Tangentially related to my last post on Professor Greenfield’s piece is a link to this piece (also posted today in the Huffington Post) by Sharon Kelly, a longtime friend from Summit, who works for the Human Rights Foundation and recently visited Guantanamo Bay. 

Our babysitter, Janet, came in the door breathless this morning. “A big, big win!” she exclaimed. “I was up until 2 a.m. watching the results!” As was Tim, who refreshed the Times homepage repeatedly, hoping for Indiana to be called before he went to bed. I am thrilled that Obama will be the Democratic nominee. As I’ve written before, he is something new for this country, and I think we need it.

However, I’m also sad. I’m sad that Hillary the candidate and Hillary the woman couldn’t do it. Not this time. And when will the next woman emerge — the woman who can actually strike the right balance between intellect, aggressiveness, and likability? A balance that is much, much more difficult for a woman on the national political stage to claim. Maybe I’m projecting the sentiments of the poem in the below post. But if a woman as smart and capable of Hillary can’t find her stride in national politics, who can? I’m happy for Obama. But much more existentially, I’m sort of depressed as well.

Click here to read about and sign two online petitions.  Normally I’m not really sure how much good online petitions do (as a purely practical matter, for example, who gets them? and in what format?), but both of these issues are important enough to at least read about. One concerns the Melanie Blocker-Stokes Postpartum Depression Research and Care Act, which expands research and education about PPD (those who oppose the bill wrongly believe that it requires new moms to take drugs…Tom Cruise has more influence than we think!).  The other petition lets John McCain know that his comments about the Fair Pay Act (which the Senate failed to pass) are both uninformed and insulting.  Though he didn’t even bother to vote on the bill, he said that women don’t need legislation that allows them to ask for equal pay, but instead just need “education and training.”  You can also send him your resume. 

Thank you, Susan, for the link!

In my paper, I argue that campaign finance regulations are a particularly appropriate way to analyze how Breyer applies his theory to his actual Supreme Court decisions because campaign finance regulations themselves concern elections—the very means by which citizens participate in democracy.  (Again, the primary argument behind Breyer’s theory of active liberty is that by the careful support and preservation democratic processes such as elections, laws ultimately will have the most beneficial affect on society.) 

Campaign finance regulations—which try to limit the amount that individuals can contribute to campaigns but also sometimes try to limit the amount the individual campaigns can themselves spend—are often challenged on First Amendment grounds, the argument being that by limiting the amount one can contribute to a campaign, that individual’s right to free speech is being restricted.  The argument on the other side is that if we don’t limit campaign contribution amounts, we risk creating a democracy that can be influenced by a few wealthy individuals (thus stifling the speech of everyone else). 

Without these laws, guys like him might expect some serious quid-pro-quo.

There is a complex and confusing history of how the Supreme Court decides First Amendment cases, based on the type of speech (for example, whether it is “content-based” political speech; content-neutral speech, such as certain zoning requirements; or commercial speech, such as advertisements). Depending on what type of speech is at issue, the court decides how closely to “scrutinize” that speech—whether there is, in the words of Justice Breyer, a “strict, moderately strict, or totally relaxed [rational] presumption of unconstitutionality.”  In the case of content-based speeh, such as political speech, if someone challenges a law by claiming that his or her constitutional right to free speech is being restricted, the only way a court can not strike down that law is to determine that it is written narrowly enough to serve a compelling governmental purpose. The court is more likely to find that laws restricting obscene speech are in the government’s best interest than laws that prohibit distributing leaflets or placing campaign signs on private lawns.

Breyer argues that “active liberty” helps make appropriate distinctions between categories of speech and the level of scrutiny that should be applied to each. For example, when speech is related to the shaping of public opinion or politics, active liberty is most at risk. In such cases, judges should take a pro-speech presumption and apply “careful review” (i.e., strict scrutiny). When speech concerns ordinary commercial regulation, on the other hand, such risk to the actual processes of democracy is absent. Breyer argues that the historic difficulties of First Amendment jurisprudence, with its categories of speech and confusing levels of scrutiny, can be simplified if judges first refer to active liberty. Instead of being hampered by rigid categories, one should ask: what will best support the political process in shaping “the kind of society in which we live”?

