind it. And here we come to the various types of primaries. Eventually holdunconstitutional primaries, like white primaries which discriminated blacks.

WE will talk about open, closed, blanket primaries.Closed primary. There is a waiting period. You have to register in advance to primaries. Not be

member of another party.Open primaries is when you have the party, the election is open to everybody even to theindividuals who belong to another party.

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Blanket primary is another variation of open primary, when you can vote in the two primaries oftwo different parties. California introduced this type of primary. This primary make sense

because it is for everybody, for public offices, for mayors, for school boards and so on.

The interesting thing is, this blanket primary was introduced by referendum. If you select supportfor certain procedures, you will put in the referendum, and it may become law. This primary is

the will of the people, you might say.

The question was, in fact, who were the challengers of this? Leadership of the party.Keep in mind who are the challengers.

This is an intervention of the affairs of the party. The autonomy of the party is reduced.

Justice Scalia was writing opinion. What did he say?

First Amendment. The idea is that Scalia is pushing strict review. How the first amendment canmatter here?

There was an interference with the autonomy of the association.Further the question is how significant was this interference?

Generally, if you have a blanket primary, you are moving to consensus oriented candidates. Thechances of more extremist sth is diminished.Secondly, if u have the same candidate, there might be change in the position of the candidates,in order to attract more votes.

These are the two ways which Scalia thought affects.

Thus far he established that there is a violation of 1st amendment. He applies strict scrutiny.Then he is moving compelling interests.

In non-partisan blanket primary, non-members cannot vote for the

Justice Stevens gave the dissenting opinion, joined by Ginsburg.

1st argument. It is a state action. Basically, he is not rejecting the certain automony but when theyexercise the state action, this primary is a state action. In such state context, they dont have first

amendment rights.

By the analogy, if the state has the right to interfere . Further he said even if we assume thereis such an amendment, which requires strict scrutiny, interests given by the state werecompelling.

Ultimately, Scalias position was more in the rights oriented tradition. In fact, he did pretty muchthe same, the court did in other associations rights cases. The most of these cases, Roberts v.JeyCies

JCs were kinda organization non-profit, which was meant to personal development of its

members. The whole point was .. only male not for women. This issue aroused whether womenshould be allowed. The court finally found they should be allowed. the court said if you haveorganization which is kind of more open to public, in the sense, it has large membership, it isnot

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committed to particular idea, such an organization has less right to exclude potential membersand discriminate in its exclusion policies. IF you have smaller orgaizations, expressive in itsnature, and doesnt affect the main people, such small associations have greater autonomy. Thiswas the treatment the court gave in Roberts.

Judge Scalia argued in the favor of greater powers .. there is something inherently expressed

which might give them reason to exclude people who do not join this idea, this is the line Scaliatakes which fits previous judgment of the court.

The dissenters on the other hand, were in the way of structuralists understaning Justice Steventakes more seriously in terms of competition, bla-bla-bla.

We will finish other two cases. Please

WE need to reader the German Cases.

Class 8

We will talk about last the US cases, which are in that hand out paper. Then we will talk aboutMilitant democracy in Germany.

What is the role of the US parties according to paradigms?

Political patronage means when you come to power you grant to the party you have come fromsome privilege from sweeping the street to political actors. This widespread practice of

patronage was banned in 1970ies. Some people saw as a ground for corrupt practices. Directbenefits for party members.

One of the paradigms in our reading was called progressive paradigm. It is hostile to politicalparties. The role of parties should be limited.

Managerial paradigm. Political parties are kind of some public mechanism performing somepublic function. They represent some sort of instrument of state because there are so manyelections: elections for Congress every two years, for the president 4 years, for public authorities,and so on.

Political parties have more function other than elections, they have ideology to offer to themembers. You see it in the managerial and progressive paradigm, these are neglected. After all

political parties ideological functions as well.It is time to draw comparasion bw American and European parties.

These ideologies are much stressed in Europe. The reasons might be historical, also institutional.In America you have the first past the post system. You have tendency to favor centricity. Thismodel doesnt compass huge ideology. That is why probably in the US it is not like that.

In Europe you have proportional system. You have an institutional tools which enable . Due tothe propotional character even if you take extreme views, you can be represented in theParliament. Such institutional tools supports different ideas in European parties.

On the top of that there are institutional the very presidential regime in the US, makes partiesto converge in the middle. If the majority is different from the President party in theParliament. E..g currently, democrats in Congress and president is from republic, for this

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reason there is a conflict in regards of budget in Europe such kind of deadlocks do nothappen. The logic is quite different, the pressures are different because of the institutionalmechanisms.

