Fifth Annual Executive Branch Review Conference
The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. The Conference began with an opening address by Senator Mike Lee and concluded with a closing address by OMB Director Mick Mulvaney.
This panel of the 2017 Executive Branch Review Conference was held at the Mayflower Hotel in Washington, D.C. on May 17, 2017.
Breakout Session: Congressional Oversight of Voting Rights
10:45 a.m. – 12:15 p.m.
- Mr. Adam Ambrogi, Program Director, Elections, Democracy Fund Voice
- Mr. Robert Popper, Senior Attorney and Director, Election Integrity Project, Judicial Watch
- Mr. Robert A. Sensenbrenner, General Counsel, Committee on House Administration
- Mr. John Tanner, Former Chief, United States Department of Justice Voting Section
- Moderator: Mr. Will Consovoy, Partner, Consovoy McCarthy Park PLLC
Mayflower Hotel Free Speech and Election Law Practice Group Podcast
On May 22, the Supreme Court threw out two North Carolina congressional districts as discriminatory. State legislatures face confusion over how to redistrict without violating either the Voting Rights Act or the Equal Protection Clause of the 14th Amendment. What does this case mean for the redistricting that will occur throughout the country after the 2010 Census? How can courts distinguish between legally acceptable partisan and unacceptable racial motives in redistricting when certain racial groups disproportionately support one particular political party? Hans von Spakovsky, a former commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department, discussed these issues and the Cooper decision.
SCOTUScast 5-15-17 featuring Jack Park
- Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation
On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring.
On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest.
By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny.
Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.
To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP. Civil Rights Practice Group Podcast
On March 8, Judge Frances M. Tydingco-Gatewood of the District Court of Guam struck down a Guam law that permitted only those who meet the definition of “Native Inhabitants of Guam” to vote in a future status plebiscite. This decision has been met with opposition from elected officials, protests at the federal courthouse, public rallies, and now an appeal to the Ninth Circuit Court of Appeals.
Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island and opponents contend they are doing so without giving all citizens a voice in the process. What did the district court decide, and what does the reaction say about the rule of law and respect for the Constitution? Christian Adams joined us to discuss the latest in Davis v. Guam.
2017 National Student Symposium
Congress' passage of the Bipartisan Campaign Reform Act of 2002 did not end the debate on campaign finance. Instead, it arguably created more legal questions than it did answers.
The Act's passage quickly unleashed subsequent litigation, resulting in a number of Supreme Court decisions directly related to the BCRA and, more broadly, to general laws regulating campaign finance. These recent Supreme Court cases, including the much-discussed Citizens United decision, struck down many campaign regulations on the grounds that they infringe upon individuals' First Amendment rights. Some have charged that decisions like these have increased the influence of a privileged few in our political system. Others have argued that these decisions are not only doctrinally correct, but the prudential fears many have expressed have not been borne out.
Still, Americans remain discontented with the current campaign finance regime. According to a New York Times/CBS News poll in 2015, 46% of respondents agree that the country needs to completely rebuild its campaign finance system, while 39% believed it requires fundamental change. Today, groups and individuals continue to fight limits on political contributions, and restrictions on political speech, while others push for stricter regulations.
This panel will weigh in on whether decisions like Citizens United are correct as a matter of law, and if they are desirable from a policy perspective. The panel will also discuss the jurisprudential foundations of Citizens United—including the landmark case of Buckley v. Valeo—and where future fights over campaign finance regulations are likely to occur.
This panel was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.
Panel 2: Campaign Finance and Free Speech
9:30 a.m. -11:00 a.m.
Jerome Greene Hall 104
- Prof. Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former FEC Commissioner
- Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
- Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
- Prof. Ciara Torres-Spelliscy, Fellow, Brennan Center for Justice; Associate Professor of Law, Stetson University College of Law
- Moderator: Hon. Richard J. Sullivan, U.S. District Judge for the Southern District of New York
Columbia Law School
New York, New York