Historically, the constitutional issue in campaign finance regulation is whether campaign finance laws, as examples of political speech, should be looked at with the strictest of scrutiny: are laws prohibiting certain types of contributions or expenditures narrowly tailored enough to meet the government’s objectives? The precedent for campaign finance law is Buckley v. Valeo, decided in 1976, before Breyer was on the court. (Breyer was appointed by President Clinton in 1994.)  (Attention all law students: I have been told that Buckley is always on the bar exam. Consider this your bar review!) In this decision (stemming from a challenge to the Federal Election Campaign Act of 1971—the first real attempt at campaign finance regulation), the court ruled that limitations on contributions and expenditures are like limitations on speech itself, so both must be subject to scrutiny.  However, because contributions were more like “speech by proxy” (you are contributing money to have someone ultimately speak for you), they are subject to less scrutiny.  This means that the court did not need to find that the law was as narrowly written in the case of contribution expenditures—and so it held that limits on individual contributions to campaigns were OK.  It was not OK, however, to limit what a campaign itself could spend.  The only legitimate government interest in regulating campaign finance is prevent corruption or the appearance of corruption—corruption in this case being “large contributions…given to secure political quid pro quo from current and potential office holders.” This interest was met by preserving regulations on individual contribution levels.

Since Buckley, the Supreme Court has decided five campaign finance-related cases: Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), Nixon v. Shrink Missouri Government PAC (2001); McConnell v. Federal Election Commission (2003), Randall v. Sorrell (2006), and most recently, Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). (Just last week, the Court heard arguments in Davis v. Federal Election Commission, which challenged the “millionaire’s amendment” to the McCain-Feingold Act.)  Breyer wrote the majority opinions for two of the cases, concurred in the majority for two, and joined the dissent in Wisconsin Right to Life (notably, after the shift in the court following the appointment of Roberts and Alito). In these decisions, it becomes evident that he is attempting to shift the Court’s approach from applying a categorical test to one that applies a balancing test that considers factors such as legislative deference, access to democracy, and stare decisis.  These decisions thus reflect his theory that active liberty—and not tests based on levels of scrutiny, such as those applied in Buckley—should be the basis for whether or not laws are Constitutional.  He began to ask not “do these laws meet the government’s needs?” but, “Do the government’s objectives balance an individual’s right to free speech?” Instead of asking, “Is this law constitutional in the sense of the First Amendment?” he asks, “Is this law constitutional in that it reflects the historic, democratic objectives of the Constitution?”  To Breyer, the government’s interests are less tied to a black-and-white preservation of Free Speech as determined by whether or not a law fails a judicial test, and more tied to the purpose of the law and its intended consequences. In other words, what is most important for the people and democracy.

Why do you care? Some scholars have argued that because of Breyer the touchstone of Buckley — again, holding that because contribution limits prevent corruption or the appearance of it, they do not presumptively fail strict scrutiny — is becoming less and less relevant, which leaves uncertainty as to the Court’s future approach to campaign finance. In part, this is because different aspects of the new campaign finance law—provisions such as restrictions on issue ads or soft-money donations—are now being challenged and are problems not addressed by the laws at issue in Buckley.  And, arguably, these are the very implications of a modern, changing society that Breyer’s theories on active liberty should adequately address. However, Breyer’s minority status in Wisconsin Right to Life suggests the court will not wholly embrace them. Until the entire court is on board with the Breyer’s balancing approach and moves away from traditional categories of scrutiny, the law could remain frustratingly unclear and the question still open for discussion:  are restrictions on a person’s right to give money to a candidate limiting his or her constitutional right to speech? Or can we find a balance between this constitutional right and the need to reign in an out-of-control election process where it still seems that money buys access.

