In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns
Election Law Journal, vol. 15, no. 4, pp. 302-329 (2016) (with Abby K. Wood)
In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First Amendment jurisprudence that these donors are disproportionately affected by campaign finance regulations. In short, the argument that disclosure chills speech is not strongly supported by the data.» Slides
· 2015 Travers Conference on Ethics and Accountability in Government (San Francisco, CA)
· 2012 Conference on Empirical Legal Studies (Stanford Law School)
· 2011 American Political Science Association Annual Meetings (Seattle, WA)
Administering Section 2 of the VRA After Shelby County
Columbia Law Review, vol. 115, no. 8, pp. 2143-2218 (2015) (with Christopher S. Elmendorf)
Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; and, second, that the courts have authority to regularize Section 2 adjudication by creating rebuttable presumptions. Most Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.
Did Multicultural America Result From a Mistake? The 1965 Immigration Act and Evidence From Roll Call Votes
University of Illinois Law Review, vol. 2015, no. 3, pp. 1239-1258 (2015) (with Gabriel J. Chin)
Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade America; education, employment, housing, politics, and the population itself have irreversibly changed.
Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a majority minority nation. In 1960, because U.S. law restricted immigration by race, 85% of the population was non-Hispanic white. Since the enactment of the Immigration Act the Hispanic and Asian American share of the population has more than quintupled, and by 2043 the Census Bureau projects that African Americans, Latinos and Asian Americans together will comprise a majority of the population.
Based on the legislative history, statements by government officials, and media reports, many scholars argue that Congress did not intend to change the racial demographics of the immigrant stream. Instead, these scholars argue that the diversification of the American population was an enormous unintended consequence, one which Congress, had it appreciated what it was doing, might have thought better of. This Essay introduces novel evidence to evaluate that claim: the roll call votes of the House and Senate on these laws. The votes show that nearly identical coalitions of civil rights advocates supported all three laws while the same group of racially intolerant legislators opposed all three. This pattern suggests that all three laws had similar motivations and goals. We argue that the laws were inspired by sincere anti-racism and not cosmetic responses intended to have little practical effect.
The Geography of Racial Stereotyping: Evidence and Implications for VRA "Preclearance" After Shelby County
California Law Review, vol. 102, no. 4, pp. 1123-1180 (2014) (with Christopher S. Elmendorf)
The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the "outdated" formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within sub-state geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make sub-state coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader "bail in" remedies for constitutional violations than would otherwise be justified.
» Academic presentations
· 2013 Cooperative Congressional Election Survey Conference (Sundance, UT) -- Spencer slides
· 2012 Midwest Political Science Annual Meetings (Chicago, IL) -- Elmendorf slides (.ppt)
» TV appearances
· Elmendorf on "The War Room" (Current TV, July 2, 2013)
· Spencer on "Inside Story Americas" (Al Jazeera English TV, June 26, 2013)
» In the media
· Slate (Op-Ed, July 17, 2013)
· The Philadelphia Inquirer (June 27, 2013)
· Pacific Standard (June 25, 2013), reposted on Salon.com (July 3, 2013)
· The Nation. (June 25, 2013)
· Mother Jones (June 25, 2013)
· The New York Times infographic (June 23, 2013)
· Election Law Blog guest post (March 4, 2013)
Legislating Incentives For Attorney Representation in Civil Rights Litigation
Journal of Law & Courts, vol. 2, no. 2, pp. 241-271 (2014) (with Sean Farhang)
Abstract | Paper | Replication materials (upon request)
In this paper we investigate whether, when Congress relies upon private lawsuits to implement a law, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. We ask: In statutes with private rights of action, can Congress substantially affect whether plaintiffs are represented by counsel? Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel to represent them. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel, and that in doing so it reversed a decade long trend in the opposite direction.
· 2012 American Law and Economics Ass'n Annual Meetings (Stanford Law School)
· 2012 Western Empirical Legal Studies Conference (UCLA Law School)
· 2011 Law and Society Association Annual Meetings (San Francisco, CA)
Citizens United, States Divided: An Empirical Analysis of Independent Political Spending
Indiana Law Journal, vol. 89, no. 1, pp. 315-372 (2014) (with Abby K. Wood)
Abstract | Paper
What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in "treated" states to spending in the "control" states that have never banned corporate or union independent expenditures. We find that while independent expenditures increased in both treated and control states between 2006 and 2010, the increase was more than twice as large in the treated states and nearly all of the new money was funneled through nonprofit organizations and political committees where weak disclosure laws and practices protected the anonymity of the spenders. Finally, we observe that the increase in spending after Citizens United was not the product of fewer, larger expenditures as many scholars and pundits predicted, and we note that people were just as likely to make smaller expenditures (less than $400) after Citizens United as they were before. This finding is particularly striking because it cuts against the conventional wisdom of spending behavior and also challenges the logic of those who disagree with the most controversial element of the Citizens United decision – the rejection of political equality as a valid state interest.
