Legislative Process and Political Rhetoric
Spring 2016
COURSE SYLLABUS
Professors Jamin Raskin and Jeff Blattner
raskin@wcl.american.edu and jeffblattner@gmail.com
Course Description and Overview
Law school education tends to be organized around the image of a lawyer arguing
before a judge. But what if we replaced this image with a lawyer organizing a protest
movement, running for office, making a speech, drafting legislation, or casting a vote in
Congress?
The subject of this Class is the dynamic interaction of democratic process,
individual leadership, political rhetoric, legislative institutions, the Constitution and the
law governing elections. It is organized around a series of problems and inquiries
designed to develop and sharpen your skills as a lawyer engaged in public things and as
an effective political organizer, leader or legislator if you choose to follow a path of
public service.
The Class has two parts. The first examines the politics of law: the legislative
process and the complex dialectics of social movement, personal leadership and public
rhetoric that interact with that process to bring, or stifle, political change in America.
The second reverses the focus and examines the law of politics, specifically significant
historical and contemporary problems in the arrangement of American political
democracy, elections and citizenship. The constant factor in our deliberations is the
inextricable relationship between law and politics.
There will be between 50 and 100 pages of reading on average per week; please
do your readings thoroughly in advance. Most of the readings are available on-line
through our class site. Others are available through the hyperlinks contained in this
syllabus.
Students should prepare to answer the most important problems and questions
raised in the syllabus and by the readings; on many class days, we ask you to prepare
with a partner or to deliver a written response. We will occasionally bring guests to
class.
Office Hours
Professor Raskin’s office hours are immediately after class or by appointment.
Professor Blattner’s office hours are by appointment. We are happy to meet with you
individually or in small groups over the course of the semester. You can reach us at
raskin@wcl.american.edu or jeff.blattner@gmail.com or Professor Raskin by phone at
1
(202) 274-4011 (AU) or (202) 957-7539 (cell) and in the Maryland Senate at (301) 8583634.
Grades
Your grade will be based 25% on the quality and consistency of your seminar
participation and 75% on your final paper, which should be original, well-documented,
creative and--in the best-case scenario (this is our definition of an A paper)-- publishable.
The paper must be at least 20 pages, it should be double-spaced and have footnotes, and it
may concern any topic covered or suggested by the class that we approve in advance.
We will discuss topics in class and you should present us with an outline by Monday,
March 28. Please email both professors a final copy of your paper by Friday, April 29 at
5:00 PM.
Externships
Students are encouraged to do an Externship in conjunction with class, either in
the Maryland General Assembly (in Annapolis), on Capitol Hill, or in the Council of the
District of Columbia. We will be happy to help you set this up. Many students have
already arranged their externships; please let us know as soon as possible if you would
like to do one. In prior years, students have found doing an externship a great way to
enrich their understanding of the concepts discussed in class and also made important
contacts for the development of their careers. Students who do not do externships have a
standing invitation to come see the Maryland Senate in action this semester and I will let
you know when various things are happening.
Reading and Class Assignments
The Politics of Law in Democracy: Where Does Law Come From?
Class 1 (January 11): Democracy Versus Representation. What is the relationship
between democracy and representation? Are they complementary or antithetical? What
does the concept of representation mean? How do the requirements of legal
representation (representation by an attorney) differ from the requirements of political
representation (representation by an elected official)? We will examine different theories
of how elected representatives ought to function in relationship to their followers and
constituencies. What should a legislator do if she disagrees with a majority of her
constituents on an issue? Should the constituency educate the representative or the
representative educate the constituency? Should they part ways? We will examine the
Hobbesian theory of “authorization” in representation, agency theory, descriptive
representation, symbolic representation, Burkean and Madisonian theories of trusteeship
and microcosm in representation, and liberal theories of representation. Class Guest,
Maryland Delegate Johnny Olszewski, Jr. Delegate Olszewski (“Johnny O.”) is a
young Maryland Delegate representing conservative blue-collar Democrats in Dundalk
outside of Baltimore. In a classic political dilemma created by the legislative push in
Maryland for marriage equality for gays and lesbians in 2009, Johnny O. was forced to
choose between his conscience and the majority sentiment of his constituents. He will
2
discuss this dilemma and how he tried to resolve it. Delegate Olszewski was defeated in
his run for the State Senate in November 2014 and is now working on his graduate
dissertation. OR
Class Film: Eyes on the Prize: The Mississippi Freedom
Democratic Party. What were the dilemmas of political and legal representation faced
specifically by Fannie Lou Hamer, Bob Moses, Hubert Humphrey, President Johnson,
and Joseph Rauh in the controversy over the seating of the MFDP Delegates at the 1964
Democratic National Convention?
Readings:




Bernard Manin, “A Democratic Aristocracy,” Chapter 4 from THE PRINCIPLES OF
REPRESENTATIVE GOVERNMENT, pp.132-160 (1997)
Hanna Fenichel Pitkin, THE CONCEPT OF REPRESENTATION 209-240 (1967).
Eric Burner, and gently he shall lead them: Robert Parris Moses and Civil Rights
in Mississippi, pp.169-199
ABA Model Rules of Professional Conduct, Rules1.0-1.18
Class 2 (January 25): Leadership and its Varieties We will study examples and
counter-examples of three kinds of leadership—political leadership, rhetorical
leadership, and legislative leadership, drawing on portraits of Rev. Martin Luther King,
Bob Moses, President Franklin D. Roosevelt, Adlai Stevenson and President Lyndon
Johnson. Why are Dr. King and Bob Moses “anti-types” according to Garry Wills?
What is the relationship between “rhetorical leadership” and “political leadership”? Is
the former necessary to the latter? What is the promise of rhetorical leadership; what are
its dangers? What is the promise of “organizing leadership” and what are its dangers?
What was the political genius of LBJ and what were his unique leadership qualities?
What was it about the Senate that made it the perfect fit for his legislative style? Were the
qualities that he exhibited inextricably bound to his particular political positions or might
they be available to leaders of different political views?
Readings: Please note: this is a lot of reading but it’s very interesting. Please give
yourselves 4-5 hours to get it done.





Garry Wills, Electoral Leader, CERTAIN TRUMPETS 23-38 (1994).
Gary Wills, Rhetorical Leader, CERTAIN TRUMPETS 211-226 (1994).
Eric Burner, And gently he shall lead them: Robert Parris Moses and Civil Rights
in Mississippi, pp.20-70
Robert Caro, The Presence of Fire, THE YEARS OF LYNDON JOHNSON: MASTER OF
THE SENATE, ix-xxiv (2002).
Robert Caro, Seniority and the South, THE YEARS OF LYNDON JOHNSON: MASTER
OF THE SENATE, 78-163 (2002).
Robert Caro, Yeas and Nays, THE YEARS OF LYNDON JOHNSON: MASTER OF THE
SENATE 944-989 (2002).
3
Class 3 (February 1): Political Rhetoric: The Gettysburg Address and Great Speeches
in American Politics. Legislative and political success depends upon persuasion, which
in turn depends, at least in part, on the art of rhetoric. What was revolutionary, both in
style and substance, about the Gettysburg Address, the greatest speech so far in our
history? We will read Garry Wills’ essay and analyze its structure, its style and its
meaning. For class, each student will take a second speech from the readings and analyze
it closely, outlining its structure and key rhetorical techniques, especially the deployment
of ethos, pathos and logos. Be prepared to deliver a section or two of the speech and to
give your analysis of what you find both most and least effective about it.
Readings:

Excerpts from AMERICAN SPEECHES: POLITICAL ORATORY FROM THE
REVOLUTION TO THE CIVIL WAR:
 John C. Calhoun, Speech in the Senate on AntiSlavery Petitions, Washington,
DC, Feb. 6, 1837, 293-299.
 Abraham Lincoln, Speech in Congress on the War with Mexico, Washington,
DC, Jan. 12, 1848, 322-332.
 Daniel Webster, Speech in the Senate on Compromise Resolutions,
Washington, DC, Mar. 7, 1850, 483-523.
 Abraham Lincoln, Address at Gettysburg, Pennsylvania, Nov. 19, 1863, 732.