Here is Nicholas Kristof’s eloquent explanation for why we can’t “just” decriminalize prostitution, and why penalizing the johns or the customers is more effective than penalizing the women.  Prostitution is not really as an inevitable or potentially empowering (for the prostitutes themselves, some argue) institution as recent discussions over l’affaire Spitzer might lead us to believe.  Nevertheless, as good as Kristof’s column is, as the mother of a daughter, I need to remain idealistic and vigilant.  I can’t really espouse even finding the best solution.  I feel passionately that as long as we are casual about pornography and prostitution we endanger vulnerable girls and women.  I wish that every man who had a daughter would read Kristof’s column and make the connection. 

Oh, Eliot Spitzer. While countless bloggers wittier and more well known than I will have a field day with you today, thank you for allowing me to continue yesterday’s discussion on professional ethics.  As I learned while studying for the MPRE, soliciting a prostitute is not considered to be “moral turpitude” to the extent that it will get you disbarred (for an application to legal ethics, for anyone who really cares, see this paper).  (Remember, however, that prostitution is illegal for the woman but not for the man soliciting her…) 

But what if you are the governor? Or the president?  In general, consenting actions between adults don’t really phase me and perhaps do not necessarily interfere with one’s professional duties. But flying a prostitute to D.C., or thinking that you won’t be recognized, or dallying with an intern in the Oval Office shows a sort of hubris, power-madness, or plain stupidity that does call into question one’s judgment.

I’m more disappointed with the news of Spitzer than I was even with Bill Clinton.  Because I had more faith in him as a lawyer, a reformer?  Because he has three teenage daughters?  Because soliciting a prostitute is somehow more morally unnerving than having an affair (even with an intern?)  Here’s what I really don’t understand about these public officials who get caught in sex scandals (from Clinton to even Mark Foley and Larry Craig):  aside from the disrespect shown to your wife, your daughter(s), and to the public who elected you – can’t you just reign it in for four years?  Seriously. 

NB: Spitzer’s transgressions were discovered through a tax inquiry.  Tax law is sexy!

Update:  the Times tries to parse out the whole sex-and-politics thing.

One of my mother’s best friends was a Wellesley classmate of Hillary Clinton’s.  When Hillary was class president, my mother’s friend was editor of the school paper.  When Bill was elected, my mom’s friend went to the inauguration.  She’s a true Hillary supporter, and, living in Dallas, she had been working hard before yesterday’s primary.  Last week she wrote my mother that she was feeling depressed about Hillary.  I’m quoting my mother, now, and not her friend, so I don’t have the sentiments exactly right, but something along the lines of:  she’s so smart, she’s worked so hard, and the country is abandoning the best person.

I voted for Hillary just one month ago.  Yet, despite the outcome of yesterday’s primaries, I woke up this morning feeling slightly depressed myself.  As much as I do think that Hillary could be the right person for the presidency right now — and would do an incredible job — I also wonder if we can let Barack Obama slip out of our national grasp.  Over the past month I have become a teensy bit disillusioned with Hillary for the following reasons:  (1) her insistence on counting the Michigan and Florida delegates (how could that ever be construed as fair? To me, following this path would be like a crazy Clintonian vendetta and would bring up all of the negative things associated with being a “Clinton” in the first place); (2) that strange, strange commercial with the sleeping kids and the ringing phone; and, most important (3) her terrible answer on 60 Minutes this past Sunday when she was asked whether she thought Obama was a Muslim and she said something like, “I have no reason to doubt his word.”  She should have said, “I know he’s not, and anyway, who cares? What are you insinuating?”  Her answer was slippery and disappointing.

