As a liberal this is tough to say. Arguably, it’s heresy. But I believe it’s time to end to caps on how much individuals can contribute directly to a candidate’s campaign. 

I say this though I am filled by misgivings. I am disgusted by what big money purchases in modern politics – notably, mud-slinging ads. There are those who claim that such ads enlighten voters. I don’t believe it. Many ads are grossly deceptive, and the most deceptive are often the most effective. There has, of course, always been mendacity in politics. But the blend of enormous sums of money and the visual power of television is a particularly toxic brew. 

I am also troubled by how much money it takes to win election to office. Candidates must devote enormous time and energy to raising the campaign funds, and in the process become beholden to enterprises and industries that want a great many things from government.  

None of this is going to change however. It was 36 years ago when, in Buckley v. Valeo, the Supreme Court held that it is unconstitutional to limit how much individuals can contribute to political advertising, as long as the money is not contributed to candidates. The Court’s more recent decision in Citizens United – that corporations and unions may also spend unlimited sums of money in the same manner – is likely to be just as permanent. Good government groups may be motivated by the best of intentions in seeking to overturn those decisions by constitutional amendment; but that isn’t going to happen. 

We are now in the era of the Super-PAC, which can raise and spend unlimited funds for the specific purpose of electing a particular candidate, and may be operated by people with close connections to that candidate, just as long as it maintains a fig leaf of independence. 

The rules of the game have become absurd. That’s one good reason to ditch them. 

I have also been persuaded by a seven-page essay titled “On Limiting Campaign Contributions” by former Senator James L. Buckley in his book Freedom at Risk: Reflections on Politics, Liberty, and the State (Encounter Books 2010). Buckley, of course, was the lead plaintiff in Buckley v. Valeo. In his essay, Buckley notes that he and his co-plaintiffs “were political underdogs and outsiders.” Buckley had won election to the United States Senate in 1970 as the candidate of the Conservative Party of New York State. Another plaintiff was Senator Eugene McCarthy, the anti-Vietnam war candidate who challenged a sitting president of his own party for the Democratic presidential nomination in 1968. Although McCarthy did well enough in the New Hampshire primary to stun Lyndon Johnson and cause him to decide not to seek re-election, many in the Democratic Party considered McCarthy’s effort unforgivable. Another plaintiff was Stewart Mott – a benefactor of liberal causes and candidates – who had contributed $220,000 (the equivalent of about $1.3 million today) to McCarthy’s presidential campaign. Buckley observes that neither he nor McCarthy could have run those races if the $1,000 contribution limit imposed by amendments to the Federal Election Campaign Act in 1974 had then been if effect. 

Buckley goes on to write: 

The 1974 amendments were supposed to de-emphasize the role of money in federal elections. Instead, by limiting individual contributions…that law has made the search for money a candidate’s central preoccupation. When I ran in 1970, I never made telephone calls requesting money, and I doubt I attended as many as a dozen fundraising functions. Passing the hat was the exclusive concern of my finance committee. Today, the need to scrounge for money has proven so burdensome that two senators recently cited this as a major reason for their decision to retire from public life. 

Buckley persuasively argues that because they are so prolix, campaign finance laws handicap insurgent candidates and grass-roots campaigns, and enhance the advantages of incumbents. He also observes that contribution limits have fueled the rise of PACs, which were created to circumvent those limits. 

It would be better if donors contributed directly to candidates, and that candidates be responsible – and accountable – for their campaigns. It is also preferable that it become easier for candidates to raise money. 

The internet makes it possible to require instant disclosure of campaign contributions. That makes sense. Voters should be able to learn who is contributing to candidates and to entities that sponsor political advertising. Senator Buckley is concerned – as was Justice Clarence Thomas in Citizens United – about disclosure leading to harassment of contributors. On that I disagree. Although Justice Thomas claimed there have been “death threats, ruined careers, damaged or defaced property,” and other serious incidents, the harassment of campaign contributors is probably rare. Penalties for threats and other serious forms of harrassment should be heavy, and the FBI should vigorously pursue perpetrators. But the value of disclosure is too great to give it up because harassment will sometimes occur. 