Excerpts from AMERICAN SPEECHES: POLITICAL ORATORY FROM ABRAHAM
LINCOLN TO BILL CLINTON:
 Thaddeus Stevens, Speech in Congress on Reconstruction, Washington,
DC, Dec.18, 1865, 6-18.
 William Jennings Bryan, Speech to the Democratic National Convention,
Chicago, IL, July 9, 1896, 142-149.
 Mary Churchill Terrell, What It Means to Be Colored in the Capital of the
United States, Washington, DC, Oct. 10, 1906, 204-212.
 Franklin D. Roosevelt, Speech to the Democratic National Convention,
Chicago, IL, July 2, 1932, 373-383.
 Richard M. Nixon, “Checkers” Speech, Hollywood, CA, September 23,
1952, 504-515.
 Dwight D. Eisenhower, Farewell Address, Washington, DC, Jan. 17,
1961, 529-34.
 Lyndon B. Johnson, Address to Congress on Voting Rights, Washington,
DC, Mar. 15, 1965, 623-632.
 Robert F. Kennedy, Remarks on the Assassination of Martin Luther King,
Indianapolis, IN, Apr. 4, 1968, 693-694.
 Jesse Jackson, Speech to the Democratic National Convention, San
Francisco, CA, July 17, 1984, 741-753.
4

Excerpts from THE SENATE 1789-1989: CLASSIC SPEECHES 1830-1993, Vol. 3,
Bicentennial Edition:
 Robert C. Byrd, On the Nomination of Clarence Thomas to the Supreme
Court, Oct. 15, 1991, 759-768.

Garry Wills, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA 1940, 90-175, 263 (1992).
Class 4 (February 8, 2015): A Case Study in the Forms of Rhetoric: the Politics of
Religion, 1960 and 2008. Ancient rhetoric was a formal system for organizing and
classifying speech and, at the same time, achieving both understanding and eloquence in
public. What are the essential components of political rhetoric? Writing Assignment:
Write a close textual comparison of 1-2 pages comparing John F. Kennedy’s speech
on religion and politics in 1960 with Governor Mitt Romney’s speech on religion
and politics in 2008. How do they compare in terms of substance, style and rhetorical
technique? What assumptions is each candidate making about his audience and what it
wants to hear? In-Class Assignment: Prepare as a candidate for Congress in your
home state and give a speech about the proper place of religious faith in public life
and how religion figures into your own political thinking.
Readings:





Harold Holzer, THE LINCOLN-DOUGLAS DEBATES 40-135 (1993).
John F. Kennedy, Address to the Greater Houstonian Ministerial Association
(Sept. 12, 1960).
Mitt Romney, Faith in America, Address at the George Bush Presidential Library
(Dec. 6, 2007).
Excerpts from THE CAMBRIDGE COMPANION TO ANCIENT RHETORIC:
Catherine Steel, Divisions of Speech 77-91
John Winthrop, “City on a Hill” Sermon (1630).