There are also historical reasons, which we are not going to cover.

Political Markats the idea is that political parties whatever they do they are saving funds. THEyare selling policies and saving money. Voters shop around and the political parties advertise their

policies. you need to regulate but preserving competition and blab la bla.

Quite American Scholar Hirshman, when you hear them that is what he meant. The marketersthey provide the right of the citizens as customer no. But they cant enable the pariticipation ofcitizens. one of the ways of changing the preferences through citizens participations.

Pluralist approach different interest groups represent

Eu v. Sanfrancisco County Democratic Central Committee

The court considered two issues:

1. Governing bodies of the party.2. Whether state can regulate the composition of the party, term of the office

The court found violates freedom of speech and freedom of association of the parties.The interesting thing here is, from different paradigms perspective, the first requirement specificimportance. The state banned endorsing the candidates. But it is the most important role of the

parties, man, crazy Californian legislators!

Plaintiffs were not party leaderships.

Germany Militant Democracy!

We again start with this sense of fear from political parties in regarding their destructive role.Article 21(1) guarantees the political parties. Article 21(2) provides a mechanisms for screening,evaluating political parties and finally removing the ones which threaten the democracy.

The Basic Law encouraged the parties to pursue the different ideologies. Even the statefacilitated the engage in political foundations. Political education is gone through pluralisticparties. At the time Basic Law was designed, the main idea was to create pluralism.

There are certain limits to the political parties.

The difference b/w Militant democracy and the American approach of clear and present danger.Militant democracy is a preventive approach. How probable the danger is, how imminent is, onthe other hand, to assess the gravity of the danger. These are the two factors we need to thinkabout.

The difference b/w the US and German approach is, militant democracy is anticipatory.

The first two cases socialist party case and communist party case.

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The approach the court taken was a complex. Basically two things: institutional structure,internal affairs, and secondly, ideology.

The case was pretty straightforward. As to the organization, such continuity as Hitlers Naziparty. The people were even the same.

In all cases there were not imminent threat of danger

WE continue germany, 2001 case for banning the nazi party

National Democratic Party Case (1975)

The Court acknowledges that this party should be closely monitored.

Radical Groups case (1978)

Civil Servant Loyalty Case(1975)

Markus Wolf Case (1995)

.

This lasted for quite some time till the beginning of the 21 century. Accumulation of certain acts,races, criminal acts, crimes against immigrants.

National Democratic Party.(2003)

The main argument was all the important amount of evidence gathered by secret services. Thewhole question was whether, first, admissibility of the case. Only 5 judges supported thecontinuation so, it didnt constitute 2/3 of the judges, which are 6 judges.

When it comes banning to the party, the party should enjoy the noninterference from the state.They should have freedom of internal affairs from state authorities. Even there were interference,it didnt significantly change and decision making process. It is possible to interfere with secret

police but up to the point the party is sufficiently autonomous.

.

Civil loyalty decree, to disqualify the members of political associations who are radicals. Theother country which adopted such rigorous public screen was the US during Makarti(?) period.

If we have to summarize, there is this kind of much more lenient application of the doctrineagainst political parties, e.g. communist primarily was banned for ideology, here you see that theevidence was not about the ideology, in fact, the party didnt put in their plan. Only looking inthe program, it is difficult to make a judgment, you need to go to look at its activities.

Case of United Communist Party of Turkey and Others v. Turkey, 1998

In 1980ies, regime started changing. Erdugang party was less radical. It started negotiations withEU for joining Turkey. Another important is from constitutional law point there is a long history

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of banning parties. That is why most of the cases before the ECHR originated from Turkey.Until 2003, over than 35 parties were banned. Turkey also adopted German style, only theConstitutional Court can ban.

First it was argued that in terms of gravity that court reached constitutional changes can beadvocated by political parties even some radical changes of constitutional order.

There were cases when the parties were banned solely based on the program. The court wascritical about it, unless it is drastically contrary to constitutional order.

