{"id":3091,"date":"2019-04-02T16:51:25","date_gmt":"2019-04-02T16:51:25","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/lpr\/?page_id=3091"},"modified":"2019-10-03T03:14:28","modified_gmt":"2019-10-03T03:14:28","slug":"volume-13-2","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/lpr\/hlprvolumes\/volume-13-2\/","title":{"rendered":"Volume 13-2"},"content":{"rendered":"
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Volume 13, Issue 2<\/h5>\n

REPRESENTATION, POWER, AND CORRUPTION\u00a0<\/strong><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
Front Matter<\/a><\/h5>\n

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Foreword<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Senator Elizabeth Warren<\/em><\/h4>\n
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\u201cBut It Will Happen\u201d: A Constitutional Amendment to Secure Political Equality in Election Spending and Representation<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Jeffrey D. Clements<\/em><\/h4>\n
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This Article examines a proposed constitutional amendment that would authorize contribution and spending limits in federal and state elections in order to secure the political equality of Americans and combat systemic corruption. After reviewing the Supreme Court\u2019s approach to applying the First Amendment freedom of speech to campaign finance laws in recent decades, I describe the proposed constitutional amendment and its legislative history to date. Then I situate the amendment\u2019s guiding idea\u2014political equality\u2014as an enduring principle of our constitutional framework, including the First Amendment. I propose that the Court has failed to \u201csettle\u201d a First Amendment doctrine that excises politi- cal equality from consideration of how election spending relates to free speech, and explain how the proposed amendment would better serve First Amendment values and strengthen American representative democracy. Finally, I anticipate some of the post-ratification effects of the amendment.<\/p>\n

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How One State Legislature Grappled with Creating an Ethics Commission<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Viki Harrison<\/em><\/h4>\n
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Do you need a scandal to pass ethics reforms in a state? Or can you pass an effective ethics commission without elected officials creating some momentum by breaking the law? This Article reviews how one state, New Mexico, grappled with creating an ethics commission for decades. Enacting ethics commissions that hold state legislators and other elected officials accountable in a public way is a difficult but critical task for advocates across the country.<\/p>\n

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Enforcing the Anti-Corruption Provisions of the Constitution<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Karl A. Racine & Elizabeth Wilkins<\/em><\/h4>\n
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The United States currently has a President who, unlike those who came before him, refuses to extract himself from extensive business entanglements at home and abroad. Those entanglements violate the Emoluments Clauses of the Constitution. They also pose serious threats to the integrity of our democracy. This article briefly lays out the legal argument for why the President\u2019s actions violate the Constitution. It also demonstrates that these clauses are judicially enforceable, and the states are well-positioned to enforce them. While the lawsuit brought by the D.C. Attorney General\u2019s Office, alongside the Maryland Attorney General\u2019s Office, against the President clearly articulates how the President is violating the law, this article seeks to excavate the norms and principles that the laws protect and why their violation threatens our system of government.<\/p>\n

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Deregulating Corruption<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Ciara Torres-Spelliscy<\/em><\/h4>\n
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The Roberts Supreme Court has, or to be more precise the five most conservative members of the Roberts Court have, spent the last twelve years branding and rebranding the meaning of the word \u201ccorruption\u201d both in campaign finance cases and in certain white-collar criminal cases. Not only are the Roberts Court conservatives doing this over the strenuous objections of their more liberal colleagues, they are also breaking with the Rehnquist Court\u2019s more expansive definition of corruption. The actions of the Roberts Court in defining corruption to mean less and less have been a welcome development among dishonest politicians. In criminal prosecutions, politicians convicted of honest services fraud and other crimes are all too eager to argue to courts that their convictions should be overturned in light of the Supreme Court\u2019s lax definition of corruption. In some cases, jury convictions have been set aside for politicians who cite the Supreme Court\u2019s latest campaign finance and white-collar crime cases, especially Citizens United v. FEC<\/em> and McDonnell v. United States<\/em>. This Article explores what the Supreme Court has done to rebrand corruption, as well as how this impacts the criminal prosecutions of corrupt elected officials.<\/p>\n

