NULJ SPRING 2022 FINAL JOURNAL

Northwestern Undergraduate Law Journal Spring 2022

2022 Journal

Issue 2 Volume 1

NULJ MASTHEAD 2021-2022 Executive Board 2022 Editor-in-Chief Editor-in-Chief Senior Editor Senior Editor Forum Executive Editor Form Executive Editor Journal Managing Editor Journal Managing Editor Treasurer Director of Programing Co-Creative Director Co-Creative Director

Ashley Ravid Haley Lawson Dheven Unni Kirsten Huh Tess Ballis Hannah Cheves Kaitlyn Seese Claire Lu Michelle Pak John Perales Jr. Reese Rosental Saporito Daniel O. Rodriguez

NULJ Staff Writers Oliver Goldman Sara Ibrahim Anna Dellit Allie Tong Camille Nooney Elizabeth Bulat Reva Balakrishnan Mia Xia

Julia Filimowicz Emily Zou Emily Yang Ian Park Daniel Wolf Aidan Lichamer Aidan Ocampo Assem Beldhadj

Regan Cornelius Neha Ramani Amy (Doyun) Kim

NULJ MASTHEAD 2021-2022 Programing Team Skylar Scharer Elliot Oppenheim Carter Popkin Caitlin Jimmar Talib Becktemba-Goss Dylan Jost Sam Kliss

Creative Team Harrison Israel Joy Fu Alice Hurley

Podcast Team Maia Smith Sally Kim Kaden Evans-Shaw

Editorial Team Jessica Zeng Brian Albert Patrick Ales Daniel He Sangjun Lee Maayan Abouzaglo Leila Narisetti Pierre Charki Rosie Newmark Kaitlyn Shi Michael Crystal Elena Fabian Anna Westfall Sophia Pennex Sophia Chang Sara Yen Luke Vredenburg Elisabeth Betts Renan Dennig Hannah Yang Katherine Ferreira O'Connor Johanna Tam Kiran Sheth Arianna Staton Rayyana Hassan Audrey Park Alexandre Brunet Gabrielle Rancifer Maddy Bennett Allison Rhee Iris Lin

Northwestern Undergraduate Law Journal

2022

FACULTY REVIEW BOARD The Northwestern Undergraduate Law Journal is honored to have the following professors supporting this publication.

Professor Andrew M. Koppelman John Paul Stevens Professor of Law Northwestern Pritzker School of Law Professor Joe Mathewson Professor at the Medill School of Journalism, Media, Integrated Marketing Communications Northwestern University

Spring 2022

2022 Journal

Issue 2 Volume 1

LETTER FROM THE EDITORS Dear Reader, On behalf of the staff of the Northwestern Undergraduate Law Journal, it is our honor to present to you the second annual edition of our journal.

Amid the global tumult of the first few years of our organization’s existence, our staff and contributors have shown incredible resilience, creativity, and drive in helping to define and refine the goals of the NULJ and furthering its mission to foster undergraduate discourse about the law. This journal is the result of tireless work by many, and the work presented here represents only a fraction of their efforts. In addition to the journal, the work done by the NULJ also includes a regular podcast featuring expert legal voices, a forum of short-form legal scholarship written and curated by students, a national high school essay contest, and an annual symposium to celebrate and highlight the work done by our members.

In keeping with the mission statement of our organization, this edition of the journal presents four articles representing an array of views on both contemporary and cumulative legal issues and questions. The journal contains an overarching governmental theme, with the first three articles concerning the Supreme Court and the fourth focusing on governmental regulation of Artificial Intelligence (AI). Our contributing authors come from University of Colorado Denver, the George Washington University, and Northwestern University.

We would like to acknowledge the Creative, Programming, and Editorial teams for all their work, as well as the contributions of the Staff Writers toward our digital forum.

Special thanks to Reese Rosental Saporito, Kaitlyn Seese, Daniel Rodriguez, as well as Professors Mathewson, Ben-Arieh, and Koppelman for their work on this edition of our journal. Working with and for the members of this journal has been a pleasure, and we are incredibly grateful for this opportunity and excited to see what the future of the journal holds. As a young organization, the Northwestern Undergraduate Law Journal has quickly grown both in size and in scope while navigating a rapidly changing school climate, and it is our belief that great things lie ahead for future editions of the journal. Without further ado, we are honored to present the second issue of the Northwestern Undergraduate Law Journal.

Thank you, Ashley Ravid and Haley Lawson Editors-in-Chief

Northwestern Undergraduate Law Journal

2022

Table of Contents Advancing and Protecting the Deferred Action for Childhood Arrivals Program (p.7)

By Jessa Davidson

Citizens United and Its Implications for Representative Democracy (p.32)

By Annah Hillary

I Dissent: A Comparative Analysis of Victim-Blaming in the Thomas and Kavanaugh Proceedings (p.91)

By Rose Genaris

Regulating Government Use of Artificial Intelligence (p.155)

By Benjamin Nober

Spring 2022

2022 Journal

Issue 2 Volume 1

Advancing and Protecting the Deferred Action for Childhood Arrivals Program Department of Homeland Security et al. v.

Regents of the University of California et al.

Jessa Davidson The George Washington University (Class of 2023) Major: International Affairs Spring 2022

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Advancing and Protecting the Deferred Action for Childhood Arrivals Program Department of Homeland Security et al. v. Regents of the University of California et al.

Jessa Davidson The George Washington University (Class of 2023) Major: International Affairs Spring 2022

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Abstract The current status of the Deferred Action for Childhood Arrivals (DACA) program, the untenable position in which it leaves its recipients, and appropriate remedies are discussed in this paper. The DACA program is based on an executive order, which makes it relatively easy to change by subsequent U.S. administrations, and leaves the livelihoods of the roughly 800,000 DACA recipients in constant peril. The Supreme Court Case Department of Homeland Security et al. v. Regents of the University of California et al. illustrated this vulnerability. The Supreme Court held that the previous administration's effort to terminate DACA was invalid solely because they did not comply with procedural requirements. The legality of DACA was further challenged in State of Texas, et al., v. United States of America, et al. (2021). This case resulted in an injunction against DACA, and the program currently remains on hold. Therefore, DACA recipients' futures remain uncertain, as do the futures of 1.3 million other people who rely on, and benefit from, the DACA recipients. Required actions to address this issue are described, starting with reforming DACA and turning it into federal law to protect young immigrants, known as Dreamers. The "American Dream and Promise Act of 2021" must also be approved by the Senate. This bill proposes a pathway to citizenship, an aspect that DACA lacks. These two actions combined will fulfill a moral and political obligation to Dreamers, who will significantly benefit the U.S. economy and help ensure the vibrancy of the American workforce.

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I.

Introduction

In 2012, President Barack Obama issued an Executive Order establishing the Deferred Action for Childhood Arrivals (DACA) program. Those who meet the qualifications, outlined further in this paper, can request a delay of deportation for two years with unlimited renewals.1 DACA protects nearly 800,000 people from deportation and allows them the opportunity to live full lives within the U.S.2 Prior to DACA, immigrants who came to this country illegally at a young age had no path to legal residency in the U.S. These children grew up in the United States, went to school in the United States, worked in the United States, and served in the United States’ military but faced the risk of being deported to a foreign country they had no ties to. DACA gave these children a chance to live in the United States legally.

Despite the protections that DACA offers—or perhaps because of these protections—the DACA program is in a very vulnerable position. Since the policy is contained in an executive order, it can be repealed just as easily as it was created. This vulnerability was prominently displayed in the Supreme Court case of Department of Homeland Security et al. v. Regents of the University of California et al. Here, DACA’s termination was prevented only because the government official who was given the task of ending the program used the wrong procedure.

DACA should therefore become federal law. Otherwise, the 800,000 people directly affected by the program will remain at the mercy of politics. It is unjust and unreasonable to allow the lives of people, who are for all intents and purposes American, to be chess pieces of partisan politics.

1

“What Should Be Done about DACA?” Anti-Defamation League, accessed March 2021, https://www.adl.org/education/educator-resources/lesson-plans/what-should-be-done-about-daca.

2 “What Is DACA and Who Are the DREAMers?,” Anti-Defamation League, accessed March 2021, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-ar e-the-dreamers.

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II.

DACA: What It Is, How It Was Formed and Why

In 2001, the Development, Relief and Education for Alien Minors (DREAM) Act was introduced in Congress to protect immigrants from deportation who entered the U.S. as children.

The Act would have allowed all undocumented high school graduates or GED recipients an opportunity to gain citizenship.3 Since 2001, 11 versions of the Dream Act have been introduced in Congress but none have become law.4 President Obama saw the merit in the DREAM Act.5 The immigrants who qualify for citizenship under the DREAM Act (known as Dreamers) are American in every way: they grew up here, call the U.S. home, and know no other country.

Given Congress’s inability to pass the law, President Obama decided to take matters into his own hands. He announced that the Department of Homeland Security (DHS) would create a program to delay the deportation of young immigrants who were brought to the U.S. by their parents and do not present a risk to the country in any way.

To support the declaration. President Obama further stated: [I]t makes no sense to expel talented young people, who, for all intents and purposes, are Americans -- they’ve been raised as Americans; understand themselves to be part of this country -- to expel these young people who want to staff our labs, or start new businesses, or defend our country simply because of the actions of their parents -- or because of the inaction of politicians.6

DHS created an intensive requirement list for DACA applicants to ensure the safety of national security and slightly appease the political right who were against the program. The requirements were comprehensive:

3

“The Dream Act: An Overview,” American Immigration Council, March 16, 2021, https://www.americanimmigrationcouncil.org/research/dream-act-overview.

4 Ibid., 5 Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/.

6 Barack Obama, “Remarks by the President on Immigration,” National Archives and Records Administration (National Archives and Records Administration, June 15, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigratio n.

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● The applicant is at least 15 years old upon applying but under the age of 31 as of June 15, 2012. ● The applicant must have been under the age of 16 when they entered the U.S. and lived in the U.S. continuously since June 15, 2007. ● The applicant must have been in the U.S. on June 15, 2012, currently be in school or have graduated, or have been honorably discharged from the military. ● The applicant cannot have been convicted of a felony, substantial misdemeanor, or three or more misdemeanors.7 The application to earn DACA status is seven pages long and carries a 495-dollar filing fee.

After the application is completed, the applicant is screened using biometric data, and the U.S. Citizen and Immigration Services completes a background check.8 In other words, the process is long, thorough, and cumbersome.

If an applicant is successful, the deferred action lasts for two years with unlimited opportunities for renewal contingent upon the DACA applicant, often also referred to as a Dreamer, not being convicted of a felony, significant misdemeanor, or three or more misdemeanors.9 With DACA status, immigrants can live the life of a relatively average American citizen: they can obtain work permits and health insurance, attend school, go to college and get a driver’s license.10 Almost 800,000 individuals have directly benefited from this program and have been able to build lives and livelihoods in the U.S. 7

Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/.

8 Ibid., 9 “Renew Your DACA,” USCIS, January 12, 2021, https://www.uscis.gov/humanitarian/renew-your-daca.

10 Caitlin Dickerson, “What Is DACA? And How Did It End Up in the Supreme Court?” The New York Times (The New York Times, June 18, 2020), https://www.nytimes.com/article/what-is-daca.html.

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The DACA program, however, is not a path to citizenship. While the recipients have deferred the possibility of deportation and are considered “lawfully present” in terms of receiving Social Security and health care, DACA does not grant lawful status to the Dreamers.11 DACA recipients are not U.S. citizens.

III.

Actions of the Trump Administration

Donald Trump focused much of his first Presidential campaign on illegal immigration. Once elected, he spent a significant portion of his time trying to reduce the number of immigrants on U.S. soil.12 Trump was determined to end the DACA program, an initiative that was widely supported by his mostly conservative Republican voting base.

Trump was very open and outspoken about his dislike of immigrants. For instance, during an Oval Office meeting in 2018 he asked several Cabinet members “Why would we want all these people from shithole countries?”13 Not surprisingly, the Trump administration placed an expiration date on DACA in 2017.

Elaine Duke, the Acting Director of Homeland Security, was told to “wind down [the program] in six months” to avoid a public outcry.14 DACA permits would no longer be renewable and would eventually expire.

Trump’s proposal to end DACA was unjust. The Dreamers had done nothing wrong, yet they were threatened with an abrupt termination of their right to live in the United States. Trump had 11

Lori Robertson, “The Facts on DACA,” FactCheck.org, August 10, 2018, https://www.factcheck.org/2018/01/the-facts-on-daca/.

12 Michael, “Trump Says Administration Will Try Again to End 'Dreamers' Program,” The New York Times (The New York Times, June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/trump-daca.html.

13 Michael, “Trump Says Administration Will Try Again to End 'Dreamers' Program,” The New York Times (The New York Times, June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/trump-daca.html.

14 Vanessa Romo, Martina Stewart, and Brian Naylor, “Trump Ends DACA, Calls On Congress To Act,” NPR (NPR, September 5, 2017), https://www.npr.org/2017/09/05/546423550/trump-signals-end-to-daca-calls-on-congress-to-act.)

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suddenly put the futures of some 800,000 Dreamers, as well as their families, loved ones, and industries that rely on the young immigrants’ contribution, at risk.

The outcry was immediate. Protests, demonstrations, and a furious public response were only the beginning. Then came the lawsuits.

IV.

Department of Homeland Security et al. v. Regents of the University of California et al.

In response to Trump’s decision to terminate DACA, a group of plaintiffs, including numerous individual DACA recipients, several states, the Regents of the University of California, and the National Association for the Advancement of Colored People (NAACP), filed suit challenging the decision. The legality of the DACA program was not at issue; instead, the case focused on how the DACA program was terminated. In a decision hailed by liberals and denounced by conservatives, Chief Justice John Roberts wrote the opinion of the Court which held, in a five to four decision, that the termination of DACA was not valid.

A. Facts of the Case In November 2014, during President Obama’s second term in office, DHS announced that it would expand DACA by taking away the age cap, changing the arrival date from 2007 to 2010, and expanding the deferred action to three years instead of two. DHS also planned to implement Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).15 This decision was an effort to enlarge the DACA program to respond to the needs of society and continue supporting the young immigrants who were brought to the U.S. without intent to violate the law.

Before this plan could be implemented, Texas and 26 other states filed suit in the Federal District Court for the Southern District of Texas and asserted that the proposed DAPA program 15

IV. Department of Homeland Security et al. v. Regents of the University of California et al., 3.

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and the DACA expansion violated the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the duty of the Executive under the Take Care Clause in Article II of the U.S. Constitution.16 Since the plaintiff states were likely to succeed on at least one of their many accusations, the Southern District Court of Texas issued a nationwide preliminary injunction barring implementation and operation of both the DAPA program and the DACA expansion.17 The move to do away with DACA and DAPA accelerated when Trump came into office. In 2017, the DHS reversed the DAPA Memorandum.18 Immediately, Attorney General Jefferson B. Sessions III advised Secretary of Homeland Security Elaine C. Duke to terminate the DACA program. The very next day, Secretary Duke issued a memorandum stating that DHS would only take renewal applications for the next six months but all other recipients’ status would expire without an opportunity for renewal, thus ending the DACA program. 19 Multiple groups of plaintiffs challenged Secretary Duke’s recission announcement including individual DACA recipients, States, the regents of the University of California, and the NAACP. The plaintiffs challenged Duke’s decision in the Federal District Court for the Northern District of California, the Eastern District of New York, and the District of Columbia. The plaintiffs’ claims were that the recession was arbitrary and capricious, violated the APA, and infringed upon the equal protection guarantee of the Fifth Amendment’s Due Process Clause.20 The three District Courts all found in favor of the plaintiffs but for different reasons.21 The Northern District of California and the Eastern District of New York held that the recession violated the 16

Ibid., 4.

Ibid., 18 Ibid., 5.

19 Ibid., 6.

20 IV. Department of Homeland Security et al. v. Regents of the University of California et al., 6.

21 Ibid., 17

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equal protection guarantee of the Fifth Amendment’s Due Process Clause. These two District Courts then entered preliminary injunctions because the plaintiffs were likely to succeed in their claims that the recession was also arbitrary and capricious.22 The D.C. District Court, with the NAACP as the plaintiff, followed a different line of reasoning and held that Duke’s memorandum was “insufficient to explain the change in the agency’s view of DACA’s lawfulness.”23 The D.C. District Court therefore allowed the DHS an additional 90 days to provide a better explanation for its decision.

Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s request with a memorandum. However, instead of creating a new memorandum explaining the decision, Nielsen simply elaborated on her interpretation of Duke’s original memorandum.24 The D.C. District Court stated that Nielsen’s memorandum “failed to elaborate meaningfully on the agency’s illegality rationale, [and] still did not provide an adequate explanation for the September 2017 rescission.”25 The Government appealed the three District Courts’ decisions and filed three petitions for certiorari, which the Supreme Court granted following the Ninth Circuit’s affirmation of the injunction.26 B. Issue This case came down to three key issues: If the Administrative Procedure Act claims are reviewable by the Court, if the rescission was arbitrary and capricious in violation of the APA, and if the decision violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause. In other words, the issue is whether or not the termination of DACA was valid.

C. Holding 22

Ibid., 7.

Ibid., 24 Ibid., 25 Ibid., 8.

26 IV. Department of Homeland Security et al. v. Regents of the University of California et al., 8.

23

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The Court held that (1) the APA claims were reviewable by the Supreme Court, (2) that the rescission was arbitrary and capricious, but (3) the decision was not a violation of the equal protection guarantee of the Fifth Amendment’s Due Process Clause. Therefore, the termination of DACA was not valid.

D. Rationale Reviewability by the Court. The APA outlines the procedures that the federal agencies are required to follow to promote accountability and allow their actions to be reviewed by federal courts. Non-enforcement policies are unreviewable by the APA.27 The Court found that DACA is reviewable under the APA because DACA is more than a non-enforcement policy. DACA does more than prevent deportation; DACA is a process for the U.S. Citizen and Immigration Services (USCIS) to confer affirmative immigration relief to individuals who meet a specific set of criteria.28 Additionally, DACA provides benefits to the eligible immigrants which further confirms its status as more than a non-enforcement policy.29 The APA claims are therefore reviewable by the Court.

Arbitrary and Capricious. The recession can be considered arbitrary and capricious because “Acting Secretary Duke ‘failed to consider… important aspect[s] of the problem’ before her.”30 The first failure was the lack of consideration for the forbearance of removal (deferred action) aspect of DACA. The DACA Memorandum has two key parts: forbearance of removal for two-years and the associated benefits, such as work authorization and Social Security. The Duke memorandum focused solely on the associated benefits of DACA and declared such benefits illegal. Acting Secretary Duke provided no justification for terminating the forbearance policy.31 27

Ibid., 11.

Ibid,.12.

29 V. Department of Homeland Security et al. v. Regents of the University of California et al., 11.

30 Ibid.,18.

31 Ibid., 21.

28

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Duke further failed to consider the option of the termination of benefits while retaining forbearance. 32 The second failure was that Acting Secretary Duke did not address “whether there was ‘legitimate reliance’ on the DACA Memorandum.”33 The Court points to the precedent of Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) which affirmed that agencies must “be cognizant that longstanding policies may have ‘endangered serious reliance interests that must be taken into account.’”34 The failure to consider and accommodate reliance interests was arbitrary and capricious in violation of the APA. 35 It is important to note that when the D.C. District Court granted the DHS an opportunity to provide an “amplified articulation” of the memorandum explaining the termination of DACA, the government had two options: clarify the reasons already provided without providing new explanations or create a completely new memorandum.36 Secretary Nielsen chose the former.

However, Secretary Nielsen offered three explanations that were not present in the initial Duke Memorandum.37 Given that the new explanations for recession were post hoc rationalizations, they are impermissible rationalizations and cannot be used in the decision of the Court.38 Equal Protection. The majority opinion found that the allegations that DACA violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause were unsubstantiated.39 All Justices except Justice Sonia Sotomayor concurred with the opinion of the court on this section. Justice Sotomayor noted that the racist language toward immigrants, refugees, and other minority groups used by Donald Trump throughout his presidential campaign and presidency 32

Ibid., 23.

Ibid., 34 Ibid., 35 Ibid., 36 IV. Department of Homeland Security et al. v. Regents of the University of California et al., Sotomayor, 14.

37 Ibid., 38 Ibid., 15.

39 Ibid., 27.

33

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demonstrated that the termination decision was clouded by personal discrimination and bias.40 The other eight Justices found the issue to be completely procedural in nature without ample evidence to indicate a violation of the equal protection guarantee of the Fifth Amendment’s Due Process Clause.

E. Impact The recission memorandum was sent back to DHS due to the agency’s inability to comply with procedural requirements, and the DHS was invited to reconsider the problem and try again with proper protocol. The Supreme Court’s decision was not about the validity of DACA. Instead, the Court focused solely on whether the government had taken the proper steps under the APA to terminate the program.

Presumably, a government that followed the correct

procedural steps could end the program.

V.

Current Status of DACA

In the following section, the significant and relevant changes that have occurred since the Supreme Court case are described. These changes include a new Presidential Administration, a case at the U.S. District Court for the Southern District of Texas which ruled DACA “illegal,” 41 and the DREAM Act in Congress.

A. The Biden Administration President Donald Trump lost the 2020 presidential election, and he was replaced by current President Joseph Biden. Due to the change in administration, the DHS under the Trump administration did not have an opportunity to remedy the procedural issue and reattempt to 40

Ibid., 2 “Additional Information: DACA Decision in State of Texas, Et Al., v. United States of America, Et Al., 1:18-Cv-00068, (S.D. Texas July 16, 2021) (‘Texas II’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv.

41

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terminate DACA. When Joe Biden was inaugurated on January 20th, 2021, he released a statement promising to preserve and fortify DACA.42 Although the message of this statement was promising, the effect was minimal as seen through the Texas’s District Court decision.

B. State of Texas, et al., v. United States of America, et al.

While the U.S. Supreme Court protected DACA from recession in Department of Homeland Security et al. v. Regents of the University of California et al., the Court did not decide if DACA was legal in the first place; that was not an issue in dispute in the case. The U.S. District Court for the Southern District of Texas took on the issue of legality of the DACA policy. On July 16, 2021, the Southern District of Texas declared DACA illegal and vacated the DHS memorandum that created DACA in 2012.43 The District Court issued a permanent injunction that prohibits the U.S. agencies, departments, employees, etc., from “administering the DACA program and from reimplementing DACA without compliance with the APA.”44 The District Court held that the Obama administration did not follow proper protocol when creating the program and failed to publish the rule in the Federal Register and allow for public comments.45 The Court therefore

42

Joseph R Biden, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” The White House (The United States Government, January 20, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortif ying-deferred-action-for-childhood-arrivals-daca/.

43 “Additional Information: DACA Decision in State of Texas, Et Al., v. United States of America, Et Al., 1:18-Cv-00068, (S.D. Texas July 16, 2021) (‘Texas II’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv.

44 Andrew S Hanen, “Order of Permanent Injunction,” USCIS, July 16, 2021, https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf.

45 Zaidee Stavely, “Biden Administration Takes Steps to Protect DACA as Universities Call for Path to Citizenship,” EdSource (EdSource, September 29, 2021), https://edsource.org/2021/biden-administration-takes-steps-to-protect-daca-advocates-universitie s-call-for-path-to-citizenship/661628.

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remanded the memorandum to DHS “for further consideration.”46 To remedy the procedural issue, DHS proceeded to publish DACA in the Federal Register and allow for comments until November 29, 2021.47 Homeland Security has also appealed the decision of the District Court.48 As long as the Texas Court order remains in effect, the USCIS is permitted to accept initial and renewal DACA requests, but USCIS cannot grant initial DACA requests on or after July 16, 2021.49 That is, current DACA recipients and DACA renewals will function as normal, but a DACA request by an individual applying for the first time is on hold while the Texas court order is in effect. The Biden administration filed a notice in the Fifth circuit Court of Appeals in September of 2021, and this appeal process is ongoing.50 Currently, the USCIS still cannot approve initial DACA requests, leaving many young immigrants in a state of uncertainty.

C. The American Dream and Promise Act 2021 46

“Additional Information: DACA Decision in State of Texas, Et Al., v. United States of America, Et Al., 1:18-Cv-00068, (S.D. Texas July 16, 2021) (‘Texas II’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv.

47 “Federal Register: Deferred Action for Childhood Arrivals,” Federal Register, September 28, 2021, https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-childhoo d-arrivals.

48 Zaidee Stavely, “Biden Administration Takes Steps to Protect DACA as Universities Call for Path to Citizenship,” EdSource (EdSource, September 29, 2021), https://edsource.org/2021/biden-administration-takes-steps-to-protect-daca-advocates-universitie s-call-for-path-to-citizenship/661628.

49 “Additional Information: DACA Decision in State of Texas, Et Al., v. United States of America, Et Al., 1:18-Cv-00068, (S.D. Texas July 16, 2021) (‘Texas II’),” USCIS, August 31, 2021, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-dac a/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-11 8-cv.

50 Joe Walsh, “Biden Vows to Appeal Texas Judge's Daca Ban - Here's What Happens Next,” Forbes (Forbes Magazine, July 17, 2021), https://www.forbes.com/sites/joewalsh/2021/07/17/biden-vows-to-appeal-texas-judges-daca-ban--heres-what-happens-next/?sh=23a0b50f1021.

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The Biden Administration is also reattempting to pass a version of the DREAM Act. The first version of the DREAM Act was proposed in 2001, and as previously mentioned, never became law. The most recent DREAM Act, the American Dream and Promise Act of 2021, which passed the House of Representatives but has not yet been voted on in the Senate, creates a pathway to citizenship for young immigrants.51 This DREAM Act would allow undocumented immigrants, who were brought to the U.S. as children, a pathway to citizenship and increase the number of the young immigrants eligible for legal protection.52 The DREAM Act requires that young immigrants must: ● Be 18 or younger; ● Have continuously resided in the U.S. since, or before, January 1, 2021; ● Not have committed any crime or misdemeanor; ● Demonstrate that they have earned a high school diploma or an equivalent; ● Pass a government background security check, submit biometric and biographic data; ● Pay the application fee.53 The main differences between the DREAM Act and the DACA program are that the DREAM Act creates a path to citizenship and has a more recent arrival date, as opposed to DACA’s 2007 cut-off. DACA recipients would also be eligible to obtain citizenship through the

51

Jonathan Petts, “All about the Dream Act 2021,” All about the DREAM Act 2021 | ImmigrationHelp.org, April 30, 2021, https://www.immigrationhelp.org/learning-center/all-about-the-dream-act-2021.

52 “Bill Summary: American Dream and Promise Act of 2021,” National Immigration Forum, March 12, 2021, https://immigrationforum.org/article/bill-summary-american-dream-and-promise-act-of-2021/.

53 “Bill Summary: American Dream and Promise Act of 2021,” National Immigration Forum, March 12, 2021, https://immigrationforum.org/article/bill-summary-american-dream-and-promise-act-of-2021/.

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DREAM Act.54 President Biden has called on Congress to pass the American Dream and Promise Act and “ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve.”55 The Biden Administration is working to protect Dreamers, but until the DREAM Act is passed by the Senate, DACA recipients have no pathway to citizenship, and the USCIS cannot approve new DACA applications. Given the current state of limbo, DACA needs to be reformed, turned into a federal law, and the DREAM Act must also be successfully turned into a federal law.

VI.

DACA Reform

The first step in DACA reform is turning the executive order into a federal law which is significantly more difficult to overturn than an executive order. Currently, the Dreamers’ status is at risk every four years as they wait to see if the new Presidential Administration will protect or deport them. Department of Homeland Security et al. v. Regents of the University of California et al. showed very clearly that DACA can be overturned using the correct procedure.

The Obama administration attempted to extend the DACA program in 2014 and to remove the age cap and extend the cutoff date of arrival into the U.S. from 2007 to 2010. While this extension did not occur, DACA needs to be extended to include young immigrants brought into the U.S. after 2007. Given that applicants must be at least 15 years old and brought into the U.S. on or before 2007, 2022 will be the last year of DACA recipients. There are thousands of young immigrants brought into the U.S. by their parents after 2007 who do not have access to a

54

“House Passes the American Dream and Promise Act,” American Council on Education, March 22, 2021, https://www.acenet.edu/News-Room/Pages/House-Passes-American-Dream-Promise-Act.aspx.

55 Joseph Biden, “Statement by President Joe Biden on DACA and Legislation for Dreamers,” The White House (The United States Government, July 17, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-preside nt-joe-biden-on-daca-and-legislation-for-dreamers/.

PAGE 23

deferred action program. These children are Dreamers too, and they need and deserve legal protection.

In addition to expanding the cutoff date of DACA and turning it into a federal law, the DREAM Act must be passed in Congress in order to provide a pathway to citizenship. At this point, there is no way for a DACA recipient to become a U.S. citizen. The DREAM Act would remedy this discrepancy and create a much-needed bridge from legal residency under DACA to citizenship. Additionally, The Act is essential to protecting young immigrants in the U.S. who know no other home than the U.S. The U.S. has a moral and political obligation to Dreamers. Dreamers currently provide significant benefits to the U.S. economy and enacting the above changes will help ensure the vibrancy of vital aspects of the American workforce. Over 1.3 million people within the U.S. live with a DACA recipient and approximately 300,000 U.S.-born children have at least one parent that is a DACA recipient.56 Thus, over one million U.S. citizens who rely on a DACA recipient for housing, rent, or caregiving would be negatively affected by the revocation of the DACA program. Additionally, a large majority of the American public supports granting legal status to immigrants brought illegally to the U.S. as children. As of 2018, 74 percent of the public supported granting these young immigrants’ legal status, including 50 percent of Republicans and 92 percent of Democrats.57 Federal law should reflect the public’s support of and reliance on the young immigrants.

56

Nicole Prchal Svajlenka and Trinh Q. Truong, “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition,” Center for American Progress, November 24, 2021, https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipi ents-fall-2021-edition/.

57 Alec Tyson, “74% Favor Legal Status for Those Brought to US Illegally as Children,” Pew Research Center (Pew Research Center, September 8, 2020), https://www.pewresearch.org/fact-tank/2018/01/19/public-backs-legal-status-for-immigrants-bro ught-to-u-s-illegally-as-children-but-not-a-bigger-border-wall/.

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The reliance on the DACA program is more than personal: the Dreamers also significantly benefit the U.S. economy. Over three fourths of DACA recipients –343,000 people– are considered essential workers, including health care providers, teachers, and food supply chain workers.58 The Center for American Progress affirmed that DACA recipients will add 460.3 billion dollars to the U.S. gross domestic product (GDP) within the next decade. If the DACA program is eliminated this substantial economic growth will be lost. California’s GDP, for instance, would be reduced by 11.6 billion dollars if the DACA program is terminated. 59 These young immigrants have lived in the U.S. since they were children, with the average Dreamer having arrived at six years old, and were educated by the U.S. educational system with American values and ambition. Deporting the Dreamers would be a waste of billions of dollars’ worth of human capital that has already been invested into the immigrants through years of education and naturalization.60 Moreover, the DREAM Act, if passed through the Senate and made into a federal law, will contribute another 22.7 billion dollars to the U.S. GDP every year – or 400 billion dollars within the next decade.61 The Dreamers, now on average 26 years old, are the next generation of entrepreneurs, scientists, health care workers, and are a necessary and vital component of the U.S. economy. American citizens rely on the young immigrants on a personal and economic level; removing the program would therefore be a grave mistake for the American people and the U.S. GDP. VII.

Conclusion

58

Nicole Prchal Svajlenka and Trinh Q. Truong, “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition,” Center for American Progress, November 24, 2021, https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipi ents-fall-2021-edition/.

59 “Daca & The Dream Act - Pros & Cons,” Britannica, July 19, 2021, https://www.procon.org/headlines/are-daca-and-the-dream-act-good-for-america/.

60 “Daca & The Dream Act - Pros & Cons,” Britannica, July 19, 2021, https://www.procon.org/headlines/are-daca-and-the-dream-act-good-for-america/.

61 Ibid., PAGE 25

Department of Homeland Security et al. v. Regents of the University of California et al. demonstrated the fragility of the Deferred Action for Childhood Arrivals program and the danger that the Dreamers face every four years. State of Texas, et al., v. United States of America, et al. further highlighted DACA’s vulnerability. Without immediate federal action to expand the DACA program, turn it into federal law, and pass the DREAM Act through Congress, the futures of over 800,000 young immigrants and the additional 1.3 million people who rely on and benefit from Dreamers’ contributions, are continually imperiled. It is imperative for the Biden Administration to act swiftly and decisively to rectify this situation.

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Bibliography “ACLU Framework for Immigration Reform.” American Civil Liberties Union, May 2013. https://www.aclu.org/other/aclu-framework-immigration-reform.

“Additional Information: DACA Decision in State of Texas, Et Al., v. United States of America, Et Al., 1:18-Cv-00068, (S.D. Texas July 16, 2021) (‘Texas II’).” USCIS, August 31, 2021. https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrival s-daca/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-amer ica-et-al-118-cv.

Biden, Joseph R. “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).”

The White House. The United States Government, January 20, 2021. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and -fortifying-deferred-action-for-childhood-arrivals-daca/.

Biden, Joseph. “Statement by President Joe Biden on DACA and Legislation for Dreamers.” The White House. The United States Government, July 17, 2021. https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-p resident-joe-biden-on-daca-and-legislation-for-dreamers/.

“Bill Summary: American Dream and Promise Act of 2021.” National Immigration Forum, March 12, 2021. https://immigrationforum.org/article/bill-summary-american-dream-and-promise-act-of-20 21/.

