The Supreme Court has never authoritatively addressed the President’s power to pardon civil contempt. But in Ex parte Grossman, Chief Justice Taft argued in dictum that the President categorically lacked such power. That conclusion, now taken for granted, purportedly rested on English precedent as crystallized by Blackstone. But pre-ratification English cases and treatises fail to support the criminal-civil distinction as the boundary of the President’s power to pardon contempt. To the extent those English sources reveal at least an ambiguity in Article II, post-ratification American practice and normative considerations lend additional support to an alternative framework. Identifying a neglected indeterminacy as to the pardon power’s reach over certain civil contemnors, this Note rejects Taft’s criminal-civil divide and proposes a limiting principle centered on private legal interests. History, common law precedent, and functional considerations support a Constitution that permits pardoning contempt unless the pardon extinguishes private legal interests of third parties. Under this view, the President can pardon all criminal contemnors and can release from coercive fines or imprisonment those civil contemnors who owe tangible, but not equitable, relief. For criminal contemnors and this subset of civil contemnors, presidential pardons may face political or ethical obstacles, but should not face constitutional ones.
Note
Super PACs, Personal Data, and Campaign Finance Loopholes
Personal data is a commodity—frequently bought, sold, and traded on the open market by for-profit and non-profit organizations alike. It is now commonplace for political campaigns to synthesize large amounts of personal information to tailor messaging to particular individuals for persuasion, turnout, and fundraising. As campaigns and other political organizations use data in increasingly sophisticated ways, they have also dramatically increased their data collection and transfer efforts. This Note explores how federal election laws and regulations have failed to keep pace with these developments, creating a loophole through which virtually unlimited money can flow to campaigns.
This Note argues that personal data should be regulated like any other campaign asset. Federal political campaigns are subject to strict contribution limits as well as a comprehensive disclosure regime. Current Federal Election Commission advisory opinions and agency inaction have allowed campaigns to receive valuable personal data at practically no cost, even from organizations like super PACs that are otherwise prohibited from making contributions to campaigns. Perhaps even more troubling is that these contributions are not subject to the disclosure requirements that form the backbone of the federal campaign finance system. The transfer of this class of assets is subject to neither meaningful restrictions nor public scrutiny. This Note details the problem and proposes several simple regulatory changes to close existing campaign finance loopholes.
Congressional Control of Agency Expertise
Congress relies on executive branch information to carry out its functions. When it creates a budget, the President’s budget request and individual agency testimony are critical to understanding the effect of proposed changes. When it considers new legislation, government officials are asked to testify and share their views. When Congress is seeking information on emerging issues, agency reports are often the first—and most trusted—source of information. When the executive branch provides this information, it often does so through a coordinated process, managed by the Office of Management and Budget within the Executive Office of the President. As a result, the President has a say in what Congress hears regarding agency expertise. This Note explores the instances where Congress has explicitly shut the President out of this process, and the consequences of that decision. The provisions of federal law that limit presidential control of information, referred to as “independent-reporting requirements,” are one of the many ways that Congress can ensure agency independence. This Note collects and describes these provisions, exploring both their policy implications and their constitutionality. In addition, this Note argues that a more widespread use of these statutory tools would solve a significant problem currently facing Congress, namely the information imbalance between the elected branches.