Class 10

The whole system is coherent entity. The ECtHR argued they tried to be philosophers. What willbe the ultimate ground of the final judgment in this case? There are specific bans for the courts tobe programmatic. The courts are rather reactive. They are preventive about speaking before theadjudication. There should be some sort of balance in work of judges b/w predictability on the

one hand and on the other hand

Gravity Probability evidence

Constitutional changes:

Speech can be shocking anddisturbingChanges are allowed providedthat:

1. They should bedemocratically pursued

2. they should bedemocratic in character

The name of the partySecession, federalism are okas long as above 2

requirements are met

1. plurality of legalsystem. This judgmentis controversial. Thecourt argued two

phases. The pluralityof legal systemthreatens the principleof non-discrimination.What court feared was

different groups ofpopulation havedifferent rules and youdont have a statewhich can govern

based on them.2. sharia law3. jihad - violence

Low probability in small

parties.Big parties danger grows

- Thrown remarks in the heat

of campaign;- Ambiguous language( it is infavor of small parties) butagainst bigger partiesLeader speeches

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Militant democracy comes from Karol Lowenstein. He published his book 1939. He was arguingwith another theorist Carol Schmitt. The latter was leading constitutional theorist in Germany.Actually he was criticizing Kelson. His main criticism was that legal norms will not work ontheir own. There should be person taking decision in the center. First, he saw this person in

presidency, who has powers, especially, emergency powers. Nazi regime was established, thepersonal element was shifted from president to Chancellor. He wasnt interested in protection of

constitutional order for single person. But designing democracy through certain mechanisms,i.e., courts. How basic laws included procedural safeguards. not emergency proceedings

based on the discretionary of officials. It might be preventive, but it is still procedure based, rulebased protecting constitutional order.

We now come to Bulgarian cases. The case he is talking about the case of United Macedonianorganization Illinda. This is a case from 2005. THis ban took place in 2000. This party wasfinally registered in 1999. It took part in local elections. It managed to win small amount ofvotes. Immediately after that, it was banned on the ground that it threatens constitutional orderand territorial integrity. Constitutional Court reasoned its judgment on speeches of the leaders of

the parties about the cessation or eluding plans related to autonomy. There is a special provisionin the constitution which ban parties which threaten the territorial integrity of Bulgary.

What kind of arguments the ECtHR presented and was the ultimate judgment?

This changes was not entirely antidemocratic. Also this party was trying to pursue this planthrough democratic means. So the court said in terms of gravity there was no sufficient gravity ofdanger, there is no ground to make this measure necessary in democratic society.

You can use line, even if we assume that the party was ambiguous because this party was small,this ambigibity should be counted in favor of the party itself as 1. this party is small. 2. thespeech was ambiguous.

What do you mean by cessation? The court didnt talk about this issue. It just said there wasntantidemocratic procedure was pursued by the given party.

THE US CASES

Buckley v. Valeo.

170-193 Pildes, we should read for tomorrow, 17 april.

Financial regulation of political parties until Buckley was not sufficient. In the US, corporationsare prohibited in donating in political competition. Our discussion will mostly about federallevel. Such bans as corporate financing. It was introduced in about 1910-12. This corporate bansnot only covered companies but also trade unions. A party in order to get around these bans, thetrade unions started political action committees(special organizations whose main purpose is togather money for political purposes).

This separate fund as long as the money from individuals, is given to political campaigns.Another way of go around this ban, which become more popular, so called soft money. Whenyou see across the soft money, this is the money collected outside federal regulation, which come

from corporate donors, parties could use them for party registration and etc stuff, they wereindirectly used for political purposes. And well see how it is possible. However, until 1970iesthey were not strict regulations. This was the reason for quite wide spread perception that

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political process in the US is corrupted. So this was kind of accumulation of perception there wascorruption in the American politics. Sth happened in the US which dramatically decreased this

perception. What happened?Watergate scandal! Nixon raised funds illegally. In order to respond to growing this kind of acts,the parliament introduced an act which tried to put order in spending and raising funds in

political campaigns. What kind of rules were they? What were the main types of regulations

introduced?1. Restriction on donations2. restriction on expenditure3. introducing scheme of public financing for presidential election.4. Strengthening of enforcement mechanism. Requirement of discaution (discaujin). Federal

Electoral Commission was the body for enforcement.

The law was challenged. First, lets start with main principles, which court approached the case.They first distinguished this case from OBrien. And then the court went on distinguishing fromother cases as well. But why the court tried to distinguish ? They identified the money andspeech. Buckley is centrally important for specific imterpretation of money is speech. When

you look from this perspective, all these distinguishes makes sense. What was the argument?The more money you spend, the more you ability you will have to speak. The court said that thisis not the content based restriction but the quantity based restriction. The judges also said that ifyou introduce such quantity based restriction, you will more or less equalize the chances. The

position of the court was very libertarian, it was acting for liberty of speech.