Class 5 (February 15)): What is N in Rousseau’s Formula; Who Belongs to “the
People”? There are hidden ambiguities in the theory of democratic sovereignty. 1.
Majority of what? Should a majority (or plurality) be counted on the basis of all eligible
voters or all voters who actually show up and participate? A fascinating window on to
this debate appeared in the form of a recent inquiry by the National Mediation Board
about whether to reverse decades of policy by shifting from a majority-of-the-electorate
rule to a majority-of the-voters rule under the Railway Labor Act for the conduct of union
representation elections. Where do you come down on it? Was my submission to the
NMB a diversion from democratic principles? 2. Must the People be Citizens for
Purposes of Voting? For purposes of reapportionment? Non-citizens have
traditionally been counted in the census and calculated as part of the reapportionment
process. Now there is an effort in the Evenwel case to argue that only voters should be
5
counted for the purposes of reapportionment. Is this the constitutional standard? Is it
feasible? Meantime, in the 18th and 19th centuries, non-citizens participated pervasively
in American elections, voting in nearly two dozen states at the local, state and national
levels. Should non-citizens actually be granted the right to vote in local or other elections
today? 3. Felon Disenfranchisement: Felons who do good time and are released from
state custody have voting rights in most states but some 5 million are still disenfranchised
in about a dozen states. Does the disenfranchisement of former felons violate Equal
Protection or the Voting Rights Act?
Readings:











National Mediation Board, In Re Fleet Service Employees of Continental Airlines
(2009) (Comments of Professor Jamin Raskin in Support of Proposed Rule)
National Mediation Board, In Re Fleet Service Employees of Continental Airlines
(2009) (Adoption of Rule)
Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and
Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391 (1993).
Paul David Meyer, Citizens, Residents, and the Body Politic, 102 CAL. L. REV.
465 (2014).
Takoma Park Share the Vote campaign materials
Ernest Drucker and Ricardo Barreras, The Sentencing Project, S TUDIES OF
VOTING BEHAVIOR AND FELONY DISENFRANCHISEMENT AMONG INDIVIDUALS IN
THE CRIMINAL JUSTICE SYSTEM IN NEW YORK, CONNECTICUT, AND OHIO (2005).
Roger Clegg, George Conway, and Kenneth Lee, The Case Against Felon Voting,
2 U. ST. THOMAS J.L. & PUB. POL’Y 1 (2008).
Evenwel v. Abbott, Lyle Denniston, The choice — be bold or practical SCOTUSblog
Evenwel v. Abbott, Lyle Denniston, “How to measure ‘one person, one vote’”
Class 6 (February 22): “Three-Fifths,” 270, and the Red States and Blue States: the
Slave Power, Congress, the Electoral College, and the National Popular Vote Plan The
infamous “three-fifths compromise” marked a founding and radical departure From
Rousseau’s democratic formula of 1/N (although the exact politics of the compromise
were quite the reverse of what is commonly thought). This rule for calculating the large
slave population in the reapportionment process dramatically shaped American politics
and history. What was the “slave power”? Why was Jefferson called “Negro President”?
How did these constitutional and political arrangements influence our history? To what
extent do presidential elections still have a Southern accent because of the 3/5
compromise? Popular dissatisfaction with the Electoral College, which Thomas
Jefferson called a “dangerous blot” on the Constitution, led both to some early
constitutional reform and continuing proposals for abolition. But the small states in
Congress, and other erstwhile skeptics of change, have blocked repeal. In 2007, the
National Popular Vote movement scored a breakthrough when Maryland became the first
state to initiate and join an interstate compact of states that would commit to cast their
presidential electors for the winner of the national popular vote (rather than the winner in
their individual states). Since then, Hawaii, Illinois, New Jersey, California,
6
Massachusetts, Vermont, the District of Columbia, Rhode Island, Vermont, and
Washington have adopted the plan, meaning that, under the terms of the Agreement, it is
more than half-way to enactment. Is the National Popular Vote Compact constitutional?
How would it work? Is it time, and is this the right way, to replace the current regime?
Readings:







