Issue 1

The End of Campaign Finance Law as We Knew It

The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but for reasons that have little to do with corporate electioneering. Although the public outcry and legal scholarship have focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Last year’s elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one.

Citizens United therefore is a clear turning point for not just campaign finance law, but for all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court actually may be sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be much more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, point this way forward for campaign finance reform without campaign finance regulation.

Result or Reason: The Supreme Court and Sit-In Cases

How do Supreme Court justices decide controversial cases? Are the justices more interested in the result reached or the reason for reaching that result? The sit-in cases of the early 1960s present a case study of this important institutional and jurisprudential question. During the early 1960s, black college students entered segregated lunch counters and refused to leave upon the orders of the owners. Challenging this discrimination under the Equal Protection Clause, these protestors confronted the “state action requirement.” This requirement forbids only state action that violates equal protection rights, allowing individuals to be as intolerant as they please and setting up a conflict between “constitutional values of the highest order: liberty and equality.” Specifically, the liberty of individual business owners to engage in discrimination on their private property set against the right of black patrons to be served on terms equal to white customers.

The Supreme Court heard a series of cases involving the sit-ins during 1962 and 1963, overturning protestor convictions in every case yet avoiding resolution of the central constitutional question: Does the discrimination of private owners of businesses of public accommodation constitute state action? Scholars have always assumed (based on the Court’s obvious preference for overturning convictions) that the Court was prepared to find such private action to be state action, vindicating equality over liberty. Exploring internal Court documents, this Note rewrites this history and illuminates the concerns of the justices in rendering legal judgments within this morally and politically charged arena. Contrary to the conventional wisdom, a majority of the Court subscribed to a doctrinal position that dictated a narrow interpretation of the state action requirement, a position that vindicated the liberty interests of discriminating proprietors. Thus, the outcome of the sit-in controversy (overturned protestor convictions without a constitutional ruling) reflected a complicated, and often painful, balance between concrete results and the intellectual inclinations of the justices. Ultimately, three key justices compromised their intellectual inclinations in favor of their preferred result, ducked the constitutional question with its broad potential effects on individual rights, and left final resolution of the controversy to Congress in the 1964 Civil Rights Act; thereby implying underlying institutional and intellectual limitations on the Court.

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

In 2009, the Supreme Court in Melendez-Diaz v. Massachusetts, interpreted the Confrontation Clause to require forensic analysts to testify in court before a forensic analyst’s report can be admitted into evidence against a criminal defendant. Ever since, law enforcement groups, lower federal courts, state supreme courts, and commentators have been asking the same question: Who can fulfill the role of the testifying analyst? Put more specifically, would allowing a “surrogate witness” like a laboratory supervisor or a single member of a team of forensic analysts satisfy the Confrontation Clause? It is an issue that is currently before the Court, thanks to a petition for a writ of certiorari filed on behalf of Richard Pendergrass, who is seeking review of a decision of the Indiana Supreme Court permitting the use of surrogate witnesses.

This note seeks to answer this question by tracking the ongoing debate between originalist interpretation and policy in the context of the Confrontation Clause. It argues that given the role policy has played in the analogous right to counsel context, the continuing debate over the reliability of forensic science, and the pressure from law enforcement groups who suggest surrogate witnesses are a necessary tool to mitigate the impact of Melendez-Diaz, policy arguments will need to be addressed, and may even prove decisive in the battle over surrogate witnesses. Finally, this paper proposes a compromise approach, where the Court could allow surrogate witnesses who have direct contact with the testing process as part of the laboratory’s standard procedure.

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