Expenditure should be counted as direct form of speech. And donations should be indirect formof speech. In the case of expenditure, the court employed strict scrutiny. In the case of indirectcase, balancing test was used. They balance it against certain interests. The corruption, e.g.. Theonly other consideration apart from indirect speech, on the other hand you have concerns aboutcorruption. If you limit the indirect speech, you should limit for the sake of limiting corruption.

What is the difference of corruption and appearance of corruption? When the people areconvinced the politics is corrupt, this is an appearance of corruption.

Why the direct speech should be protected more but indirect shouldnt ? The logic might be thefollowing: by limiting the donation you are not limiting the

Large amounts of donation creates the perception of corruption. People might think that thecandidate is influenced by the donors.

Tomorrow we start with the actual judgment on various points, some technical point and publicfunds. Equality concerns are illegitimate in the view of courts. In Germany, financing the party,equality is very important.

Class 11

Well sum up key elements:

1. One dimension is ideological. You have two basic types: 1. Libertarian. Basically,

libertarian prevents the state from interfering. 2. Egalitarian. Requires the state tointroduce certain tools to equalize the political parties chances. They top expenditure.They put limitations to expenditures.

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2. More or less institutional. Reflects the idea of the choice main player in fund raising andspending. In some countries they are candidates, in some countries they are political

parties. You can divide models: 1. Candidate-centered. 2. Party-centered. These twomodels do not exist purely, usually they are mixed. In the US it is more candidatecentered. In Germany you have party based model. It is egalitarian.

This is the general picture. Now we will elaborate on this. Lets start with the issue ofcontributions. The position of the Court in Buckley, upheld the contributions. The Court foundthe contribution as right to association but not the speech. So they do not apply the strict scrutiny

but balancing test.When it comes to expenditure, the Court considered as right to speech and applied the strictscrutiny.If you are not a candidate but you want to spend some money for election, there is no limit aslong as you dont ear that money, in the sense, uncoordinated money. This is an interesting

position, sometimes, dramatically increase in this kind of expenditure.The issue advertising. You will advertise sth. Such kind of independent expenditure is protectedunless the court can link that with the candidate.

Soft money is legal loophole. These regulations only apply to directly linked to campaigns todirectly related to elections. When candidates spend money the need to spend that based on thatregulation. However, political parties can raise money for registering people.

Then we move to the next aspect of Buckley. If these were restrictions of the Act, the next issuewas application of public fund for federal presidential elections. It is not the scheme where thestate gives directly from the budget. How these subsidies are organized? So, the amount ofmoney is given based on the previous election results. If the major party wants to get the publicfund then it cannot conduct funding campaign. But the small party can do that up to certain limiteven it gets money from public fund.

1.taxpayers were giving money voluntarily for elections.2. This subsidy is mainly given to major party. It is not given to everybody. You have to qualifythen you can get.3. If you agree to take this fund, then you agree with the limit of expenditure. You might say, Idont want state expenditure. Most of them have got private funding so on.4. if you get this subsidy you cant get private funds.

What did the challengers say about it? What was the questionable part? Probably, it is theconditions. One was the cap of spending. 1. The court drew the analogy with other party cases.They were inconsistency with the court judgments. 2. it gave a chance to major parties and put

the small parties in disadvantageous position.

Do you think there is a inconsistency with Buckley judgment and some other case(? Which)?

We said about libertarian. This is choice based sth. In fact, it doesnt limit anybodys rights.Secondly, candidates can also opt out. Their choice also not restricted. The court said it is adevice which gives candidates opportunity. It provides more speech. This was the response forthe 1st challenge.

2.Equality doesnt enjoy such type of strong constitutional protection. The court said there areprogrammatic if all the candidates are granted the same amount of money, then it will be not

good (?)

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The end result is spending restrictions, public funding scheme The last aspect of Buckleywas/were:1. Disclosure requirements. It was also challenged. The court held upheld this kind ofdisclosure. In what way they interfere by this disclosure? Compare it decision in Johnfor avery long time libertarians thought disclosure should not be applied because parties should betreated as units of the civil society. This is the general rational. But here we have this interest of

corruption.2. Structure of the Federal Election. What was the issue? Basically, the court found the structureof the commission was problematic. It should be appointed like independent commission. It isdecided on the principle of parity. There should be 3 persons from each party. In order to achievesome certain balance you need to have this kind of parity.