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“Daca & The Dream Act - Pros & Cons.” Britannica, July 19, 2021. https://www.procon.org/headlines/are-daca-and-the-dream-act-good-for-america/.

Department of Homeland Security et al. v. Regents of the University of California et al.

(Supreme Court of the United States June 18, 2020).

Dickerson, Caitlin. “What Is DACA? And How Did It End Up in the Supreme Court?” The New York Times. The New York Times, June 18, 2020. https://www.nytimes.com/article/what-is-daca.html.

“The Dream Act: An Overview.” American Immigration Council, March 16, 2021. https://www.americanimmigrationcouncil.org/research/dream-act-overview.

“Federal Register: Deferred Action for Childhood Arrivals.” Federal Register, September 28, 2021. https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-chi ldhood-arrivals.

Gamboa, Suzanne. “What Is DACA? What You Need to Know.” NBCNews.com. NBCUniversal News Group, June 26, 2018. https://www.nbcnews.com/storyline/smart-facts/what-daca-n854906.

Hanen, Andrew S. “Order of Permanent Injunction.” USCIS, July 16, 2021. https://www.uscis.gov/sites/default/files/document/forms/i-9-paper-version.pdf.

“House Passes the American Dream and Promise Act.” American Council on Education, March 22, 2021.

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https://www.acenet.edu/News-Room/Pages/House-Passes-American-Dream-Promise-Act.a spx.

Obama, Barack. “Remarks by the President on Immigration.” National Archives and Records Administration. National Archives and Records Administration, June 15, 2012. https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-imm igration.

Petts, Jonathan. “All about the Dream Act 2021.” All about the DREAM Act 2021 | ImmigrationHelp.org, April 30, 2021. https://www.immigrationhelp.org/learning-center/all-about-the-dream-act-2021.

“Renew Your DACA.” USCIS, January 12, 2021. https://www.uscis.gov/humanitarian/renew-your-daca.

Robertson, Lori. “The Facts on DACA.” FactCheck.org, August 10, 2018. https://www.factcheck.org/2018/01/the-facts-on-daca/.

Romo, Vanessa, Martina Stewart and Brian Naylor. “Trump Ends DACA, Calls On Congress To Act.” NPR. NPR, September 5, 2017. https://www.npr.org/2017/09/05/546423550/trump-signals-end-to-daca-calls-on-congress-t o-act.

Shear, Michael, Emily Cochrane. “Trump Says Administration Will Try Again to End 'Dreamers' Program.” The New York Times. The New York Times, June 19, 2020. https://www.nytimes.com/2020/06/19/us/politics/trump-daca.html.

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Stavely, Zaidee. “Biden Administration Takes Steps to Protect DACA as Universities Call for Path to Citizenship.” EdSource. EdSource, September 29, 2021. https://edsource.org/2021/biden-administration-takes-steps-to-protect-daca-advocates-univ ersities-call-for-path-to-citizenship/661628.

Svajlenka, Nicole Prchal, and Trinh Q. Truong. “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition.” Center for American Progress, November 24, 2021. https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca -recipients-fall-2021-edition/.

Tyson, Alec. “74% Favor Legal Status for Those Brought to US Illegally as Children.” Pew Research Center. Pew Research Center, September 8, 2020. https://www.pewresearch.org/fact-tank/2018/01/19/public-backs-legal-status-for-immigrant s-brought-to-u-s-illegally-as-children-but-not-a-bigger-border-wall/.

Walsh, Joe. “Biden Vows to Appeal Texas Judge's Daca Ban - Here's What Happens Next.”

Forbes. Forbes Magazine, July 17, 2021. https://www.forbes.com/sites/joewalsh/2021/07/17/biden-vows-to-appeal-texas-judges-dac a-ban---heres-what-happens-next/?sh=23a0b50f1021.

“What Is DACA and Who Are the DREAMers?” Anti-Defamation League. Accessed March 2021. https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-w ho-are-the-dreamers.

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“What Should Be Done about DACA?” Anti-Defamation League. Accessed March 2021. https://www.adl.org/education/educator-resources/lesson-plans/what-should-be-done-about -daca.

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Citizens United and Its Implications for Representative Democracy

Annah Hillary University of Colorado Denver Fall 2021

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Citizens United and Its Implications for Representative Democracy

Annah Hillary University of Colorado Denver Fall 2021

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Abstract This thesis explores the 2010 Citizens United v. FEC Supreme Court decision and its effects on American representative democracy. I explore democratic theory to establish an understanding of the theoretical goals of representative democracy. I conduct a legal analysis of campaign funding regulations and Supreme Court cases leading up to and following the Citizens United decision. I conduct a literature review containing political science and law review journal articles as well as books. I argue that the protections afforded by Citizens United to corporate speech contribute to modern vote dilution of the majority of U.S. citizens who do not belong to the rather exclusive wealthy class. I find violations of theoretical democratic principles in both equal representation and participatory equality following Citizens United, and I suggest holdings by the Supreme Court that should be revisited to protect the voices of individual citizens and allow the continuation and flourishing of Amerin representative democracy.

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Table of Contents I.

Introduction

II.

Citizens United and United States’ Representative Democracy

III.

Legal Framework Regarding Regulation of Election Funding and Corporate Speech

IV.

Review of the Literature

V.

Discussion

IV. Conclusion Bibliography

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I. Introduction The American governmental system is a representative democracy. Citizens elect the officials that will represent them in official governmental roles. The U.S. Constitution outlines basic rules regulating elections, for example, minimum ages and residency qualifications, but lacks guidelines to ensure equality within its representative process. Thirty out of fifty state Constitutions, including Arizona, California, and Colorado, explicitly provide for free and fair elections, banning obstructions to electoral processes. The Constitutions give specific protections to ensure a free and fair election while the other twenty states do not have these provisions.

The United States’ Constitution does not expressly provide for these electoral protections, as they fall under state powers, and for this reason, elections have been the subject of extensive litigation throughout history. The United States has a long history of voter suppression and disenfranchisement, namely against women, black citizens, and felons,1 and the Supreme Court ruling in Citizens United v. FEC (2010), I argue, further diverges the electoral processes of the United States from being free and fair.

Representative democracy can be defined as a government in which “the source of laws and public policies is a collection of officeholders who have attained office by winning contested elections.”2 In a representative democracy, it is essential that a government ensures participatory equality within its electorate, meaning that all members with voting or campaigning capabilities are met with equal opportunities when voting or running for office. For a governmental system to ensure democracy is fair, the electorate and political candidates should be on an equal playing field in terms of their abilities to secure a campaign victory and vote in an election. American At the inception of the United States, only white, property-owning men were permitted to participate in elections.

Present day, all men and women of any race and property status are permitted to vote. However, barriers still exist to electoral participation through restrictions placed on identification requirements, locations of polling places, and more. Additionally, any citizen with a felony conviction is barred from participating in elections.

2 G. Kateb, “The Moral Distinctiveness of Representative Democracy,” Ethics, special issue: symposium, 9, no. 3 (1981): 35.

1

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citizens have long been plagued by vast income inequalities, with the wealthy elite constituting a minority group while middle- and lower-class citizens make up the majority of the population.

Accentuating these trends of inequality, American elections have been, in recent times, heavily influenced by the opinions and ideals of the wealthy minority through campaign funding.

In 2010, the Supreme Court decided Citizens United v. FEC, holding that limitations placed on independent expenditures made by corporations, labor unions, or other entities violated the First Amendment on grounds that these types of restrictions constituted restraint on free speech. At face value, the court’s reasoning makes sense as protecting speech is a foundational goal of the U.S. Constitution, but I will argue that allowing collective entities the same constitutional protections as individual citizens violates principles of representative democracy. I argue that this decision changed the shape of American elections and grants protection of speech for wealthy corporations while effectively limiting the speech of individual citizens, violating both the letter and spirit of the Constitution.

In this thesis, I seek to explore the connection between the Citizens United decision, which granted corporations protected free speech, and the democratic principles regarding free and fair elections. I argue that the democratic principle affording all citizens equal opportunities to run for office is vastly reduced by the wealthy elite being able to obtain these positions more often and easily than the non-elite majority. I argue that affording wealthy corporations, and the wealthy citizens who own and operate them, threatens American representative democracy, particularly when considering equal representation and free, fair, and impartial elections. I seek to explore whether the privileges afforded to the wealthy minority give way to the emergence of a plutocracy in American government and the ways in which Citizens United led the way for this divergence from representative democracy.

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Citizens United, among other cases relating to campaign financing laws, argued the validity and legality of imposing regulations on campaign contributions. The most important types of contributions for this study are independent expenditures, intermediaries, and direct contributions. An independent expenditure is a type of communication that expressly advocates for the election or defeat of a specific candidate. An intermediary is a person or entity that obtains funding for a political campaign without being officially designated by the respective political campaign to raise money for it. Examples of intermediaries include PACs and Super PACs. A direct contribution is money given directly to a political campaign from an individual.

These are not the only types of political funding, but for the purpose of this thesis, these are the types I will be examining.

First, I will introduce Citizens United alongside political theory regarding democratic principles. Second, I will build a historical legal framework of Supreme Court decisions and congressional legislation leading up to Citizens United, including the Voting Rights cases of the 1960’s and vote dilution. Third, I will provide a literature review on the topics of Citizens United and theoretical democratic principles relating to representative democracy. I will explore opposing viewpoints from authors who support Citizens United. Fourth, I will discuss my findings from my research to make my argument regarding the ways in which Citizens United has affected American elections and shed light on the diminishment of American representative democracy. In the conclusion, I will show how Citizens United contributes to modern vote dilution and works against theoretical principles of representative democracy.

II. Citizens United and United States’ Representative Democracy Citizens United was a result of the ban on corporate funding for political communications that expressly advocated for a candidate or party during the weeks or months leading up to a

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federal election. The Bipartisan Campaign Reform Act (BCRA) of 2002 enacted the ban in an attempt by Congress to regulate campaign funding by wealthy corporations. After Congress signed the BCRA into law, numerous suits were filed in multiple District Courts to challenge it.

Later, I provide a breakdown of the precedents leading up to Citizens United regarding campaign finance laws, but first, I provide an understanding of principles of representative democracy and how they relate to my case study of Citizens United.

One of the foundational goals of representative democracy is to ensure that elections are “free and fair.” In a perfectly democratic society, all citizens that meet designated requirements or competencies rationally related to public service (such as age or residency) would have equal opportunities to run for political office and assurance that they have an equal playing field for obtaining electoral victories. In a representative democracy, citizens elect government officials who act upon the interests of their respective districts when making political decisions. The terms for these elections vary, but a key principle for these governing systems is that all citizens are represented equally and impartially.

Recent changes in jurisprudence surrounding campaign financing pushes the United States into a dangerous territory that borders on plutocracy. In allowing corporations the same protections as individual citizens under the First Amendment, the Supreme Court has effectively allowed for the diminishment of American representative democracy by permitting corporate voices to speak louder than the voices of individual citizens. When the “representation” in representative democracy is skewed by vast gaps in social class and wage inequality, the aspirational goals for this governmental system cannot be met as the voices of the wealthy minority are enabled to more profoundly affect government policy and decision making than those of the lower- and middle-class majority.

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At the conception of American democracy, the Framers sought to develop a governmental system that would protect private property and provide representation to its property-owning citizens. The Federalists viewed full and equal representation dimly, and Alexander Hamilton stated that representative democracy should be made of “gentlemen of fortune and ability."3 On the contrary, Anti-Federalists argued that full and equal representation is that in which the interests, feelings, opinions, and views of the people are collected, in such a manner as they would be were all the people assembled… every member of the union should have a freedom of suffrage and that every equal number of people have an equal number of representatives.45

In the Federalist Papers Nos. 10 and 63, James Madison argued that representative government was necessary to prevent political issues involving corrupt representatives who play on their popularity to exploit voters and deter the election of representatives bent on venting popular passions and prejudices by denying individual rights.6 While these parties were still affected by common racial and gender discrimination, the goals aimed for more equality than what was standard practice at that time.

The disagreements among the Framers in how representative democracy should be achieved have carried into modern times. Unfortunately, the Federalist preference for a democracy made of only the wealthy has manifested in the present-day United States. Ideally, a representative democracy would provide equal representation for all its citizens by ensuring that each citizen voice carries the same weight as their counterparts. A representative democracy is theoretically fair and impartial, allowing equal opportunities for any eligible citizen based upon objective reasonable criteria related to public service, to run for office or vote for their preferred candidates in a meaningful manner.

D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 851.

While this is a direct quotation, it is important to acknowledge that at this time, “all people” most likely was meant to only include white, property-owning men.

5 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014.

6 D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 852.

3 4

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The goals of representative government are well articulated. Robert Dahl theorized that the democratic process is required to make “effective participation” and voting equality available to all adults in a society under which they will be governed.7 Effective participation is “an adequate opportunity, and an equal opportunity, for expressing their preferences as to the final outcome” of an election.8 Regarding “equal opportunity” to participate in the democratic process, Dahl explains that differences in economic status and resources affect this opportunity as “influence is a function of resources,” a concept of great interest to my study of Citizens United.9 “Equality” is a cherished concept in American democracy, but history shows that the U.S. government and wealthy elites have regularly excluded citizens based on race, education, sex, age, property ownership, incarceration status, and economic status. When politics are heavily influenced by affluence and economic status, equal representation cannot exist. Larry Bartels suggests that “there are a variety of good reasons to suspect that policy-makers in real political systems do not consider citizens as political equals.”10 The responsiveness of the American government, as I will show later, is affected by political financial contributions. As theorized by Bartels, the responsiveness of policy makers to the affluent constituents, as opposed to the public majority, may “mask an undemocratic process in which most citizens’ opinions have little or no bearing on policy outcomes.”11 His study further suggests that, in terms of equality in U.S. democracy, [w]ealthier and better-educated citizens are more likely than the poor and less educated to have clearly formulated preferences, more likely to turn out to vote, and significantly

R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 109.

R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 109.

9 R.A. Dahl, Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989, 112.

10 L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234.

11 L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234.

7 8

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more likely to have direct contact with public officials and to contribute money and energy to political campaigns.12

Because politicians are aware of these factors, it is logical to assume that there is a notable difference between the treatment of wealthy and educated citizens and those who are poor and uneducated. The indifference directed towards American voters who are unable to fund political campaigns contributes to voter apathy, further reducing the civic participation of non-affluent citizens in the United States.13 Article 2 of the U.S. Constitution provides requirements for running for president. It states that any natural born citizens or citizens of the United States who are at least thirty-five years old and have lived in the United States for fourteen years are eligible to run for president.

Considering equality, this means that any citizen who meets these requirements should be able to conduct an election campaign with a fair chance to win the presidency. American elections are, in our mythic tradition, intended to be equal and merit-based and ideally would not be reserved so that only elite members of society may hold office. However, as stated by Manin, an “election would benefit conspicuous or prominent citizens, those who practiced the most prestigious or influential professions, the most talented, or simply the wealthiest.”14 Manin’s theory has shown to be true in the United States, where candidates are enabled to secure election victories only due to their social prominence or wealth.

Also argued by Manin, “not every citizen has an equal chance of exercising political power, even if no one was prevented by law from running for office.”15 He explains that “running for office is not subject to any restriction, but… candidates may be treated in an inegalitarian L.M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age. New York Russell Sage Foundation, 2018, 234.

13 M.C. Alexander, “Citizens United and Equality Forgotten,” New York University Review of Law and Social Change 35, no. 3 (2011): 499-526.

14 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 133.

15 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 134.

12

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fashion.”16 These candidates not only face unequal treatment from voters, but also when soliciting campaign donations. As American election campaign funding continues to grow exponentially, the ability of average citizens to run a successful campaign dwindles, and equality in civic participation fades along with it. While there are examples throughout American history of presidents or senators who came from humble means obtaining an elected office, such as Richard Nixon, Bill Clinton, and Barack Obama, they were still required to fund their campaigns through wealthy donors who agreed with their ideals or principles.

Representative democracy requires participatory equality to function properly. If all citizens are not enabled to affect democracy in equal ways as their wealthy or poor counterparts, democracy cannot survive. In the United States, economic inequality provides a gap in voter demographics too large to ignore.17 It is commonly thought that while the rich contribute money, the poor contribute time. I disagree with this sentiment in modern times, as the poor are often required to work multiple jobs to survive, thus leaving them with no time to participate in politics. A 2014 study by Martin Gilens and Benjamin Page found that “economic elites and organized groups representing business interests have substantial independent impact on United States government policy, while average citizens and mass-based interest groups have little or no independent influence.”18 Knowing the impact that affluence has on public policy, U.S. representative democracy seems to be failing more each election cycle as the price of running a campaign continues to rise.19 B. Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997, 136.

From 1991 to 2000, the mean income for the top 5% of families grew at an annual average of 4.1% compared with about 1% or barely more for other families. Families in the top 5% have experienced greater gains that other families since 2011. A greater share of nation’s aggregate income is now going to upper-income houses and the share going to middle- and lower-income households is falling. (Horowitz, et al., 2020).

18 M. Gilens & B. I. Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives on Politics 12, no. 3 (2014): 576.

19 Federal election spending in 2008 cost $5.1 billion dollars. In 2012, following Citizens United, it cost $6.2 billion dollars. The 2020 election topped any election cost in history, totaling $14.4 billion dollars. (Evers-Hillstrom 2021).

16 17

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American democracy provides for a majority rule in election outcomes, but in terms of actual policy results, it seems that the interests of the elite prevail. Gilens and Page found that “when the preferences of economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy.”20 With non-elite Americans making up the large majority of voters, the implications of affluent voters providing funding to politicians can be seen when considering the lack of influence average votes have on policy outcomes in America. With corporations being afforded the same protections as individual citizens for campaign speech, the voices of the average American will continuously be drowned out.21 With cases such as Citizens United, the American governmental system strays away from a representative democracy and leans more towards a plutocracy, a governmental system that is run by only the wealthy. Within a plutocracy, power and wealth are directly related, and non-elite citizens do not participate in control of the government. While America is theoretically run on a majority rule system, the power of the minority economic elite continuously overshadows the voices of the majority lower- and middle-class citizens. In political systems, money is often the equivalent of power, and in the U.S., the wealthy hold a significantly higher amount of political power than the average citizen. As theorized by Jeffrey Winters and Benjamin Page, “campaign contributions constitute a plausible mechanism by which oligarchs could influence public policy despite formally democratic institutions.”22 A study conducted by the American Political M. Gilens & B. I. Page, “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” Perspectives on Politics 12, no. 3 (2014): 572.

21 Corporations have been recognized by the Court as “persons” under the Equal Protection Clause. The Court, however, has been hesitant to designate corporations as “citizens” for other protections, such as the Privileges and Immunities Clause. (Torres-Spelliscy 2021). This designation has opened the doors for corporations to be treated as individual citizens, as shown through Citizens United.

22 J. A. Winters & B. I. Page, “Oligarchy in the United States?” Perspectives on Politics 7, no. 4 (2009): 742.

20

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Sciences Association (“APSA”) Task Force on Inequality and American Democracy found that “Americans with more income or wealth generally exert more political influence than those with less.”23 In the article published by the APSA task force, which conducted its study by reviewing scholarship on the health and functioning of U.S. democracy, the members concluded that “progress toward realizing American ideals of democracy may have stalled, and in some arenas reversed.”24 As stated by the ASPA task force, “citizens with lower or moderate incomes speak with a whisper that is lost on the ears of inattentive government officials, while the advantaged roar with a clarity and consistency that policy-makers readily hear and routinely follow.”25 The legitimacy of the American representative democracy has been holding on by a thread for some time, and recent Supreme Court decisions have only strained it further. To understand how damaging the Citizens United decision is on long-standing principles of democracy, the regulations and decisions leading up to Citizens United must be explored as well.

III. Legal Framework Regarding Regulation of Election Funding and Corporate Speech This section provides a chronological breakdown of the legal framework regulating or affecting election funding and corporate political speech. Federal campaign finance law covers multiple subjects and has been an issue in the United States since at least 1757.26 The need for regulation stems from the goal of preventing corruption, namely in the form of bribery, from affecting federal elections. Throughout American history, several large, encompassing acts have

J. A. Winters & B. I. Page, “Oligarchy in the United States?” Perspectives on Politics 7, no. 4 (2009): 738.

“American Democracy in an Age of Rising Inequality” (2004), 2.

25 “American Democracy in an Age of Rising Inequality” (2004), 2.

26 “George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

23 24

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been passed by Congress while equally important rulings have been made by the United States’ Supreme Court.

Prior to beginning the breakdown of legal decisions regarding campaign finance reform, it is logical to provide a brief explanation of the First, Fourteenth, and Fifteenth Amendments to the United States’ Constitution. In application to campaign funding, the First Amendment provides protections to freedom of speech that are exercised both explicitly and nonverbally. The amendment affords protection for the forms of speech explicitly listed, such as religion and assembly, but also in nonverbal self-expression such as wearing symbolic arm bands or displaying flags. The First Amendment also provides protection for the freedom of association and belief. For the purposes of this thesis, the Fourteenth Amendment should be understood to incorporate the Due Process and Equal Protection Clauses and guarantee fairness to all individuals. The Fifteenth Amendment guarantees all citizens the right to vote with no abridgement by the United States on the basis of race, color, or previous condition of servitude. I now explain how the regulation of electoral campaigns began in the United States, and what it has become in modern times.

The earliest known decision in American campaign influence occurred in 1757 after George Washington purchased hard cider and punch for friends in an attempt to secure a seat in Virginia’s House of Burgesses.27 The House of Burgesses subsequently passed a law that “prohibited candidates, or persons on their behalf, from giving voters money, meat, drink, entertainment or provision … any present, gift, reward or entertainment, etc. in order to be elected.”28 The first time that regulation of campaign finances was applied to the federal

“George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

28 “George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

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government, however, occurred in 1867 when Congress enacted a bill making it illegal for government officials to solicit naval yard workers for money.29 The year 1883 gave way to the Pendleton Civil Service Reform Act prohibiting government officials from soliciting contributions from any civil service workers or awarding non-merit based civil service positions.30 These laws of the 18th and 19th centuries provide evidence that even prior to the inception, and throughout the development of the United States, money in politics was perceived to enable corruption, and regulation was required to protect representative democracy long before the cost of modern elections was an issue.

Enacted in 1868, the Fourteenth Amendment to the United States Constitution hosts the Equal Protection Clause. Section Two of this amendment provides that “when the right to vote at any election… is denied… or in any way abridged... the basis of representation therein shall be reduced in the proportion [of the population denied].”31 The provisions of the Fourteenth Amendment were first created to put an end to racial segregation in the states, and has since become one of the most-litigated amendments. Based on the amendment’s goals of creating a more inclusive governmental system, the Equal Protection Clause can be interpreted to provide protections against exclusionary campaign practices in the United States.32 I will explore this notion further within my Literature Review.

In 1905, President Theodore Roosevelt saw the need to eradicate political corruption, and called for remedial measures. One result was the Tillman Act, passed in 1907. This act, 34 Stat.

864 (1907), was created in response to unprecedented amounts of campaign funds being raised “George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

30 “George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

31 U.S. Constitution, Amendment XIV, § 2.

32 The Equal Protection Clause applies to designated protected classes. Examples of these classes are race, religion, national origin, and age.

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by political candidates and parties during the end of the 19th century and in the 1904 election cycle. Candidates raising large sums of money through donations and from corporations created a perception of a corrupt government. The perception held true in many governmental systems where politicians can be bought should an individual have the means.33 The Tillman Act marked the first effort of the federal government to regulate campaign finance in the United States, banning corporations from expending money from their treasuries to influence a federal election.3435 The Act was difficult to enforce and did not stand much ground against corporations seeking to contribute to federal campaigns. Despite including language regarding contributions and expenditures, the Act failed to provide ways in which these campaign contributions could be limited or regulated in practice. The Tillman Act defined “contribution or expenditure” as including “anything of value,” because in addition to capital, corporations “donated office space, typewriters, and free travel to members of Congress.”36 The provisions of the act sought to close an existing loophole that allowed hopeful political contributors to circumvent campaign finance regulations against cash donations by instead donating office supplies and other things not considered to be “of value.” This Act, although not successful itself, paved the way for future campaign finance regulations to be enacted.

The year 1965 brought the Voting Rights Act, passed on the authority provided to Congress by Section 2 of the Fifteenth Amendment, to enforce “by appropriate legislation” the banning of racial discrimination in voting. The act also requires states and local governments to

“George Washington to Citizens United: A History of Campaign Finance Reform,” Common Cause, May 21, 2019.

34 This Act did not prevent massive corruption by the Railroad or other industries on state governments, particularly in the western states (Cuellar & Stephenson, 2020).

35 J.M. Bitzer, Tillman Act of 1907, 2009.

36 J.M. Bitzer, Tillman Act of 1907, 2009.

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gain the approval of the District of Columbia or the United States’ Attorney General before they are allowed to enact any changes to their voting and election laws. The Voting Rights Act has been subject to numerous lawsuits due to its provisions, most consequently in 2013 as discussed below, and has been amended or extended multiple times. The Fifteenth Amendment, on which the Voting Rights Act was based, provides powerful protections against vote dilution of American citizens based on race or color. These protections were effectively replaced by the Voting Rights Act through the introduction of a discriminatory effects test subsequently forcing modern voting rights to rely on the Equal Protection Clause and its narrower protections.37 The Federal Election Campaign Act (FECA), enacted in 1971 and amended in 1974, 1976, and 1979, was created to offer protection against corruption occurring in federal elections.

The act had many provisions including limitations on political contributions by individuals and groups, limitations on independent spending by individuals and groups “relative to a clearly identified candidate,” and limitations on personal contributions by the candidate and relatives of the candidate.38 This act established committees and commissions to ensure the keeping of campaign contribution records and the enforcement of provisions guaranteed by the act. By placing caps on contributions to political campaigns, the federal government tried to control the disproportionate influences of the wealthy minority on federal elections.

The newly enacted provisions of the 1974 amendments to the Federal Election Campaign Act (FECA) had a short tenure before being challenged in the Supreme Court of the United States. In Buckley v. Valeo (1976), the group of appellants composed of federal candidates and officeholders challenged the provisions of the FECA on Constitutional grounds, arguing that the limitations placed on contributions were in violation of their Constitutional rights. The appellants S.N. Kang, “Restoring the Fifteenth Amendment: The Constitutional right to an Undiluted Vote,” December 18, 2019.

38 Federal Election Campaign Act of 1971, Public Law 107-155 (2002).

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argued that the provisions of the FECA were in violation of Article II, Section 2, Clause 2 of the Constitution, and of their First and Fifth Amendment rights. Appellants alleged that “limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment…” 39 The Court held that the Act’s “contribution provisions are [C]onstitutional, but the expenditure provisions violate the First Amendment.” 40 The Buckley Court further held that the provisions of the FECA restricting campaign contributions “are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions.”41 In the Court’s view, the act serves to “restrict the voices of people and interest groups who have money to spend” while “equalizing the relative ability of all voters to affect electoral outcomes.”42Buckley marked the beginning of a new era of campaign funding lawsuits and Supreme Court decisions.

Shortly after the Buckley decision, the Supreme Court heard First National Bank of Boston v. Bellotti (1978). This action challenged a Massachusetts criminal statute prohibiting national banking associations and business corporations from making political contributions.43 The statute prohibited contributions or expenditures “for the purpose of … influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.”44 The Court held that the Massachusetts statute violated the First Amendment, opening grounds to arguments protecting the free speech of corporations. The Court opined that “[t]here is no support in the First or Fourteenth

Buckley v. Valeo, 424 U.S. 1 (1976), 11.

Buckley v. Valeo, 424 U.S. 1 (1976), 12-59.

41 Buckley v. Valeo, 424 U.S. 1 (1976), 22-38.

42 Buckley v. Valeo, 424 U.S. 1 (1976), 18.

43 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 765.

44 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 765.

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Amendment, or in this Court’s decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation.” 45 The Bellotti Court further held that the statute could not survive the strict scrutiny required by the First Amendment, stating that “[t]his statute cannot be justified by the State’s asserted interest in sustaining the active role of the individual citizen in the electoral process and preventing diminution of his confidence in government.”46 This decision was further supported by the Court, asserting that corporate voices directly involved with campaigns and elections do not diminish the trust of citizens in the government or invoke any danger to the electoral process.

The Bellotti Court’s reliance on the First Amendment’s commercial speech doctrine, which protects speech that concerns lawful activity and is not misleading, began paving a road on which corporations could utilize the protections of the First Amendment to ensure their ability to influence elections.47 This notion of commercial speech was introduced in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976). Citing Buckley, the Court held that “speech does not lose its First Amendment protection because money is spent to protect it, as in a paid advertisement of one form or another.”48 The Court granted Constitutional protection for speech that is sold, purchased, or involves soliciting funding.

Continuing to attack the Federal Election Campaign Act, in Federal Election Commission v. Massachusetts Citizens for Life, Inc. (1986), the appellants argued against Section 316 of the FECA which prohibited corporations from using their treasury funds to make an expenditure “in connection with” any federal election49 While the Court upheld some challenges to the FECA, it

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 766.

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 788.

47 Commercial speech is speech that involves advertising of goods or services and speech that aim at influencing public policy (O’Brien, 2014, p. 613).

48 Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), 762.

49 Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), 238.

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found that Section 316 violated the Constitution for “infring[ing] protected speech without a compelling justification for such infringement.”50 Until this point, many courts were opining against the provisions of the FECA and granting First Amendment protections to corporations looking to conduct political speech.

In 1990, the Supreme Court decided Austin v. Michigan Chamber of Commerce. Section 54(1) of the Michigan Campaign Finance Act prohibited corporations from using their treasury funds for making independent expenditures for state candidate elections. The Austin Court upheld Section 54(1), stating that it did not, in fact, violate the Constitution.51 Rejecting the burdens held in FEC v. Massachusetts Citizens for Life, the Court held that “Section 54(1) is justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries... will be used to influence unfairly election outcomes.”52 Further, the Austin Court held that provisions such as those in Section 54(1) do not violate the Equal Protection Clause as the “State’s decision to regulate corporations and not unincorporated associations is precisely tailored to serve its compelling interest.”53 Austin is credited with reaffirming an anti-distortion interest that fulfilled a compelling governmental interest in regulating the political speech of corporations. This anti-distortion rationale provided protection against “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”54 This provision was controversial because, although allowing the suppression of speech in the

Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), 240.

“American Democracy in an Age of Rising Inequality.” (2004), 657-666.

52 “American Democracy in an Age of Rising Inequality.” (2004), 657-660.

53 “American Democracy in an Age of Rising Inequality.” (2004), 654.

54 “American Democracy in an Age of Rising Inequality.” (2004), 657-660.

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name of preventing corruption in the United States, it was seen as necessary to protect the integrity of the U.S. electoral process.

In 1991, McCormick v. United States drew distinctions between bribery and campaign contributions. The McCormick Court effectively created barriers to prosecutors attempting to convict politicians of extortion in holding that a quid pro quo is necessary when an official receives a campaign contribution, regardless of whether it is a legitimate contribution.55 The furtherance of corruption definitions within the Supreme Court, I argue, showed the Court’s to have a compelling interest in preventing corruption in United States elections.

Nixon v. Shrink Missouri Government PAC (2000) was of great importance for defining corruption within elections in the United States. The Nixon Court opined heavily on political corruption in American politics, stating that “corruption is a subversion of the political process.

Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.”56 The Nixon Court addressed corruption from political fundraising and expressed that the threat of corruption “extend[ed] to the broader threat from politicians too compliant with the wishes of large contributors.”57 The Bipartisan Campaign Reform Act (BCRA) of 2002, also known as the McCain-Feingold Act, was introduced to regulate campaign funding for federal political candidates and campaigns. This act specifically targeted money donated outside of federal regulation and the use of treasury funds in funding campaigns, commonly known as “soft money.” The BCRA introduced bans on corporations and unions from using their treasury funds to influence and produce electioneering communications referring to a specific candidate within McCormick v. United States, 500 U.S. 257 (1991), 268.

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 388.

57 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 389.

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thirty days of federal primary elections.58 This act specifically targeted “attack ads” that were produced in opposition to competing candidates in advance of elections.

The BCRA led to a historically greater number of challenges in the courts. In 2003 the Supreme Court decided McConnell v. FEC, upholding some provisions of the BCRA while reversing others. In brief, the rulings in McConnell upheld the BCRA’s restrictions on using soft money and creating issue ads, the requirements for public broadcasters to keep public records regarding politically related broadcast requests, and the “millionaire’s amendment.”59 This provision of the BCRA, located in Section 319(b) and adding FECA Section 315(A), allows for increases on contribution limits for candidates in the event their opponent contributes large amounts of personal funding to their campaign. Justice Rehnquist wrote to uphold the District Court dismissal of the challenge against the “millionaire provisions,” stating that the appellants “fail to allege a cognizable injury that is ‘fairly traceable’ to the BCRA.” 60 The McConnell Court reversed the BCRA’s ban on political contributions made by individuals younger than eighteen years of age on the grounds that minors are afforded First Amendment rights and the limitations on minors’ political contributions “impinge on the protected freedoms of expression and association.”61 One of the next major decisions on the regulation of campaign funding occurred in Randall v. Sorrell (2006), arising from a Vermont Act that placed limitations on the amount candidates were permitted to contribute to their own campaigns and the amount they could receive through public funding. Citing Buckley, the Court held that each of the provisions of Vermont Act 64 violated the free speech guarantees of the First Amendment. 62 The Court D. M. O’Brien, Constitutional Law and Politics, 1, W.W. Norton & Company, 2014, 929.

McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93.

60 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93.

61 McConnell v. Federal Election Commission, 540 U.S. 93 (2003), 93.

62 Randall v. Sorrell, 548 U.S. 230 (2006), 230.

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explained that under Buckley, “expenditure limits impose significantly more severe restrictions on protected freedoms of political expression and association than do contribution limits.”63 Citing both Buckley and McConnell, the Court decided that although limitations had been previously upheld, “contribution limits that are too low also can harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”64 Justice Souter, joined by Justice Ginsburg and Justice Stevens, dissented in the Randall decision. The dissent cites Nixon v. Shrink Missouri Government PAC, which states that contribution limits should be considered too low when “in effect as to render political association ineffective [and] drive the sound of a candidate’s voice below the level of notice and render contributions pointless.”65 The dissent argued that holding the Vermont Act’s limitations as unconstitutional “is to forget not only the facts of Shrink, but also our self-admonition against second-guessing legislative judgments about the risk of corruption to which contribution limits have to be fitted.”66 This powerful dissent proceeds to cite research that displays recorded testimony of Vermont state legislators and candidates stating that they give preference and access to contributors that make large financial contributions; money gets these legislators’ and candidates’ special attention. 67 Through recognizing these issues, the dissenting Justices call to attention the potential for corruption being reached through political contributions.

In 2007, Federal Election Commission v. Wisconsin Right to Life, Inc. once again challenged provisions of the BCRA that placed limitations on electioneering communications.

This case attacked Section 203 of the BCRA which prohibited corporate and labor disbursements Randall v. Sorrell, 548 U.S. 230 (2006), 230.

Randall v. Sorrell, 548 U.S. 230 (2006), 230.

65 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230.

66 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230.

67 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), 230.

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for electioneering communications.68 The Court held Section 203 unconstitutional as applied to the advertisements, stating that “the speech at issue is not the ‘functional equivalent’ of express campaign speech.”69 The Court ruled that Section 203 is subject to strict scrutiny under McConnell on the grounds that it burdens political speech and that the government has the burden of proof of establishing that applying the BCRA “furthers a compelling governmental interest and is narrowly tailored to achieve that interest.”70 The Court held that WRTL’s ads could be “reasonably interpreted as something other than an appeal to vote for or against a specific candidate,” and that “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”71 Although the WRTL Court declined to overturn McConnell, Justices Souter, Stevens, Ginsburg, and Breyer sharply disagreed in their dissent with the majority opinion and stated, “McConnell was our latest decision vindicating clear and reasonable boundaries that Congress has drawn to limit ‘the corrosive and distorting effects of immense aggregations of wealth.’”72 The dissenting Justices further argued that, following the WRTL decision, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”73 This dissent concludes with the powerful statement that: The understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will Federal Election Campaign Act of 1971, Public Law 107-155 (2002).

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449.

70 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).

71 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).

72 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449.

73 Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449.

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come. It is only the legal landscape that now is altered, and it may be that today’s departure from precedent will drive further reexamination of the constitutional analysis: of the distinction between contributions and expenditures, or the relation between spending and speech, which have given structure to our thinking since Buckley itself was decided.74

Davis v. Federal Election Commission (2008) followed next and once again attacked Section 319 of the BCRA, the so-called “millionaires’ amendment.” The Davis Court held that Section 319 was unconstitutional as it violates the First Amendment. The Court held that the provisions of Section 319 that imposed an “asymmetrical regulatory scheme” on political candidates who were privately funding their campaigns “[impose] an unprecedented penalty on any candidate[s] who robustly [exercise] that First Amendment right [to advocate his own election], requiring [them] to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”75 The reversal of Section 319 was further defended on the notion that “the burden is not justified by any governmental interest in eliminating corruption or the perception of corruption… nor can an interest in leveling electoral opportunities for candidates of different personal wealth justify Section 319’s asymmetrical limits.”76 Each of these cases heard by the Supreme Court contributed to the protection of United States citizens from corruption within elections. Through regulating campaign finance, while also focusing on the importance of free speech protections, the Court acknowledged issues within the United States’ electoral system. Nevertheless, 2010 brought a shocking display of support for corporately backed campaigns, as the Court heard and decided Citizens United.

Citizens United v. FEC

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 449.

Davis v. Federal Election Commission, 554 U.S. 724 (2008), 10-17.

76 Davis v. Federal Election Commission, 554 U.S. 724 (2008), 10-17.

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As the precedent regarding cases on campaign financing was eroded, the way was paved for Citizens United to upheave standards set by earlier Courts to protect individual Americans’ political power from being drowned by wealthy elites. This case, decided by the Court in 2010, involved Citizens United, a conservative nonprofit organization that gathered a small portion of its funds from for-profit corporations. Citizens United argued that its rights were being violated by campaign finance regulations limiting independent expenditures and political contributions.

Citizens United makes and markets far-right propaganda films. After creating a film that was critical (to put it politely) of presidential candidate Hilary Clinton, the nonprofit sought relief and argued that the provisions of the BCRA were unconstitutional when applied to their film, as they wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. This case required the Court to “consider the continuing effect of the speech suppression upheld in Austin” while deciding the protections that should be afforded to corporate political speech.77 Citizens United targeted Section 441b of the BCRA, which governed the use of a corporation or union’s treasury funds to partake in speech that is an “electioneering communication” or expressly advocates for the election or defeat of a candidate. The Court wrote, “these onerous restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit.”78 By taking such a stand, the Citizens United Court opened the floodgates of legal corporate political financing.

The Court held that Austin would be overruled and would no longer provide a basis for the government to limit future corporate independent expenditures. In deciding this, the Court

77 78

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 12.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 18.

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also overturned part of the holding in McConnell, which had previously upheld the BCRA’s restrictions on these corporate expenditures. Following the decision to overturn these precedents, the Court wrote that “speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people” and that “laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’”79 Citing Austin, the Court recognized the governmental interest in “preventing the corrosive and distorting effects of immense aggregations of corporate wealth... that have little or no correlation to the public’s support for the corporation’s political ideas”80 but nonetheless decided that “First Amendment protections do not depend on the speaker’s ‘financial ability to engage in public discussion.’”.81 The Court also overturned Austin on grounds that its “antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.”82 The Court further held that “distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, tax benefits, and perpetual existence, does not suffice to allow laws prohibiting speech.”83 The Citizens majority opined: Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence of access will not cause the electorate to lose faith in this democracy.84

Citing Buckley, the Court found that the governmental interest to prevent corruption was insufficient to justify the restrictions on free speech alleged by the appellant. The majority Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 23.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 31.

81 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 31, 34.

82 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 33.

83 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 35.

84 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 42.

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opinion claimed that the limitations of independent corporate expenditures have “a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption.”85 In overturning Austin, the Court held that limits on independent corporate expenditures were unconstitutional.

Dissenting in part and concurring in part, Justice Stevens, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, wrote, “neither Citizens United’s nor any other corporation’s speech has been banned… the parties dispute whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period.”86 This powerful dissent brings to attention that the First Amendment does not tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.87

This dissent states that the Court’s holding in Citizens United threatens to undermine the integrity of elected institutions across the Nation.88 The fundamental issue regarding designating corporations the same status as individual citizens is also addressed in this dissent: In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling [C]onstitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.89

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 41.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 1.

87 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 2.

88 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 4.

89 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 2.

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As pointed out by the Dissent, the Court’s designation of corporations as equals to individual citizens enters dangerous territory for United States’ democracy and threatens further growth of corporate power within the country. In allowing and protecting this corporate free speech within U.S. elections, the Court chose to forego protecting its individual citizens from having their opinions and preferences overshadowed within electoral races and instead chose to protect corporations.

Five decades before Citizens United, vote dilution was an issue that the Court decided upon through the Voting Rights Cases. The drowning of individual citizens’ voices through corporate campaign financing shares similarities with these cases, which I will now explore.

Voting Cases of the 1960’s To fully comprehend my arguments regarding Citizens United, understanding the landmark Voting Cases of the 1960s is necessary. In response to pervasive racial discrimination within the United States’ electoral system, the Supreme Court heard cases regarding redrawing electoral districts based on racial populations. In addressing these issues, the Court examined the rejection of vote dilution and unequal concentrations of power that are found within the United States Constitution.

In 1963, the Court heard Gray v. Sanders, in which the appellant sued to prohibit the Secretary of State and the State Democratic Executive Committee of Georgia from tallying votes by county instead of counting each vote. Due to this practice, citizens in rural districts with predominantly white citizens had votes that were 99 times as powerful as those within urban districts composed of predominantly Black citizens.90 The Court held that this concentration of power violated the Constitution’s provisions of equality and established the first notion of the

90

Gray v. Sanders, 372 U.S. 368 (1963), 368-370.

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one-person, one-vote principle.91 In Wesberry v. Sanders (1964), the Court again held that Georgia’s districting scheme was unconstitutional, stating, “To say that a vote is worth more in one district than another would… run counter to our fundamental ideas of democratic government.”92 In 1964, the Court also heard Reynolds v. Sims.93 In this action, voters in Alabama fought against the reapportionment of districts based on size, citing that doing so violated the Equal Protection Clause. The Court held that the Equal Protection Clause required legislative districts in states to be comprised of roughly equal populations and that the Clause “guarantees the opportunity for equal protection by all voters.”94 The Court further held: Some deviations from a strict equal population principle are [C]onstitutionally permissible … so long as the basic standard of equality of population among districts is not significantly departed from… considerations of... economic or other group interests… do not justify deviations from the equal population principle.95

Through these decisions, the Court established the right to an undiluted vote for all citizens in the United States. The dilution of votes based on racial or financial inequality is representative of social class bias and, I argue, should be proscribed by the Court and the Equal Protection Clause when there is evidence of unequal power in votes due to differences in classes.

In addressing vote dilution based on racial inequality, the Court firmly held that political power within the United States should not be in the hands of the few as established by the Equal Protection Clause, which requires “substantially equal legislative representation for all citizens in a State regardless of where they reside.”96 Not only did the Court rely upon the Fourteenth Amendment in deciding these cases, but it also examined the Fifteenth and Nineteenth Gray v. Sanders, 372 U.S. 368 (1963), 370-380.

Wesberry v. Sanders, 376 U.S. 1 (1964), 8-9.

93 Reynolds v. Sims, 377 U.S. 533 (1964), 533.

94 Reynolds v. Sims, 377 U.S. 533 (1964), 566.

95 Reynolds v. Sims, 377 U.S. 533 (1964), 579-580.

96 Reynolds v. Sims, 377 U.S. 533 (1964), 561-568.

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Amendments, the Constitution as a whole, and the concepts of equal participation and popular sovereignty. The Court held strongly to the need for equality within U.S. democratic elections during the Voting Cases, and I argue, should return to applying the same protections in modern times.

In 1973, the Court heard San Antonio Independent School District v. Rodriguez. The hearing of this case followed alleged discrimination based on the funding of publicschool districts. In the opinion, the Court stated, “The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice.”97 This Court held that, in terms of equality within the quality of education provided to students, financial inequality was nota protected class as it “‘fails to define the kind of objectively identifiable classes’…perceived to be necessary for a claim to be ‘cognizable under the Equal Protection Clause.’”98 The Rodriguez Court further discussed Equal Protection regarding voting and stated: This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause … precise membership of the disadvantaged class was not [clear].99

I argue that if precise membership of a disadvantaged class needs to be clear to apply the Equal Protection Clause for voting rights, the Court should revisit the holding in Rodriguez under the light of modern times following Citizens and consider designating financial inequality as a protected class.

Shelby County v. Holder

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 36.

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 93.

99 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 94.

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Following Citizens United, the Supreme Court heard Shelby County v. Holder in 2013.

Shelby County challenged the provisions of Section 4 of the Voting Rights Act (VRA), claiming that the “coverage formula” of the VRA that protected against vote dilution was unconstitutional.

This formula, which applied to only nine states with histories of voter discrimination, determined whether jurisdictions had to preclear with Congress any changes to voting rules to prevent voter discrimination throughout the United States. The Court held that Section 4 was unconstitutional, stating, “The Voting Rights Act… requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.”100 While this case was decided on the grounds of state sovereignty, the repeal of Section 4 of the VRA showed a divergence from protection by the federal government against vote suppression.

The Shelby Court opined that while the provisions of Section 4 were appropriate at their inception, they were no longer necessary to protect voters in the modern United States. The opinion presents the rather unbelievable notion that voter discrimination is effectively cured in the U.S. It further claims (again, unbelievably) that “the Nation is no longer divided among those [racial] lines, yet the Voting Rights Act (VRA) continues to treat it as if it were.” 101 Not only do I wholeheartedly disagree that the United States has been cured of racial discrimination, as evident by a plethora of racial justice moments active in recent years, but I also wish to call attention to the ways in which vote protection has been disintegrated further by the Court following the Citizens United decision. Following Shelby, Texas and Alabama, two of the states affected by Section 4 of the VRA, immediately implemented restrictions on voters including identification requirements, restrictions on registering to vote, and redrawing voting districts.102 Within hours Shelby County v. Holder, 570 U.S. 529, (2013), 9-12.

Shelby County v. Holder, 570 U.S. 529, (2013), 17-18.

102 “The Effects of Shelby County v. Holder,” Brennan Center for Justice. August 6, 2018.

100 101

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of the Shelby decision, the Attorney General of Texas stated, “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”103 Repeated decisions by the Supreme Court to loosen protections from vote dilution and vote suppression are a threat to the United States democracy, and it is disheartening how this trend has continued following Citizens United as part of a larger national trend away from racial equality.

IV. Review of the Literature In this section, I will explore previous research regarding the effects of Citizens United on representative democracy. Through my research, I have compiled empirical, statistical, and theoretical information to support and dispute my arguments. I seek to utilize this data to form conclusions regarding Citizens United and participatory equality in the representative democracy of the United States. .

Klumpp, Mialon, and Williams explored whether Citizens United had “tilted the playing field so strongly in favor of wealthy players that elections can now be bought routinely with sufficient money.”104 They hypothesized that “if business interests outspend labor interests and spend more on Republican candidates than on Democratic candidates… removing restrictions on independent spending increases the probability that Republican candidates win elections at the expense of Democratic candidates.”105 The authors reviewed state statutory, Constitutional law, and previous campaign finance records to examine the effects of lifting restrictions on campaign funding. The authors found that Citizens United s was a possible source leading to a decrease of candidates per campaign race and an increase of electoral victories for Republican candidates.106 “The Effects of Shelby County v. Holder,” Brennan Center for Justice. August 6, 2018.

T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016): 2.

105 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016): 2.

106 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016).

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They noted the difference between the typical campaign spending habits of corporations versus labor unions, stating that historically corporations tended to support Republican candidates, while their labor union counterparts historically supported Democratic candidates.107 The article also suggested that the Citizens United decision increased political spending in states where corporate and union expenditures were previously legal due to offering an assurance of legality to donors.108 They found that “a plausible effect of Citizens United is that it discourages some donors from contributing to election campaigns in an environment that allows wealthy individuals and organizations to spend without limits.”109 Their economic study found that “by removing restrictions on corporate and union independent expenditures, Citizens United increased Republicans’ election probabilities in state house elections.” 110 Finally, the study suggested that Citizens United not only increased the chances of Republican candidates being elected but also decreased the number of Democratic candidates running in elections at all.111 Mark Alexander noted that “in the world of modern political campaigns, as candidates compete for money from the few, the many are left out, in conflict with the [C]onstitutional promise of equality.”112 Alexander addressed the issue of time consumption associated with modern political campaigns, noting that “protecting the time of candidates… from the grind of fundraising is a compelling interest that needs to be recognized in order to enable our elected

T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016).

108 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016).

109 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016): 14.

110 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016): 36.

111 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016).

112 M. C. Alexander, “Citizens United and Equality Forgotten,” New York University Review of Law & Social Change 35, no. 3 (2011): 500.

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officials to act as representatives of the people.”113 While Alexander acknowledged the utmost importance of preserving First Amendment protections of speech, he rebutted the Citizens United decision and stated, “some voices are louder than others… it is not the quality of what a person says but her socioeconomic status that determines whether her voice will be heard.”114 This concept of financial status allowing the wealthy elite minority to speak louder than middle- or low-class citizens is further supported by Alexander discussing how the Citizens United Court “notably disregarded the way that large sums of money can effectively drown out smaller voices and prevent the people from participating effectively in politics and government.”115 Pearlstein described the escalation in election spending not only as a result of the court rulings but also an “upward shift in the distribution of income.”116 Pearlstein further theorized that wealthy political donors have effectively purchased “a government that leaves them with more disposable income by lowering their effective tax rates, individually and through the businesses they own and control.”117 Citing Page, Bartels, and Gilsen, Pearlstein noted, “the preferences of wealthy individuals and business interests have far more impact on public policy than the preferences of the poor and middle class.”118 In addition to campaign funding issues, Pearlstein also touched on disparities between economic classes of U.S. citizens and the demise of representative democracy, noting that these issues breed resentment and further prejudice in the population.119 Regarding Citizens United, Pearlstein opined that “under the guise of

M. C. Alexander, “Citizens United and Equality Forgotten,” New York University Review of Law & Social Change 35, no. 3 (2011): 501.

114 M. C. Alexander, “Citizens United and Equality Forgotten,” New York University Review of Law & Social Change 35, no. 3 (2011): 505.

115 M. C. Alexander, “Citizens United and Equality Forgotten,” New York University Review of Law & Social Change 35, no. 3 (2011): 509.

116 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 158.

117 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 158.

118 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 159.

119 S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018.

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protecting free speech, the Court has now created a [C]onstitutional right to bribe elected officials, with the prize going to the highest bidder.”120 Martin Gilens theorized that “as money becomes more critical to winning elections, pleasing the people who can supply that money naturally becomes more important to office seekers and officeholders.”121 Gilens goes on to explain the way that campaign donors are often open to speaking about their expectations for candidates whose elections they are funding.

These donors are routinely hopeful that their contributions will help shape the policy decisions of the elected officials or that candidates who are already aligned with the donors’ thoughts are elected.122 Regarding representative democracy, Gilens proposed the idea that should electoral candidates attempt to appeal more to potential donors or interest groups instead of the majority of voters, even electoral pressures may work against our democracy.123 Gilens’ research suggested that “by shifting the source of political contributions away from the most affluent, campaign finance reform might help equalize responsiveness to more- and less-well-off citizens.124 Prior to Citizens United, regulations placing limitations on political campaign funding had a chance at accomplishing this task.

The issue of corporations being afforded the same protections as individuals regarding free speech was explored by Bebchuk and Jackson. They questioned, “who should have the power to decide whether a corporation will engage in political speech.”125 Their article analyzed

S. Pearlstein, Can American Capitalism Survive? New York: St. Martin's Press, 2018, 175.

M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 197.

122 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 197.

123 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 198.

124 M. Gilens, Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press, 2014, 249.

125 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 83.

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the effects of allowing corporations to speak freely as individuals and the implications of this decision on shareholders of corporations. They argued that “lawmakers should develop special rules to govern who may make political speech decisions on behalf of corporations.”126 Their work described the intricacies of corporate speech and corporate law, specifically when deciding how a company wishes to engage in political speech.127 Bebchuk and Jackson explored the potential for situations in which a corporation chooses to engage in free speech against the wishes of its stakeholders--opening a debate as to whether the president or CEO of a corporation should be allowed to speak for their business partners.

Bebchuk and Jackson explained that a corporation is “not a natural Platonic entity. … It is a legal arrangement, and its internal allocation of authority is a product of legal rules.”128 They explained that under current corporate law, “the distribution of decision-making power is governed to a substantial extent by state law… however, for the large, publicly traded corporations… there are additional layers of federal law that supplement and occasionally override state law.”129 Corporate law that currently governs who holds decision-making power within a corporation allocates no power to shareholders and no mandatory disclosure regulations for its investors.130 This allows the board to “delegate corporate political speech decisions to management,” leaving shareholders of donor companies without a say in where their money goes and who their corporation supports.131 One of the questions posed in this article was whether the 126

L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 83-84.

127 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86.

128 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86.

129 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 86.

130 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 87.

131 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 88.

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decision in Citizens United allowed for the protection of shareholders of corporations that opposed the political views of which the corporation was funding. They suggested that “there are good reasons to believe, however, that the interests of directors and executives with respect to political spending often diverge from those of shareholders.”132 This study showed that based on the willingness of corporate executives to contribute to political spending out of their personal wealth, executives are more likely to spend politically from their corporate treasuries following Citizens United.133 As corporations are permitted to spend directly from their treasuries on political funding, shareholders are exposed to the occurrence where the corporation they are implicated with makes political decisions that the shareholders do not wish to be individually associated with.

Bebchuk and Jackson proposed that shareholders should be enabled to “opt out” of corporate political spending, requiring public corporations to disclose where they are contributing politically, especially through intermediaries.134 This article argued that for a Court to decide whether First Amendment protections have been violated, it “must first conclude that the bearer of the right wishes to speak.”135 Allowing a corporation the right to utilize First Amendment rights to speak “leaves open the question as to what legal rules should determine whether the corporation wishes to speak.”136 Without accounting for the wishes of corporate shareholders, Bebchuk and Jackson showed that Citizens United fails to provide adequate

L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 90.

133 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 95.

134 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 103-104.

135 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 108.

136 L. A. Bebchuk, & R. J. Jackson Jr., “Corporate Political Speech: Who Decides?” Harvard Law Review 124, no.

83 (2010): 108.

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protections for First Amendment speech for those who do not wish to partake in certain political spending.

A 2014 study by Martin Gilens and Benjamin Page explored theories of American politics, examining the variations in policy-making decisions between elites, interest groups, and average American citizens. They explained that theories of Economic-Elite Domination predict that “United States policy making is dominated by individuals who have substantial economic resources, i.e., high levels of income or wealth--including, but not limited to, ownership of business firms.”137 These theories further predicted “positive, significant, and substantial influence upon policy by economic elites.”138 In this statistical data analysis, Gilens and Page examined survey results from the general public of the United States in which citizens were asked whether they favored or opposed certain policy changes. These answers were then compared based on income level to gauge the impact of the economic elite’s opinions on policy decisions in the United States. Gilens and Page provide startling differences between the ability of economic elites to enact policy changes versus the ability of average citizens. The study explains that “when the preferences of economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”139 When analyzing election outcomes where the preferences of the elite and the average citizen varied, the study found that “when a majority of citizens disagrees with economic elites or with organized interests, they generally lose.”140 These troubling statistics are made exponentially more M. Gilens & B.I. Page, “Testing Theories of American Citizens,” Perspectives on Politics 12, no. 3 (2014): 566.

138 M. Gilens & B.I. Page, “Testing Theories of American Citizens,” Perspectives on Politics 12, no. 3 (2014): 569.

139 M. Gilens & B.I. Page, “Testing Theories of American Citizens,” Perspectives on Politics 12, no. 3 (2014): 575.

140 M. Gilens & B.I. Page, “Testing Theories of American Citizens,” Perspectives on Politics 12, no. 3 (2014): 576.

137

Politics: Elites, Interest Groups, and Average Politics: Elites, Interest Groups, and Average Politics: Elites, Interest Groups, and Average Politics: Elites, Interest Groups, and Average

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frightening when considering the divergence from jurisprudence regarding the regulation of campaign spending by wealthy corporations.

A random field experiment done by Joshua Kalla and David Broockman showed in new light how contributing to the campaign funds of Congressmen allowed for access to these individuals. This experiment was conducted by having organizational groups attempt to gain access to elected congressional officials and randomly assign whether the organization would disclose their donor status to the offices of the officials or not. This experiment sought to find “how legislators treat donors and nondonors, not how individuals who donated are treated by the legislators to whom they have and have not contributed.”141 Their article explained that “legislators appear aware that money can affect whether they are reelected, as they choose to spend several hours each day raising it.”142 Kalla and Broockman revealed that congressional offices scheduled meetings with attendees who were not donors only 2.4% of the time, while 12.5% of the offices scheduled meetings with attendees who were disclosed to have contributed to their campaign. Further, their study shows that when the congressional office staff knew that a meeting was with a nondonor, a staff member took the meeting, whereas meetings with actual Congress members occurred only when the legislator was aware of who the donor making the meeting was and how much they had donated.143 The findings in this study suggest that “the vast majority of Americans who cannot afford to contribute to campaigns in meaningful amounts are at a disadvantage when attempting to express their concerns to policy makers.”144 J. L. Kalla, & D. E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment,” American Journal of Political Science 60, no. 3 (2016): 548.

142 J. L. Kalla, & D. E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment,” American Journal of Political Science 60, no. 3 (2016): 546.

143 J. L. Kalla, & D. E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment,” American Journal of Political Science 60, no. 3 (2016).

144 J. L. Kalla, & D. E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment,” American Journal of Political Science 60, no. 3 (2016): 555.

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In support of Citizens United, Hubbard and Kane argue that the regulation of campaign finance is disruptive to democracy, stating, “the changes in campaign finance rules turned American politics into a classic case of monopolistic competition… protected by government regulation that diminished innovative policy ideas, bipartisanship, and fiscal responsibility.”145 Their article questions whether “politics is easier to corrupt when the money is controlled by two parties or when the money is diffuse.”146 They argue that Citizens United “created a level playing field… shifting the structure of the political market in favor of small donors and causes.”147 In suggesting that Citizens United leaves room for new ideas in United States’ elections, Hubbard and Kane fail to acknowledge the ways that political campaigns having billions of dollars at their disposal can be damaging to democracy and the lack of an emergence of a new, large, third party.

Their article also fails to acknowledge how the unlimited spending of ultra-wealthy corporations drowns out the voices of the small donors and causes that they allege are assisted by Citizens United.

The right to an undiluted vote, provided by the Equal Protection Clause and the Voting Rights Act (VRA), includes a focus on eliminating discrimination through the redrawing of voter districts, also known as gerrymandering, to favor one party over another. Section 2 of the VRA is acted upon when minority groups, historically racial, are facing dilution of their votes in comparison to the votes of non-protected classes. According to Heather Gerken, a state could take advantage of this type of voting pattern by drawing district lines that give whites a majority in a disproportionate share of districts…Section 2 protects minority voters from this type of inquiry, which we call “vote dilution,” by requiring

G. Hubbard & T. Kane, “In Defense of Citizens United: Why Campaign Finance Reform Threatens American Democracy,” Foreign Affairs 92, no. 4 (2013): 127.

146 G. Hubbard & T. Kane, “In Defense of Citizens United: Why Campaign Finance Reform Threatens American Democracy,” Foreign Affairs 92, no. 4 (2013): 132.

147 G. Hubbard & T. Kane, “In Defense of Citizens United: Why Campaign Finance Reform Threatens American Democracy,” Foreign Affairs 92, no. 4 (2013): 132.

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states to draw district lines that offer racial minorities a fair chance to elect their candidates of choice.148

While these protections have been only recently afforded to racial minorities, there is a newly forthcoming trend of redrawing voting districts based on socio-economic status. Returning to the article by Klumpp, Mialon, and Williams, following Citizens United, in 2010, the Republican State Leadership Committee orchestrated an independent expenditure strategy in which their goal was to “gain control over each state’s redistricting process and thereby influence the outcomes of US congressional races.”149 This strategy, the Redistricting Majority Project, or REDMAP, was funded through political contributions from corporations allowed by Citizens United. Documents from the IRS show that major contributors to this strategy, whose donations totaled over $30 million, were the US Chamber of Commerce, American Justice Partnership, Blue Cross Blue Shield, Verizon, AT&T, Walmart, Comcast, Exxon Mobil, Home Depot, and others.150 This strategy involved making significant investments to the campaigns of Republican candidates in states that held high potential for securing seats that would allow the party to gain control of the legislature.151 Following the election cycle in 2010, the Republican party was able to secure over 50 house seats through use of the REDMAP strategy, which would not have been possible without Citizens United.152

Heather K. Gerken, “Understanding the Right to an Undiluted Vote,” Harvard Law Review 114, no. 6 (2001): 1666.

149 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016), 34.

150 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016), 34-35.

151 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016), 35.

152 T. Klumpp, H.M. Mialon, & M. A. Williams, “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” Journal of Law and Economics 59 (2016), 35.

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The Dissent in Citizens United expresses many fundamental discrepancies within the majority opinion, and Kathleen Sullivan describes a major issue described within the Dissent.

She explains that “equal protection jurisprudence treats only certain grounds of differentiation… as suspect or ‘invidious,’ while treating all others (age, disability, and economic status) as presumptively permissible.”153 The decisions in both Citizens United and Shelby did not regard economic status as grounds for equal protection, thus negating concerns that allowing wealthy corporations to contribute freely to election campaigns was a discriminatory action toward the majority of individuals who are not in control of large, wealthy corporate treasuries. Sullivan further explains that the Citizens United dissenters found “the source limitations on corporate independent expenditures easily justified by a government interest in preventing ‘corruption’ of the political process, with ‘corruption’ broadly defined to cover not mere quid pro quo exchanges but something much broader called ‘undue influence.’”154 Sullivan describes Justice Stevens’ dissent as arguing that “source limitations… will limit the deployment of resources ‘on a scale few natural persons can match,’ and avert the ‘drowning out of noncorporate voices’ through ‘corporate domination of the airwaves prior to an election.’”155 This drowning of noncorporate voices is something that should be acknowledged as discrimination and afforded equal protection, according to Sullivan, who further states that “the antidiscrimination aspect of this view rests on an understanding that speech is embodied in a kind of ideological hierarchy in which mainstream ideas held widely at any given time by majorities or the socially powerful predominate over the systematically subordinated voices of dissent.”156

K. M. Sullivan, “Two Concepts of Freedom of Speech,” Harvard Law Review 124, no. 143 (2010: 146.

K. M. Sullivan, “Two Concepts of Freedom of Speech,” Harvard Law Review 124, no. 143 (2010: 147.

155 K. M. Sullivan, “Two Concepts of Freedom of Speech,” Harvard Law Review 124, no. 143 (2010: 148.

156 K. M. Sullivan, “Two Concepts of Freedom of Speech,” Harvard Law Review 124, no. 143 (2010: 148.

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In 2005, Mark Alexander examined the influence of money in United States politics as modern vote dilution in violation of the Equal Protection Clause. His article focuses on concentrations of political power and argues that “political power is concentrated in the hands of the wealthy… the modern concentration of power is the flip side of the vote dilution coin addressed in the 1960s.”157 Alexander explains the ways in which political contributions allow access to elected officials and that “the few who control the financing get much in return; not only are they lavished with attention during the campaign, they get special access and power when the candidates they support are in office.”158 Written pre-Citizens United, this article examines precedent that had been set by Buckley and McConnell.

Alexander discusses the voting rights cases of the 1960’s and explains how the Court rejected the vote dilution that came from malapportionment and created the one-person, one-vote rule. Further, the Court found that “the Constitution endorsed a principle of equality of political participation for all Americans.” 159 The article highlights how in Reynolds v. Sims (1964), the Court held that the “The Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.”160 The Court found that as political power was concentrated for some and missing from others, the Constitution was being violated.

According to Alexander, “the Voting Cases thus established that the Fourteenth Amendment Equal Protection Clause demanded equality of representation and equality of participation in the selection of representatives.”161 Alexander cites Wesberry v. Sanders (1964), stating: M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 240.

158 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 251.

159 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 259.

160 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 260.

161 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 261.

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… each and every citizen has an inalienable right to full and effective participation in the political processes… full and effective participation… requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.162

Holding that vote dilution violates the Constitution, the Voting Cases effectively established that this dilution is in violation of the principles of representative democracy. Historically applied to cases of racial discrimination, Alexander argues that modern vote dilution through an inundation of money in U.S. politics should be handled with the same level of judicial concern.

Alexander suggests that “in speaking about vote dilution, the Court equally rejected the concentration of power that had previously rested in the hands of the few,” and proposes that “we apply the Voting Cases and the concomitant supporting principles of equality to the current analysis of campaign finance reform.”163 The relevance between the Equal Protection afforded by the Voting Cases and the current situation in U.S. democracy is rooted in equality. As stated by Alexander, “the more that people can be involved on an equal footing in the process of governance, the more they can participate in the process of governance.”164 He further opines that “money in politics creates inequality in the American representative democracy, but we have seen a commitment to equality in the penumbras of the structure of the republic, the Voting Amendments, and the Equal Protection Clause of the Fourteenth Amendment.” 165 Finally, it is argued by Alexander that classic quid pro quo corruption is not the only compelling governmental interest as held in Buckley, nor is the potential for undue influence as held in McConnell. Instead, he suggests a third compelling interest: equality, as articulated in the

M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 264.

163 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 285.

164 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 287.

165 M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 288.

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Voting Cases.166 Had this article been written post-Citizens United, Alexander would have been faced with the overturning of Austin and a section of McConnell; however, the Court’s divergence from making efforts to prevent corruption make his argument regarding equality even more relevant.

V. Discussion If the American government is to continue to be considered a representative democracy, we must recognize that the provisions granted by the Citizens United decision stand against the freedoms and liberties granted to its citizens through this democratic system. The theoretical democratic concepts that I have introduced are consistently threatened by the divergence of the Supreme Court from the precedents established to regulate financial contributions to electoral campaigns in the effort to prevent corruption within U.S. politics.

The foremost problem with the holding in Citizens United is that through allowing corporations the same protected speech as American citizens, the Supreme Court effectively allowed for the drowning out of the voices of individuals who are unable to contribute to the same financial level as wealthy elites. This has been found true in multiple statistical studies referenced earlier and diminishes the American representative democratic system. The principle of effective participation in American politics is replaced by voter apathy due to American citizens becoming aware of the legal corruption affecting the electoral system, and how representative democracy is only representative of wealthy corporations. Effective participation as defined by Dahl is not met in the United States following Citizens United, as individuals no longer possess an equal opportunity to express their preferences for electoral outcomes.