But my disillusionment comes less from her gaffes than from the last month’s surging energy surrounding Obama.  My babysitter wants to talk politics first thing in the morning.  Two long-time family friends — men for whom the word “Democrat” has long been nothing short of an abomination — are, in their respective retirements, actually volunteering for Obama.  Like, these retired, white male, corporate managers from suburban New Jersey are manning phone banks.  And one of my close friend’s husbands — the son of the mother-in-law who sent checks to Rick Lazio from Ohio — wants to quit his job two months before his second child arrives to campaign for Obama full time.  And he’s dead serious.

Hillary may turn out to be a phenomenal world leader — but will this energy and passion surrounding Obama ever reappear in my lifetime?  Michelle Obama swears that this is the first and last campaign.  Can we risk losing this?

This week’s Newsweek cover story is a profile of Michelle Obama.  It was a thorough story, and I think more interesting than the actual story itself (as a piece of ground-breaking journalism or anything) was the choice to put her on the cover.  Would they do that for Cindy McCain? I can say with some certainty:  obviously not.  Michelle does play a significant role in her husband’s campaign.  But more important, her appearance on the cover almost celebrates that she’ll be a wholly different model of First Lady — she will reflect the growing cadre of us out here:  women who live first and foremost with intelligence and integrity and, in doing so, can love their jobs, children, and husbands equally. 

To underscore that idea, even more compelling was an accompanying first-person essay by Raina Kelley, “A Real Wife, In a Real Marriage.”  Kelley writes:

Part of Michelle’s strength is that she has been immune to the mommy wars that tripped up Hillary during Bill’s campaigns. The baking-versus-working tension is irrelevant for her; black women have never been burdened with the luxury of choice. Our heritage does not include the gilded cage, and we certainly never fought to labor outside the home—black women have always worked. This is why many of us never inherited the remorse about balancing work and family that plagues our white counterparts. For Michelle, voters have read this as self-assurance—appealing to young voters who are optimistic that they will find a balance between career and home.

This particular passage struck a real chord with me:  how fortunate I am to have the option to work or stay home with my child in the first place.  This hand-wringing and remorse that saturates the internet (blogosphere), fiction (see, e.g., Allison Pearson’s I Don’t Know How She Does It), journalism, and even current television shows (hello Lipstick Jungle/Cashmere Mafia) about women who try to have it all (and, as the story line would go, find out we can’t) is experienced really only by a privileged minority of (white? upper class?) working women.  Yet because it has been built up to have such a modern cultural prevalence, do we perhaps assume this remorse without even truly feeling it?  I think about my own working-mom friends:  amazing women who run their own businesses, practice law, are intricately involved in the world of finance — they know there are sacrifices, but they don’t spend their days going back-and-forth about it.  I particularly think of my doctor friends, who have just six weeks of maternity leave (five if the baby was late!), and with the purpose-driven stoicism so characteristic of physicians, drop their babies at day care and go save lives. 

The “baking-versus-working” tension became culturally relevant during the 1992 Clinton campaign, and Hillary’s clumsy handling of it did nothing to give it any complexity.  At the same time, I can’t blame her:  it probably caught her off guard.  Like Michelle Obama, she had been a high-achieving lawyer and, until others foisted the issue on her, probably engaged in very little back-and-forth remorse about working or staying home. 

I read with some sadness — but little surprise — how isolated and uncomfortable Michelle felt at Princeton; indeed, her senior thesis (which, the article notes, is no longer publicly available at Firestone.  I simply cannot imagine that someone would actually want to read my own thesis, which I can guarantee will never, ever leave those archives…)   was entitled “Princeton-Educated Blacks and the Black Community.” By illuminating this cultural difference, then (why had I never thought of it? I feel like Kelley hit me over the head…), Kelley’s analysis of Michelle Obama’s example for a new generation of women articulates a new cultural touchstone.  Instead of “you have to choose, but if you don’t choose, you’ll fail at both,” Michelle’s shining example reframes the issue:  “you are going to work, you are going to have kids, and you are going to find a balance.”  (Even if, as in the Obama’s situation, right now that balance is largely achieved with the help of Michelle’s mother — that’s OK too!)  No hand-wringing, no drama, no remorse.  As one of my favorite law professors and mentor tells me often:  never, ever be defensive about or second-guess the peace of mind that comes with providing for your family when, in fact, for you that might be as an important a part of motherhood as being home with fresh baked goods at 3 o’clock.  That is not, of course, to demean those who are able to provide that.  Rather, what Michelle Obama has crystallized for me is that working — whether as a babysitter or waitress or lawyer — doesn’t have to be labelled (as our society is so wont to do) a right, or a privilege, or a burden, or a luxury.  If it’s what you are going to do, it just is.  Stop over-thinking it and go be a kick-ass lawyer.*  Just get it done.