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The Dance of Partisanship and Districting<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Nicholas O. Stephanopoulos<\/em><\/h4>\n
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Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, which amounts to perhaps the most hyperpartisan era in our country\u2019s history. I then explore how redistricting law has responded to the ebbs and flows of partisanship. In the earlier timeframe, courts (properly) focused on nonpartisan line-drawing problems like rural overrepresentation and racial discrimination. In the hyperpartisan present, on the other hand, courts have (regrettably) refrained from confronting directly the threat, partisan gerrymandering, that now looms above all others. Instead, courts have either shut their eyes to the danger or sought to curb it indirectly through the redeployment of nonpartisan legal theories.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Denying Systemic Equality: The Last Words of the Kennedy Court<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Daniel P. Tokaji<\/em><\/h4>\n
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This Article examines the Supreme Court\u2019s voting, speech, and religion decisions in the 2017\u201318 Term, arguing that their unifying feature is the denial of systemic equality. In a series of end-of-Term constitutional rights decisions, the Court resolutely insisted on viewing equality in atomistic terms. In so doing, the Court ignored and even exacerbated systemic inequalities in each of these realms. In his last Term on the Court, Justice Kennedy was part of the majority in all of these decisions.<\/p>\n

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ALSO FEATURING<\/strong><\/h3>\n

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Impeachment as Punishment<\/a><\/h3>\n

Andrew Manuel Crespo<\/em><\/h4>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
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In\u00a0their recent book \u201cTo End a Presidency,\u201d Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors.\u00a0This review essay examines that same question\u2014why impeach?\u2014through the broader lens of criminal jurisprudence, which perennially confronts a related and familiar question: why punish? That latter question typically attracts a range of responses, which can be organized into three basic categories: Sometimes, punishing a criminal is thought to have concrete benefits, such as protecting the rest of society from future harm. Alternatively, punishing a criminal might be viewed as a morally required response to a wrongful act, irrespective of concrete benefits. Finally, punishment might be viewed as an important sociological practice, whereby society expresses the values it holds most dear and attempts to heal itself when those values are transgressed.<\/p>\n

As this essay\u2019s introduction explains, impeachments and criminal prosecutions are not identical proceedings nor do they pursue perfectly identical aims. But still, the trio of explanations offered to justify criminal punishment can help illuminate the complex judgments driving the question of impeachment. Accordingly, the three sections of this essay examine impeachment through the lens of those three theories of punishment, organizing arguments for and against impeachment along utilitarian, retributive, and sociological axes. In so doing, the essay exposes the vexing and inescapable questions that underlie impeachment and criminal punishment alike\u2014questions that may well be unanswerable, but that must be grappled with all the same.<\/p>\n

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The Social Consequences Problem in Health Insurance and How To Solve It<\/a><\/h3>\n<\/div>\n<\/div>\n<\/div>\n
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Matthew B. Lawrence<\/em><\/h4>\n
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This Article identifies a problem with contemporary U.S. health care that contributes to \u201cbalance billing,\u201d the absurd complexity of medical bills, and other visible and invisible health care consumer harms. Casting medical providers as bill collectors misaligns incentives for both health insurers and providers in ways that make the market for health insurance particularly bad at trading off health care\u2019s medical consequences with its often severe social, financial, and psychological consequences. As a result, such \u201csocial consequences\u201d go unchecked or even exacerbated by an entity\u2014the health insurer\u2014who controls when, where, why, and how insureds must pay medical bills.\u00a0This \u201csocial consequences problem\u201d in health insurance provides a much-needed normative foundation for existing and proposed health insurance consumer financial protections. But the social consequences problem infects all aspects of medical billing for insureds and existing reforms address only its most visible symptoms. The Article therefore calls for and proposes systemic solutions.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Volume 13, Issue 2 REPRESENTATION, POWER, AND CORRUPTION\u00a0 Front Matter   Foreword Senator Elizabeth Warren   \u201cBut It Will Happen\u201d: […]<\/p>\n","protected":false},"author":20018,"featured_media":0,"parent":58,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"class_list":["post-3091","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/PeZQka-NR","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/3091","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/20018"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=3091"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/3091\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/58"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=3091"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}