M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 291.

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Considering the Citizens United Court overturning precedent that sought to prevent corruption and inequality, I argue that U.S. campaign financing needs to be reexamined for Constitutional violations of both Equal Protection and participatory equality. While free speech is of utmost importance to U.S. citizens and should continually be protected by the Constitution, affording these protections to corporate bodies the same as individual citizens should be frowned upon. a corporation is a legal arrangement and is not an individual citizen; and the shareholders of these corporate bodies may not wish to engage in political speech but are now forced to when their company’s management decides it fit.

When pondering the protection of free speech, we must also consider citizens having the freedom to not engage in speech if they do not wish to. By allowing corporate leaders to make political decisions on behalf of their shareholders, under current campaign finance regulations, the shareholders are effectively forced to engage in political speech even if they do not wish to or if they disagree with the speech that the corporation is making. United States’ citizens are guaranteed the right to choose which party they associate with and how they vote;being forced to engage in political speech through the companies that they own is in violation of these rights. As corporations are not permitted to vote, I argue that they should also not be permitted to participate in elections through the funding of electoral campaigns.

Participatory equality is a cornerstone to representative democracy. Returning to Dahl’s theories, voting equality should be equal to all adults in a society under which they will be governed.167 This concept of equality in voting is not respected in the United States when electoral candidates are hyper-focused on securing funding for their campaigns over focusing on the needs of all individual citizens within their districts. As displayed in this thesis, candidates and elected officials have admitted that money affects how accessible they will be to constituents 167

R. A. Dahl, Democracy and Its Critics, New Haven, Ct: Yale University Press, 1989, 109.

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and the issues they will fight for. As campaigns continue to exponentially grow in their financial burdens, the voices of the majority middle- and low- class citizens will effectively disappear in the sea of money offered by wealthy corporations with political interests. The United States as a government and a society has long favored wealthy, white, middle-aged men, and it is the duty of the Constitution and its Amendments to protect the remainder of the population from this favoritism.

Equally important to protecting the voice of non-wealthy individual citizens is the need to protect United States elections from corruption. The Court has a duty to protect the government from corruption in more ways than solely quid pro quo actions and undue influence. While the definitions and types of corruption are not an issue for this thesis, I argue that the unequal effects of citizens and now, corporations, on elections is absolutely an example of corruption in the United States. If the governmental system is based on equality in participation, the allowance of wealthy corporations to have exponentially more influence on the electoral process than non-elite citizens is a direct violation of the goals of American democracy. As political candidates and elected officials spend more of their time and energy on the need to raise money for their current or future campaigns, money has become of utmost importance to elections instead of the needs of the electorate.

An absence of regulations on non-voting corporations’ influence in elections, decided under the guise of free speech, shows disturbing apathy from the Court towards the non-elite majority of U.S. citizens. When considering the distorted influence that not only wealthy individual citizens, but also wealthy corporations, have on the United States’ government, the governmental system appears to be more of a plutocracy than a representative democracy. These

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regulations do not harm only the representation of citizens in the United States, but also affect the ability of each qualifying citizen to run for elected offices.

The ability of a citizen to not only run for a presidential office but to make it far enough to gain the party nomination, for example, is a feat that cannot be successful without wealth, whether through massive personal savings or through having wealthy corporate connections.

Without having individual start-up funding or the time without needing to work in which a candidate can focus solely on securing funding, the chances of running a successful campaign that ends in securing an elected position are slim.

Most United States adults work over 40 hours per week, but an alarming 37.2 million citizens were living at or below the poverty line in 2020 despite these working hours.168 As wage inequality in the U.S. continues to grow, the inequalities that result from allowing unregulated campaign finance will also expand. As increasing amounts of U.S. citizens are becoming aware of the blatant corruption in elections, secondary effects such as voter apathy are also on the rise.

Through individual citizens believing that they have no power in politics, it is possible to observe the plutocratic tendencies that are growing ever-present in the United States. The wealthy elites of the U.S. should not be able to have a louder voice than the non-wealthy, but they gain this power through simply having access to mass sums of money.

In a plutocracy, the government is run by the wealthy for the wealthy, either directly or indirectly. In these systems, only the wealthy citizens can effectively influence electoral outcomes and policy decisions. Further, the policies that are implemented tend to only benefit the wealthy instead of the electorate. Plutocracies do not provide equal elections or equality in participation or representation, nor do they rule for the common good.

168

Bureau, U. C. “Income and Poverty in the United States: 2020,” October 18, 2021.

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Earlier, I provided an overview of the Voting Cases of the 1960’s and the goal to protect equality in United States elections. While the notion of a right to an undiluted vote has historically been reserved for the fight against racial prejudice, I argue that this protection should be reviewed and enforced to protect non-elite citizens from vote dilution. While compiling my research for this thesis, I was unable to find many sources with authors who share this opinion.

Mark Alexander explored this idea in 2005, but his article cannot consider the outcomes from Citizens United as it was written five years prior to the decision. Alexander does, however, explain how the wealthy can influence elections and enjoy special privileges following campaigns including access to elected officials that the public does not have.169 The Voting Cases largely focused on redistricting based on racial lines, and I argue that the same principles of Equal Protection can be afforded in modern times based on financial inequality. As demonstrated by the REDMAP Strategy, redistricting is now an issue that is affected by the corporate funding of elections. By being enabled to use corporate money to boost the campaign funding of one party’s candidates in traditionally swing states, the REDMAP Strategy displayed how money allows that party’s candidates to be elected over those with less funding and, in turn, take control of the House or Senate. This type of redistricting, however, is not the only way in which the votes of U.S. citizens are being diluted.

Following Citizens United, vote dilution occurs when electoral candidates express more care and regard to the opinions and views of wealthy potential donors than those of non-elite citizens. Instead of focusing on lobbying for the best interests of their constituents, candidates and elected officeholders tend to give more time and effort to the interests of the wealthy donors who enabled them to secure an elected position. Through this action, the governmental actions of

M. Alexander, “Money is Political Campaigns and Modern Vote Dilution,” Minnesota Journal of Law & Inequality 23, no. 2 (Dec. 2005): 244.

169

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the U.S. are skewed to further the policy preferences of the wealthy instead of the equally represented population of citizens. Further, when the interests of non-elite citizens are second ranking in importance after the views of wealthy political donors, representative democracy is left unable to function as a representation of the total population of the United States.

VI. Conclusion In this thesis, I have described theoretical principles of representative democracy. I have compared these principles to the current governmental system in the United States through analyzing Supreme Court decisions and legislation regulating corporate campaign financing. I argue that the holdings in Citizens United are contributing to the diminishment of representative democracy in the United States. The vote dilution that is occurring through the wealthy, elite members’ having louder voices in political outcomes diminishes equal representation and participatory equality in the U.S. governmental system.

Through exploring political theory and legal resources, I have shown that political candidates and elected officials give policy and time preferences to individuals and corporations that have helped to fund their campaigns. This preferential treatment does not enable individual citizens, who are unable to make substantial contributions to political campaigns, to have their voices and needs heard, thus failing to meet the goals of representative democracy. In a system where wealthy voices are amplified and low- and middle-class voices are ignored, democracy fails and plutocracy reigns.

Although the Citizens United majority failed to recognize unlimited corporate campaign funding as corruption in the United States, I and additional academics disagree based on the evidence found in statistical studies of the effects of political contributions on the responsiveness

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and policy decisions of elected officials. The Supreme Court has a duty to protect all U.S. citizens from corruption within politics, not only the wealthy. As protections against corruption are continuously eroded, U.S. institutions of democracy will continue to be diminished, and the governmental system will continue toward plutocracy.

I argue that a logical approach to reinstating protections against corruption is to reconsider financial class as a protected group and protect low- and middle-class citizens from having their votes diluted and drowned as was seen in the Voting Rights Cases. These cases were the result of unfair redistricting along racial lines, and now, as seen through the REDMAP Strategy, unfair redistricting is occurring through corporate campaign funding. I hope that the Supreme Court will soon hear arguments based on this logic, and voter equality and representative democracy will be on the path to restoration within the United States.

Future legal research is required to fight the refusal of the Court to acknowledge financial inequality as a protected class. Additionally, legal analysis is required to strongly argue that unregulated corporate campaign donations constitute vote dilution in U.S. elections. The disenfranchisement of voters is no new issue in the United States. Between the inability of individual citizens to cast votes based on their felon status, immigration status, and government-issued identification status, ensuring participatory equality is fragile to begin with.

When corporations, whoI argue should not be designated as U.S. citizens, are allowed to contribute more to politics than disenfranchised citizens, the equal representation and equality sought by democracy are not able to be met.

For the United States to secure its democratic goals for equality within political systems, the decisions in Citizens United, Shelby, and Rodriguez need to be reconsidered before the Court, and their profound harms must be rectified. If regulations on political campaign funding were

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restored and enforced, there is a chance that the amount of money required to fund a successful campaign would not reach billions of dollars, and, hopefully, average citizens might have a renewed chance at participating in politics at the same level as the wealthy elite. Through additional research and legal analysis, I hope to see participatory equality and equal representation restored within the United States.

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“Citizens United v. FEC: Corporate Political Speech.” Harvard Law Review124, no. 1. (2010): 75-82.

Cuellar, M. F., & Stephenson, M.“Taming Systemic Corruption: The American Experience and Its Implications for Contemporary Debates.” 2020. Available at SSRN. Dahl, R. A. Democracy and Its Critics. New Haven, Ct: Yale University Press, 1989.

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Evers-Hillstrom, K. “Most Expensive Ever: 2020 Election Cost $14.4 Billion.” OpenSecrets News, February 1, 2021. Retrieved from https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/.

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Gilens, M., & Page, B. I. “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens.” Perspectives on Politics 12, no. 3 (2014): 564-581.

Gilens, M. Affluence and Influence: Economic Inequality and Political Power in America.

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“George Washington to Citizens United: A History of Campaign Finance Reform.” Common Cause, May 21, 2019.etrieved from

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Pew Research Center's Social & Demographic Trends Project. August 17, 2020.

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Hubbard, G., & Kane, T. “In Defense of Citizens United: Why Campaign Finance Reform Threatens American Democracy.” Foreign Affairs 92, no. 4 (2013): 126-133.

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Kang, S. N. “Restoring the Fifteenth Amendment: The Constitutional Right to an Undiluted Vote.” December 18, 2019. Retrieved from https://www.uclalawreview.org/restoring-fifteenth-amendment-constitutional-right-undilu ted-vote/.

Kateb, G. “The Moral Distinctiveness of Representative Democracy.” Ethics, special issue: symposium, 9, no. 3 (1981): 357-374.

Klumpp, T., Mialon, H. M., & Williams, M. A. “The Business of American Democracy: Citizens United, Independent Spending, and Elections.” Journal of Law and Economics 59 (2016):1-43.

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Sullivan, K. M. “Two Concepts of Freedom of Speech.” Harvard Law Review 124, no. 143 (2010): 143-177.

“The Effects of Shelby County v. Holder.” Brennan Center for Justice. August 6, 2018. Retrieved from https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder.

Torres-Spelliscy, C. “Does "We the People" Include Corporations?” Americanbar.org. 2021.

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I DISSENT!

A Comparative Analysis of Victim-Blaming in the Thomas and Kavanaugh Proceedings

Rose Genaris Advanced Research Seminar, Legal Studies 398 Professor Joanna Grisinger Anna Michelson March 5, 2020

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I Dissent: A Comparative Analysis of Victim-Blaming in the Thomas and Kavanaugh Proceedings

Rose Genaris Advanced Research Seminar, Legal Studies 398 Professor Joanna Grisinger Anna Michelson March 5, 2020

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Abstract Studies examining gender bias in the legal sphere have contended that survivors of sexual violence must present their victimhood within rigid parameters to be deemed credible. Existing literature on the Supreme Court confirmation hearings has not explored the nuanced ways in which senators on the Senate Judiciary Committee employed victim-blaming tactics in the Clarence Thomas and Brett Kavanaugh proceedings.1 This Article conducts a comparative content analysis of the Thomas and Kavanaugh hearings to determine how members of the Senate Judiciary Committee displayed gender and racial biases through rhetorical tactics and performative politics to delegitimize Hill and Ford. By attacking their credibility, asking victim-blaming questions, and blatantly sympathizing with Thomas and Kavanaugh, senators doubly victimized Hill and Ford. This Article contributes to broader scholarship on how patriarchal social consciousness permeates Supreme Court confirmation hearings in a gendered and racial manner.

1

While literature examining the proceedings refers to them as the Thomas-Hill and Kavanaugh-Ford proceedings, this thesis intentionally departs from this precedent. By placing the names in such close proximity, it engages in a form of rhetorical violence. I therefore refer to the proceedings as the Thomas and Kavanaugh proceedings.

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Introduction Sexual violence is ever-present in the patriarchal society upon which the United States was founded. In 1964, the Civil Rights Act prohibited “discrimination on the basis of gender in employment.”2 However, it was not until the 1980s that courts “began to interpret sexual harassment,” a form of sexual violence, “as conduct actionable under Title VII of the Civil Rights Act of 1964.” 3 In 1991, Professor Anita Hill, a law professor at the University of Oklahoma, alleged that Supreme Court nominee Clarence Thomas, for whom she worked as an aid in the Office for Civil Rights at the U.S. Department of Education, sexually harassed her.4 Given the severe nature of these allegations, the Senate Judiciary Committee commenced hearings. Ultimately, the Senate Judiciary Committee failed to believe Hill and ensured Thomas’s Supreme Court confirmation.5 Twenty-seven years later, the press leaked Dr. Christine Blasey Ford’s allegations that Supreme Court nominee Brett Kavanaugh sexually assaulted her in high school. Although the Senate Judiciary Committee held a hearing, it, once again, dismissed a survivor’s compelling testimony and safeguarded Kavanaugh’s confirmation.6 Given the incontrovertible parallels between these hearings, this Article compares the Thomas and Kavanaugh confirmation hearings to determine how members of the Senate Judiciary Committee7 employed victim-blaming8 biases, ultimately discrediting the compelling 2

Nancy Kolman et al., A Report on Power and Control, 20.

Kolman et al., 20. Sexual harassment is defined as “discriminatory treatment of a sexual nature in the workplace.”

4 Stephen John Morewitz, “Chapter 10: Thomas-Hill, Packwood, & Clinton-Jones Sexual Harassment Scandals,” in Sexual Harassment & Social Change in American Society (San Francisco: Austin & Winfield, 1996), 379. Upon hearing Hill’s allegations, “Senator Metzenbaum reportedly told a Time magazine reporter, Hays Gorey, that if Ms. Hill’s accusations constituted sexual harassment then fifty percent of the senators on the Hill could be charged with making objectionable sexual advances.”

5 For a senate vote summary on the nomination of Clarence Thomas, see Appendix B. 6 For a senate vote summary on the nomination of Brett Kavanaugh, see Appendix C. 7 For a list of senators who sat on the U.S. Committee on the Judiciary during the Thomas and Kavanaugh proceedings, see Appendix A. 8 Kathleen A. Fox and Carrie L Cook, “Is Knowledge Power? The Effects of a Victimology Course on Victim Blaming." Journal of Interpersonal Violence 26, no. 17 (2011): 3407. https://doi-org/10.1177/0886260511403752.

3

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testimony of both Hill and Ford. Though much scholarship examines the way in which patriarchal norms and victim-blaming stereotypes impact the perceived credibility of survivors of sexual violence, minimal scholarship has applied these phenomena to Supreme Court confirmation hearings. This Article specifically examines how patriarchal social consciousness permeates congressional behavior—specifically the rhetorical and political tactics employed by the senators on the Senate Judiciary Committee—in a gendered and racial manner.

To analyze the Thomas and Kavanaugh hearings, I read and watched both proceedings to conduct a comparative review. I found that senators employed victim-blaming tactics by assigning blame to the survivor, attacking her credibility, explicitly sympathizing with the nominee, and articulating that the survivor bore the burden of proof.9 By outlining how patriarchal social consciousness manifested in the Thomas and Kavanaugh hearings, this Article outlines the prejudicial and demeaning ways in which Hill and Ford were treated to contribute to the broader dialogue about how society impacts law.

Literature Review and Theory Existing literature critically analyzes the prevalence and function of patriarchal norms and victim-blaming stereotypes in the legal sphere. This review elaborates on seven distinct themes: social and legal critiques of patriarchal culture; victim-blaming biases in cases of sexual assault; psychological and behavioral studies of gender bias; intersectional feminist analyses of sexual harassment; the performative politics of Supreme Court confirmation hearings; and analytical approaches to the Thomas and Kavanaugh hearings. This Article examines how

For the purposes of this Article, victim-blaming refers to the social phenomenon by which victims of sexual violence “are blamed for their victimization,” their behavior directly impacting the amount of blame attributed to them.

9 This Article draws more conclusions about the Thomas proceeding than the Kavanaugh proceedings due to the disparity in their length and temporality. To view a graph showcasing this disparity, see Appendix K.

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members of the Senate Judiciary Committee employed gender and racial biases in the Thomas and Kavanaugh hearings, paying particular attention to the relationship between the two.

Sociolegal scholarship that critiques the patriarchy establishes how patriarchal consciousness crafts, compels, and constrains femininity. Some scholars take a broad approach to establish the catalytic effect that gender stereotypes have on beliefs about groups of people.10 Other scholars discuss the legal precedent of the “reasonable woman” standard established by Ellison v. Brady, which dictated the performative parameters by which a woman must abide to constitute a “valid” claim.11 Courtney Frasier argues that benevolent sexist ideology facilitates a social environment that strips women of agency and enforces hostile sexist ideology through the systemic victimization of women.12 Similarly, other scholars assert that these performative expectations of women render them silent, creating a culture conducive to victim-blaming.13 This literature demonstrates the prevalence of patriarchal stereotypes, which penetrate the legal sphere and dictate the credibility of a survivor based on gender and race.

Other scholars take an empirical approach to studying gender discrimination and bias by conducting psychological and behavioral studies to discern how victim-blaming biases permeate cases of sexual assault. Some find that the public falls prey to rape myth acceptance, some argue that prosecutors assess the credibility of survivors in a biased manner, others posit that jurors rely on social stereotypes in their deliberations, and still others examine how a person’s gender

10

Elizabeth Bates et al., "The Impact of Gendered Stereotypes on Perceptions of Violence: A Commentary." Sex Roles 81, no. 1-2 (2019): 34-43.

11 Sarah A. DeCosse, “Simply Unbelievable: Reasonable Women and Hostile Environment Sexual Harassment.”

Law & Inequality: A Journal of Theory and Practice 10, no. 2-3 (1992): 285-309.

12 Courtney Fraser, "From ‘Ladies First’ to ‘Asking for It’: Benevolent Sexism in the Maintenance of Rape Culture."

California Law Review 103, no. 1 (2015): 141-203.

13 Amy Grubb and Madeleine Van Der Bruggen, "A Review of the Literature Relating to Rape Victim Blaming: An Analysis of the Impact of Observer and Victim Characteristics on Attribution of Blame in Rape Cases." Aggression and Violent Behavior 19, no. 5 (2014): 523-31. https://doi.org/10.1016/j.avb.2014.07.008.

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identity informs their determination of a survivor’s credibility.14 Amy Grubb contends that men engage in victim blaming more than women, and that women tend to make judgments in solidarity with the survivor.15 Despite having distinct and differing methods, each of these studies finds that gender bias impacts a survivor’s perceived credibility.

These psychological and behavioral studies shed light on how legal actors’ sexist stereotypes impact their perceptions of survivors’ credibility. Consequently, some scholars have studied how gender biases, victim-blaming stereotypes, and the criminal justice system interact.16 One study found that police officers are not exempt from social stereotypes and expectations, while another found that judges do not allow patriarchal consciousness to impact how they perceive a victim’s credibility.17 Guri C. Bollingmo et al. suggest that when rape victims do not conform to police officers’ behavioral expectations of them, or when they fail to “correctly” perform victimhood, their claims are viewed by law enforcement as less legitimate.18

14

Mitchell J. Callan et al., “I Blame Therefore It Was: Rape Myth Acceptance, Victim Blaming, and Memory Reconstruction.” Personality and Social Psychology Bulletin 45, no. 8 (2019): 1269-82. Lisa Frohmann, "Discrediting Victims' Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections." Social Problems 38, no. 2 (1991): 213-26. https://doi.org/10.2307/800530. Hubert Feild, "Rape Trials and Jurors' Decisions: A Psychological Analysis of the Effects of Victim, Defendant, and Case Characteristics." Law and Human Behavior 3, no. 4 (1979): 261-84. http://dx.doi.org/10.1007/BF01039806. Amy Grubb and Julie Harrower, "Attribution of Blame in Cases of Rape: An Analysis of Participant Gender, Type of Rape and Perceived Similarity to the Victim."

Aggression and Violent Behavior 13, no. 5 (2008): 396-405. https://doi.org/10.1016/j.avb.2008.06.006. For more on empathy, victim-blaming, and credibility, see Stel et al., “On Mimicry and the Psychology of the Belief in a Just World,” 14-24.

15 Grubb and Harrower, 14-24.

16 Cassia Spohn and Katherine Tellis, "The Criminal Justice System’s Response to Sexual Violence." Violence Against Women 18, no. 2 (2012): 169-92. https://doi.org/10.1177/1077801212440020.

17 Emma Sleath and Ray Bull, "Police Perceptions of Rape Victims and the Impact on Case Decision Making: A Systematic Review." Aggression and Violent Behavior 34 (2017): 102-12. http://dx.doi.org/10.1016/j.avb.2017.02.003. Sleath and Bull contend that police officers consider victim credibility an important factor: the more credible the victim is perceived to be, the more likely the police officer is to charge the alleged perpetrator. Rachel M. Venema, "Making Judgments: How Blame Mediates the Influence of Rape Myth Acceptance in Police Response to Sexual Assault." Journal of Interpersonal Violence 34, no. 13 (2019): 2697-2722. https://doi.org/10.1177/0886260516662437. Ellen Wessel et al.,"Credibility of the Emotional Witness: A Study of Ratings by Court Judges." Law and Human Behavior 30, no. 2 (2006): 221-30. https://doi.org/10.1007/s10979-006-9024-1. See also Patterson, "The Linkage Between Secondary Victimization by Law Enforcement and Rape Case Outcomes," 328-47.

18 Wessel et al., 221-30.

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While instances of sexual violence are innately gendered, scholars argue that they also have a racial component. Known as intersectionality, this school of thought denotes how race and gender shape the multiple dimensions of Black women’s lived experiences. Central to the intersectional feminist dialogue is Critical Race Feminism, which explains how women of color “serve as likely targets [of sexual harassment] because they are the least powerful participants in the workplace.”19 Due to ideas of Black womanhood and sexuality, Black women are less likely to be perceived as legitimate victims of sexual violence.20 This is merely one manifestation of systemic prejudice that results in the continued deprivation of their bodily dignity and autonomy.21 As some scholars have noted, this internalized, invisible prejudice is made glaringly apparent in confirmation hearings due, in large part, to their performative aspect. Collins and Ringhand argue that the publicization of confirmation hearings render them performative and political opportunities for senators on the Judiciary Committee.22 Other scholars, such as Martha Merrill Umphrey, argue that legal and political events, such as confirmation hearings, act as “spaces” in which senators may engage in “dramatizing in a heightened and stylized” environment.23 Therefore, the confirmation process, which scholars argue is an inherently performative one, serves as a platform upon which “out-group bias […] is most visible.”24 19

Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review 43, no. 6 (1991): 1241-99. Adrien Katherine Wing, Critical Race Feminism: A Reader. (New York: New York University Press, 1997). Wing, 188.

20 Charles R. Lawrence, "Cringing at Myths of Black Sexuality.” Southern California Law Review 65, no. 3 (1992): 1357-59.

21 Wendy Brown-Scott, “Anita Hill Meets Godzilla: Confessions of a Horror Movie Fan.” Tulane Law Review 70, no. 6 (1996): 1921-43. https://dx.doi.org/10.2139/ssrn.1626859.

22 Collins, Paul M., and Lori A. Ringhand. "The Institutionalization of Supreme Court Confirmation Hearings." Law & Social Inquiry 41, no. 1 (2016): 126-51. https://doi.org/10.1111/lsi.12139. For more on the relationship between constitutional change and Supreme Court confirmation hearings, see Collins, Paul M., and Lori A. Ringhand.

Supreme Court Confirmation Hearings and Constitutional Change. Cambridge University Press, 2015.

23 Martha Merill Umphrey, "Law in Drag: Trials and Legal Performativity." Columbia Journal of Gender and Law 21, no. 2 (2011): 516. “Law in Drag,” 516-31.

24 Christina L. Boyd, et al., "The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings."

Law & Society Review 52, no. 4 (2018): 871-901. https://doi-org/10.1111/lasr.12362.

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Since the Clarence Thomas hearings, scholars have examined the nuanced ways in which race, gender, and psychology permeated the proceedings. Some scholars delve into the psychological aspects of the Thomas proceedings, such as the psychological impact of Thomas grappling with his crime.25 However, most literature about the Thomas hearings discuss the racial undertones at play. Some scholars examine how Thomas invoked myths of Black sexuality to characterize Hill as “unchaste” and cater to his white audience.26 Other scholars note how Thomas utilized his race to publicly protest the proceedings.27 They argue that the treatment of Hill was an active attempt to maintain and enforce the silencing of Black women.28 Ultimately, scholars conclude that Thomas exploited his emotional agency to extract sympathy while discrediting and demeaning Hill.29 In 2018, Brett Kavanaugh’s Supreme Court confirmation was a controversial and contentious one, making it a viable topic for scholarly literature. Jeff Nolan’s piece grapples with the aftermath of Kavanaugh’s confirmation hearing, detailing the neurobiological effects of trauma on memory.30 Ann C. McGinley, on the other hand, conducts a content analysis of the

25

Kathy Pezdek and Matthew Prull, “Fallacies in Memory for Conversations: Reflections on Clarence Thomas, Anita Hill, and the Like.” Applied Cognitive Psychology 7, no. 4 (1993): 299-310. https://doi.org/10.1002/acp.2350070404. Based on an empirical study of memory, it is “likely that Anita Hill could remember, after 10 years, sexual statements that Clarence Thomas had made in conversations with her” and that “Clarence Thomas would have forgotten after 10 years, sexual statements that he made to Anita Hill.” Dervin, "Testimony of Silence,” 257-68; Davis and Wildman, “The Legacy of Doubt,” 1367-91; Pezdek and Prull, “Fallacies in Memory for Conversations,” 299-310; Siegel, Outsiders Looking In, 87. As Siegel argues, Thomas created an alternate reality in which he was innocent of all charges, thereby protecting himself and erasing Hill’s claims.

26 Baker-Fletcher posits that the hearings themselves perpetuated myths of the “moral laxity of black women.”

Baker-Fletcher, "The Difference Race Makes,” 14. Lawrence, 1357-59.

27 Toni Morrison, Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon Books, 1992).

28 Amy Richlin, "Roman Oratory, Pornography, and the Silencing of Anita Hill.” Southern California Law Review 65, no. 3 (1992): 1321-32. See also Wooley, "Anita Hill, Clarence Thomas and the Enforcement of Female Silence," 3-23.

29 Hill and Jordan, Race, Gender, and Power in America, 1995. For more about how Thomas eroded Hill’s credibility, see Davis and Wildman, “The Legacy of Doubt,” 1367-91.

30 Jeff Nolan, “#MeToo, SCOTUS, And Trauma: New Investigation Methods for Our Times,” Vermont Employment Law Letter 23, no. 9 (2018). See also Glazer, “#MeToo Meets SCOTUS,” 2018. Nolan advises investigators to encourage a survivor to recall rather than demand past details of them.

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Kavanaugh hearings through the lens of the masculinity mandate.31 She argues that Kavanaugh embodied masculinity, championing the notion of “boys will be boys.” This is due to his need to perform his prescribed gender role on a national stage.32 Scholarship that takes an analytical approach to the Kavanaugh hearings notes that a shift occurred in whose voice the public believed, largely due to the #MeToo Movement.33 Despite the extensive literature on gender bias, patriarchal norms, intersectional feminism, and analyses on both the Thomas and Kavanaugh proceedings, a scholarly discrepancy exists. The Thomas proceedings have continued significance and resonance in the contemporary moment, given the recent Kavanaugh hearings as well as the #MeToo Movement.34 Though scholarship about the Kavanaugh hearings discusses the role of masculinity, it does not delve into the sociolegal, rhetorical phenomenon of how and why senators discredit survivors. Therefore, this Article addresses the lack of scholarship on victim-blaming tactics employed by senators—as they intersect and manifest in Supreme Court confirmation hearings—to answer the question of how members of Congress delegitimized Hill and Ford. To do so, this Article conducts a comparative analysis of the Thomas and Kavanaugh hearings to determine how patriarchal social consciousness permeates the performative politics of confirmation hearings in a gendered and racial manner.

Methodology

31

Ann C. McGinley, “The Masculinity Mandate: #MeToo, Brett Kavanaugh, and Christine Blasey Ford.” Employee Rights and Employment Policy Journal 23 (2019): 61. The term masculinity mandate describes “the strong pressure on men and boys to conform their behavior to society’s expectations of them. These expectations differ depending on the intersectional identities of the individual boy or man (age, race, sexual orientation, class, etc.); thus, masculinities theorists talk about ‘masculinities’ in the plural when describing masculine behaviors.”

32 McGinley, 61.

33 For more about the #MeToo Movement, see Grover, “They Still Just Don’t Get It,” 123-44; Mackinnon and Mitra, "Ask a Feminist," 1027-43.

34 Amy Black and Jamie Allen, "Tracing the Legacy of Anita Hill : The Thomas/Hill Hearings and Media Coverage of Sexual Harassment." Gender Issues 19, no. 1 (2001): 33-52. https://doi.org/10.1007/s12147-001-0003-z.

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I evaluate Supreme Court confirmation hearings because of their unique purpose to determine the fitness of an individual to serve on the highest court in the United States. I examine both the Thomas and Kavanaugh hearings because of their parallels and historic recurrence. Although the allegations vary slightly—Hill accused Thomas of sexual harassment and Ford accused Kavanaugh of sexual assault—in both cases, the Senate Judiciary Committee grappled with the bearing that allegations of sexual violence have on the fitness of these men to serve as Supreme Court Justices. Additionally, the hearings exist at a unique intersection of victim-blaming and judicial proceedings, posing sociolegal questions about gender, race, and whose voice ultimately prevails.

To answer this research question, I conducted a three-phase review of the Thomas and Kavanaugh hearings. The first phase consisted of reading the transcripts of each hearing. After gaining preliminary insights, the second phase consisted of re-reading the transcripts of the proceedings, actively making annotations, and noting salient themes and victim-blaming rhetoric. The two-phase read-through of the transcripts ensured that they were sufficiently and thoroughly reviewed. Additionally, it provided groundwork and familiarity with the hearings.

The final phase consisted of watching each hearing in full while taking detailed notes. The visual emphasis of phase three allowed for attuned observations of performative nuances, such as tone and expressions, which I could not glean from reading transcripts.

Undoubtedly, I strive to control for as many variables as possible but inevitable limitations exist. The gender identity of the decision-makers impacted why they made certain assumptions about Hill and Ford. Though an important variable to note, delving into why senators delegitimized Hill and Ford answers a tangential research question.35 Although this Article does not interrogate the role of the media in each respective hearing, it does not detract 35

This thesis concerns itself with exploring how, not why, senators delegitimized Hill and Ford.

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from the media’s significant influence. Despite the aforementioned limitations, a comparative content analysis yields results that directly engage my research question: how did members of the Senate Judiciary Committee employ gender and racial biases in the Thomas and Kavanaugh hearings? I thereby contribute to the scholarly discussion on how patriarchal social consciousness permeates congressional decision-making in a gendered and racial manner.

Analysis This Article thematically analyzes the ways in which the members of the Senate Judiciary Committee engaged in victim-blaming behavior throughout the Thomas and Kavanaugh proceedings.36 I.

2018: A Historical Re-Incarnation of 1991 In 2018, the presence of Chairman Grassley and senators Leahy and Hatch resounded as

particularly significant, given the fact that they sat on the Senate Judiciary Committee 27 years prior. Though social perceptions of sexual violence changed greatly in that time, the same victim-blaming rhetoric in the Thomas proceedings loomed over this hearing.37 In 2018, explicit, biased, and sexist statements were no longer socially acceptable. Yet the Thomas hearings not only informed how senators conducted the proceedings, but also the tone of the hearings.38 Many Democratic senators invoked Professor Anita Hill’s name multiple times throughout the

36

I utilize page numbers to cite the Thomas hearings and a timestamp to cite the Kavanaugh hearings because the printed transcript for the Kavanaugh hearings is unavailable, and the Thomas hearings is only available on VHS. 37 For a quantitative analysis of the rhetoric employed in the Thomas proceeding, see Appendix D. For a detailed breakdown of rhetorical phrases employed in the Thomas proceeding, see Appendix E. For a quantitative analysis of the rhetoric employed in the Kavanaugh proceedings, see Appendix F. For a detailed breakdown of rhetorical phrases employed in the Kavanaugh proceedings, see Appendix G. For a comparative quantitative analysis of the rhetoric employed in both the Thomas and Kavanaugh proceedings, see Appendix H. For a detailed breakdown of rhetorical phrases employed in both the Thomas and Kavanaugh proceedings, see Appendix I. 38 Due to the public unrest regarding how senators degraded and delegitimized Hill, this hearing differed: questions blatantly founded upon victim-blaming stereotypes were no longer socially acceptable by 2018. NBC News, Watch Live: Brett Kavanaugh, Christine Blasey Ford Testify at Senate Hearing, 2018. YouTube, https://www.youtube.com/watch?v=j6EF0nuFjCw. Megyn Kelly, commentating as the proceedings unfolded, remarked that Ford was “about to get put through it.”