Garry Wills, NEGRO PRESIDENT 50-89.
Jamin Raskin, Neither the Red States Nor the Blue States, But the United States:
the National Popular Vote and American Political Democracy, ELECTION L.J.
(2008).
Alexander Belenky, The Good, the Bad, and the Ugly: Three Proposals for
Introducing a National Popular Vote to the United States, 106 MICH. L. REV. 110
(2008).
National Popular Vote Campaign, EVERY VOTE EQUAL1-31 (2008).
Max Ehrenfreund, How A Constitutional Quirk Could Guarantee A GOP Win In
2016, Washington Post (November 10, 2014).
Reid Wilson, The GOP’s Electoral College Scheme, THE NATIONAL JOURNAL
(Dec. 17, 2012), http://www.nationaljournal.com/columns/on-the-trail/thegop-s-electoral-college-scheme-20121217.
THE LAW OF POLITICS AND LEGISLATIVE PROCESS
Class 7 (February 29) The “Two-Party System,” “Bizarrely Drawn” Districts, and
the Redistricting Trap: Controversies Over “Racial” and Partisan
Gerrymandering: 1. It is a commonplace to observe that the “two party system” is
central to American politics and government. But what is that “system” precisely? A
constitutional requirement or an unconstitutional imposition? A rhetorical fiction or a
political-science prediction? The instantiation of popular democracy or an
anticompetitive threat to it? We will examine the workings of the “two-party system”
through partisan redistricting and “gerrymandering.” Was the Court correct to say in
Vieth that partisan gerrymandering is not justiciable because there are no workable
judicial standards for defining and managing it? Are there viable alternatives to the
aggressive computerized gerrymandering that has taken over American politics and led to
polarization and reduced electoral competition? If interested in writing a paper on this,
check out Common Cause’s “Gerrymander Standard” Writing Competition at
http://www.commoncause.org/issues/voting-and-elections/redistricting/gerrymanderstandard-writing-competition.html There is a $5,000 first prize for solving the puzzle! 2.
Nothing is more common in American political discourse, from George Washington to
Barack Obama, than denouncing partisanship and faction and declaring an intention to
rise “above” it. But is partisanship (and are parties) all bad? What might be said for the
utility of partisanship in legislative and public politics? 3. Ever since its decision in Shaw
7
v. Reno in 1993, the Supreme Court has considered majority-African American and
majority-Hispanic legislative districts presumptively unconstitutional if they display
“uncouth” perimeters or are based on discernibly “racial” legislative motivations. Does
this line of authority constitutionalize a presumptive right of white citizens to be in
political majorities? Whatever the constitutional merits of the issue, do methods exist to
transcend the continuing toxic debate over “racial gerrymandering”? Are there feasible
techniques of proportional representation that can liberate us from all forms of
gerrymandering?
Readings:





Shaw v. Reno, 509 U.S. 630 (1993).
Vieth v. Jubelirer, 541 U.S. 267 (2004)
Transcript of Oral Argument, Alabama Legislative Black Caucus v. Alabama,
U.S. Supreme Court (November 12, 2014).
Jais Mehaji and Rob Richie, Gerrymandering in Michigan and the Super
District Remedy, FairVote, (July 20, 2011),
http://www.fairvote.org/research-and-analysis/blog/gerrymandering-inmichigan-and-the-super-district-remedy/
Online Only:
 Check out these fine websites on redistricting:
 http://www.fairvote.org/redistricting
 http://www.redistrictinggame.org/ and
http://www.gerrymanderingmovie.com/index.php.

Class Guest: Rob Richie from FairVote.
Class 8 (March 14): The Two-Party System and Political Discourse and Competition:
the Problems of Debate Exclusion and America’s Signature Fetish. If political
discourse and competition of ideas are central to democratic process, the law governing
political debates and ballot access is important, albeit nearly invisible. What are the
constitutional and statutory frameworks governing institutional debate sponsorship and
methods for selecting candidate participation in American politics? Was the Forbes
decision correct? What are the constitutional and statutory frameworks governing access
to the ballot? Was Jenness v. Fortson correct? In the wake of Forbes, can you come up
with a candidate debate protocol for public and private media that you think is fair and
democratic but still excludes “Willy Wacko” (in the words of Chief Justice Rehnquist
from the oral argument in the Forbes case)? (Should “Willy Wacko” be excluded?) Can
you come up with a candidate and party qualification rule for ballot access that is fair and
democratic but does not lead to clutter and confusion? For an in-class exercise, you and
your partner should either develop a fair and constitutional set of candidate inclusion
criteria for the Commission on Presidential Debates in the 2016 presidential election or
else develop a model rule for Congressional candidates to qualify for ballot presence.
What do you think of Level the Playing Field’s proposal to the FEC?
8
Readings:


Forbes v. Arkansas Educational Television Commission (1998)
Raskin, “Arrogant Orwellian Bureaucrats,’” excerpt of Chapter 6 from Overruling
Democracy: the Supreme Court versus the American People.
 Jenness v. Fortson, 403 U.S. 431 (1971).
 Jamin Raskin, America’s Signature Exclusion, OVERRULING
DEMOCRACY 91-116
 (2003).
 FEC Petition by Level the Playing Field for More Inclusive
Candidate Debate Criteria,
http://sers.fec.gov/fosers/showpdf.htm?docid=306278
 Nancy Rosenblum, Chapter 8: Centrism and Extremism and an
Ethic of Partnership in On the Side of the Angels, 369-411.

(For those who get truly obsessed with the issue, you can also read on your own my
article called “The Debate Gerrymander” in 77 Texas Law Review 1943 (1999).)
Class 9 (March 21): 21st Century Exclusion: Suppressing the Vote and
Disenfranchisement of the District. 1. If the vote is “fundamental,” is it okay to enact
measures to suppress turnout? 2. Many students will doubtless move to Washington, D.C.
upon graduation. Remember this: the 600,000 citizens of Washington are the only
residents of a capital city on earth who lack voting representation in their national
legislature. What difference does this make, if any? Is it constitutional? Does the
majority-African American character and “bizarrely drawn” perimeter of the District
change the analysis? Would it be constitutional for Congress to give District residents a
vote in the House of Representatives (but not the Senate), as is currently being proposed?
Are there other viable alternatives, such as retrocession to Maryland or a constitutional
amendment establishing the right of all citizens to vote and be represented?
Readings:





Crawford v. Marion County Election Board, 553 U.S. 181 (2008)
Frank v. Walker, (7th Cir. October 10, 2014) (Posner J. dissenting from denial of
rehearing en banc).
Rick Hasen, Voter Suppression’s New Pretext, New York Times (November 15,
2013)
Texas v. Holder, (D.D.C. 2012), vacated and remanded in light of Texas v.
Shelby, ___ U.S. ___ (2013).
Garry Wills, J.Q. Adams: The Federal (Slave) District, NEGRO PRESIDENT 200213 (2003).
9


Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000).
Garry Young, The District of Columbia and Its Lack of Representation in
Congress: What Difference Does It Make?*
Class 10 (March 28): Congressional Committees and the House of Representatives:
What are the purposes of congressional hearings and committees? What’s behind the
introduction of legislation? What is the impact of the House Rules for considering bills
on the outcome of the legislation?
Readings:




House Practice: A Guide to the Rules, Precedents and Procedures of the House,
Chapter 11: Committees (2003)
Congressional Research Service, The Committee Markup Process in the House of
Representatives (2006)
Congressional Research Service, “The Legislative Process on the House Floor:
An Introduction” (2006)
H. Res. 903, A Rule for the Consideration of Health Care Legislation (2009)
Class 11 (April 4): Senate Floor Procedures and the Filibuster: How is the Senate
different from the House? Is it “the world’s greatest deliberative body” or something
else? What are the virtues and vices of the filibuster, and were the Democrats right to
exercise the “nuclear option”?
Readings:
Course Packet:

Congressional Research Service, “The Legislative Process on the Senate Floor:
An Introduction” (2012).
 Senator Byrd on the Filibuster (1995).
 Todd Purdum, AN IDEA WHOSE TIME HAS COME, 230-311 (2014)
 Akhil Amar, “Each House may determine the Rules of its Proceedings”
AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE
LIVE BY 361-68 (2012).
 John O. McGinnis and Michael B. Rappaport, The Constitutionality of Legislative
Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995).
 The Senate Invokes The Nuclear Option, November 21, 2013, excerpt from
debate, Congressional Record November 21, 2013, S8414-23
 Senator Hatch on the Regular Order in the Senate, February 12, 2015
Class 12 (April 11): The Crumbling Wall of Separation Between Corporate Wealth
and Public Elections. In the Citizens United decision (2010), the Supreme Court, by a
vote of 5-4, struck down prohibitions on corporate political spending in election
10
campaigns. Are corporations indeed like citizens or groups of citizens in the political
process; are they subordinate “creatures of the state”; or have they grown more powerful
than both the citizenry and the state? What are the implications of the decision for the
ban on corporate contributions in federal elections which goes back to the Tillman Act of
1907? Should municipal corporations now be able to intervene in partisan election
contests too? 501C(3) non-profits? Foreign corporations? Must all restrictions on
corporate campaign money be lifted?
Readings:






Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876 (2010).
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
City of Boston v. Anderson, 439 U.S. 1389 (1978).
Jamin Raskin, Democracy and the Corporation, OVERRULING DEMOCRACY 171197 (2003).
Jamie Raskin, “A Shareholder Solution to ‘Citizens United,’” Washington Post,
October 3, 2014, http://www.washingtonpost.com/opinions/a-shareholdersolution-to-citizens-united/2014/10/03/5e07c3ee-48be-11e4-b72ed60a9229cc10_story.html
McCutcheon vs FEC, U.S. Supreme Court (April 2, 2014)
Class 13 (April 18?) Lobbying, Bribery and Corruption. What do lobbyists do? What
gives lobbyists “influence”? What are the federal rules governing the activities of
lobbyists? What does it mean for the legislative process or a legislator to be “corrupted”?
How do we define corruption and what is the baseline against which we are measuring it?
Are all campaign contributions corrupting? Are none of them? How do we know the
difference between legitimate “political expression” and bribery? Is it constitutional to
limit lobbyist influence after McCutcheon vs. FEC?
Readings:




Campaign Contributions and Federal Bribery Law, 92 HARV. L. REV. 451
(1978).
South Carolina’s Ban on Lobbyist Fundraising, S.C. Code §2-17-80
NCSL, “Limits on Contributions During the Legislative Session”
“Lobbying Law in the Spotlight: Challenges and Proposed Improvements,”
Report of the Task Force on Federal Lobbying Laws, Section of Administrative
Law and Regulatory Practice, American Bar Association (2011)
11
Class 14 (April 25??): Does Democratic Reform this Century Require a
Constitutional Amendment? Is the Political Process “broken” and what could be done
about it? Has the combination of the structure of the Senate, the filibuster, political
apportionment, and the “constitutionalizing” of campaign finance created legislative
“sclerosis”? What would a modern constitutional convention look like? Could there be
agreement on changes? Is the Constitution too hard to amend?
Readings:







Course Packet:
Constitution of the United States, art. V
Thomas Jefferson,Letter to Samuel Kercheval, Monticello, July 12, 1816
Sanford Levinson, Disenchantment and Desire, OUR UNDEMOCRATIC CONSTITUTION
167-180 (2006)
Akhil Amar, The Consent of the Governed: Constitutional Amendment Outside
Article V (1994)
William Van Alstyne, The Limited Constitutional Convention: The Recurring
Answer (1979)
Jamie Raskin, Democratic Capital: A Voting Rights Surge in Washington Could
Strengthen the Constitution for Everyone, William and Mary Law Review (2014)
Online Only:
Lawrence Lessig, Keynote Address from the Left, Conference on a Constitutional
Convention (you can begin at the 35:00 mark)
Class Conclusion and Dinner Party
*******
12