Doing away with campaign contribution limits will not lead us into Nirvana. But it is likely to be an improvement over the present state of affairs.

Why did Elizabeth Warren – Democratic candidate for the United States Senate seat from Massachusetts currently held by Republican Scott Brown – list herself as a member of a minority group in the directory of law teachers published by the Association of American Law Schools (AALS)?

Brown suggests that Warren claimed minority status to gain an advantage in the law school faculty employment market. But almost certainly Brown – as well as other Republicans, and most of the media following the story – are barking up the wrong tree.

In this post, I shall set forth my theory about what happened.

First, full disclosure: I am an Elizabeth Warren supporter. I believe she will make significant contributions to the Senate and the nation if she is elected, and I have contributed to her campaign.

Here’s a brief review of the relevant facts. When Warren applied to the Rutgers School of Law in Newark, New Jersey, as a student, she listed herself as white and didn't claim minority status. In 1978, Warren began her career as a law professor at the University of Houston. After three years there, she made a transition to the University of Texas, one of the nation’s top law schools. During this time, Warren continued to identify herself as a non-minority.

In 1986, Warren’s name appeared for the first time in an appendix to the AALS directory that lists law teachers who designated themselves as minorities. Each year, law professors at AALS-member schools fill out a form to update information – degrees earned, positions held, books published, and the like – for the directory. The form also asks whether the faculty member is a member of a minority group. Warren apparently identified herself as Native American. She does have some Native American blood in her veins – but only a few drops. Warren’s great-great-great mother was Cherokee, which makes Warren 1/32 Native American. Warren’s name continued to appear in AALS published list of Minority Law Teachers until 1995. It then disappeared from that list.

In 1987, the year after she first designated herself as a Native American, Warren left Texas and began teaching at the University of Pennsylvania Law School. In 1995, she left Penn for Harvard Law School. Scott Brown and other Republicans suggest that Warren listed herself as a minority in order to help get these appointments. But that is almost certainly not the explanation.

First, if that were the case Warren would not have stopped listing herself as a minority immediately after joining the Harvard faculty. Doing so would have been tantamount to telling Harvard: I told you I was Native American to make you hire me; now that you've done so, I’ll stop the charade. Had Warren intended to make herself more attractive to Harvard by claiming minority status, or believed that Harvard considered her minority status in its hiring decision, she would have continued to list herself as a minority for at least many more years.

Second, Warren did not need to make herself more attractive on the job market by designating herself as a Native American. When Penn hired her, she was a rising super-star. When Harvard hired her, she was a fully-risen super-star – one of, if not the, preeminent scholars in her field. Any law school – even Harvard or Yale – would have considered itself lucky to land her.  

Third, and even more importantly, claiming status as a minority is, by itself, not helpful in the law school employment market. Law schools are indeed seeking to increase minority representation on their faculties. They do so for legitimate and sometimes for less than fully commendable reasons. On the legitimate side of the ledger, schools want minority teachers to increase the diversity of experiences and views on their faculties, and to serve as role models for minority students. In some cases, law schools also want to demonstrate their progressive values. No law school today, for example, would want a photo of its faculty to include only white male faces. But Warren’s minority status was not evident in her appearance, name, or published writings. Nor did Warren’s experiences as a Native American enrich discussions in classrooms or faculty lounges. No one suggests that she was talking about life on the reservation. Unless one consulted an appendix at the back of the 1,900-page AALS directory, no one would have known that Warren was a member of a minority group.

That listing was, therefore, the whole point.

Who benefited from that listing? The University of Pennsylvania Law School benefited because Warren’s listing as a member of a minority group improved its statistics, that is, the percentage of minorities on its faculty. The AALS tracks and cares about such things, and in a variety of ways encourages – some might even say pressures – law schools to increase minority representation on their faculties. Being able to list Warren as a minority was not valuable enough to affect a faculty appointments decision, but it was nice to have. 