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hearings, grounding the Kavanaugh proceedings in a racial and gendered historical context and emphasizing the need to learn from history.39 Though Democratic senators questioned Ford directly, Republican senators hired a sex crimes prosecutor, Rachel Mitchell to question Ford on their behalf. This positionality cannot be described as anything but intentional: Republicans had a woman who dedicated her career to fighting for survivors of sexual violence question a survivor.40 By so doing, Republicans ensured and bolstered their credibility by giving the impression that this, unlike the 1991 hearing, would be a “fair” proceeding during which the truth would prevail. On the other side of the aisle, Democratic senators did not hesitate to praise Ford for the “courage” that she displayed in coming forward at great professional, familial, and marital cost.41 Overall, the tone read as reminiscent of the Thomas proceedings while simultaneously being completely different. The Kavanaugh hearing was distinct in the dignified, compassionate, and empathetic way in which Democratic senators questioned Ford, including thanking her and explicitly stating that they “believe [her].”42 Compared to the way in which Democratic Senator Heflin questioned Hill, dramatically asking a myriad of questions to discern what she gained from speaking out, this proceeding differed greatly. This difference is fundamentally because the Democratic senators validated Ford’s dignity, respect, and credibility throughout the hearing.

II.

Victim-Blaming Questions

39

U.S. Congress. Senate. Committee on the Judiciary: Hearing on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court, Day 5, Focusing on Allegations of Sexual Assault, Part 1. 115th Cong., 2nd sess., (2018). 52:36-53:09; 54:07-54:19; 56:02-56:19; 1:40:33-1:40:42; 1:52:57-1:53:04; 2:29:56-2:30:12; 7:32:29-7:32:54; 8:25:08-8:25:10.

40 However, the passivity displayed by the Republican party during the questioning of Ford did not extend to the questioning of Kavanaugh: upon witnessing their Democratic colleagues critically question Kavanaugh, Republicans were quick to ‘ditch’ Rachel Mitchell for the purpose of defending Kavanaugh.

41 Collectively, Ford was praised for her courage twenty-four times.

42 Senators collectively thanked Ford for coming forward twenty-three times. Democratic senators explicitly stated their belief in the credibility of Ford’s allegations five times.

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The Thomas and Kavanaugh proceedings brought to the forefront of social consciousness exactly why sexual violence is so controversial. When women assert their “equality,” refusing to remain silent and submit to sexual violence, they threaten the misogynistic foundation of American society.43 Given this, Hill’s and Ford’s willingness to speak out interrogated the very structure of the society by illuminating “how vital the existence of official sexual underclasses has been to producing […] political coherence.”44 Thus, the very men who vigorously attacked Hill’s credibility are those who defend patriarchal consciousness, knowing very well that should she prevail, the gendered power dynamic in the workplace from which men benefit would cease.

The Thomas Proceedings Though Democrats refrained from directly attacking Hill, they nevertheless asked victim-blaming questions. Before a word was spoken or a single question asked, Hill faced biases on the basis not only of gender, but also race. As she walked into the Senate Caucus Room, filled with reporters and spectators, fourteen white male senators stared down at her.45 When the hearings did commence, senators unabashedly and openly evaluated the degree to which Hill was liable for her own harassment. Acting Chairman of the Senate Judiciary Committee, Joe Biden began the line of questioning after Hill read her five-page opening statement. Chairman Biden proceeded to conduct an extensive line of questions, which included the following: THE CHAIRMAN. Now, when you moved over to EEOC, can you recall for us, to the best of your ability, how that offer came about? Did you inquire of Judge Thomas whether or not you could go to EEOC? Did he suggest it? Do you recall?46

Here, he probed the question of “whether or not” she actively pursued the job at the Equal Employment Opportunity Commission (E.E.O.C.) under Thomas.56 In repeatedly forcing 43

Maritza I. Reyes, “Professional Women Silenced by Men-Made Norms,” 912.

Berland, “The Queen of America Goes to Washington City,” 459.

45 In 1991, the Senate was “98 percent male.” Brown, Women’s Issues, 44.

46 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 53.

44

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her to rationalize her actions, Chairman Biden, along with the entire committee, attempted to gauge her degree of agency and the extent to which she should be considered liable for the sexual harassment she endured. Additionally, he asked where the incidents occurred and if “anyone else [was] in his office at the time.”47 Chairman Biden, intentionally or not, glaringly highlighted the fact that no witnesses existed who could corroborate any of Hill’s claims. Thus, even in seemingly innocent questions, the inherent biases displayed by the senators reinforced gender and racial hierarchies—silencing a Black woman and compromising her integrity.

The Kavanaugh Proceedings In the 2018 proceedings, senators refused to explicitly ask victim-blaming questions.

This, in part, was due to the backlash the public expressed after the Thomas proceedings.

Twenty-seven years later, senators such as Sen. Hirono utilized the confirmation hearing as an opportunity for performative politics. She argued that the Senate Judiciary Committee failed to pass a simple test: they failed to believe victims of sexual violence.48 Though senators employed more systemic and subtle rhetoric, victim-blaming tactics still manifested in the Kavanaugh proceedings—resulting in the deconstruction of Ford’s credibility.

III.

An Assault on Credibility Though senators did not employ victim-blaming tactics as explicitly as in the Thomas

hearings, the de-legitimization of Ford took a systemic form. While Hill faced active and direct de-legitimization in 1991, Ford faced passive and subtle de-legitimization in 2018. In denying her an independent FBI investigation, refusing to call corroborating witnesses, allowing a

47 48

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 55.

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:10:53-4:11:30.

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prosecutor to question her on their behalf, and utilizing her gaps in memory as evidence of her non-credibility, senators’ passivity and inaction functioned to Ford’s detriment. 49 The Thomas Proceedings Senators questioned Hill’s motivation in coming forward, attacked her credibility, and refused to acknowledge that she was a victim of sexual harassment entirely.50 Senators on the Judiciary Committee employed rhetorical tactics to undermine Hill’s credibility. Although implicit victim-blaming biases underlay the questioning of Hill, the committee’s questioning of Thomas was an opportunity for political speechmaking that functioned to Hill’s detriment. If the Thomas proceedings revealed anything, it was what “most lawyers already knew: how easy it is to discredit the victim.”51 Thomas and his Republican supporters employed victim-blaming rhetoric and exhibited ignorance about sexual harassment throughout the proceeding to discredit Hill and her allegations.

The Republicans on the Senate Judiciary Committee appointed Sen. Hatch to conduct the questioning of Thomas on their behalf; this line of questioning consisted solely of political theatrics, dramatic outbursts, and repeated, adamant, and open comments in favor of Thomas. As evident in the following exchange, Sen. Hatch phrased his questions to highlight the inaction of Hill, thereby displacing blame and responsibility onto her.

“Senator HATCH. And even if she might not have remained the number one person to the head of the Civil Rights Division, which you were, she would have been transferred to another equivalent attorney's position.

Judge THOMAS. If she had requested it.

Senator HATCH. Did you tell her anything to the contrary?

Judge THOMAS. Not to my knowledge. In fact, I don't think it ever came up.

Senator HATCH. She didn't even ask you?

49

Contrarily, in 1991, twenty-two witnesses testified over the course of three days. In 2018, Republican senators invoked Biden’s statement in 1991 to justify their refusal to call for an independent FBI investigation.

50 “Ms. HILL. I have nothing to gain. No one has promised me anything. I have nothing to gain here. This has been disruptive of my life and I have taken a number of personal risks. I have been threatened and I have not gained anything except knowing that I came forward and did what I felt that I had an obligation to do and that was to tell the truth.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 116.

51 Stark, “Sexual Harassment in the Workplace,” The Reference Shelf, 50.

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Judge THOMAS. I don't think it ever came up. I think it was understood that she would move to EEOC with me if she so desired.”52

Attempting to delegitimize each one of Hill’s “graphic,” “crude,” “outrageous,” and “stupid” allegations, Sen. Hatch turned to “highly credible” external sources.53 Earlier, Hill testified that Thomas referred to his penis as “Long Dong Silver” and alleged that one of the most embarrassing incidents of sexual harassment she endured was Thomas commenting that a pubic hair was placed on his Coke can.54 In response to this testimony, Sen. Hatch cited “an interesting [sexual harassment] case […], Carter v. Sedgwick County, Kansas.”55 “Plaintiff further testified that on one occasion Defendant Brand presented her with a picture of Long Dong Silver—a photo of a black male with an elongated penis.”56

As if nothing more need be said on the matter, he similarly proceeded to cite a “particular version of the ‘Exorcist,’” in which the author wrote of “‘an alien pubic hair floating around in my gin.’”57 As the senator finished reading from the Exorcist, he slammed the book down to physically emphasize his frustration. Given these so-called credible sources, Hill’s specific allegations were anything but “happenstance.”71 Likewise, Sen. Simpson quoted Shakespeare’s Othello58 and Sen. Grassley quoted from the Bible.59 This strategic invocation of foundational works of literature intended to highlight the dramatic, and therefore fictional, nature of Hill’s allegations. Evidently, a disconnect emerged. Senators attempted to prove an impossibility: that Hill’s allegations were entirely fictitious, and that Hill was responsible for the alleged

52

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 167.

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 200.

54 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 38.

55 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 203. Carter v. Sedgwick Cnty., 705 F. Supp 1474 (D. Kan. 1988), aff’d in part, vacated in part, 929 F.2d 1501 (10th Cir. 1991).

56 Carter v. Sedgwick Cnty., 705 F. Supp at 1476.

57 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 206.

58 “This is all Shakespeare. This is about love and hate, and cheating and distrust, and kindness and disgust, and avarice and jealousy and envy, all those things that make that remarkable bard read today.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 255.

59 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 258.

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harassment.60 Simply put, these two phenomena cannot co-exist: how can senators blame Hill for harassment that they repeatedly emphasize likely never occurred?

Republicans attempted to destroy Hill’s character, arguing that, due to “the absence of documentation on these comments,”61 Hill, an experienced attorney, lost all credibility when she failed to adequately document the sexual harassment. However, these senators failed to consider that Hill did not document the instances of sexual harassment and continued to work under Thomas because she was doing what all women, especially women of color, have been socialized to do: to submit to the historically male-identifying authority above them.62 The Kavanaugh Proceedings ​

In the Kavanaugh Proceedings, Ford’s credibility came under attack slowly and

anticlimactically. Yet it came under attack, nonetheless. In denying Ford procedural necessities—such as an FBI investigation, corroborating witnesses, and the polygraph report—Republicans reduced the proceedings to a he-said-she-said scenario. By so doing, senators set Ford up for failure: because women’s voices wield less social capital, they seldom prevail in cases of sexual violence.63 Additionally, Mitchell asked Ford questions regarding what happened before and after her sexual assault. However, Mitchell intentionally neglected to ask Ford about the attack itself. A sex crimes prosecutor should be charged with the commonplace, basic knowledge that sexual assault survivors often do not remember peripheral information such as what happened before or after the traumatic event. Despite this, Mitchell persisted “in asking these questions all to undermine the memory and basically, the credibility of Dr. Ford.”64 60

Not only do they repeatedly imply that Hill made these allegations up, but the members of the Senate Judiciary Committee also cannot persuasively articulate why Hill would lie.

61 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 233.

62 “The legal treatment of women’s rape and sexual harassment claims shows the catastrophic effects of this process as women are relegated cognitively, socially, and legally to a role of passive receptivity—forced to prove an absence of consent as men are taught to assume its presence.” Fraser, "From ‘Ladies First’ to ‘Asking for It,’” 141.

63 This begs the question: if Dr. Ford and Professor Hill, two incredibly credible women, cannot prevail, who can?

64 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:06:36-4:07:14.

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IV.

Victim-Blaming a ‘Non-Victim’ While senators on the Senate Judiciary Committee employed victim-blaming tactics to

discredit both Hill and Ford, they also struggled to admit that their victimhood existed at all.

The Thomas Proceedings Continuing to establish a dynamic in which Hill was solely responsible for her own “alleged”96 sexual harassment, Sen. Leahy addressed the following question to Hill: “What are the things that you felt he should have known were sexual harassment?”65 Though a passing question, its phrasing was quite telling: this question, make no mistake, was phrased for the benefit of Thomas. This question compelled Hill to explain why her allegations were valid. To attempt to discern her motive for coming forward, Sen. Heflin, in an infamously dramatic line of questioning, asked: “Are you a scorned woman?”; “Do you have a martyr complex?”; “Are you interested in writing a book?”66 Democratic Sen. Heflin simply refused to accept the reality that Hill came forward out of civic duty, not out of a lust for political, social, and economic capital.

After Hill unequivocally denied every one of Sen. Heflin’s questions, he proceeded to give her the congressional equivalent of a pop quiz on traits of psychological fantasy. In forcing Hill to recall the definition of psychological fantasy under oath, Sen. Heflin further humiliated her. Americans, including the senators on the Judiciary Committee, became obsessed with the conspiracy theory that Hill was lying in retaliation to Thomas’ romantic refusal of her. 67 The senators characterized and depicted Hill as an erotomaniac, casting a Black woman as being 65

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 73.

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 87-89. The historically salient stereotype of Black women as jezebels, meaning sexually promiscuous, did not elude Hill in these proceedings. On the contrary, senators became fascinated, almost obsessive, with the theory that Hill was a “‘scorned woman’ longing for sexual attention from Thomas.” Broussard, “Unbowed, Unbroken, Unsung,” 675. As laughter fills the senate caucus room, presumably in response to the outrageousness of the questions, Sen. Heflin’s face remains unchanged, unaffected, and unamused.

67 During the proceedings, Americans called into C-SPAN to voice theories like the following: “She’s obviously in love with him and is lying to get back at him since she couldn’t have her way with him.” Thomas and Hill, Thomas Confirmation Hearing, 1991.

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dangerous in the sexual realm. This sexualization denigrated Hill, which is consistent with the historic treatment of Black women—overt over-sexualizing for political purposes.

However, Hill remained unaffected, poised, and highly credible. Sitting upright, hands folded in her lap, shoulders slightly hunched, she appeared calm, composed, respectful and spoke with honesty and integrity. Ultimately, these men’s attempts to pressure her into floundering her testimony failed.68 Simply put, these fourteen white men refused to accept that Hill came forward as a reluctant witness, willing to risk her career and reputation to ensure that a sexual predator did not ascend to the highest court in the land.69 Another way in which Hill ‘lost’ credibility, in the eyes of the senators, was her inaction.

Senators questioned her vigorously, repeatedly, and aggressively about 1) her failure to report her sexual harassment; 2) her decision to follow then Chairman Thomas to the E.E.O.C. after instances of sexual harassment; and 3) her making eleven phone calls to his office over a time period of seven years, most of which were favors to individuals wishing to connect with Thomas.70 As the hearings proceeded, Sen. Specter grew extremely agitated, asking Hill the following: “How could you allow this kind of reprehensible conduct to go on […] without doing something about it?”71 Following this logic, Sen. Simpson inquired, in a state of frustration, about how Hill could maintain contact with Thomas in any capacity.

Senator SIMPSON. […] But let me tell you, if what you say this man said to you occurred, why in God’s name, when he left his position of power or status or authority over you, and you left in 1983, why in God’s name would you ever speak to a man like that the rest of your life?72

68

At one point in the hearing, Anita turns to consult with her legal counsel. Upon doing so, the rate at which photographs are taken substantially and dramatically increases, the press pouncing on any show of vulnerability.

69 In fact, Hill had not herself approached the committee; thrust into the unwelcome spotlight, she arrived in Washington with “nothing but the truth on her side and a bible in her purse.” Schlossberg and Steinem, Sex and Justice, 1993.

70 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 113.

71 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 67-68.

72 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 128.

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What both Sen. Specter and Sen. Simpson failed to appreciate was and is the unique positionality of Hill as a Black woman in America. The racial hostility that Black women professionals face in the workforce “does not subside because they labor in the ivory tower of academia.”73 Being a Black woman, Hill was not only more susceptible to sexual harassment, but also more limited in her courses of recourse.74 In other words, she did not have the economic or social luxury of burning bridges at the E.E.O.C. Additionally, she refused to leave because she “did not want to let that kind of behavior control [her] choices.”75 These reasons, of course, Sen. Specter, with his eyebrows furrowed, declared that he “[didn’t] understand.”76 Thus, the senators completely neglected to discern, let alone appreciate, the nuanced ways in which Black women must navigate racism and sexism in the workplace. The Senate Judiciary Committee found it unimaginable that Hill could not, and should not have to, find another means of employment.

Supposing that the senators could understand why Hill remained silent, followed Thomas to the E.E.O.C., and occasionally called his office, they still refused to accept one thing: that she failed to document the sexual harassment. The expectations were nearly insurmountable for Hill: not only did she have to combat biases on the basis of gender and of race, but she also had to combat biases on the basis of her professional career—that she, a practicing attorney, had no evidence aside from the credibility of her word. Badgering this point, Sen. Specter repeatedly highlighted the clear “absence of documentation on these comments.”73 In verbally declaring that he was incapable of reconciling her allegations with the fact that she was an attorney, he publicly and openly distrusted Hill.

The Kavanaugh Proceedings 73

Smith, “Teaching the Retrenchment Generation,” 131.

The unique vulnerability of Black women is due to the fact that they “hold less power and status” in society, a power dynamic which extends into the professional sphere. Crawford, “Chapter 11,” Transformations, 377.

75 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 123.

76 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 110.

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Contrarily, in 2018, senators agreed on a bipartisan basis that Ford was clearly a survivor of sexual violence. The bipartisan consensus regarding Ford’s victimhood, no doubt, was due to Ford’s compelling, emotional, and visceral retelling of her experience with sexual assault. Ford’s emotional testimony differed starkly to Hill’s composed testimony. In 2018, Ford’s performative victimhood bolstered her credibility. Thus, since senators acknowledged her victimhood, their victim-blaming tactics manifested in subtler forms that resulted in double-victimization.

V.

Double-Victimization Based on the heinous ways in which the committee treated them, both Hill and Ford were

doubly victimized: they were victimized once by the sexual violence they experienced and again “by the system itself,” which attempted to assassinate their credibility and personhood.77 Though their testimonies still resonate in the contemporary moment, sexual violence “is as old as the imbalance of power between women and men.”78

The Thomas Proceedings Throughout their questioning, senators verbally harassed Hill, engaging in double victimization. Sen. Specter, on behalf of the Republican Party, interrogated Hill regarding all discrepancies between the FBI interview and her official statement to the committee. With his hands clasped, he looked down at Hill with a confident demeanor, silencing her before he even uttered the questions that he strategically crafted to undermine her credibility. This interrogation included his remark that what she categorized in her previous testimony as the most embarrassing aspect of the sexual harassment was “not too bad.”79 77

Morewitz, Sexual Harassment & Social Change in American Society, 382.

Emphasizing that race plays a significant role in sexual violence, Steinem remarked that Margaret Atwood’s Handmaid’s Tale “was a future fantasy for white women, but for black women it was history.” Steinem, Gloria, Clarence Thomas and Anita Hill: Public Hearing, Private Pain, 1992.

79 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 64. The sentiment that normalizes and delegitimizes sexual harassment was echoed by female callers on C-SPAN: “I don’t know anyone who hasn’t 78

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Sen. Specter asked her “how reliable [her] testimony” was, given the fact that she did not speak up for decades.80 In criticizing her for not adequately defending herself, Sen. Specter positioned her as the one to blame for her own harassment. At one point, after Sen. Specter said, “these comments,” he qualified his previous phrase by adding “alleged comments.”81 This small addition epitomizes the adversarial atmosphere of the proceedings. Sen. Specter’s qualification not only served as a rhetorical emphasis, but also as a reminder that Hill’s credibility had not been and, in his view never would be, valid.

The Kavanaugh Proceedings After delivering a biased opening statement, in which he affirmed Kavanaugh’s character and dismissed the credibility of two additional allegations, Chairman Grassley yielded to Ranking Member Feinstein.82 In her statement, she presented a fact-based, logical view of the relationship between sexual violence and gender, as well as barriers to survivors who desire to publicly seek justice. Underlying her entire statement was a counter-narrative critiquing the way in which the legal system treats survivors of sexual violence. As Feinstein suggested, the legal system discredits survivors at every turn and forces them to undergo a new form of trauma, ultimately leaving them doubly victimized.83 VI.

Senators Sympathized with Thomas and Kavanaugh

experience some sort of sexual harassment at work”; “To be a woman in America, you experience constant sexual harassment everywhere you go. I understand but I don’t think that we should scapegoat Clarence Thomas.” Thomas and Hill, Thomas Confirmation Hearing, 1991.

80 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 84.

81 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 66.

82 “GRASSLEY: […] My staff has tried to secure testimony and evidence from attorneys for both Deborah Ramirez and Julie Swetnick. […] The committee can't do an investigation if attorneys are stonewalling.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 46:20-47:43.

Ranking Member Feinstein has a personal connection to both the Thomas and Kavanaugh proceedings: she was elected in the Year of the Woman after the Thomas proceeding.

83 “But while young women are standing up and saying, ‘No more,’ our institutions have not progressed in how they treat women who come forward. Too often, women’s memories and credibility come under assault. In essence, they are put on trial and forced to defend themselves, and often revictimized in the process.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 49:00-1:01:58.

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Throughout both proceedings, senators repeatedly sympathized with the nominee, thereby exposing their bias in favor of them. Aside from showing their support by discussing the unjust nature of the proceedings, man to man, the senators defended the nominees by pointing out the lack of a pattern of sexually deviant behavior. Likewise, while senators actively defended the nominees, they also highlighted the positive relationship each nominee had with women.

The Thomas Proceedings Time and time again, senators reiterated that Thomas dedicated a portion of his professional career towards ending sexual harassment for the benefit of women in the workplace.

This partiality towards Thomas resulted in senators making explicit comments in his favor, ultimately revealing their prejudice and their pointed dismissal of Hill’s allegations. In questioning Thomas, multiple senators inquired about Thomas’ feelings regarding the entire proceeding. Sen. Leahy asked Thomas to describe his reaction to the allegations, in addition to asking Thomas to “tell [them] what it [felt] like” to be “unjustly accused of sexual harassment [emphasis added].”84 In intentionally creating space for Thomas to air his grievances as well as frustrations, the senators allowed one narrative: the narrative of a man who had already been extended the benefit of the doubt, and was absolved of any burden of proof, to prevail. At one point, Sen. Simpson blatantly and openly stated the following: “We really are not open-minded, but trying, because we have had a vote here already.”85 Thus, before Hill even uttered a single word, these senators were anything but open-minded.

Sen. Specter expressed to Thomas that he was “proud of [him] for not backing down”86 from the nomination. Chairman Biden also emphasized that Hill failed to establish a pattern of 84

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 251.

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 301.

86 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 252. Additionally, Chairman Biden stated: “This isn’t over. Your grandfather is right, you have no right to give up.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 267.

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sexual harassment, extending Thomas the benefit of the doubt, and bolstering his credibility.

Additionally, in a long monologue addressed to Thomas, he outlined “compelling arguments to be made” for Thomas.87 “Chairman BIDEN. And every expert comes forward and says, there's a pattern. It doesn't happen in isolated instances. It is a pattern. If there is not a pattern, to me that is probative. That has some dispositive weight. No one has proved a pattern here of anything. We are not finished yet. But no one has proved a pattern. Again, these people have decided already, once and for all, they are for you or against you. You need better lawyers. You need to hire me.” 87

In going so far as to offer his personal professional services to Thomas, Biden revealed that the neutrality he attempted to uphold was disingenuous. In effect, Specter and Biden offered Thomas what amounted to be a congressional ‘pep-talk’ amid the proceedings, encouraging him to persevere.88 Ultimately, the bias evident in the proceedings prevented Hill’s allegations from being seriously considered. The way in which the Senate Judiciary Committee treated her was the culmination, manifestation, and exposure of the sexism and racism that sustains American society.

The Kavanaugh Proceedings Chairman Grassley began the Kavanaugh proceedings by emphasizing his desire to conduct a “safe, comfortable and dignified” hearing.89 Though a seemingly noble endeavor, he proceeded to directly give Kavanaugh the benefit of the doubt. Chairman Grassley detailed, at length, the fact that the previous six FBI reports conducted concerning Kavanaugh did not indicate “a whiff of any issue” of sexual violence; additionally, Kavanaugh answered “nearly 1,300 written questions” from senators, “more than all prior Supreme Court nominees.”90 Thus, according to Chairman Grassley’s logic, Kavanaugh was nothing less than an upstanding,

87

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 267.

Sen. Cornyn offered the following words of encouragement to Kavanaugh: “Well Judge—Judge, don’t give up.”

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:26:55-7:26:58.

89 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 35:50-36:04.

90 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 36:59-39:04.

88

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accomplished, and innocent victim. By focusing on the accomplishments and dedication, Chairman Grassley prematurely dismissed all allegations against him. Put plainly: since Kavanaugh was faultless in the eyes of many, this hearing was no more than a formality to satiate the public. Additionally, Republican senators and Kavanaugh alike took the liberty of outlining Kavanaugh’s extensive record of empowering women.91 Sen. Graham, in a rhetorically vibrant speech, elaborated as follows: “GRAHAM: […] You’re supposed to be Bill Cosby when you’re a junior and senior in high school. And all of a sudden, you got over it. It’s been my understanding that if you drug women and rape them for two years in high school, you probably don’t stop.”92

Sen. Graham strategically utilizes Kavanaugh’s professional reputation in the same way senators utilized Hill’s to side against her: while Hill failed to embody the expected response of an attorney to sexual harassment, Kavanaugh dedicated himself to promoting women’s interests.93 Ultimately, Sen. Graham’s comments served one purpose: to denounce the absurdity of Ford’s claims and lament the position in which Kavanaugh found himself. Thus, by emphasizing his clean record and the fact that he nobly went out of his way to strictly hire women law clerks—as though this made him a feminist ally— senators further solidified Kavanaugh’s credibility.

VII.

The Burden of Proof: The Hypocrisy of a ‘Non-Trial’ Trial

Throughout both proceedings, senators repeatedly reassured the nominees by declaring that the burden of proof lay with Hill and Ford. In effect, the Senate Judiciary Committee members held Hill and Ford to a criminal trial court’s standard of proof: the evidence must be so completely convincing toward the guilt of the nominee that there is no reasonable doubt of their guilt. While the nominees were exempt from proving their innocence, Hill and Ford had only 91

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:08:07-6:22:26.

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:18:06-7:18:23.

93 “If confirmed” Kavanaugh would “be the first justice in the history of the Supreme Court to have a group of all-women law clerks.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:20:23-6:20:39.

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their testimony and lived experiences to prove their guilt. Thus, as apparent throughout these proceedings, senators enacted a gendered and racialized double standard, which tactfully worked to the detriment of Hill and Ford and the subsequent benefit of Thomas and Kavanaugh. This double standard manifested as a symptom of endemic social power hierarchies. As evidenced by these proceedings, the standard of proof in cases of sexual violence was fundamentally designed to believe men, and to silence women.

The Thomas Proceedings Hill, shouldering the burden of proof, had to repeatedly explain her rationale for sustaining contact with Thomas.94 Sen. Hatch repeatedly and explicitly stated that Hill must prove her own victimization.95 Sen. Hatch proceeded to fiercely defend Thomas by repeatedly reminding spectators that the statute of limitations on sexual harassment had long run out. Thus, just as the laws surrounding sexual harassment functioned to protect the party being accused, Sen. Hatch embodied and enacted this patriarchal protection. The senators questioning Thomas failed to appreciate the emotionally nuanced way survivors of sexual violence grapple with their own abuse. Due to the emotionally traumatic nature of sexual violence, survivors are unlikely to respond in a legally convenient timeframe.96 Therefore, the Thomas proceedings emerged as a

94

“Ms. HILL. Well, my understanding of—I did not have much notice that Judge Thomas was moving over to the EEOC. My understanding from him at that time was that I could go with him to the EEOC, that I did not have—since I was his special assistant, that I did not have a position at the Office for Education, but that I was welcome to go to the EEOC with him. It was a very tough decision, because this behavior occurred. However, at the time that I went to the EEOC, there was a period—or prior to the time we went to the EEOC, there was a period where the incidents had ceased, and so after some consideration of the job opportunities in the area, as well as the fact that I was not assured that my job at Education was going to be protected, I made a decision to move to the EEOC.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 52.

95 “Senator HATCH. […] we have to remember, and we have to insist that Anita Hill has the burden of proof or any other challenger, and not you, Judge.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 188.

96 The impersonal and allegedly objective way in which the senators comprehended, or failed to comprehend, Hill’s response to her trauma illuminates the way in which criminal law oversimplifies sex and relationships, an oversimplification which manifests at the legal detriment of women. In short, laws relating to sexual violence do not appreciate the breadth of emotional damage caused by sexual violence. Baker, “Gender and Emotion in Criminal Law,” 447-66.

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mere manifestation of, and glimpse into, the inner workings of a society that systematically devalues women.

The Kavanaugh Proceedings Democrats repeatedly asserted that the proceedings were not a court of law, but rather a job interview. Not even the most lenient employer would hire someone accused of sexual assault, exposing himself to another student while at Yale, and standing by while a woman was gang raped.97 This emphasis redirected the focus of the hearings. The purpose of the hearings was not to conduct a trial, but rather to evaluate whether Kavanaugh was fit to decide key legal questions for decades. The purpose of the hearings was to determine who exactly is fit to serve on the highest court in the land.

On the other side of the aisle, Republicans highlighted that this was not a court of law to justify dismissing Ford’s claims. Republican senators instead expressed concern about the damage that these accusations have inflicted upon Kavanaugh. Thus, by weaving discussions of the burden of proof into the hearings, Republican senators ensured that Kavanaugh’s credibility prevailed over Ford’s. Make no mistake: all discussion of innocence, the burden of proof, and evidence served a mere theatrical purpose. Sen. McConnell, two days prior to the hearing, boldly claimed that he was “confident [that Kavanaugh] will be confirmed.”97 Republican senators thus made certain that Kavanaugh’s confirmation to the Supreme Court was a foregone conclusion before Ford uttered a single word.

VIII.

Judge Thomas and Judge Kavanaugh: Frail Masculinity

The Thomas Proceedings In his response to questions, Thomas appeared firm, agitated, and utilized hand gestures to physically render his frustration toward the entire situation. Engaging in self-victimization, 97

McGann, “The Brett Kavanaugh Hearing Isn't a Trial. It's a Job Interview.”

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Thomas rocked back and forth, shaking his head in apparent disgust, his clasped knuckles lightly pounding on the table as Sen. Hatch read Hill’s allegations.98 He asserted time and time again his no tolerance attitude regarding sexual harassment. Yet absent from the hearings was evidence that in 1980, as Chairman of the E.E.O.C., Thomas was asked to assess its future, specifically regarding sexual harassment. Thomas recommended that resources to prevent sexual harassment were not worth allocating money to: this memo was never introduced as relevant evidence.99 Thomas repeatedly and directly blamed both the Senate Judiciary Committee and the media for this “circus,” this “national disgrace,” this “high-tech lynching.”100 In comparing his experience to modern-day lynching, Thomas invoked of “the single most emotional issue” underlying the “collective racial past” between the Black and white communities.101 This was tactical and extremely successful on Thomas’ part. His denunciation of racism “further inscribed his determined use” of politics, both racial and sexual, in his favor.102 Thomas also emphasized the extent to which these allegations had damaged both him and his family. He dramatically declared that “the nomination [was] not worth it, being on the Supreme Court [was] not worth it, and there [was] no amount of money that [was] worth” the suffering he had endured.103 Contrarily, Hill refused to blame either party, even when baited numerous times.

In addition to dismissing her claims as invalid, Thomas intentionally treated Hill “as traitor-to-the-race,” gaining support and reinforcing his legitimacy at her expense.104 Hill’s testimony proved divisive to the Black community; some viewed her as assuming the degrading stereotype of a Black woman being used by the white community “to undermine” another Black 98

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 24:25-25:50. “I am a victim of this process.”

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 9.

99 Schlossberg, Sex and Justice, 1993.

100 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 157.

101 Morrison, Race-ing Justice, En-gendering Power, 284. Lenhardt, “Understanding the Mark,” 930.

102 Morrison, Race-ing Justice, En-gendering Power, 284.

103 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 184.

104 Morrison, Race-ing Justice, En-gendering Power, 204.

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person.105 Additionally, Hill’s coming forward was contentious in her refusal to “be solely motivated by racial solidarity,” instead speaking out on behalf of herself and on behalf of the integrity of the nation.106 Unspoken racial and sexual biases informing the hearings shaped whether Hill’s “[story was] likely to be believed.”107 Moreover, Thomas also appealed to the all-male committee on the basis that if it can happen to him, “it can happen to anybody, any time over any issue.”108 Thomas appealed to and exposed patriarchal paranoia: allowing a survivor of sexual violence to hold any man accountable threatens the very fabric of society.109 The Kavanaugh Proceedings Kavanaugh’s white masculinity allowed him to behave in a tantrum-like manner throughout the proceedings. Entering the Senate Caucus Room with a scrunched face and brow furrowed, he adjusted his name plate twice, squinted at the microphone, and eyed the senators on the Senate Judiciary Committee.110 After delivering a forceful, angry, and emotional opening statement, Kavanaugh proclaimed that he was “innocent of this charge.”111 In his opening, Kavanaugh framed the entire proceeding as a criminal trial—Ford forced into the role of lying victim and Kavanaugh playing the tragic role of an innocent man wrongly accused.

