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Too Far and Not Far Enough: Understanding the Impact of FOSTA

Emily J. Born

In early 2018, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) into law. It was enacted mainly in response to failed civil suits against Backpage.com, a website accused of allowing, and even helping, users to post ads of sex trafficking victims. Plaintiffs, minors with ads for them posted on the website, were almost universally blocked by Section 230 of the Communications Decency Act (CDA), which granted Backpage immunity for what its users post. FOSTA removes that immunity, as well as amends and adds federal offenses. The law has faced much criticism for going too far, but no one has yet asked if it goes far enough. In other words, would Backpage now lose the suits that could not have been filed before FOSTA? To evaluate the law’s impact, this Note reconsiders the infamous Doe v. Backpage case in light of FOSTA. After analyzing the law through analogous statutes and case law, this Note concludes the law is at most ambiguous as to its legal effect. Thus, not only is the law creating negative side effects for speech online and creating danger for sex workers, it may not even be achieving its legal objective. This Note looks at the widespread reaction to FOSTA, the self-regulation of many websites in response, and explores reasons for that reaction, including the law’s expressive effect. 

Section 2 of the Voting Rights Act, Special Circumstances, and Evidence of Equality

Michael S. Taintor

Vote dilution doctrine under Section 2 of the Voting Rights Act directs courts to look to evidence of election results to determine if all voters have equal opportunity to elect representatives of their choice. However, not every election in which a minority-preferred candidate prevails is necessarily evidence of equality. Those elections that courts judge to be illusory evidence of equality are said to be characterized by “special circumstances.” When a court recognizes special circumstances surrounding an election, it discounts the evidentiary value of that election, typically to the benefit of vote dilution plaintiffs. To date, no judicial opinion or scholarly work has proposed a comprehensive framework to explain the circumstances courts already recognize or point out the circumstances they ought to recognize. Drawing on the seminal Supreme Court precedent of Thornburg v. Gingles, the Voting Rights Act itself, and over thirty years of lower-court practice, this Note proposes a test. If the circumstances of an election are such that a victory for a minority-preferred candidate belie an ongoing, structural burden on the right to vote, that election is characterized by special circumstances. This Note uses a familiar tripartite framework of the “rights to vote” as an analytical lens for drawing lessons from past decisions and suggesting where the doctrine should go in the future. By recognizing the wider universe of burdens on voting rights, including those typically beyond the reach of judicial remedies, special circumstances doctrine can ensure vote dilution remedies are available where they are needed. 

The Surprise Return and Transformation of Racial Gerrymandering

Michael C. Li

Racial gerrymandering is a doctrine that has had a surprising evolution. It began in controversy in the 1990s with legal challenges brought by white voters to the creation of majority-minority districts. By injecting a deeply skeptical, color-blind requirement into the redistricting process, the Supreme Court’s racial gerrymandering jurisprudence looked for much of the 1990s like a serious, and perhaps even fatal, threat to the ability to draw majority-minority districts under the Voting Rights Act. But those fears ultimately were misplaced.

This Article argues instead that the doctrine, while suffering from some jurisprudential and analytical complexities, has proven nonetheless to be a remarkably flexible tool for courts to address the intersection of race and politics. This decade, racial gerrymandering has evolved to be both a potent tool to block the packing of African American voters and a means to police at least some forms of partisan gerrymandering.

 

Ensuring Good Deeds Go Unpunished: The SCRA, FECRA, IFRFEA, and Protecting Federal Employees During Shutdowns

Russell Spivak

As the nation has seen multiple times in recent years, federal government shutdowns are harmful to the American public, but are disastrous for federal employees. In the most recent shutdown, nearly a million people missed two paychecks, many of whom were nonetheless required to show up to work and thus forego earning a supplemental wage elsewhere. This was not just. Some lawmakers have tried to rectify this by proposing bills that would create a framework for protections based on the Servicemembers Civil Relief Act, which enshrines particular safeguards against litigation and administrative matters for those serving in uniform. This Article discusses those protections and their applicability to unpaid federal employees as well as other protections—some proposed, some not. The Article then reviews the constitutionality of the potential provisions. Finally, the Article addresses the political ramifications of such a law’s passage, namely if increased protections would beget more shutdowns.

Addressing Inequality in the Age of Citizens United

Bertrall L. Ross II

The United States has reached a point of economic inequality that has not been seen since the 1920s. According to the median voter theorem of redistribution, democracy is supposed to act as a check on growing economic inequality. The intuition behind this theorem is simple: If a majority of the population sees their incomes stagnate while a wealthy minority gets richer, the majority will demand redistributive policies, and representatives will respond by addressing inequality. But in the United States, very little redistribution has accompanied rising economic inequality.

Why has democracy failed to check economic inequality in the United States? Political scientists and legal scholars have pointed to political inequality as the culprit. Political scientists have shown that elected representatives are much more responsive to the wealthy than any other income group. Legal scholars have argued in favor of equalizing campaign finance and regulating lobbying as ways to reduce political inequality. Empirical studies, however, have raised doubts about the effectiveness of any reform efforts aimed at those areas, and constitutional law disfavors solutions aimed at diminishing the political voice of the wealthy.

In this Article, I argue that reducing the income class imbalance of the electorate— i.e. the tendency of wealthier voters to vote at higher rates than less affluent ones— will be a more constitutionally viable and effective means of ameliorating political inequality. I base this argument on the median voter theorem, which suggests that elected officials decide whether or not to adopt redistributive policies based on whether they believe the median voter desires such policies. Because the poor vote less and have less access to their elected representatives, representatives perceive the electorate to be better off than the population as a whole actually is, diminishing the pressure to redistribute in contexts of rising economic inequality.