» Slides (.pdf)
· 2012 Law and Society Association Annual Meetings (Honolulu, HI)
· 2012 Midwest Political Science Association Annual Meetings (Chicago, IL)
» In the media
· New York Times (October 9, 2014)
· The Wall Street Journal Law Blog (January 23, 2014)
Are Ballot Titles Biased? Partisanship in California's Supervision of Direct Democracy*
U.C. Irvine Law Review, vol. 3, no. 3, pp. 511-549 (2013) (with Christopher S. Elmendorf)
This study investigates whether and if so under what conditions the California Attorney General, who authors the ballot title and summary ("label") for statewide ballot initiatives, writes ballot language that is biased rather than impartial. State law demands an impartial label, but commentators frequently complain that the AG chooses misleading language to bolster (undermine) measures that the AG or his/her party supports (opposes). Using a convenience sample of students from several universities, we measure ordinary observers’ perceptions of bias in ballot labels for initiatives dating back to 1974. Separately, we calculate an objective measure of bias using a readability algorithm. We then test hypotheses about AG strategy, examining whether the extent of bias in ballot labels varies with the closeness of the election and the degree to which the measure elicits partisan division. We also examine the correlation between bias perceptions and observer characteristics such as support for the ballot measure, trust in government, and social trust.
· Invited paper for 2012 Election Law Symposium (UC Irvine)
Long Lines at Polling Stations? Observations from an Election Day Field Study
Election Law Journal, vol. 9, no. 1, pp. 3-17 (2010) (with Zachary S. Markovits)
This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, what are the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. This study highlights the importance of evaluating polling station operations as a three-step process: arrival, check-in, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We found statistically significant, and meaningful, variation in the service rates of poll workers and voting technology. Our findings should better help election officials make important decisions about the allocation of critical resources.
» Slides (.ppt)
· 2009 Midwest Political Science Annual Meetings (Chicago, IL)
· 2008 Jurisprudence and Social Policy Forum (UC Berkeley)
· 2008 Survey Research Center Brown Bag Seminar (UC Berkeley)
* solicited piece for law review symposium
Corporations as Conduits: A Cautionary Note About Regulating Hypotheticals*
In this paper, prepared as part of a symposium on the intersection of corporations and money in politics, I illustrate the various ways that corporations can spend their money to influence politics in America and the relevant disclosure rules (or lack thereof) that track this political activity. I also highlight opportunities for individuals to exploit corporate transparency loopholes to illegally spend money in American politics and address the question whether proof of possible nefarious activity is sufficient to justify regulations targeting actual nefarious activity, drawing on recent debates about voter fraud. Finally, I argue that campaign finance laws have been created, justified, implemented, and interpreted in relative isolation from one another, creating unnecessary (though perhaps anticipated) loopholes in enforcement that undermine the goals of oversight and accountability in campaigns and elections. Campaign finance regulations can only be effective insofar as they respond to the dynamic character of political campaigns. Thus, policymakers should focus less on “comprehensive” reform and more on “integrated” reform, resulting in more emphasis on as-applied challenges in the courts.
Campaign Finance and the Rhetoric of Corruption: A Conjoint Experiment (with Alex Theodoridis)
Current Supreme Court jurisprudence dictates that campaign finance regulations may only be justified if the regulations target quid pro quo corruption or the appearance of corruption. The modifier "appearance of corruption" is ubiquitous in campaign finance decisions yet completely untheorized, leaving unanswered such questions as: what kind of corruption must be perceived? To whom must the potential for corruption appear? How real must the perception be? How strong must the nexus between the appearance and actual threat of corruption be? Is the appearance of corruption sufficient without any evidence of actual corruption? In this paper I report the findings from a national survey that asked respondents to identify behavior they consider "corrupt" and that measures respondents' likelihood of perceiving corruption using a conjoint experiment with hypothetical candidates for public office. Preliminary analysis suggests that the appearance of corruption is driven more by contemporary political rhetoric about corruption than by actual corruption, similar to perceptions of fraud in the voting rights context.
Democratic Responsiveness in State Policy Implementation (with Miranda Yaver)
A question at the core of American politics and policymaking is to what extent elected representatives act in ways that reflect the preferences of the electorate to which they are accountable. This issue of democratic responsiveness has been been evaluated in depth in the context of legislative behavior and the role of public opinion in shaping legislators' votes. An important limitation to the existing studies is their failure to disentangle de facto and de jure policymaking at the state level. The practice of measuring policy adoptions is common, with the observation that once adopted, policies are rarely appealed. Yet policies may in fact stay "on the books" while changing with respect to the nature and vigor of their actual enforcement given developments in public opinion or the partisan configuration in which the relevant institutions are operating. We seek in this paper to remedy what we see as an important oversight in the democratic responsiveness literature to date, and work to answer the following core question: To what extent, and under what conditions, does public opinion shape the vigor of state-level policy enforcement? We evaluate this within the policy domains of the death penalty and hate crimes, but hope to extend to additional policies in future work.