*Her choice to leave her big-law firm for lower-paying community-focused endeavors is a whole other posting…

A few weeks ago I received an email from the dean of my liberal law school proudly announcing that our commencement speaker would be Attorney General Michael Mukasey.  I had no doubt that the dean had flexed his conservative muscles to not only secure the AG, but to get this speaker approved by the committees-that-be (arguing, perhaps, that a speaker from the current administration would bring some political balance to the proceedings).  At first, I was somewhat pleased that we’d have a high-profile speaker, as opposed to a state representative or something.  But our student body (as well as the faculty) is proudly progressive (taking the lead in cases such as FAIR v. Rumsfeld, for example.)  Would Mukasey incite the same anger and controversy that Condi Rice did two years ago, when she spoke at the university’s main graduation ceremonies?  (Many faculty members actively boycotted the speech.)  When May 23 rolls around, will Mukasey really be up on that podium?

We’ll see:  The story was picked up by the law student’s guilty pleasure, Above the Law, and some students have started a Facebook group called Waterboarding IS torture (I don’t know if this link will work).  Apparently, neither the faculty nor the students had any input on the selection (actually, not really surprising considering the ideological gap between the dean — whom, I must point out, I had for Con Law and nevertheless really admired as a teacher — and the students and faculty.) 

As one professor so eloquently stated in an email to faculty:

Substantively, if you think for just a moment about what figure in the current Administration is most identified with its equivocation on questions of the legality of degrees of torture, isn’t it Mr. Mukasey - both back in his October confirmation hearing testimony and subsequently in his unspecific statements sidestepping judgment on waterboarding and similar practices, surely one of the most distressing ethical and legal issues of recent years?No matter how decent a man Mr. Mukasey may be personally, how solid his professional career, or how elevated his current position - and without regard to the issue of bringing in more conservative figures to counterbalance the school’s historically progressive stances - wouldn’t it seem quite problematic to bring Mr. Mukasey here at this particular moment in time? If it weren’t for this issue, he would certainly be a laudable choice. But for a school that asserts a special commitment to issues of morality and ethics in its education of future lawyers, to choose at this point in time to bestow honors to the most prominent symbol of one of the most legally and ethically troubling national policies in the past 50 years would have seemed not just inappropriate, but unthinkable. It cannot avoid transmitting a troubling symbolic message. What will our students, our alumni, our University, the nationwide law school academy generally, and the public’s opinion of our school make of this symbolic choice as the weeks grow closer to our graduation ceremonies?

In my legal ethics class, my professor (a former Supreme Court clerk for Chief Justice Warren Burger and perhaps the sharpest legal mind I have yet encountered) pointed out that had Mukasey come right out and and said that waterboarding was torture, he would have undermined the work of the entire Department of Justice, throwing the administration and its handling of the war into chaos.  Nevertheless, I can’t imagine that the dean didn’t think through the implications of inviting Mukasey to speak.  If Mukasey doesn’t comment on the torture memos, he’ll be sidestepping the elephant in the room and will look weak, ineffective, and ingenuous.  Moreover, I agree that inviting someone at the center of one of the most fraught controversies of the Bush administration is almost a slap in the face to those truly concerned about legal ethics.