Rachel Mitchell then proceeded to question him, listing each of Ford’s allegations. This directly contrasted the Thomas proceedings during which Republicans only listed Hill’s allegations to demean, devalue, and delegitimize them. Though Kavanaugh delivered a tearful and impassioned opening statement, he quickly assumed a defensive, frustrated persona. To

105

Karenga, “Under the Camouflage of Color and Gender,” 62.

Bikel, Clarence Thomas and Anita Hill, 1992.

107 Morrison, Race-ing Justice, En-gendering Power, 412.

108 Committee on the Judiciary, Nomination of Judge Clarence Thomas, 185.

109 Imperative is the need to create counternarratives and counter movements to dismantle a fundamentally exploitative, unequal society. Although those who benefit from this patriarchal society “will do everything they can” to maintain it, we must “ask [ourselves]: are [we] ok with who is winning?” Strach, “What’s Wrong with Us?” 17.

110 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:37:16-5:37:50.

111 Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 47:40-47:42.

106

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discern why Kavanaugh had not asked for an FBI investigation into Ford’s allegations, Sen. Durbin asked the following: “DURBIN: So the point I’m getting to is we at least can connect some dots here and get some information. Why would you resist that kind…

KAVANAUGH: Here’s some dots.

DURBIN: … of investigation? Why would you resist that kind of investigation?

KAVANAUGH: Senator, I—I welcome—I wanted the hearing last week.”112

As he retorted “here’s some dots,” Kavanaugh raised his detailed calendar, as though it sufficiently answered all inconsistencies in his testimony.113 Additionally, Kavanaugh’s testimony above was anything but logical: whether he did or did not want the hearings had nothing to do with why he refused to call for an FBI investigation.

At another point, Sen. Durbin asked Kavanaugh about his high school yearbook, which contained obscene, sexual references.114 In response to this question, he listed his high school and college accomplishments, substituting directness for the equivalent of a verbal résumé. Thus, by listing his numerous achievements, reliving his high school glories, and aggressively retorting answers to Democrats’ questions, Kavanaugh wielded the social capital and privilege of his white masculinity.115 IX.

The Women Who Spoke Up: Professor Anita Hill and Dr. Christine Blasey Ford Professor Hill and Dr. Ford shared multiple commonalities. Both women reported their

experiences of sexual violence under the condition that their names would remain confidential despite these attempts at confidentiality ultimately failing. Both women willingly submitted to polygraph tests, which confirmed that their allegations were truthful and credible. After their allegations were leaked to the public, other women came forward with similar allegations.

During the Thomas proceedings, Angela Wright alleged that Thomas sexually harassed her as 112

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:13:35-7:13:48.

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:13:40-7:13:42.

114 To view a photograph of Brett M. Kavanaugh’s high school yearbook, see Appendix J. 115 In addition to angrily answering Democrats’ questions, Kavanaugh interrupted them a total of 94 times.

113

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well. During the Kavanaugh proceedings, Deborah Ramirez and Julie Swetnick, alleged that they were victims of Kavanaugh’s sexually violent and aggressive behavior.116 Additionally, both Hill and Ford demonstrated physical and emotional embodiment of their traumatic experiences: Hill was hospitalized for five days from stress on the job and Ford detailed having “anxiety, phobia and PTSD-like symptoms.”117 Despite these traumas, both women vividly recalled their experiences in a professional and concise manner.

However, though both women experienced double victimization, in the original instances of trauma and again in their having to relive their experiences, their different racial identities informed their experiences in different ways. Hill “was treated far more harshly […] than she would have been had she been white,” and faced degradation by an all-white, all-male committee.118 Though Hill faced what contemporary viewers might consider heinous behavior on the part of the Senate Judiciary Committee, she remained composed and professional. Similarly, Ford began by sitting upright with her chin slightly raised, occasionally smiling, and appearing, all in all, composed. However, upon hearing of the other women’s allegations against Kavanaugh, she became emotional, her breathing accelerating as her eyes brimmed with tears.

Yet she composed herself sipped water, prioritizing composure over the strong, visceral emotions she inevitably felt. Because Ford adhered to the societal expectations of performative victimhood, by being emotional while maintaining composure, she garnered more credibility.119 Conclusion

116

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 21:41-23:03.

“Several studies have shown that the experience of sexual harassment can lead to depression, irritability, physical symptoms (extreme fatigue, headaches), and psychological distress.” Crawford, “Chapter 11,” 379. Committee on the Judiciary, Nomination of Judge Clarence Thomas, 38. Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 1:30:05-1:30:25.

118 Hill and Jordan, Race, Gender, and Power in America, 33.

119 Bollingmo et al., “Credibility of the Emotional Witness,” 29-40.

117

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The notion of innocent until proven guilty reverberates at the heart of this country’s judicial system. However, in these highly racial and gendered proceedings, senators utilized the burden of proof to protect Clarence Thomas and Brett Kavanaugh, safeguarding their confirmation to the highest court in the land. In asking victim-blaming questions, attacking Professor Anita Hill’s and Dr. Christine Blasey Ford’s credibility, and sympathizing with the nominees, the Senate Judiciary Committee shirked their duty to the American people and left Hill and Ford doubly victimized. Despite the venerable significance of the position of a Supreme Court Justice, Thomas and Kavanaugh were confirmed; the allegations of sexual violence levied against them proved insufficient to prevent their being sworn in. Further research might utilize this Article’s findings—how patriarchal society influenced senators—to explore the relationship between victim-blaming stereotypes, the criminal justice system, and sexual assault cases.120 Despite their outcomes, the hearings represent progress.121 They represent two women who refused to suffer in silence, and who forced “the nation [to] listen to them.”122 But these hearings were about more than sexual violence: they provoked national debate over “sexual [violence], the politics of power, and sexual and racial stereotypes.”123 While some Americans refused to believe Hill, others voiced their adamant support for her courage.124 In fact, during the 1991 proceedings, women called into C-SPAN and disclosed their personal experiences with sexual harassment and violence. Thus, Hill’s unparalleled courage sparked a Pre-#MeToo movement, a national conversation about violence against women.

120

In other words, further research might delve into how and why the criminal justice system is designed for the benefit of the accused.

121 The Thomas hearings achieved the following: The Civil Rights Act of 1991, an increase in the number of sexual harassment charges and lawsuits filed, an increase in the number of sexual harassment lawsuits, and a record number of women ran for the Senate. Morewitz, “Chapter 10,” 384; Schlossberg et al., Sex and Justice, 1993.

122 Mood and Davidson, Subjects and Citizens, 458.

123 Taylor, “Invisible Women,” 452.

124 Some calling into C-SPAN voiced that Hill’s testimony was “hurting the relationship between men and women,” and that “male Democrats [were] overcompensating for past wrongs done to women.” Survivors of sexual violence also called in to shame Hill for not doing anything. Thomas and Hill, Thomas Confirmation Hearing, 1991.

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Two women’s voices ignited debates about race, gender, and power that changed the course of history forever. Making history, Ketanji Brown Jackson became the first Black woman to be confirmed to the highest court in the land as the 116th Associate Justice of the United States Supreme Court.125 Yet history seemed to repeat itself. Jackson’s confirmation hearings featured the same racism and performative politics that Hill experienced. This time, senators employed racist myths about how Jackson’s Blackness led her to be soft on crime.126 This is not something that Ford, as a white woman, had to experience. Senators who opposed Jackson’s confirmation attempted to discredit and neutralize her power. Thus, senators continue to utilize racism and sexism to launch political agendas to discredit women in Supreme Court confirmation hearings. Not even a woman who will now sit on the Supreme Court of the United States—a woman vested with the highest judicial authority in the country—could be free from racist and sexist attempts at derogation.

As Anita Hill remarked during the 1992 New York Conference on Parity, Power & Sexual Harassment, how the nation discusses, conceptualizes, and prosecutes cases of sexual violence must change. Instead of placing the burden of proof upon the survivor, “we need to talk about why [the perpetrator] abused [their] power […] to turn the questions around to look at the harasser and not the target.”127 Although the outcomes of both hearings suggest that the patriarchy prevails, hope remains. From the unwavering courage displayed by Professor Hill to the quiet dignity displayed by Dr. Ford, with each courageous survivor who speaks out against gendered and racial systemic violence, the nation is one step closer to equality.

125

United States Committee on the Judiciary, “Judge Ketanji Brown Jackson: Nominee to Become the 116th Associate Justice of the United States Supreme Court.”

126 Remnick, “Anita Hill Saw History Repeat Itself at Ketanji Brown Jackson's Supreme Court Hearings,” 2022.

127 Hill et al., Sexual Harassment Issues, 1992.

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Appendix A List of Senators on the United States Senate Committee on the Judiciary 102nd United States Congress, First Session JOSEPH R. BIDEN, JR., Delaware, Chairman EDWARD M. KENNEDY, Massachusetts JAMES S. THURMOND, South Carolina HOWARD M. METZENBAUM, Ohio ORRIN G. HATCH, Utah DENNIS D. CONCINI, Arizona ALAN K. SIMPSON, Wyoming PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa HOWELL T. HEFLIN, Alabama ARLEN SPECTER, Pennsylvania PAUL M. SIMON, Illinois GEORGE H. BROWN, Colorado HERBERT H. KOHL, Wisconsin RONALD A. KLAIN, Chief Counsel JEFFREY J. PECK, Staff Director TERRY L. WOOTEN, Minority Chief Counsel and Staff Director ______________________________________________________________________________ 115th United States Congress, Second Session CHARLES E. GRASSLEY, Iowa, Chairman ORRN G. HATCH, Utah DIANNE G. B. FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina PATRICK J. LEAHY, Vermont JOHN CORNYN III, Texas RICHARD J. DURBIN, Illinois MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island RAFAEL E. CRUZ, Texas AMY J. KLOBUCHAR, Minnesota BENJAMIN E. SASSE, Nebraska CHRISTOPHER A. COONS, Delaware JEFFREY L. FLAKE, Arizona RICHARD BLUMENTHAL, Connecticut MICHAEL D. CRAPO, Idaho MAZIE K. HIRONO, Hawaii THOMAS R. TILLIS, North Carolina CORY A. BOOKER, New Jersey JOHN N. KENNEDY, Louisiana KAMALA D. HARRIS, California KOLAN L. DAVIS, Chief Counsel KOLAN L. DAVIS, Staff Director JENNIFER DUCK, Minority Chief Counsel and Staff Director PAGE 126

Appendix B Senate Vote Summary on the Nomination of Clarence Thomas to be an Associate Justice of the Supreme Court of the United States October 15, 1991, 6:03 PM128 Bond (R-MO) Boren (D-OK) Breaux (D-LA) Brown (R-CO) Burns (R-MT) Chafee (R-RI) Coats (R-IN) Cochran (R-MS) Cohen (R-ME) Craig (R-ID) D’Amato (R-NY) Danforth (R-MO) DeConcini (D-AZ) Dixon (D-IL) Dole (R-KS) Domenici (R-NM) Durenberger (R-MN) Exon (D-NE)

YEAs—52 Fowler (D-GA) Garn (R-UT) Gorton (R-WA) Gramm (R-TX) Grassley (R-IA) Hatch (R-UT) Hatfield (R-OR) Helms (R-NC) Hollings (D-SC) Johnston (D-LA) Kassebaum (R-KS) Kasten (R-WI) Lott (R-MS) Lugar (R-IN) Mack (R-FL) McCain (R-AZ) McConnell (R-KY) Murkowski (R-AK)

Adams (D-WA) Akaka (D-HI) Baucus (D-MT) Bentsen (D-TX) Biden (D-DE) Bingaman (D-NM) Bradley (D-NJ)

NAYs—48 Glenn (D-OH) Gore (D-TN) Graham (D-FL) Harkin (D-IA) Heflin (D-AL) Inouye (D-HI) Jeffords (R-VT)

128

Nickles (R-OK) Nunn (D-GA) Pressler (R-SD) Robb (D-VA) Roth (R-DE) Rudman (R-NH) Seymour (R-CA) Shelby (D-AL) Simpson (R-WY) Smith (R-NH) Specter (R-PA) Stevens (R-AK) Symms (R-ID) Thurmond (R-SC) Wallop (R-WY) Warner (R-VA)

Mikulski (D-MD) Mitchell (D-ME) Moynihan (D-NY) Packwood (R-OR) Pell (D-RI) Pryor (D-AR) Reid (D-NV)

The names of senators who sat on the Senate Committee on the Judiciary are both italicized and bolded.

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Bryan (D-NV) Bumpers (D-AR) Burdick, Quentin S (D-ND) Byrd (D-WV) Conrad (D-ND) Cranston (D-CA) Daschle (D-SD) Dodd (D-CT) Ford (D-KY)

Kennedy (D-MA) Kerrey (D-NE) Kerrey (D-MA) Kohl (D-WI) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Lieberman (D-CT) Metzenbaum (D-OH)

Sanford (D-NC) Rockefeller (D-WV) Sanford (D-NC) Sarbanes (D-MD) Sasser (D-TN) Simon (D-IL) Wellstone (D-MN) Wirth (D-CO) Wofford (D-PA)

Appendix C Senate Vote Summary on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States October 5, 2018, 10:36 AM 139 Alexander (R-TN) Barrasso (R-WY) Blunt (R-MO) Boozman (R-AR) Burr (R-NC) Capito (R-WV) Cassidy (R-LA) Collins (R-ME) Corker (R-TN) Cornyn (R-TX) Cotton (R-AR) Crapo (R-ID) Cruz (R-TX) Daines (R-MT) Enzi (R-WY) Ernst (R-IA) Fischer (R-NE)

YEAs—51 Flake (R-AZ) Gardner (R-CO) Graham (R-SC) Grassley (R-IA) Hatch (R-UT) Heller (R-NV) Hoeven (R-ND) Hyde-Smith (R-MS) Inhofe (R-OK) Isakson (R-GA) Johnson (R-WI) Kennedy (R-LA) Kyl (R-AZ) Lankford (R-OK) Lee (R-UT) Manchin (D-WV) McConnell (R-KY)

Moran (R-KS) Paul (R-KY) Perdue (R-GA) Portman (R-OH) Risch (R-ID) Roberts (R-KS) Rounds (R-SD) Rubio (R-FL) Sasse (R-NE) Scott (R-SC) Shelby (R-AL) Sullivan (R-AK) Thune (R-SD) Tillis (R-NC) Toomey (R-PA) Wicker (R-MS) Young (R-IN)

Baldwin (D-WI) Bennet (D-CO) Blumenthal (D-CT) Booker (D-NJ) Brown (D-OH) Cantwell (D-WA) Cardin (D-MD) Carper (D-DE) Casey (D-PA) Coons (D-DE)

NEAs—49 Hassan (D-NH) Heinrich (D-NM) Heitkamp (D-ND) Hirono (D-HI) Jones (D-AL) Kaine (D-VA) King (I-ME) Klobuchar (D-MN) Leahy (D-VT) Markey (D-MA)

Peters (D-MI) Reed (D-RI) Sanders (I-VT) Schatz (D-HI) Schumer (D-NY) Shaheen (D-NH) Smith (D-MN) Stabenow (D-MI) Tester (D-MT) Udall (D-NM) PAGE 128

Cortez Masto (D-NV) Donnelly (D-IN) Duckworth (D-IL) Durbin (D-IL) Feinstein (D-CA) Gillibrand (D-NY) Harris (D-CA)

McCaskill (D-MO) Menendez (D-NJ) Merkley (D-OR) Murkowski (R-AK) Murphy (D-CT) Murray (D-WA) Nelson (D-FL)

Van Hollen (D-MD) Warner (D-VA) Warren (D-MA) Whitehouse (D-RI) Wyden (D-OR)

Appendix D Analysis of the Rhetoric Employed in the Thomas Proceedings

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Appendix E Breakdown of Rhetorical Phrases Employed in the Thomas Proceedings Invocation of “lynching”: 15 times ● Judge Thomas invoked “lynching” five times on the following pages: 10, 157, 202. ● Chairman Biden invoked “lynching” two times on the following pages: 378. ● Ms. Fitch invoked “lynching” three times on the following pages: 378. ● Sen. Kohl invoked “lynching” two times on the following pages: 424, 425. ● Ms. Berry invoked “lynching” two times on the following pages: 424. ● Ms. Alvarez invoked “lynching” one time on the following page: 425.

Hill described as living in “fantasy”: 22 times ● Sen. Specter described Hill as living in a “fantasy” seven times on the following pages: 83, 92, 438, 553, 554, 562. ● Professor Hill denied living in a “fantasy” three times on the following pages: 83, 88, 97. ● Sen. Heflin questioned whether Hill lived in a “fantasy” five times on the following pages: 87, 88, 161, 188, 299. ● Judge Hoerchner denied that Hill lived in a “fantasy” one time on the following page: 291. ● Ms. Wells denied that Hill lived in a “fantasy” one time on the following page: 326. ● Ms. Alvarez described Hill as living in a “fantasy” one time on the following page: 386. ● Mr. Kothe described Hill as living in a “fantasy” two times on the following page: 553. ● Mr. Doggett described Hill as living in a “fantasy” one time on the following page: 562. ● Mr. Stewart described Hill as living in a “fantasy” one time on the following page: 582.

Discussion of “racism”: 10 times ● Judge Thomas discussed “racism” in the proceedings four times on the following pages: 9, 202, 205. ● Sen. Hatch discussed “racism” in the proceedings one time on the following page: 204. ● Sen. Kennedy discussed the absence of “racism” in the proceedings two times on the following page: 308. ● Sen. Kohl discussed the absence of “racism” in the proceedings two times on the following pages: 424, 425. ● Ms. Newman discussed “racism” in the proceedings four times on the following pages: 592.

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Discussion of being “humiliated”: 6 times ● Judge Thomas self-identified as being “humiliated” two times on the following pages: 8, 241. ● Professor Hill described the most “humiliating” instance of sexual harassment two times on the following pages: 56, 57. ● Judge Hoerchner described hearing that Professor Hill felt “humiliated” one time on the following page: 277. ● Ms. Saxon delegitimizes Professor Hill’s sentiments of feeling “humiliated” one time on the following page: 590.

Debates over who was the “victim”: 8 times ● Judge Thomas self-identified as being the “victim” one time on the following page: 9. ● Ms. Alverez rejected the notion that Professor Hill could, in any way, be considered a “victim” four times on the following pages: 338, 340, 374.129 ● Ms. Johnson rejected the notion that Professor Hill could, in any way, be considered a “victim” two times on the following page: 587. ● Ms. Saxon rejected the notion that Professor Hill could, in any way, be considered a “victim” one time on the following page: 590.

Chairman Biden reminded witness that they “are under oath”: 5 times ● Chairman Biden reminded witness that they “are under oath” five times on the following pages: 325, 326, 327, 327, 365.130

129

As Ms. Alvarez crudely remarked in her opening statement, “On Friday, [Professor Hill] played the role of a meek, innocent, shy Baptist girl from the South who was a victim of this big, bad man. I don’t know who she was trying to kid.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 338.

130 Four of the five reminders Chairman Biden issued were addressed to the witnesses for Hill.

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Appendix F Analysis of the Rhetoric Employed in the Kavanaugh Proceedings

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Appendix G Breakdown of Rhetorical Phrases Employed in the Kavanaugh Proceedings Dr. Ford praised for her “courage” and/or “bravery”: 24 times ● Ranking Member Feinstein praised Dr. Ford for her “courage” and/or “bravery” one time: 50:27-50:34. ● Sen. Leahy praised Dr. Ford for her “courage” and/or “bravery” two times: 1:40:50-1:41:26. ● Sen. Durbin praised Dr. Ford for her “courage” and/or “bravery” two times: 1:51:36-1:52:22. ● Sen. Coons praised Dr. Ford for her “courage” and/or “bravery” two times: 2:51:42-2:52:14; 2:53:56-2:54:02. ● Sen. Blumenthal praised Dr. Ford for her “courage” and/or “bravery” three times: 3:01:02-3:02:02; 3:04:14-3:04:31; 8:22:37-8:22:59. ● Sen. Hirono praised Dr. Ford for her “courage” and/or “bravery” two times: 4:09:23-4:09:44; 8:38:04-8:38:26. ● Sen. Booker praised Dr. Ford for her “courage” and/or “bravery” six times: 4:19:15-4:19:38; 4:20:15-4:20:29; 4:23:11-4:23:58; 8:53:57-8:54:08. ● Sen. Harris praised Dr. Ford for her “courage” and/or “bravery” five times: 4:30:50-4:31:14; 4:31:40-4:31:52; 4:35:41-4:36:12. ● Chairman Grassley praised Dr. Ford for her “courage” and/or “bravery” one time: 4:44:15-4:44:32.

Dr. Ford thanked for coming forward: 21 times ● Chairman Grassley thanked Dr. Ford for coming forward one time: 35:05-35:20. ● Ranking Member Feinstein thanked Dr. Ford for coming forward two times: 49:14-49:21; 1:29:26-1:29:28. ● Sen. Leahy thanked Dr. Ford for coming forward one time: 1:39:47. ● Sen. Durbin thanked Dr. Ford for coming forward one time: 1:52:09. ● Sen. Whitehouse thanked Dr. Ford for coming forward two times: 2:22:39-2:22:42; 2:27:44-2:27:46. ● Sen. Klobuchar thanked Dr. Ford for coming forward two times: 2:35:31-2:35:33; 2:40:36-2:40:39. ● Prosecuting Attorney Rachel Mitchell thanked Dr. Ford for coming forward one time: 2:43:33-2:43:36.

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● Sen. Coons thanked Dr. Ford for coming forward three times: 2:49:15-2:49:37; 2:50:29-2:50:31; 2:53:27-2:54:02. ● Sen. Blumenthal thanked Dr. Ford for coming forward one time: 3:00:42-3:00:48. ● Sen. Hirono thanked Dr. Ford for coming forward two times: 4:08:04-4:08:09; 4:10:01-4:10:04. ● Sen. Booker thanked Dr. Ford for coming forward one time: 4:18:12-4:18:15. ● Sen. Harris thanked Dr. Ford for coming forward four times: 4:31:40-4:31:52; 4:35:41-4:35:59.

Senators express that they “believe” Dr. Ford: 5 times131 ● Sen. Durbin expressed that he believed Dr. Ford one time: 1:52:10-1:52:22. ● Sen. Blumenthal expressed that he believed Dr. Ford two times: 3:00:42-3:00:57; 3:02:02-3:02:56. ● Sen. Harris expressed that she believed Dr. Ford two times: 4:31:40-4:31:52.

Anita Hill invoked: 9 times ● Ranking Member Feinstein discussed Anita Hill four times: 52:36-53:09; 54:07-54:19; 56:02-56:19. ● Sen. Leahy discussed Anita Hill one time: 1:40:33-1:40:42. ● Sen. Durbin discussed Anita Hill one time: 1:52:57-1:53:04. ● Sen. Klobuchar discussed Anita Hill two times: 2:29:56-2:30:12; 7:32:29-7:32:54. ● Sen. Blumenthal discussed Anita Hill one time: 8:25:08-8:25:10.

Nominee “unequivocally” denied allegations: 5 times ● Judge Kavanaugh “unequivocally” denied Dr. Ford’s allegations two times: 5:40:51-5:40:57; 5:57:35-5:57:40. ● Sen. Durbin discussed Judge Kavanaugh’s “[unequivocal]” denial two times: 7:08:48-7:09:29. ● Sen. Coons discussed Judge Kavanaugh’s “[unequivocal]” denial one time: 8:04:41-8:04:44.

“Left-wing opposition groups” mentioned: 1 time ● Judge Kavanaugh mentioned “left-wing opposition groups” one time: 5:47:13-5:47:39.132 Crosstalk: 17 times ● Ranking Member Feinstein engaged in crosstalk one time: 1:28:40-1:28:56. ● Counsel Bromwich engaged in crosstalk two times: 2:54:48-2:54:50. ● Chairman Grassley engaged in crosstalk two times: 3:11:54-3:12:03; 6:56:46-6:57:09. ● Sen. Whitehouse engaged in crosstalk one time: 4:43:17-4:43:19. ● Sen. Kennedy engaged in crosstalk one time: 4:43:50-4:43:53. ● Sen. Leahy engaged in crosstalk two times: 6:58:31-6:58:34; 7:00:26-7:00:28.

131

On the other side of the aisle, the belief extended to Kavanaugh, according to Sen. Tillis is his belief that “[Brett’s] going to be on the bench.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 8:48:41-8:48:47.

132 In his words, he declared that “this whole two-week effort has been a calculated and orchestrated political hit, fueled with the apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:47:13-5:47:39.

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● Judge Kavanaugh engaged in crosstalk eight times: 6:58:39-6:58:42; 6:58:48-6:58:51; 6:59:04-6:59:11; 7:00:42-7:00:48; 7:01:28-7:01:36; 7:01:44-7:01:46; 7:02:42-7:02:43; 7:22:05-7:22:08.

Former Chairman Joe Biden invoked: 7 times ● Chairman Grassley invoked former Chairman Joe Biden’s comment regarding FBI reports five times: 43:08-44:01; 7:36:52-7:37:49.133 ● Sen. Lee invoked former Chairman Joe Biden’s comment regarding FBI reports two times: 8:14:55-8:15:55.

133

Sen. Lee emphasized “that there is significant precedent from our former Chairman of this committee, Chairman Joe Biden.” Republicans invoked former Chairman Biden multiple times to dismiss the necessity of an FBI investigation and, by extension, the necessity of FBI reports in these proceedings. Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 8:14:56-8:15:31.

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Appendix H Comprehensive Comparative Analysis of the Rhetoric Employed in the Thomas and Kavanaugh Proceedings

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Appendix I Comparative Breakdown of Rhetorical Phrases Employed in the Thomas and Kavanaugh Proceedings Invocation of “hell”: 14 times total ● Thomas Proceedings: 7 times o Judge Thomas described the ordeal as “hell” three times on the following pages: 205, 234, 251.134 o Chairman Biden invoked “hell” three times on the following pages: 366, 381.135 o Sen. Simpson invoked “hell” one time on the following page: 581. ● Kavanaugh Proceedings: 7 times o Sen. Graham invoked “hell” three times: 7:16:38-7:16:44; 7:17:37-7:17:48.136 o Judge Kavanaugh invoked “hell” one time: 7:17:40-7:17:44. o Sen. Sasse invoked “hell” one time: 8:17:26-8:17:46. o Sen. Booker invoked “hell” two times: 8:52:13-8:52:16.

“Civic duty” to report: 17 times total ● Thomas Proceedings: 7 times o Professor Hill described her motivation for coming forward as “civic duty” two times on the following pages: 40, 68. o Chairman Biden described Professor Hill’s motivation for coming forward as “civic duty” one time on the following page: 271. o Mr. Paul described Professor Hill’s motivation for coming forward as “civic duty” two times on the following pages: 278, 293. o Judge Hoerchner described Professor Hill’s motivation for coming forward as “civic duty” two times on the following pages: 291, 317.

134

“Judge THOMAS. But to destroy me, Senator, I would have preferred an assassin’s bullet to this kind of living hell that they have put me and my family through.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 205.

135 “The CHAIRMAN. ‘Hell hath no fury […]’” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 366.

136 Sen. Graham invoked “hell” in the following exchange: “GRAHAM: Would you say you’ve been through hell?

KAVANAUGH: I—I’ve been through hell and then some.

GRAHAM: This is not a job interview.

KAVANAUGH: Yes. GRAHAM: This is hell.”

Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 7:17:37-7:17:48.

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● Kavanaugh Proceedings: 10 times o Dr. Ford described her motivation for coming forward as “civic duty” three times: 1:04:10-1:04:23; 1:13:27-1:13:37; 1:16:42-1:17:05. o Sen. Coons described Dr. Ford’s motivation for coming forward as “civic duty” two times: 2:50:04-2:50:19; 2:53:27-2:53:38. o Sen. Booker described Dr. Ford’s motivation for coming forward as “civic duty” four times: 4:18:17-4:18:46; 8:51:31-8:51:46. o Sen. Harris described Dr. Ford’s motivation for coming forward as “civic duty” one time: 4:30:58-4:31:14.

“11th hour” attempts to dismantle nomination: 4 times total ● Thomas Proceedings: 3 times o Mr. Paul rejected the theory that “Professor Hill’s allegations [were] an 11th-hour fabrication” one time on the following page: 278.137 o Sen. Kennedy rejected the theory that Professor Hill’s allegations were an “11th hour” attempt to dismantle Judge Thomas’ nomination one time on the following page: 307. o Ms. Alvarez agreed with the theory that Professor Hill’s allegations were an “11 th hour” attempt to dismantle Judge Thomas’ nomination one time on the following page: 341. ● Kavanaugh Proceedings: 1 time o Chairman Grassley agreed with the theory that Dr. Ford’s allegations were an “11th hour” attempt to dismantle Judge Kavanaugh’s nomination one time: 39:12-39:30.

“Categorical” denial: 17 times total ● Thomas Proceedings: 14 times o Judge Thomas “categorically” denied Professor Hill’s allegations nine times on the following pages: 6, 157, 161, 162, 195, 198, 218, 239. o Sen. Leahy characterized Judge Thomas’ denial as “categorical” three times on the following pages: 196, 197, 239. o Chairman Biden characterized Judge Thomas’ denial as “categorical” one time on the following page: 215. o Ms. Fitch characterized Judge Thomas’ denial as “categorical” one time on the following page: 361. ● Kavanaugh Proceedings: 3 times o Chairman Grassley characterized Judge Kavanaugh’s denial as “categorical” one time: 40:45-40:47. o Judge Kavanaugh “categorically” denied Dr. Ford’s allegations two times: 5:40:39-5:40:57; 5:57:35-5:57:41.

Characterization of the hearings as a “circus”: 9 times total ● Thomas Proceedings: 2 times o Judge Thomas described the hearings as a “circus” two times on the following pages: 157, 249. ● Kavanaugh Proceedings: 7 times 137

Committee on the Judiciary, Nomination of Judge Clarence Thomas, 278.

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o

Chairman Grassley described the hearings and the media surrounding the hearings as a “circus” one time: 39:31-39:49. o Judge Kavanaugh described the hearings and the media surrounding the hearings as a “circus” four times: 5:47:40-5:47:43; 6:12:25-6:12:31; 7:23:16-7:23:22. o Sen. Hatch described the hearings and the media surrounding the hearings as a “circus” one time: 8:00:41-8:00:57. o Sen. Lee described the hearings and the media surrounding the hearings as a “circus” one time: 8:13:23-8:13:27.

[Laughter]: 54 times total ● Thomas Proceedings: 41 times o Moments of collective laughter erupted in the Senate Caucus Room forty-one times on the following pages: 87, 88, 95, 96, 101, 135, 198, 218, 222, 244, 246, 247, 248, 282, 290, 299, 300, 302, 304, 311, 328, 330, 340, 362, 368, 381, 419, 435, 559, 568, 598. ● Kavanaugh Proceedings: 13 times o Moments of collective laughter erupted in the Senate Caucus Room thirteen times: 1:22:59-1:23:02; 1:45:09-1:45:11; 1:50:00-1:50:03; 1:50:07-1:50:13; 2:55:54-2:55:56; 3:03:36-3:03:40; 4:39:24-4:39:31; 4:44:13-4:44:15; 6:34:36-6:34:38; 7:22:27-7:22:29; 7:24:30-7:24:31; 8:41:34-8:41:45.

Destruction of the nominee’s “good name”: 33 times total ● Thomas Proceedings: 19 times o Ranking Member Thurmond commented on the destruction of Judge Thomas’ “good name” because of the proceedings one time on the following page: 4. o Judge Thomas commented on the destruction of his “good name” because of the proceedings thirteen times on the following pages: 5, 9, 157, 184, 206, 249, 251, 258. o Sen. DeConcini commented on the destruction of Judge Thomas’ “good name” because of the proceedings two times on the following pages: 255, 256.138 o Ms. Alvarez commented on the destruction of Judge Thomas’ “good name” because of the proceedings two times on the following pages: 337, 425. o Ms. Fitch commented on the destruction of Judge Thomas’ “good name” because of the proceedings one time on the following page: 343. ● Kavanaugh Proceedings: 14 times o Dr. Ford commented on her name to illuminate the ways in which she had been harassed and threatened since the publicization of her name one time: 1:15:31-1:15:52. o Judge Kavanaugh commented on the destruction of his “good name” because of the proceedings six times: 5:41:44-5:42:21; 5:46:57-5:47:10; 5:48:51-5:49:03; 6:32:49-6:33:02.

138

Sen. DeConcini asked: “And my question to you is, do you think you can recover from dying a thousand deaths, having your name and your reputation ripped from you through this process?” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 256.

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o o o o o

Sen. Durbin commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 7:11:44-7:12:05.139 Sen. Cornyn commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 7:29:11-7:29:23.

Sen. Coons commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 8:08:39-8:09:00.

Sen. Tillis commented on the destruction of Judge Kavanaugh’s “good name” because of the proceedings one time: 8:45:17-8:45:26.