So here’s my theory. (And I stress this is only a theory.) At some point during the hiring process, Warren mentioned to one of the people from Penn that she had a great-great-great grandmother who was Cherokee. She didn't mention this because she thought it would make Penn hire her. She knew it was too inconsequential to matter. She also knew that claiming to be Native American when she was only 1/32 Cherokee, if examined by a hiring committee, would make her look foolish and be more likely to hurt rather than help her chances of being hired. She mentioned her great-great-grandmother simply because it was interesting. When Penn extended an offer of employment, however, it asked her to list herself as a minority. This wasn't of earth-shaking importance; but it did improve Penn’s statistics for AALS. Though she privately wasn't happy about it, Warren agreed. She listed herself as Native American on her next AALS form, while she was still at Texas but on her way to Penn, and continued to so list herself for the nine years she was at Penn. As far as she knew, no one at Harvard was even aware of that listing; so when she moved to Harvard in 1995, she immediately stopped listing herself as a minority.

There is one item that cuts a bit against my theory. In a Harvard Crimson article about a lack of diversity on the law school faculty, published in October 1996, a Harvard spokesperson is quoted as saying that "contrary to conventional wisdom" Elizabeth Warren is Native American. (You can access that article here.) Harvard Law School was being heavily criticized at the time because among the 71 members of its faculty, only eleven were women and, even counting Warren, only three were people of color. So someone did tell Harvard Law's public relations department that it could claim Warren as a Native American. While this could have been Elizabeth Warren or her husband, Bruce Mann, who is also a Harvard Law professor, it could also have been someone else. It's possible, for example, that someone at Penn's public relations office tipped off a counterpart at Harvard. But this does not undercut the main point of my theory, namely, that the motive for Warren's listing as a minority law teacher was institutional, not personal.

UPDATE (15 May 2012): Right-wing bloggers are now making much of the fact that genealogists cannot confirm that Elizabeth Warren’s great-great-great grandmother was Cherokee. But that is not directly relevant. What matters is whether Elizabeth Warren reasonably believed her ancestor was Cherokee. She says that is what her grandparents told her – and even her harshest critics concede that a 2006 family newsletter so stated. See, for example, this post.

UPDATE (31 May 2012): See a second piece -- The Elizabeth Warren Mystery II -- on this subject posted today.

Louis H. Pollak – former dean at both Yale and Penn law schools – died on Tuesday. After leaving academia in 1978, Pollak served as a judge on the U.S. District Court for the Eastern District of Pennsylvania, where years ago I had the great pleasure of appearing before him in a number of cases.

Pollak was a lawyer’s judge, and arguing a motion before him was a rare and wonderful experience. Before Pollak come on the bench, a law clerk would line up volumes of case reporters, with bookmarks to relevant case opinions sticking out on top. What then ensued was a discussion with an extremely well prepared – not to mention, brilliant – judge, who had read not just the briefs but all of the bookmarked cases, and who asked marvelous questions about the facts, the law, and the consequences of his possible rulings. I use the word “discussion” for that was the tone he struck. He treated the lawyers with respect – more as colleagues than as subordinates – and truly listened to them. Although arguing before him was challenging, it was also fun because he clearly enjoyed it so much. When argument was over, Judge Pollak came down into the well of the courtroom to shake counsels’ hands. Informal discussions in chambers were similar but with the judge’s beautiful golden retrievers lounging on the floor.

Truth be told, parties weren't always as taken with Judge Pollak as lawyers. He had spent most of his career in academia and had less experience with the gritty realities of the world than judges who ascend to the bench after long experience in the practice of law or politics. He approached things at higher levels of abstract thought than some parties thought practical. He was an optimist, and he was sometimes too ready to assume that everyone was motivated by good intentions. My experiences with him, however, were in his relatively early days on the bench. After seeing more of the darker side of things, as is inevitable for a trial judge, he may have acquired greater skepticism. If this was a failing, however, it was due to Pollak’s genuine respect for other human beings.

Several years ago, on a lovely day in May in Bristol, Rhode Island, Louis Pollak gave the commencement address at my school, the Roger Williams University School of Law. He delivered an eloquent and impassioned jeremiad for justice – just the message for sending off newly-minted lawyers. Pollak cared deeply about justice and devoted his considerable talents to serving its cause. He will be missed.