First National Bank of Boston v. Bellotti

It is about limits on corporate expenditure. What was the context of the case? The questionssubmitted to voters? The issue was whether, in fact, corporations could spend money on suchcontext. What was the court decision? What did the court say: legitimate or illegitimate? So the

decision was ultimately corporations had right to spend in such context. The arguments were, thequestion was not indispensable in the democratic society

In Bellotti, the court distinguished between corporate speech and non-corporate speech.

If you see the quid pro quo like corruption, you will see it in the form of donations.

The next case, Austin case is even more important

It is the case about elections. What was at stake in this case? They have to create separate fundfor elections. What was the regulation first about? You remember about the ban on corporatedonations. So, in order to be able to participate in elections, they created segregated funds, inother words, Political Action Committees(PAC). Some of the judges inclined to believe,restrictions on corporate speech should be removed, the corporations should be given chances to

participate in election campaigns. What was the main difference b/w corporate money andseparate funding? The first in a sense, you need special political purpose fund, the money comesfrom individuals. Thirdly, they have the administrations of their own. Sometimes, this expensegoes up to 50 % of the political action committees. They should be counted in a specific way.The argument of libertarian judges were that this is a kind of significant burden on the firstamendment (speech), it is an unconstitutional. What was the argument of majority? 1. Artificialcreation. 2. There were massing wealth, there might be disproportional influence on political

process. They explicitly said it is not argument about equalization but corrosive affect of thewealth, which eludes to corruption. 3. Greater support, shareholder proof. First and twoarguments are linked. This is not quid pro quo. In Buckley talked about electoral campaigns.Here they talk about structural corruption due to disproportional influence. It might be quite

problematic if you think from the point of Buckley case. Because this change of the corruption isnot easy to justify. In fact, what they are saying, equality in electoral college. That is why JusticeScalia, as a kind of libertarian, was very unhappy. And here rejected the argument of popularityand structural corruption as well. What is the difference between personal wealth and corporatewealth?You see how these filters entered the jurisprudence of the judges. OK, after all these regulativeefforts, what happened? We had a situation constantly increasing expenditure. It has already

reached significant amount of money. From the point of court, it is good, you will have morespeech.

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The next effect of regulation was extension of people participated. Candidates were forced tolook for funding to many individuals. It lead to significant amount of money increase. Between15-20 million. However, if you scrutinize the money given, even donation more than $ 200,immediately you go sth like 1 percent of the population. Another problem was soft money.We know about self-entrenchment of the candidates. This tendency of having regularlyreelected. In financial terms, incumbents raise more money than other people. This is the side

effect.Practically challenge this is to self finance. As the result representatives elected are millionaires.Then we come to McConnell.

Bipartisan Campaign Reform Act (BCRA) . They attempted to reorganized the funding systemof the election campaign. Because Buckley was very restrictive, they need to go around or tosuggest reforms. First one was the abolition of soft money. Second was the magic word, issueadvertising??? Third, they raise cap (ceiling).

The issue of advertising was related to libertarian ideas. Restrict the quantity of money.The issue of soft money was much more complicated. In fact, this would effect political parties.

Through this soft money political parties could come back to political arena and play significantrole. they are examining impact on parties. The issues advertising more related to libertariandimension.. Soft money is related to institutional dimensions. Basically, this was the logicMccullon.

Tomorrow well continue from the reader. Red line from Stone.

Class 12

Pilders article.1. The issue of self-entrenchment ...2. To what extent these measures are effective to protect right to association.3. To what extent this judgment effected the political parties.

There was an additional reason apart from corruption. This was a participatory right.

Lets start with self-entrenchment argument. What Justice Scalia argued about? Scalia followedBuckleys theory. The more the money, the more the speech. This is difficult for challengers thatincumbents. Scalia thought in fact ultimate effect of the bipartisan act will be self-entrenchment,anticompetitive. First, he thought of restriction of speech. Second, it is going to have

anticompetitve effect. How Pildes was arguing? He said it is empirically difficult both positions.It is difficult to assess it this act will have positive or negative effect. It is very difficult topredict. The whole point is many such decision is taken in one direction or another. The questionis what direction the court should take. He thinks process and structural argument. The processargument is that this is/was bipartisan consensual act, it was put through before Congress afterthe long discussions, this act was redesigned several times. Legislative acts are not born equally.This act has a legitimacy, because of the democratic pedigree of the act. In such situations, theCourts should defer to legislative branch which are passed through democratic way.