Sen. Cruz commented on the destruction of both Dr. Ford’s and Judge Kavanaugh’s “good name” because of the proceedings three times: 8:54:52-8:54:55; 9:03:14-9:03:25.140

Hearings as a “national disgrace”: 3 times total ● Thomas Proceedings: 1 time o Judge Thomas characterizes the hearings as a “national disgrace” one time on the following page: 157. ● Kavanaugh Proceedings: 2 times o Judge Kavanaugh characterizes the hearings as a “national disgrace” one time: 5:43:30-5:43:34. o Sen. Hatch characterizes the hearings as a “national disgrace” one time: 8:01:25-8:01:27.

Discussion of nominee’s “character”: 53 times total ● Thomas Proceedings: 37 times o Ranking Member Thurmond defended Judge Thomas’ “character” three times on the following page: 5. o Judge Thomas defended his own “character” two times on the following pages: 9, 223. o Sen. Kohl commended Professor Hill’s “character” one time on the following page: 131. o Chairman Biden commended Judge Thomas’ “character” five times on the following pages: 223, 326, 328. o Sen. Simpson attacked Professor Hill’s “character,” thereby defending Judge Thomas’ “character,” one time on the following page: 254. o Mr. Paul defended Professor Hill’s “character” one time on the following page: 293. o Judge Hoerchner defended Professor Hill’s “character” three times on the following pages: 296, 303, 317. o Sen. Kennedy rebuked the “character assassination” of Professor Hill two times on the following page: 307. o Ms. Wells defended Professor Hill’s “character” two times on the following pages: 326, 327.

139

Sen. Durbin and Sen. Coons, both Democrats, invoked Kavanaugh’s good name to entreat him to call for an independent FBI investigation into Ford’s allegation.

140 Sen. Cruz lamented that both Ford and Kavanaugh have had their names “dragged through the mud.” Committee on the Judiciary Nomination of Brett M. Kavanaugh, 8:54:52-8:54:55.

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o

Mr. Carr defended Professor Hill’s “character” two times on the following page: 326. o Ms. Alvarez defended Judge Thomas’ “character” two times on the following pages: 338, 425. o Ms. Fitch defended Judge Thomas’ “character,” and engaged in the character assassination of Professor Hill, three times on the following pages: 342, 358, 378. o Ms. Berry defended Judge Thomas’ “character” one time on the following page: 351. o Ms. Holt defended Judge Thomas’ “character” two times on the following pages: 381, 413. o Sen. Specter defended Judge Thomas’ “character” three times on the following pages: 381, 382. o Sen. Brown defended Judge Thomas’ “character” one time on the following page: 413. o Mr. Grayson defended Judge Thomas’ “character” one time on the following page: 436. o Mr. Doggett defended Judge Thomas’ “character” two times on the following page: 566. ● Kavanaugh Proceedings: 16 times o Ranking Member Feinstein discussed the importance of “character” in these proceedings two times: 55:17-56:00. o Sen. Hirono discussed the importance of “character” in these proceedings seven times: 4:08:16-4:08:27; 4:08:52-4:09:01; 4:09:07-4:09:12; 8:39:14-8:39:21; 8:39:28-8:39:40.141 o Judge Kavanaugh defended his own “character” four times and denounced the “grotesque and coordinated character assassination” of his good name: 5:47:52-5:48:04; 6:08:06-6:08:13; 6:21:14-6:21:23; 6:21:49-6:21:58.142 o Chairman Grassley defended Judge Kavanaugh’s “character” two times: 8:11:34-8:11:44; 8:11:55-8:12:01. o Sen. Cruz defended Judge Kavanaugh’s “character” one time: 8:55:06-8:55:22.

“Destroyed” in the process: 11 times total ● Thomas Proceedings: 6 times o Judge Thomas remarked that everything he spent his entire life building had been “destroyed” by these proceedings two times on the following pages: 158, 206. o Sen. Simpson remarked that Professor Hill had been “destroyed” by coming forward two times on the following page: 254. o Mr. Paul remarked that Professor Hill had been “destroyed” by coming forward one time on the following page: 318. o Mr. Doggett remarked that Judge Thomas had been “destroyed” by these proceedings one time on the following page: 431.

141

Sen. Hirono emphasized the importance of the “character of a man we are considering for a lifetime appointment to the Supreme Court.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 4:08:07-4:09:44.

142 In his defense, Kavanaugh stated that “Dr. Ford’s allegation is radically inconsistent with my record and my character from my youth to the present day.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 6:08:06-6:08:16.

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● Kavanaugh Proceedings: 5 times o Judge Kavanaugh remarked that everything he spent his entire life building had been “destroyed” by these proceedings five times: 5:41:57-5:42:29; 5:46:57-5:47:01; 6:31:54-6:32:00; 7:14:35-7:14:40.143 “Impossible to prove a negative”: 9 times total ● Thomas Proceedings: 8 times o Sen. Hatch stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Thomas’ position, two times on the following pages: 188, 189. o Sen. Brown stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Thomas’ position, five times on the following page: 260.144 o Judge Thomas lamented his predicament, of being forced to “prove a negative,” one time on the following page: 263.145 ● Kavanaugh Proceedings: 1 time o Sen. Cornyn stated that it was “impossible to prove a negative,” thereby sympathizing with Judge Kavanaugh’s position, one time: 7:28:00-7:28:04.

143

“My family and my name have been totally and permanently destroyed.” Committee on the Judiciary, Nomination of Brett M. Kavanaugh, 5:42:11-5:42:16.

144 “Senator BROWN. Basically, what we are called upon to prove or you are called upon to prove is a negative. You are called upon to prove that 10 years ago you didn’t do something. I am not sure how you do that. I am not sure how you prove a negative.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 260.

145 “Judge THOMAS. It just seems as though I am here to prove the negative in a forum without rules and after the fact.” Committee on the Judiciary, Nomination of Judge Clarence Thomas, 263.

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Appendix J Photograph of Brett M. Kavanaugh’s High School Yearbook

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Appendix K Comparative Length of Thomas and Kavanaugh Proceedings

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Regulating Government Use of Artificial Intelligence

Benjamin Nober Northwestern University April 30, 2021

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Regulating Government Use of Artificial Intelligence

Benjamin Nober Northwestern University April 30, 2021

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Abstract Over the last decade, artificial intelligence (AI) has become a mainstay in the everyday lives of Americans. This thesis seeks to better understand what conditions can foster greater regulation of government use of AI systems. The present government reliance on private politics and the relatively low level of traditional government regulation of AI poses strong technical and ethical concerns affecting the liberties of Americans. The legislative and electoral influences involved are critical to answer questions surrounding regulation of AI. How do legislator preferences, interest groups, and public pressure affect whether lawmakers are incentivized to engage in proactive regulation or to continue the current path of narrow, reactive measures? I argue that the pace of technological change and the place of government as the direct consumer of AI provide sizable regulatory hurdles. As a result, I hypothesize on the importance of the role of outside influences in driving regulation of government use of AI systems.

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Acknowledgements Thank you to Richard Joseph for introducing me to the world of academic research, to Prof. Dan Linna and Prof. John Villasenor who sparked my interest in governance and technology, and to Prof. Laurel Harbridge-Yong for guiding me through the research and writing process.

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I. Introduction Over the last decade, artificial intelligence (AI) has become a mainstay in the everyday lives of Americans. Supported by increasingly cheap computational power, constantly improving algorithms, and a vast pipeline of data now available, this technology continues to provide a platform for those looking to innovate.1 Alongside this innovation, widespread concerns have grown over the ethical and technological questions stemming from the technology’s broad implementation across sectors. A major strategy by legislators at all levels of government has been to avoid significant regulation and instead opt for private solutions. With low levels of regulation in place concerning the technology’s use, high levels of access have led to rapid expansion across many domains. These extend into both the public and private sectors.

Algorithms determine what news is read, increase access to legal and health services, help law enforcement officials identify suspects, and provide countless other services.

Accompanying these advancements are new challenges created by the implementation of AI. Ethical concerns exist concerning levels of surveillance and fairness of decision-making.

Technologies powered by AI offer an unprecedented amount of control that, when so desired, can be used nefariously. These ethical considerations are compounded by a host of questions on the technical nature of AI systems. The consequences of employing underdeveloped and underregulated technologies are real. Reports of arrests made on faulty grounds due to algorithmic failures have trickled out around the nation.2 Cost-saving algorithms that replace

1

UW Video, Kate Crawford | AI Now: Social and Political Questions for Artificial Intelligence, 2018, https://www.youtube.com/watch?v=a2IT7gWBfaE&ab_channel=UWVideo.

2 Kashmir Hill, “Wrongfully Accused by an Algorithm,” The New York Times, June 24, 2020, sec. Technology, https://www.nytimes.com/2020/06/24/technology/facial-recognition-arrest.html.

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present practices in different local contexts can be dangerous. As many algorithms are created to provide efficiency and cut costs, local contexts are often overlooked leading to wide implementations of algorithms that worsen or ignore local conditions in some areas.3 This thesis focuses on specific uses of AI systems where the government is a direct consumer. It seeks to better understand the present reliance on private politics, the relatively low level of traditional government regulation of AI, and the prospects for greater regulation. Why do legislators opt for private governance of AI? How has the initial reliance on private politics affected subsequent governing strategies? What conditions can foster greater regulation? The legislative and electoral influences involved are critical to answering these questions and understanding the governing process surrounding AI. How do legislator preferences, interest groups, and public pressure affect whether lawmakers are incentivized to engage in proactive regulation or to continue the current path of narrow, reactive measures?

To address these questions on regulating government use of AI, I argue that there are two main reasons that regulation is so limited. First, the pace of technological change produces a difficult regulatory hurdle. Regulations that address yesterday’s problem may be insufficient to address tomorrow’s challenges. Second, the government is the direct consumer of AI, which may lead their incentives to align with those of technology companies and reduce interest in regulation. As a result, I hypothesize that there will only be successful regulation of the use of AI by the government when outside groups (e.g., citizens-focused interest groups) are very active on the issue and raise awareness through public exposure. Importantly, for citizens’ groups, they cannot use boycotts or buycotts because boycotting the government is infeasible. However, they

3

Yanni Alexander Loukissas, All Data Are Local: Thinking Critically in a Data-Driven Society, 1st ed. (The MIT Press, 2019), https://mitpress.mit.edu/books/all-data-are-local.

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can focus on publicity campaigns to increase the salience of the issue in the public, leading to greater pressure from the public on elected officials.

The task of governing AI poses a difficult yet essential balancing act for legislators. On one side is increased access to services and corporate interest in development and innovation in a global technological race. Providing more people with smarter services and allocating resources more efficiently could reshape aspects of governance. On the other side are public concerns as to the intrusive nature of these technologies, infringements on Constitutional rights, and the implications of technological shortcomings. Merit exists on both sides, and compromises to achieve responsible use of the technology requires government action. The strategy by legislators at all levels of government to date has largely been to avoid significant regulation and instead opt for private solutions. The findings of this paper have implications as to what internal and external influences on the decision-making process are important in bringing about regulation on government use of AI. This paper begins with a technical overview explaining a short history of AI, how it works today, present applications of the technology, and the concerns stemming from its use.

Next, the role of interest groups in influencing legislative outcomes is explored through a review of political science literature on public and private governance. The following section lays out the hypothesis, which applies political science literature to the unique uses of the technology, and the research design for the case study that follows. A case study on police use of facial recognition technology in two US cities points to connections between regulation of government use of AI and the role of interest groups in pushing such legislation. The final section concludes.

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II. Background This section introduces the concepts and uses of artificial intelligence, machine learning, and deep learning before exploring the implications of their present applications. The growing concerns over inequality and bias stemming from the technologies highlight the need for a conversation on regulation.

A Brief Overview on Artificial Intelligence So, what is AI? The term was first coined in 1956 and can be generally thought of as the class of technologies that rely in some way on nonhuman decision-making.4 Three types of AI exist in theory. The first, narrow or weak artificial intelligence, describes AI technologies able to perform singular, specific tasks. General artificial intelligence is a class of technologies able to think “on par with human abilities,” and superhuman AI can outperform human capabilities. 5 Only narrow AI technologies have (to date) been achieved.

Fluctuating in and out of popularity in both popular culture and applied science since the idea was first imagined, AI today has become a mainstay with the introduction of machine learning (ML). The most popular form of the technology today, ML works by analyzing large sets of data and making predictions based off of connections found within the data. The technology is the ability to find complex patterns that humans may miss. In general, developers design a program, calibrate the program on a chosen set of training data already marked with desired outcomes, and release the trained program. For example, developing an algorithm with the goal of recognizing handwritten numbers and translating those into a computer through

4

John Villasenor and Alicia Solow-Niederman, Holding Algorithms Accountable, April 23, 2020, https://www.youtube.com/watch?v=EcF-FtXx_q8&ab_channel=UCLASchoolofLaw. 5 Brodie O’Carroll, “What Are the 3 Types of AI? A Guide to Narrow, General, and Super Artificial Intelligence,” Codebots, October 24, 2017, https://codebots.com/artificial-intelligence/the-3-types-of-ai-is-the-third-even-possible.

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digital capture would first be written by a developer, next be trained using the National Institute of Standards and Technology’s (NIST) public Modified National Institute of Standards and Technology dataset containing 60,000 examples of handwritten numbers, and finally be tested for accuracy on test data before being released to the public. Importantly, the algorithm would continue to improve itself even after release.

At their core, ML systems operate on a variety of types of algorithms depending on what types of connections the program intends to discover. The most popular and powerful ML algorithm today is deep learning, which passes data through weighted connections in a series of interconnected neural networks.6 Essentially, training in deep learning means having the weight, or importance, of each piece of data at each layer of the algorithmic process both updated and assigned so that the algorithm can make predictions. An important note to take away from deep learning is that more computing power can mean better performance by the algorithm.

The amount of computational power in machines today is aweing. Moore’s Law, a commonly referenced rule of thumb, predicts that it takes only about eighteen months for the raw computational power of a computer, number of transistors, to double.7 Coined in 1965, this rule of thumb has been closely correlated to the actual trend of growth in computational power.

Almost sixty years of exponential growth means that computers today are orders of magnitude stronger than those of past decades.

Present Applications AI technologies continue to seep into more aspects of the daily lives of people

6

Larry Hardesty, “Explained: Neural Networks,” MIT News | Massachusetts Institute of Technology, April 14, 2017, https://news.mit.edu/2017/explained-neural-networks-deep-learning-0414.

7 Howard Strauss, “The Future of the Web, Intelligent Devices, and Education,” 2007, https://er.educause.edu/articles/2007/1/the-future-of-the-web-intelligent-devices-and-education.

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everywhere. Applications include those that are likely benign and those that raise more ethical concerns. For instance, AI systems control personal entertainment on digital platforms. Netflix decides what movies to show users to increase the time users spend on a platform. Google displays unique results for users signed into an account based on previous searches and demographic information. Facebook creates unique newsfeeds based on user data gathered on their platform. The average American in 2019 and 2020 spent around two and a half hours on social media platforms per day.8 AI systems achieve their goal of getting users to spend time on platforms.

Beyond these more novel applications, structural shifts powered by AI systems aim to reshape the private sector. Adopting AI systems promises to maximize accuracy, efficiency of resource allocation, and save time and money. Healthcare professionals employ predictive algorithms to search X-rays and MRIs. Because analyzing these images requires time-consuming work from highly skilled professionals, the promise and initial success of employing AI to accurately perform the task excites many.9 Many job recruiters today save time by first sorting job applications through AI systems before ever seeing them. 10 This streamlines the ability to find candidates who meet certain requirements without having to read through ‘unfit’ applicants.

Applications of the technology also extend into the public sector. The applications of AI employed by the government are the primary focus of this thesis. Judges increasingly employ predictive models to help decide sentencing lengths. Trained on data from past cases, algorithms

8

H Tankovska, “Daily Social Media Usage Worldwide,” Statista, February 8, 2021, https://www.statista.com/statistics/433871/daily-social-media-usage-worldwide/.

9 Patricia M. Johnson, Michael P. Recht, and Florian Knoll, “Improving the Speed of MRI with Artificial Intelligence,” Seminars in Musculoskeletal Radiology 24, no. 1 (February 2020): 12–20, https://doi.org/10.1055/s-0039-3400265.

10 Rebecca Heilweil, “Artificial Intelligence Will Help Determine If You Get Your next Job,” Vox, December 12, 2019, https://www.vox.com/recode/2019/12/12/20993665/artificial-intelligence-ai-job-screen.

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assess the “risk of recidivism” and other factors to help give a judge context in deciding severity of punishment.11 Law enforcement officials in cities and national agencies search through facial recognition platforms across databases of images to better identify suspects.12 Parsing through databases of facial images and other biometric information such as gait can allow for better-than-human performance in positively matching individuals.13 Public benefits define another broad area of interest where the government seeks to apply AI systems. 14 Deciding how public benefits should be appropriated creates one of the biggest areas of government decision-making. AI systems present the opportunity to maximize efficiency along whatever outcome a developer might desire. The lack of present transparency limits intimate knowledge of public benefits applications of the technology, but scattered reports speak to the already-present use of the technology in this capacity.15 Present Concerns AI technologies are built on top of existing systems, which opens the door for inequality and bias. Social systems and institutions are already in place, and innovation must consider history. Emerging technologies affect different populations in distinct manners. A quick overview of statistics on internet access indicates how a fast-expanding technology can bolster inequality. The United States Census Bureau in 2018 found that while 78% of Americans subscribe to home internet, rural and low-income communities lag behind national averages by

11

Craig Schwalbe, “A Meta-Analysis of Juvenile Justice Risk Assessment Instruments: Predictive Validity by Gender,” Criminal Justice and Behavior 35 (July 30, 2008): 1367–81, https://doi.org/10.1177/0093854808324377.

12 Clare Garvie, Alvaro Bedoya, and Jonathan Frankle, “The Perpetual Line-Up,” Perpetual Line Up, October 18, 2016, https://www.perpetuallineup.org/.

13 Daniel Kang, “Chinese ‘gait Recognition’ Tech IDs People by How They Walk,” AP NEWS, November 6, 2018, https://apnews.com/article/bf75dd1c26c947b7826d270a16e2658a.

14 Garvie, Bedoya, and Frankle, “The Perpetual Line-Up.” 15 Rashida Richardson, Jason M Schultz, and Vincent M Southerland, “Litigating Algorithms 2019 US Report” (AI Now Institute: New York University, September 2019).

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around 15%.16 White households steadily have around a 6% higher level of internet access than Hispanic or Black households across all levels of income.17 Inequity is not unique to AI and permeates into digital spaces in many capacities. The rapid expansion of capability and widespread implementation of AI systems today necessitate pinpointing limitations explicit to its current applications and implicit to using deep learning. Technical and design limitations exist with narrow AI systems, and broader ethical worries arise from the power of these systems.

Input bias plagues deep learning. As ML relies on large data sets to learn and train algorithms, the technology is susceptible to parroting bias built into data sets from which it learns.18 Racial disparities in facial recognition technologies have garnered national attention.

NIST’s most recent report on discrimination documents disparities in performance across many algorithms resulting in worse results on people of color, women, and young people aged 18-30.19 Critics have decried the use of “pale male” training data sets that underrepresent minorities, young people, and women and overrepresent older white men.20 Training disparities have shown that algorithms built on data skewed to represent one population more than others will subsequently perform better on that specific population.21 For example, a 2018 American Civil

16

Michael Martin, “Rural and Lower-Income Counties Lag Nation in Internet Subscription,” The United States Census Bureau, December 6, 2018, https://www.census.gov/library/stories/2018/12/rural-and-lower-income-counties-lag-nation-internet-subscription.ht ml.

17 “Demographics of Internet and Home Broadband Usage in the United States,” Pew Research Center: Internet, Science & Tech (blog), June 12, 2019, https://www.pewresearch.org/internet/fact-sheet/internet-broadband/.

18 John Villasenor, “Artificial Intelligence and Bias: Four Key Challenges,” Brookings (blog), January 3, 2019, https://www.brookings.edu/blog/techtank/2019/01/03/artificial-intelligence-and-bias-four-key-challenges/.

19 Patrick Grother, Mei Ngan, and Kayee Hanaoka, “Face Recognition Vendor Test Part 3: Demographic Effects” (Gaithersburg, MD: National Institute of Standards and Technology, December 2019), https://doi.org/10.6028/NIST.IR.8280.

20 Joy Buolamwini, “Gender Shades,” MIT Media Lab, 2018, https://www.media.mit.edu/projects/gender-shades/overview/.

21 Robin Materese, “NIST Evaluation Shows Advance in Face Recognition Software’s Capabilities,” text, NIST, November 30, 2018, https://www.nist.gov/news-events/news/2018/11/nist-evaluation-shows-advance-face-recognition-softwares-capabili ties.

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Liberties Union (ACLU) report noted 28 false positives matching Members of Congress to criminal mugshot photos through Amazon’s facial recognition software. 22 Included in this abysmal performance were a disproportionately high number of nonwhite representatives. The consequences of faulty technology are real, and reports of arrests made on false matches through facial recognition searches have trickled out around the nation.23 Explaining the phenomenon are biases in training data but also in design. Input bias can come from unintentional or intentional biases in design.24 Algorithms are created to complete a task and reflect the ideas of those who design them. A large underrepresentation of minority professionals in computer science and other STEM fields means that many projects do not have diverse descriptive representation.25 This can produce unintended consequences in AI technologies. In 2015, a Black hotel guest found it curious that a soap dispenser did not recognize his hand but would recognize his white counterpart’s hand.26 A review by the soap dispenser’s designer discovered that the strategy used to sense hands, bouncing light back from skin, worked significantly worse on darker skin. Input bias from a lack of descriptive representation can thus create inequality.

The designed ability for ML algorithms to continue to evolve after being deployed leaves room for more bias. Deep learning relies on an algorithm automatically adjusting itself over time based on inputted data. Bias grows from this dynamic nature of AI, as systems can develop

22

Jacob Snow, “Amazon’s Face Recognition Falsely Matched 28 Members of Congress With Mugshots,” American Civil Liberties Union, July 26, 2018, https://www.aclu.org/blog/privacy-technology/surveillance-technologies/amazons-face-recognition-falsely-matched28.

23 Materese, “NIST Evaluation Shows Advance in Face Recognition Software’s Capabilities.”

24 Ruha Benjamin, “Race After Technology,” Ruha Benjamin, accessed July 17, 2020, https://www.ruhabenjamin.com/race-after-technology.

25 Ali Karbassi, “Mission,” We All Code, accessed April 26, 2021, https://www.weallcode.org/our-story/.

26 Max Plenke, “The Reason This ‘Racist Soap Dispenser’ Doesn’t Work on Black Skin,” Mic, 2015, https://www.mic.com/articles/124899/the-reason-this-racist-soap-dispenser-doesn-t-work-on-black-skin.

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biases over time based on the information received.27 A Microsoft project to release a chatbot onto Twitter quickly came under fire after the bot began spewing racist trope on its first day.28 While not trained to house racial attitudes, the bot learned on its own from those who interacted with it and evolved to mirror their attitudes. Because AI algorithms evolve constantly with new information, bias can enter over time through regular use.

Domain specificity limits AI systems today with current technological design preventing universal solutions. As discussed, only narrow AI presently exists. Bias further evolves in the application of AI to diverse settings. 29 Rules that govern some aspects of society are not acceptable in other places. An AI system designed to estimate life insurance policies can use age as a factor while this same AI system could not discriminate along age lines if it were tasked with helping in the hiring process for those working at the same life insurance company.30 People have complex rules that are hard for computers to fully grasp. This presents scalability issues.31 While tempting to use an existing technology designed in one domain elsewhere, AI systems today need to be carefully adjusted to fit new tasks. As many algorithms are created to provide efficiency and cut costs, local contexts are often overlooked.32 Further compounding concerns is an innate and designed complexity preventing humans

27

Villasenor, “Artificial Intelligence and Bias.”

Elle Hunt, “Tay, Microsoft’s AI Chatbot, Gets a Crash Course in Racism from Twitter,” the Guardian, March 24, 2016, http://www.theguardian.com/technology/2016/mar/24/tay-microsofts-ai-chatbot-gets-a-crash-course-in-racism-fromtwitter.

29 Villasenor, “Artificial Intelligence and Bias.”

30 “Age Discrimination | U.S. Department of Labor,” accessed April 28, 2021, https://www.dol.gov/general/topic/discrimination/agedisc.

31 Michael Chui et al., “Notes from the AI Frontier: Applications and Value of Deep Learning,” McKinsey, April 17, 2018, https://www.mckinsey.com/featured-insights/artificial-intelligence/notes-from-the-ai-frontier-applications-and-value -of-deep-learning.

32 Loukissas, All Data Are Local: Thinking Critically in a Data-Driven Society.

28

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from fully understanding AI systems. The technology is complex and designed to consider many more factors than a human can manage.33 The complexity of AI creates a tradeoff with AI always vulnerable to unknown problems because humans do not fully understand it.34 Just because it appears to humans as though a certain motivation exists behind a certain algorithmic decision, there is no guarantee that the algorithmic decision is based on what humans might think. Beyond the complexity of deep learning, proprietary restrictions often prevent real scrutiny of algorithms.

“Black box” systems refer to those protected from audit due to proprietary restrictions.35 In the Houston Independent School District, for example, teachers were angered after being denied the ability to hear factors considered by an algorithm evaluating their performance.36 These performance evaluations affected hiring and contract renewal decisions. Even after enough backlash emerged to scrap the use of the algorithm, the factors considered by the AI system were never revealed.

These technical and design limitations of AI systems powered by ML are compounded by a host of questions on the ethical nature of expanded capabilities of governance. Constitutional questions concerning levels of surveillance and fairness of decision-making as well as complicated legal questions on accountability populate present and future worries.

Technologies powered by AI offer previously unimagined amounts of power. If not carefully overseen, the capabilities of AI systems might be used unjustly. This raises further

33

Hardesty, “Explained.”

Ryan Calo et al., “Autonomous Systems Failures: Who Is Legally and Morally Responsible?” (School of Law, November 18, 2020), https://www.law.northwestern.edu/student-life/events/eventsdisplay.cfm?i=176039&c=2.

35 Dillon Reisman et al., “Algorithmic Impact Assessments: A Practical Framework for Public Agency Accountability,” Impact Assessment 13, no. 1 (April 2018): 3–30, https://doi.org/10.1080/07349165.1995.9726076.

36 Shelby Webb, “Houston Teachers to Pursue Lawsuit over Secret Evaluation System,” HoustonChronicle.com, May 12, 2017, https://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-teachers-to-pursue-lawsuit-over-sec ret-11139692.php.

34

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concerns about the appropriate scope of government use of AI. Authoritarian regimes use facial recognition and smart policing algorithms to surveil political dissidents.37 This creates dangerous conditions and limits free speech and other liberties. The spread of surveillance is not unique to authoritarian regimes, as “[a]t least seventy-five out of 176 countries globally are actively using AI technologies for surveillance purposes”.38 Domestically, the use of AI systems for this purpose is seen as unpopular by nearly two-thirds of Americans, who are concerned with the amount of personal data collected by the government.39 With constant surveillance by police, safeguarding rights to freedom of speech and other Constitutional protections becomes necessary. Under surveillance, individuals are less likely to speak freely.40 Precedent has shown that the Fourth Amendment does not provide as much protection on unwarranted searches as some would hope.41 Looking at the Federal Bureau of Investigation (FBI)’s database of 640 million pictures, many images regularly included in searches come from innocent citizens, including the more than 146 million passport photos as of 2019.42 Algorithms powered by AI must often rely on a selected and encoded definition of fairness which thus places these algorithms in the position of decision-makers. The concept of fairness is subjective, and the subjective nature of defining a fair outcome makes the design of

37

Stephen Kafeero, “Uganda Is Using Huawei’s Facial Recognition Tech to Crack down on Dissent after Protests,” Quartz Africa, November 27, 2020, https://qz.com/africa/1938976/uganda-uses-chinas-huawei-facial-recognition-to-snare-protesters/.

38 Steven Feldstein, “The Global Expansion of AI Surveillance,” Carnegie Endowment for International Peace, September 17, 2019, https://carnegieendowment.org/2019/09/17/global-expansion-of-ai-surveillance-pub-79847.

39 Brooke Auxier and Lee Rainie, “Key Takeaways on Americans’ Views about Privacy, Surveillance and Data-Sharing,” Pew Research Center (blog), November 15, 2019, https://www.pewresearch.org/fact-tank/2019/11/15/key-takeaways-on-americans-views-about-privacy-surveillance-a nd-data-sharing/.

40 Elijah Cummings, “Facial Recognition Technology (Part II): Ensuring Transparency in Government Use,” § House Oversight Committee (2019).

41 Cummings.

42 Gretta Goodwin, “Face Recognition Technology,” Testimony Before the Committee on Oversight and Reform, House of Representatives, June 4, 2019.

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algorithms difficult.43 Fairness, Accountability, and Transparency in ML (FAT/ML) highlights fairness as the need to “[e]nsure that algorithmic decisions do not create discriminatory or unjust impacts when comparing across different demographics”.44 A predictive policing algorithm meant to assign officers to locations where crime is most likely to happen decides that it is fair to assume that locations of past arrests can be predictive of future crimes.45 However, critics argue that a higher presence of police leads to the creation of more data detailing a greater number of arrests in that area where more police are assigned. Defining a fair distribution of police officers thus relies on some subjectivity assumed by the creators of the algorithm but not universally agreed upon.

AI systems operate in many different domains further complicating accountability.

Massive disparity exists in the consequences of getting decisions wrong across these different domains.46 Netflix crashing because of a bug is very different than a plane crashing due in part to software failure that includes many fatalities or someone being mistakenly identified as a criminal by facial recognition technology.47 A single approach at holding AI systems accountable cannot properly encompass the variety of mediums where the technology is employed. Practical legal limitations have emerged in attempting to hold systems accountable after failures. After an automated car crashed into and killed a pedestrian walking her bicycle in Arizona, a Department of Transportation investigation charged the safety driver with negligent homicide.48 Digging into 43

Deirdre K. Mulligan et al., “This Thing Called Fairness: Disciplinary Confusion Realizing a Value in Technology,” Proceedings of the ACM on Human-Computer Interaction 3, no. CSCW (November 7, 2019): 119:1-119:36, https://doi.org/10.1145/3359221.

44 “Principles for Accountable Algorithms and a Social Impact Statement for Algorithms: FAT ML,” accessed March 11, 2021, https://www.fatml.org/resources/principles-for-accountable-algorithms.

45 Benjamin, “Race After Technology.”

46 Villasenor and Solow-Niederman, Holding Algorithms Accountable.

47 Calo et al., “Autonomous Systems Failures.”

48 Rory Cellan-Jones, “Uber’s Self-Driving Operator Charged over Fatal Crash,” BBC News, September 16, 2020, sec. Technology, https://www.bbc.com/news/technology-54175359.

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the logs from the algorithm of the car found that it failed to stop for the pedestrian as it could not determine whether it was seeing a person or a bike and did not properly store information because of its confusion.49 While it was the algorithm that powered the car into the pedestrian due to its failure, the driver faced accountability for the accident. The unprecedented situation highlights how existing rules of governance do not yet establish full accountability for AI systems.

AI systems create unique questions on governance. Difficulty in finding regulatory solutions is created by the rapidly evolving landscape of digital innovation and the massive array of domains with widely varying levels of significance. In instances where the government is the direct consumer of AI systems, these algorithms can even become primary decision-makers. The importance of finding solutions to regulate the technology is compounded by sweeping concerns over bias and inequality in many forms.

49

Calo et al., “Autonomous Systems Failures.”

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III. Literature Review In a market, governments can either impose regulations through traditional public policy channels or provide less structure and allow for consumers or firms to guide the market.

Understanding the key influences in each of these scenarios is thus important in answering the questions of why governance of AI has largely relied on private market regulation and under what conditions greater government action might be expected. The two channels, traditional public methods and private politics, may be employed simultaneously or separately by those seeking changes in practice.50 Each will be explored in depth along with the unique challenges stemming from regulating AI. Traditional routes of regulation rely on public governance, either through the legislative process or through bureaucratic rulemaking.51 For regulation initiated by elected officials, we might expect their regulatory decisions to reflect their own views and the potentially competing pressures on members of Congress and elected officials at all levels of government from citizens’ preferences, interest groups, political parties, and other outside actors.52 In AI, as in many issues, the regulatory environment may be much more salient to interest groups than to constituents, suggesting that interest groups may be influential in the direction of policy. However, if AI regulation is made more salient to the public, legislators may be more responsive to constituency

50

David P. Baron, “Private Politics,” Journal of Economics & Management Strategy 12, no. 1 (2003): 31–66, https://doi.org/10.1111/j.1430-9134.2003.00031.x.

51 Christopher Carrigan and Cary Coglianese, “The Politics of Regulation: From New Institutionalism to New Governance,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, June 1, 2011), https://doi.org/10.1146/annurev.polisci.032408.171344; Susan Webb Yackee, “The Politics of Rulemaking in the United States,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, May 1, 2019), https://doi.org/10.1146/annurev-polisci-050817-092302.

52 P. Burstein and A. Linton, “The Impact of Political Parties, Interest Groups, and Social Movement Organizations on Public Policy: Some Recent Evidence and Theoretical Concerns,” Social Forces 81, no. 2 (December 1, 2002): 380–408, https://doi.org/10.1353/sof.2003.0004.

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pressures, reducing the power of business interest groups.53 With the exception of citizens-focused interest groups, the priorities of interest groups can be contrary to those of individuals. Interest group priorities, often disproportionately supported by corporate sponsors, do not tend to align with priorities of the public.54 Regardless of income or class, the public agenda contains different policy issues than those pedaled by interest groups. In the domain of AI, business or corporate interest groups behind the AI systems may prefer little government regulation while the general public may favor greater regulation.