The ideal solution to this form of political inequality is to induce the participation of the poor and enhance their engagement with elected officials through campaign mobilization. Mobilizing the poor would not only increase the proportion of the poor in the electorate, but more importantly, would change how representatives perceive the electorate and its demands for redistribution. Achieving these goals will require looking to new legal strategies aimed at incentivizing mobilization. I examine three legal strategies that could increase the incentives for political campaigns to mobilize the poor: campaign finance vouchers, earmarking campaign contributions, and a mobilization-matching fund. I conclude by suggesting a path to advancing these strategies in the current political climate.

Parties by Design: Pluralist Party Reform in a Polarized Era

Bruce E. Cain, Cody Gray

While the debate over the role of political parties is longstanding and not completely resolved amongst scholars, most reform groups are skeptical that stronger parties are the solution to contemporary problems in the American political system. Looking at the effects of past reforms and related court rulings, we maintain that many of them strengthened the hand of party activists, independently financed candidates, and donors in the nomination process at the expense of elected officials and national party officials. This has not only fueled partisan polarization due to pres- sures from party activists and donors, but it also removed any ability of the party to conduct what some have termed “peer review.” Instead of focusing on reversing past party reforms, however, we propose taking a different tack. We ask what changes might make the political parties more effective umbrella organizations that promote coalition building and better governance in this period of high polarization. Toward that end, we propose some changes that might incentivize American political parties to serve that function better. The parties themselves would have to adopt some of these reforms. Others might require that reform groups and the courts be willing to give political parties a more privileged role in campaign finance.

Returning Peer Review to the American Presidential Nomination Process

Elaine C. Kamarck

As Americans, we take for granted that those we entrust with significant authority have been judged by their peers to be competent at the task. Peer review is a concept commonly accepted in most professions. For instance, in medicine “peer review is defined as ‘the objective evaluation of the quality of a physician’s or a scientist’s performance by colleagues.’” That is why we license plumbers, electricians, manicurists, doctors, nurses, and lawyers. We do this in most aspects of life—except politics. In 2016, Americans nominated and then elected Donald Trump, the most unqualified (by virtue of traditional measures of experience and temperament) person ever elected to the Office of the President of the United States, in a system without peer review. This Article is an argument for the restoration of some modicum of peer review in the modern nominating system of both major political parties.

Fixing the Presidential Nominating System: Past and Present

John Frederick Martin

For many centuries, political communities have contrived nominating systems that seek to attain similar goals across different countries—protecting the community from overly ambitious and powerful leaders, and uniting rather than dividing communities at election time around leaders with broad-based appeal. They have done so by resort to procedures that recur almost invariably—procedures framed to avoid plurality victories in multicandidate contests and to insulate nominators’ decisions from outside influence, including the influence of fellow voters’ decisions. One is struck by how painstakingly our forebears worked out the problems of nominations over time, with recurring themes and methods, which (ironically in this age of information) find no echo today in our own presidential nominating system.

Was the Process to Blame? Why Hillary Clinton and Donald Trump Won Their Parties’ Presidential Nominations

William G. Mayer

Given the widespread dissatisfaction with both major-party nominees in 2016, it is natural to ask if the American presidential nomination process is to blame for producing two such candidates as Donald Trump and Hillary Clinton. But when the dynamics of these two nomination races are examined, there is little evidence that the outcomes would have been affected by any plausible changes in the process. Hillary Clinton did gain an advantage from the Democratic rule that awards automatic delegate status to elected and party officials, but she also won a clear majority of the votes cast by ordinary voters in presidential primaries and of the delegates selected through primaries and caucuses. And though there is evidence that the leadership of the Democratic National Committee favored her nomination and wanted to aid her candidacy, there is little that the committee actually did—or could do—to make such an outcome more likely. On the Republican side, Donald Trump did not win because the Republican process was, in effect, taken over by independents. Trump won a solid plurality of the votes cast by primary voters who identified as Republicans. A different set of delegate allocation rules and a large contingent of Republican superdelegates might have slowed Trump’s road to the nomination, but, given his dominance of the primaries, probably would not have changed the final result. The only rules changes that might have aided both Clinton’s and Trump’s opponents were if more states had used a caucus-convention system instead of a primary to select their national convention delegates. Both Bernie Sanders and Ted Cruz fared substantially better in caucuses than in primaries. But given ample evidence that caucuses have a significantly smaller and less representative turnout than primaries, it is unlikely that either party—or their rank-and-file members—would have endorsed a substantially greater use of caucuses.

Full of Sound and Fury: Curbing the Cost of Partisan Opportunism in Congressional Oversight Hearings

Cristian R.C. Kelly

As Congress creates bigger and broader federal programs and administrative agencies, appropriates larger sums on their behalf, and delegates more of its legislative authority to their leaders, it takes on a commensurate responsibility to diligently oversee those agencies. Because time and resources available for congressional oversight are limited, a committee’s decision to conduct a formal oversight hearing implicates a substantial opportunity cost. At the same time, oversight hearings present committees with considerable opportunities for grandstanding and political gamesmanship. The voting public should therefore demand that congressional committees use oversight hearings efficiently, pursuing benefits like agency accountability, transparency, and democratic legitimacy, rather than the committees’ own partisan electoral advantage. However, because congressional committees are complex political institutions and because legitimate oversight benefits can often coincide with partisan political objectives, the distinction is not always easy to discern from the outside. With these nuances in mind, I argue that the outside observer can infer a committee’s underlying motivations and predict a given hearing’s likely benefits by looking for specific patterns in the way the hearing is conducted—i.e., the hearing’s “operational functions.”