You have serious incumbent problem in the US. You see that this is not a 100% convincingargument. Just one interesting note, Pildes speaks about this millionaire exception. Bipartisan

reform act envisages that in fact there is a rich person who takes parts in the elections, she/he iscommitted to spend a lot of their money. Then opposed candidate has right to collect moresizable contribution. If the contribution limit is $ 5000, you can collect even more than that

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because the rich person is able to spend more money. This is also about in favor of theincumbents. Incumbents always are afraid of the rich. In order to help incumbents little bit, thelaw provides them this possibility.

Next issue. Association and rights of the parties. We have an idea how soft money affects.The third point. General right to participation and self-government that Justice Brian is trying to

introduce. So what do you think about general participatory rights? Well, basically, the rationalis the following, in Buckley, the Court used corruption argument. Here the Justice Brian isarguing that the state has another reason. It is a general right to participation and self-government. General participatory right seems like egalitarian. Is the US constitution compatiblewith such right which gives to everybody, at least, to citizens, right to participate through other

protections as well? Nobody knows the answer, so we are waiting for the professor answer. Iwonder if anybody read this article. In order to reject general participatory right, you need toreject libertarian standing.(?) So there is a clash between general participatory and right to self-government.

Cass Sunstein argued in terms of campaign financing the court should go through ideological

change of New Deal. New Deal came to replace the Lochner period. It was also like Lochnerperiod, the Court interfered with the legislation substantively.

Red Lion was about fairness doctrine. Fair doctrine gave chance for those who has beenattacked to respond through the media. Two main issues:

- scarcity of resources;- informed.

The second effect is more egalitarian. It was practically dropped and didnt appear in otherjudgments. Ultimately, the fairness doctrine was abolished in 1990ies. The argument of scarcityof resources was also dropped also due to later technological development.

Cass Sunstein argues the Court should have rejected the scarcity of resources but informedargument. Egalitarian arguments couldnt take root in American discourse.

Because of the public dissatisfaction, the issue of corruption reappears in 1970ies afterWatergate. We saw that after the adoption bipartisan form act(?). Because of the publicdissatisfaction with developments in this area, people started thinking of organizing the issuedifferently.

Parties and candidates quite often get around these restrictions. In order to get around these

administrative difficulties, you may call Utopian scheme, but Bouce Ackerman is a scholar atYale university. He has a book voting with dollars. The idea is the following, instead of moneythe citizens get a voucher in the amount of $50. First they collect signatures and other

procedures, after they collect certain signatures, they will get from the State $ 1000000. Citizenscan use these vouchers for political party campaign purposes. They only can give to the parties.This is in short the whole scheme. It can run simultaneously with the federal regulations as itexists now but it would be optional like in the case of public financing. If the candidate decideson this scheme, they can not use the other scheme.

1. Criticism. It makes voting predominant. If you give your voucher 6 months earlier. Oneadvantage of the scheme is its administratibility. It doesnt require much enforcement.

2. It is biased to famous people.

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In Germany situation in terms of financing, the approach is different. The Court was ratherexperimental, different approaches. The biggest difference is equality principle does matter.

Libertarian Candidate centred

Libertarian US

Party centered

Egalitarian Germany

Curiously, the pretty much like in The US context, you dont have limit in the expenditure butalso the limits on contribution. Well, even before the state subsidies were introduced. The Statewas quite eager to use its egalitarian approach in its case practice.

Party Finance Case I

First, note about tax deduction. It worked for big donors but it didnt work for small donors. Inorder to benefit for small donor, they introduced tax credits. If you give 100 Deutsch marks, thestate would give you 50. Such tax credits were given only to small donations. This was 50 % taxdeduction. Social democrats claimed that this tax deduction was What did the judges arguemore concretely? Provisions not discriminatory, though the law might not be on its facediscriminatory, it might be discriminatory in practice. This was the justification that court gave.From the outset, they put the equality. They are not considering the case not from freedom ofspeech. Another interesting element is, at the end of the judgment the court said that this proposethe solution. And this is quite typical, in a sense, the court determined the regulation in this area.Many solutions were proposed by the Court. The courts usually negative legislatures. Here wehave the positive legislators. The court recognized that the parties need money but theysuggested sources. In fact, the scheme was proposed was mixed with political education andXXX. The next case

Party Finance Case III (1966)

Before the law on political parties was adopted, they had adopted financing law. There was veryimportant case, this case elaborated principles which were followed till 1980ies. What was thecase about first?What did the judges ban? Did they ban public funding of the parties? So they drew distinction

between electoral

Political Rights and Freedoms

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