Scholars agree that interest groups seek to impact the legislative process, yet consensus is split on whether access- or replacement-oriented approaches are more effective for interest groups.55 Access-oriented models suggest that interest groups donate money to legislators to purchase their time once in office, giving them the opportunity to contact legislators and press their concerns. Replacement-oriented models suggest that interest groups seek to influence electoral outcomes, helping put elected officials with like-minded views in office.

Regardless of whether they pursue a replacement or access strategy, monetary donations are one route through which interest groups attempt to influence outcomes in policymaking.

Campaign financing is targeted as one means to have influence over policy outcomes and can align with either a replacement or access strategy.56 As a replacement-oriented tactic, campaign

53

Daniel M. Butler and David W. Nickerson, “Can Learning Constituency Opinion Affect How Legislators Vote?

Results from a Field Experiment,” Quarterly Journal of Political Science 6, no. 1 (August 22, 2011): 55–83, https://doi.org/10.1561/100.00011019.

54 David C Kimball et al., “Who Cares about the Lobbying Agenda?,” Interest Groups & Advocacy 1, no. 1 (May 1, 2012): 5–25, https://doi.org/10.1057/iga.2012.7.

55 Samuel Issacharoff and Jeremy Peterman, “Special Interests After Citizens United: Access, Replacement, and Interest Group Response to Legal Change,” Annual Review of Law and Social Science 9, no. 1 (2013): 185–205, https://doi.org/10.1146/annurev-lawsocsci-102612-133930.

56 Rui J. P. De Figueiredo and Geoff Edwards, “Does Private Money Buy Public Policy? Campaign Contributions and Regulatory Outcomes in Telecommunications,” Journal of Economics & Management Strategy 16, no. 3 (2007): 547–76, https://doi.org/10.1111/j.1530-9134.2007.00150.x.

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financing influences regulatory outcomes quickly with private money through the installation of legislators with views aligned to those of the interest group. This method is especially effective in local and state races, where interest groups specifically target off-cycle elections to extend the reach of their investment.57 Interest group spending is more efficient in these smaller elections because fewer voters are participating. Campaign spending can also be focused around an access strategy. Financing by interest groups specifically targets members and other elected officials in leadership positions and on committees with jurisdiction over the industry.58 Party and committee leaders have power over the agenda setting process, making access to these powerful members valuable for interest groups. Much like spending in off-cycle elections, this access-oriented approach maximizes the value of contributions by placing them where regulatory power is most centralized. Unlike replacement-oriented methods, this access-oriented method is dynamic.

Private interest groups can quickly adapt to changing actors on relevant committees that oversee their interests by bankrolling new members and offloading those removed.59 And in fact, research has found that interest groups target spending at the members of those committees that regulate their industry.60 By donating to the gatekeepers and elected officials on key committees with jurisdiction to regulate the industry, interest groups may seek to benefit from enhanced access to these officeholders. This research suggests that, in the domain of AI, business-oriented interest groups that make the technology may use donations and other strategies to limit government

57

Sarah F. Anzia, “Election Timing and the Electoral Influence of Interest Groups,” The Journal of Politics 73, no. 2 (April 1, 2011): 412–27, https://doi.org/10.1017/S0022381611000028.

58 Roger H. Davidson et al., “Leaders and Parties in Congress,” in Congress and Its Members, 16th ed. (CQ Press, 2017); Alexander Fouirnaies, “When Are Agenda Setters Valuable?,” American Journal of Political Science 62, no.

1 (2018): 176–91, https://doi.org/10.1111/ajps.12316.

59 Eleanor Neff Powell and Justin Grimmer, “Money in Exile: Campaign Contributions and Committee Access,” The Journal of Politics 78, no. 4 (August 3, 2016): 974–88, https://doi.org/10.1086/686615.

60 Fouirnaies, “When Are Agenda Setters Valuable?”

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regulation if they choose.

Although scholars have amassed evidence on the spending patterns of interest groups that are consistent with different interest group-based strategies of impacting the legislative process, research on the policy impact of interest group activities is less conclusive, and there still remains a gap in studies directly linking these strategies to policymaking outcomes.61 Scholars often overstate the influence of interest groups in policy outcomes when there is little evidence that it alone can guide legislative decisions. Many studies fail to include the effects of public opinion alongside interest group influence altogether.62 This lack of mention of public opinion is worrisome, as the effects of public opinion can have strong influence over the legislative agenda, especially at a state level.63 Even though business-oriented interest groups often have extensive monetary resources, they are not able to guarantee their preferred outcome as many groups – businesses and industries, as well as citizens’ groups – may align on each side, making the sides more evenly pitted.64 Because so many interests are involved on each side, the power of any one source of influence is hindered. In the domain of AI, business-oriented interest groups may be active and have many monetary resources, but if they are countered by citizens’ groups and other interest groups with their own monetary and membership resources, it is not clear which side would prevail. Without consensus on this fundamental aspect of the financial influence of interest groups and other outside actors, their actual role in achieving policy outcomes is unclear.

61

Marie Hojnacki et al., “Studying Organizational Advocacy and Influence: Reexamining Interest Group Research,” Annual Review of Political Science 15 (June 2012): 379–99.

62 Burstein and Linton, “The Impact of Political Parties, Interest Groups, and Social Movement Organizations on Public Policy.”

63 Matthew Fellowes, Virginia Gray, and David Lowery, “What’s on the Table? The Content of State Policy Agendas,” Party Politics 12, no. 1 (January 1, 2006): 35–55, https://doi.org/10.1177/1354068806059246.

64 Frank R. Baumgartner et al., “Money, Priorities, and Stalemate: How Lobbying Affects Public Policy,” Election Law Journal: Rules, Politics, and Policy 13, no. 1 (March 1, 2014): 194–209, https://doi.org/10.1089/elj.2014.0242.

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Further complicating the picture within the study of AI are aligning interests between government officials and those companies providing technologies. Since AI technologies can sometimes directly perform governmental functions, regulation would directly affect the government’s ability to use the technology.65 In this case, the government as a direct consumer could create an alignment with corporate interests. That alignment limits the insights from political science literature on interest group influence. Literature to date focuses on competing interests of the public agenda and interest groups without considering the government as a group with direct interest.

An alternative route of regulation focuses on private politics. In standard views of private politics, the market produces regulation when activists in the public mobilize consumers to alter their purchasing behavior, since this induces companies or industries to change their practices.

Two main strategies for consumers are boycotts and buycotts. Boycotts target firms by publicly withdrawing support for a company, and buycotts do so by withholding purchases of a specific product or products made by a producer. By pressuring firms publicly, directly, and quickly, private politics are appealing because of the allowance for much quicker action than that through public channels.66 These campaigns have grown in popularity recently in part due to an increase in communication permitted by social media use.67 With better platforms for direct appeals to be made, these campaigns continue to prove effective in many cases. For example, controversial political comments from MyPillow CEO and founder Mike Lindell in 2020 led to widespread

65

Kate Crawford and Jason Schultz, “AI Systems as State Actors,” Columbia Law Review, 2019, https://columbialawreview.org/content/ai-systems-as-state-actors/.

66 David P. Baron and Daniel Diermeier, “Strategic Activism and Nonmarket Strategy,” Journal of Economics & Management Strategy 16, no. 3 (2007): 599–634, https://doi.org/10.1111/j.1530-9134.2007.00152.x.

67 Kyle Endres and Costas Panagopoulos, “Boycotts, Buycotts, and Political Consumerism in America,” Sage Journals 4, no. 4 (November 1, 2017), https://journals.sagepub.com/doi/full/10.1177/2053168017738632.

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calls to boycott the product and the popular brand subsequently being removed from sale at leading home furnishing stores across the country.68 This form of private politics relies on activists to monitor and sanction firms through public campaigns targeting a chosen firm with the hope of enacting industry-wide changes.69 If enough pressure is applied to the target, they will be incentivized into changing their practices, and other firms will follow to avoid future targeting. To be successful, market-led governance relies on knowledge of company practices and direct consumerism.70 Direct channels between company and consumer are where pressure is placed to enact change.71 American governance of AI to date has largely shied away from traditional legislative routes and instead has been heavily reliant upon private politics. Bipartisan support for the strategy has persisted across multiple administrations.72 Even without the ability of consumers to realistically sanction firms, public policy makers at multiple levels of government have nonetheless kept the bulk of AI regulation in the hands of the market. However, applying popular strategies of private politics to AI presents a problem because the consumer cannot easily boycott a particular AI firm. 73 Instead, most private regulation of AI has relied on firms alone, counting on companies to police the use of their own technology. This strays from the traditional literature

68

Elizabeth Chang, “MyPillow Boycott: How a Product Can Spark an Identity Crisis,” Washington Post, accessed March 7, 2021, https://www.washingtonpost.com/lifestyle/wellness/my-pillow-lindell-boycott-customers/2021/02/12/7399aaa4-6af1 -11eb-9ead-673168d5b874_story.html.

69 Erin M. Reid and Michael W. Toffel, “Responding to Public and Private Politics: Corporate Disclosure of Climate Change Strategies,” Strategic Management Journal 30, no. 11 (2009): 1157–78, https://doi.org/10.1002/smj.796.

70 Endres and Panagopoulos, “Boycotts, Buycotts, and Political Consumerism in America.”

71 James N. Druckman and Julia Valdes, “How Private Politics Alters Legislative Responsiveness,” Quarterly Journal of Political Science 14, no. 1 (January 1, 2019): 115–30, https://doi.org/10.1561/100.00018066.

72 Corinne Cath et al., “Artificial Intelligence and the ‘Good Society’: The US, EU, and UK Approach,” Science and Engineering Ethics 24, no. 2 (April 1, 2018): 505–28, https://doi.org/10.1007/s11948-017-9901-7; “Artificial Intelligence for the American People,” The White House, accessed October 11, 2020, https://www.whitehouse.gov/ai/.

73 Garvie, Bedoya, and Frankle, “The Perpetual Line-Up.”

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on the subject focusing on the threat of sanction by consumers. There are two reasons the threat of sanction by consumers, which is standard in most models of private politics, is unrealistic in AI. First, with the inner workings of AI systems often protected as trade secrets, there exists a present lack of transparency and a room for “meaningful scrutiny and accountability”.74 For instance, teachers being evaluated by algorithms on their performance are not permitted to know what goes into their performance scores. Access to knowledge of the metrics that might get them fired or the weight given to each component of their performance is restricted.75 Federal agencies furtively employ facial recognition technologies to identify suspects without publishing baseline standards or disclosure of practices.76 This lack of transparency removes traditional channels between consumer and company that allow for private politics to target firms. Second, the consumers of AI products include the government itself, making traditional models of private politics limited. Implementations of AI systems often center around their use as the “core logic” of governmental functions “contributing to the process of government decisionmaking”.77 In 2016, for example, Arkansas shifted their program from a direct review by a nurse to an AI-powered algorithm deciding the number of benefit care hours for those on Medicaid.78 This meant that the direct function of the government previously performed by a nurse now rested on the proprietary and hidden assessment of a privately produced algorithm purchased by the state.

The state of Arkansas became the consumer and left those being assessed without the ability to understand the factors used to assess their need for care hours. As a result, the public could do little to boycott or buycott.

74

Reisman et al., “Algorithmic Impact Assessments: A Practical Framework for Public Agency Accountability.”

Webb, “Houston Teachers to Pursue Lawsuit over Secret Evaluation System.”

76 Goodwin, “Face Recognition Technology.”

77 Crawford and Schultz, “AI Systems as State Actors.”

78 Richardson, Schultz, and Southerland, “Litigating Algorithms 2019 US Report.”

75

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An emerging body of literature in private politics delves into industry self-regulation.

Because of the limited ability within AI for consumers to directly place themselves between a product and its user when that user is the government, it is important to consider how effective private politics can be without the power of public interest and consumer-based boycotts or buycotts. The concrete result of private politics in AI generally takes the form of internal codes of conduct and industry standards informally agreed upon across companies. Scholars find that the nature of these solutions being internal to corporations and hidden to the public means that there is no reliable data on the strictness of adherence to the self-set standards.79 Therefore, significant limitations exist to measuring the effectiveness of present governing strategies because of insufficient access to intimate internal knowledge of companies. Scholarly findings indicate that the threat alone of regulation through traditional government is not influential in changing industry practices.80 This further limits the understanding of the effectiveness of self-governance. Industries will generally not change their practices until public legislation is passed. A reliance on industries to self-govern might be insufficient in guaranteeing the interests of the public can be heard.

A review of AI’s relationship to existing political science literature on private politics highlights the limits of effective pressure for regulatory action when there is little consumer connection or transparency. Literature on private politics and its ability to bring regulation fails to fully address cases of government reliance on private industry in which the public is not a

79

Andrew King, Andrea Prado, and Jorge Rivera, “Industry Self-Regulation and Environmental Protection,” The Oxford Handbook of Business and the Natural Environment, November 2011, https://www-oxfordhandbooks-com.turing.library.northwestern.edu/view/10.1093/oxfordhb/9780199584451.001.00 01/oxfordhb-9780199584451-e-6.

80 David Vogel, “Private Global Business Regulation,” Annual Review of Political Science 11 (June 6, 2008), https://doi.org/10.1146/annurev.polisci.11.053106.141706.

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direct consumer. The present lack of transparency regarding the use of AI technologies in governmental capacities further limits activists’ abilities to target firms without intimate knowledge of industry practices. Since activists are also not always consumers from firms, they are further limited in their ability to campaign towards change.

Existing literature on regulation through public, government channels and through private politics provides several important insights to the study of AI regulation. First, the decisions of elected officials reflect the potentially competing pressures they face from their own interests, constituent pressures, and interest group pressure. Second, while there are many reasons to suspect that business-oriented groups will have some access to elected officials, particularly when government and business interests in the domain of AI align, highly prominent issues may weaken the power of specific industry groups and create more room for consumer groups, public opinion, and other factors to matter. On issues where the public is uninformed or does not have clear views, interest groups may have the ear of elected officials. When government officials know an issue is salient and potentially electorally relevant, they may be more responsive to constituent preferences. Third, traditional methods of private politics involving consumer purchasing power are unlikely to be influential in the domain of AI when the primary consumer of AI is the government itself. Combined with the lack of transparency innate to AI algorithms and practices, this limits the ability of consumers to force regulatory change.

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IV. Analytic Framework and Research Design Expectations In general, there remains very little government regulation over AI technologies today.

Yet these technologies have now been popular for almost a decade. Many of the adverse effects on the public are well-documented, yet transparency into the inner workings of algorithms or even their use in general remains sparse. AI technologies exist in different capacities across many sectors. Technologies that aim to fundamentally alter large industries continue to innovate in a fairly unrestricted manner. Associate Director of Stanford’s Institute for Human-Centered AI Daniel Ho sums up the current regulatory environment surrounding AI as a “Wild West” noting: Facial recognition technology is being adopted by banks, airlines, landlords, school principals, and, most controversially, law enforcement, without much guiding the data quality, validation, performance, and potential for serious bias and harm. We saw far more consensus around the problems, than about solutions.81

A gap clearly exists on legislative response to the growth of the technology. Why is there still so little regulation? When might the government be willing to constrain its own use of AI technologies?

I argue that there are two main reasons that regulation of government use of AI has been so limited. First, the pace of technological change produces a difficult regulatory hurdle. Policy to address today’s problem may limit the ability to address the problems that arise tomorrow.

Second, the government is the direct consumer, which may lead their incentives to align with

81

Daniel E. Ho, “Developing Better, Less-Biased Facial Recognition Technology,” Stanford Human-Centered Artificial Intelligence, November 9, 2020, 20, https://hai.stanford.edu/blog/developing-better-less-biased-facial-recognition-technology.

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those of technology companies and reduce interest in regulation. These cases increase the likelihood that the interests of governing bodies align with those of AI business interest groups, and they also suggest that absent an event that increases the salience of AI technology, the public will be ill-informed and unlikely to exert pressure on legislators to regulate AI. As a result, I hypothesize that there will only be successful regulation of the use of AI by the government when outside groups (e.g., citizens-focused interest groups) are very active on the issue and raise awareness through public exposés. Importantly, for citizens’ groups, they cannot organize boycotts or buycotts because boycotting the government is infeasible. However, they can focus on publicity campaigns to increase the salience of the issue in the public, leading to greater pressure from the public on elected officials as well.

This project analyzes the conditions that foster regulatory action versus inaction of AI with a focus on the role of advocacy groups. To do so, the role of citizens’ groups and other outside interest groups are compared when differing legislative outcomes occur.

Research Design To assess the conditions that foster or inhibit regulation of the government’s use of AI, this analysis relies on exploratory case studies of key explanatory variables and political dynamics at work in the field of AI. A most similar cases strategy is used with the goal of targeting uses of AI where a reliance exists both on private and traditional governance. 82 These cases will analyze proposed laws that are enacted as well as those that fail with the goal of better understanding the factors that contributed to success or failure.

The complex nature of AI, its use across different domains, regulatory efforts that span 82

Jason Seawright and John Gerring, “Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options,” Political Research Quarterly 61, no. 2 (June 1, 2008): 294–308, https://doi.org/10.1177/1065912907313077.

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cities, states and the federal government, and the confidential nature of the technology all make this a difficult subject to study with a large-N analysis. Federal legislation remains too sparse to be a focus. At the state level, only nineteen states introduced any legislation related to artificial intelligence in their 2019 and 2020 sessions.83 These proposed and enacted laws span across a vast array of subjects, thus risking comparing apples to oranges in a large-N study. There does not presently exist any database of city laws from across the country to study. A lack of transparency limits this further. Few reports on the use of technologies powered through AI are available to the public due to a lack of legislation enforcing disclosure. As a result, case studies offer the more appropriate and more feasible route for study.

When using case studies, there are a number of potential approaches. Selection of an outlier, average outcome, or pair of similar or diverse outcomes can bring different strengths to a study.84 Different necessary information is required to complete each type of case study selection effectively. In this study, selecting cases on the independent variable, interest group involvement, creates a near impossible task. Given a lack of data on regulatory efforts or interest group involvement, finding cases would be challenging. Moreover, selecting cases on the independent variable would risk selecting vastly different cases for comparison. To do so would allow for significantly more external variables to influence the legislative outcome, such as the size of the city, the domain of the AI system, or the partisan makeup of the legislatures involved. As a result, I leverage a weaker analysis along the dependent variable, legislative outcome. Caution must be taken in generalizing results from the study and assuming these results would hold

83

“Legislation Related to Artificial Intelligence,” accessed March 11, 2021, https://www.ncsl.org/research/telecommunications-and-information-technology/2020-legislation-related-to-artificial -intelligence.aspx.

84 Seawright and Gerring, “Case Selection Techniques in Case Study Research.”

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elsewhere, but the results are nonetheless valuable for providing some tentative conclusions.

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V. Case Study: Law Enforcement Use of Facial Recognition in New York City and Los Angeles County The Case This case study explores police use of facial recognition. The technology is easily understood, its employment raises controversy, and its use is public facing. Moreover, the government is the direct consumer of the technology, as police departments (the government consumer) hire private companies to power their facial recognition search databases. In general, some legislation to regulate police use of the technology has been passed in city and state governments with varying specific targets and levels of desired regulation. From complete bans on facial recognition technology in San Francisco and a handful of other cities to protections on biometric information in Illinois, restrictions exist in some manner in scattered pockets across the country.85 The effectiveness of these attempts at regulation is limited to the jurisdictions to which they apply, and in most cases, existing laws can be easily circumvented.

My argument rests on two premises, both of which hold in the case of police use of facial recognition technology. The first premise is that regulating police use of facial recognition technology (FRT), as with AI more generally, faces challenges from the fast pace of technological change. Consider the scope of change in just 2013 alone. Following the Boston Bombing in April 2013, facial recognition searches failed to identify suspects given input images

85

Patrick Fowler and Haley Breedlove, “Facing the Issue: San Francisco Bans City Use of Facial Recognition Technology,” JD Supra, July 15, 2019, https://www.jdsupra.com/legalnews/facing-the-issue-san-francisco-bans-35144/; “740 ILCS 14/ Biometric Information Privacy Act.,” accessed February 1, 2021, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57.

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captured through surveillance cameras.86 However, a reexamination of the same images through leading FRT algorithms later that same year proved successful in identifying the same suspects.87 This study highlights the rapid evolution of the technology and the potential usefulness of FRT algorithms given the right technology in place. While the Boston Bombing case points to the potential value law enforcement may see with FRT, the speed of innovation can conversely be problematic for effective government regulation. Legislation that regulates the use of the technology may respond to previous problems but may be ill-suited to handle future challenges.

Following concerns surrounding surveillance levels of ordinary citizens, the San Francisco Board of Supervisors voted to ban facial recognition from law enforcement in 2019.88 Similar bans have been instituted in Boston, Massachusetts, Portland, Oregon, and a handful of smaller cities across the country.89 While these bans do well to address immediate concerns over present technological shortcomings and surveillance concerns, they ignore the quickly changing landscape of FRT. A growing concern online today focuses on deepfakes, images or videos altered by deep learning algorithms to appear real even when false. As the prevalence and accuracy increases for deepfakes, concerns mount over their ability to affect election security, invade personal privacy, and promote identity theft or other criminal activity.90 A need for police to monitor for false

86

Joshua Klontz and Anubhav Jain, “A Case Study of Automated Face Recognition: The Boston Marathon Bombings Suspects,” Computer 46 (November 1, 2013): 91–94, https://doi.org/10.1109/MC.2013.377.

87 Klontz and Jain.

88 Kate Conger, Richard Fausset, and Serge F. Kovaleski, “San Francisco Bans Facial Recognition Technology,” The New York Times, May 14, 2019, sec. U.S., https://www.nytimes.com/2019/05/14/us/facial-recognition-ban-san-francisco.html.

89 Shannon Flynn, “13 Cities Where Police Are Banned From Using Facial Recognition Tech,” Innovation & Tech Today (blog), November 18, 2020, https://innotechtoday.com/13-cities-where-police-are-banned-from-using-facial-recognition-tech/.

90 Alison Grace Johansen, “Deepfakes: What They Are and Why They’re Threatening,” NortonLifeLock, July 24, 2020, https://us.norton.com/internetsecurity-emerging-threats-what-are-deepfakes.html.

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images may arise.91 At the same time, a recently released study evaluating the improving ability of FRT to parse through images for fake or altered files suggests that the adaptability of the technology will prove fruitful in the future for law enforcement agencies.92 The increasing need to address FRT in this new manner and the adaptability of development to tackle face challenge highlights the speed at which the needs of regulation surrounding FRT can shift. Outright bans on police use of the technology have been met with backlash for their “shortsighted” approach.93 In the case of deepfakes, a ban on the use of FRT might prevent police from properly analyzing evidence by banning necessary technology. With rapidly evolving problems and improving technology, effectively regulating FRT in law enforcement use becomes difficult.

The second premise is that because the government is a direct consumer, its interests are likely to be aligned with the business-oriented groups behind the AI technology. Private companies supplying the technology have business interests in mind and are guided by a need to make profit. Law enforcement officials seek use of the technology to do what humans cannot.

Being able to positively identify criminals objectively through facial recognition technology provides law enforcement an opportunity to better find suspects and establish credibility in court, where testimony through eyewitnesses is often unreliable.94 All else equal, each group wants more use of the technology. On the other side of the debate on access are civil liberties groups aiming to prevent the invasive technology from advancing policing tactics and over-surveilling

91

Ryan Reynolds, “Courts and Lawyers Struggle with Growing Prevalence of Deepfakes,” Stanford Law School, June 9, 2020, https://law.stanford.edu/press/courts-and-lawyers-struggle-with-growing-prevalence-of-deepfakes/.

92 Mei L. Ngan et al., “Face Recognition Vendor Test (FRVT) Part 4: MORPH - Performance of Automated Face Morph Detection,” March 6, 2020, https://www.nist.gov/publications/face-recognition-vendor-test-frvt-part-4-morph-performance-automated-face-mor ph.

93 Conger, Fausset, and Kovaleski, “San Francisco Bans Facial Recognition Technology.”

94 Dirk Smeets et al., “Objective 3D Face Recognition: Evolution, Approaches and Challenges,” Forensic Science International 201, no. 1–3 (September 10, 2010): 125–32, https://doi.org/10.1016/j.forsciint.2010.03.023.

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the public in violation of people's privacy. A majority of Americans are worried about the level of personal data collected by the government.95 Weary of expanding the capabilities of law enforcement, citizen activists often cite unrestricted surveillance and increased inequality as major concerns to the expansion of government use of facial recognition.96 Combined, the fast pace of technological change and government as a direct consumer of facial recognition technology suggest that regulation may be unlikely. It is hard to regulate effectively, and regulation would curtail the government’s own use of the technology. Building from these two premises, I argue that stronger regulation of facial recognition will be more likely when consumer-oriented groups succeed in making the issue more salient to the public, leading elected officials to be more attentive to public preferences rather than their own interests. In the case study that follows, I draw on news sources, studies by governmental and scholarly sources, information directly from citizens’ groups, and information from interviews with the political offices who authored the relevant legislation in each case. Local and national news sources are a good medium for locating detailed information on legislation and the process behind the enactment of bills. The National Conference of State Legislatures (NCSL) houses data on where state laws have been passed with regard to AI. 97 Because federal and state laws often interact with local regulation of facial recognition, it is important to understand the context at each level of government in each case.

For this case study, the Los Angeles Police Department (LAPD)/Los Angeles County Sheriff’s Department (LASD) is compared to the New York Police Department (NYPD). The comparison considers local and state policy and legislation impacting the use of FRT by police 95

Auxier and Rainie, “Key Takeaways on Americans’ Views about Privacy, Surveillance and Data-Sharing.”

Cummings, Facial Recognition Technology (Part II): Ensuring Transparency in Government Use. 97 “Legislation Related to Artificial Intelligence.”

96

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departments in each city. The similarities in size of the forces and partisan makeup of city and state government motivate the selection of the two departments. Policing the two most populous cities in the country, the NYPD and the LAPD/LASD employ around 36,000 and 19,000 full time officers, respectively, forming two of the three largest law enforcement departments in the country.98 Both cities have overwhelmingly Democratic leanings in most city, state, and federal elections of the past decade.99 This means the cases are similar in the partisan predisposition to regulate. Crucially, however, the two differ in their recent regulation of the technology. Los Angeles County currently bans third party facial recognition searches and houses all facial recognition images for the county in a centralized database made up of only mugshots, and California state law denies the ability for officers to run facial recognition on body camera footage.100 The city-specific regulations are set by Los Angeles County and by the Los Angeles Police Commission.101 A state law approved in 2019 and expiring January 1, 2023 regulates body camera footage.102 In contrast, New York City has no explicit ban on third party searches, neither defines the contents of its image database nor where it is housed, and does not limit searches through body camera footage at either city or state level.103 NYPD policy is internally set by the

98

“About NYPD - NYPD,” accessed March 15, 2021, https://www1.nyc.gov/site/nypd/about/about-nypd/about-nypd-landing.page; George Gascón, “COMPSTAT Plus Los Angeles Police Department,” accessed March 15, 2021, https://www.lapdonline.org/inside_the_lapd/content_basic_view/6364; “Sheriff’s Department,” Government, County of Los Angeles, November 15, 2016, https://lacounty.gov/residents/public-safety/sheriff/.

99 “2020 Election Results | New York State Board of Elections,” accessed March 14, 2021, https://www.elections.ny.gov/2020ElectionResults.html; Eric McGhee, “California’s Political Geography 2020,” Public Policy Institute of California, February 2020, https://www.ppic.org/publication/californias-political-geography/.

100 “LACRIS Facial Recognition Policy,” 2019.

101 Kevin Rector, “Connecting for Honors Thesis Research,” March 31, 2021.

102 Phil Ting, “Law Enforcement: Facial Recognition and Other Biometric Surveillance,” Pub. L. No. AB 1215 (2019), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1215.

103 “Facial Recognition - NYPD,” accessed March 15, 2021, https://www1.nyc.gov/site/nypd/about/about-nypd/equipment-tech/facial-recognition.page.

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police department.104 Explicit transparency mandates surrounding surveillance technology do exist in New York City, but the regulatory impact is significantly weaker than measures in Los Angeles County.105 Proposed state laws in New York have to date failed to ban body camera FRT searches in a similar manner to California’s state law.106 Thus, Los Angeles County provides a case of greater regulation against New York City’s lower level of regulation. In both cases, however, it is worth noting a limitation that stems from the often-hidden nature of deals between police departments and private companies. Because transparency laws are limited, police departments do not necessarily disclose the specifics of their use of the technology.107 Findings Police departments in both Los Angeles County and New York City share an interest in using FRT. This could mean that they utilize divergent approaches due to other factors. Between 2014 and 2018, the ability to identify people through facial recognition improved markedly, making this technology very desirable for law enforcement agencies in general and in both of these cities.108 NYPD cites the technology’s ability in helping provide matches for “68 murders, 66 rapes, 277 felony assaults, 386 robberies, and 525 grand larcenies since 2019”.109 The technology has been used in the city since at least 2010, and the increasing accuracy of FRT

104

“Facial Recognition - NYPD.” Vanessa Gibson, “Creating Comprehensive Reporting and Oversight of NYPD Surveillance Technologies.,” Pub. L. No. Int 0487-2018 (2020), https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3343878&GUID=996ABB2A-9F4C-4A32-B081-D6F24 AB954A0.

106 Brad Hoylman, “NY State Senate Bill S6776,” Pub. L. No. S6776 (2019), https://www.nysenate.gov/legislation/bills/2019/s6776; Brad Hoylman, “NY State Senate Bill S7572,” Pub. L. No. S7572 (2020), https://www.nysenate.gov/legislation/bills/2019/s7572.

107 Benjamin Nober and NYPD Legal, NYPD Facial Recognition Third-Parties, 2021.

108 Patrick J. Grother, Mei L. Ngan, and Kayee K. Hanaoka, “Ongoing Face Recognition Vendor Test (FRVT) Part 2: Identification,” November 27, 2018, https://www.nist.gov/publications/ongoing-face-recognition-vendor-test-frvt-part-2-identification.

109 “Facial Recognition - NYPD.” 105

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searches clearly motivates its continued use. In Los Angeles, better policing is reiterated and used as justification towards employing the technology. LAPD chief Michel Moore lauds FRT as an “efficient way of working” to complete a task otherwise unmanageable by humans.110 State and local regulation of FRT limits police use of the technology for the LAPD and LASD while no similar regulations exist for the NYPD. At the state level, California passed a law in 2019 banning the use of FRT in policy body cameras. At the local level, the Los Angeles Police Commission reviewed and revised Los Angeles County policies in 2020 and 2021 resulting in the banning of third party FRT searches and limiting searches to a consolidated database of mugshot images accessible only by trained officers. Conversely, a state bill in New York proposing a ban on FRT in police body cameras failed in 2019. Although a New York City Act requiring more transparency by the NYPD was enacted in 2020, the regulatory impact of this law was minimal. I hypothesize that the greater regulation in Los Angeles county than in New York City stems from the work of citizens’ groups who increase the public salience of the issue and thus the costs for inaction by elected officials.

Participation of citizen groups, at least to some degree, led to regulatory change surrounding FRT in Los Angeles. The ACLU, Black Lives Matter Los Angeles, and Stop LAPD Spying Coalition have been notably active in pushing for legislative changes and raising the salience of this issue over multiple years.111 Activism has increased notably since the start of summer 2020 and continues to date.112 The Office of Assemblymember Ting, the author of the 2019 California legislation that banned the use of FRT in body cameras in the state, indicated

110

Josh Cain, “LAPD Commission OKs Detectives to Use Facial Recognition,” Government Technology, January 14, 2021, https://www.govtech.com/public-safety/LAPD-Commission-OKs-Detectives-to-Use-Facial-Recognition.html.

111 Rector, “Facial Recognition and the LAPD,” March 31, 2021.

112 Rector.

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that the ACLU even directly helped to draft the language of the bill. 113 Moreover, the ACLU was joined by numerous other citizens’ groups in their support of the bill. An expansive list of advocate groups for the bill provided by an ACLU of San Diego and Imperial Counties press release includes: ACLU of California, AIDS Legal Referral Panel, API Chaya, Anti Police-Terror Coalition, Asian Law Alliance, California Attorneys for Criminal Justice, California Immigrant Policy Center, California Public Defenders Association, Citizens Rise!, Center for Media Justice, Coalition for Humane Immigrant Rights, Color of Change, Council on American-Islamic Relations – California, CRASH Space, Data for Black Lives, Electronic Frontier Foundation, Fight for the Future, Harvey Milk LGBTQ Democratic Club, Indivisible CA, Justice Teams Network, Media Alliance, National Association of Criminal Defense Lawyers, National Center for Lesbian Rights, Oakland Privacy, RAICES, README at UCLA, Root Access, San Jose/Silicon Valley NAACP, Secure Justice, Transgender Law Center, Library Freedom Project, Tor Project, and X-Lab. 114

The groups in support of the bill are largely citizen-focused groups. The citizens’ groups, led by the ACLU, played two important roles. First, the groups raised the salience of the issue to legislators and the public. Second, the ACLU directly helped draft the regulatory text, giving the citizens’ group an important voice in the legislation.

By contrast, the law enforcement groups who opposed the regulatory change of FRT through its use in police body cameras were the government consumers. The bill faced opposition from: California Peace Officers Association, California Police Chiefs Association, California State

113

Irene Ho, “Question on AB1215 2019 Version History,” February 26, 2021.

“California Senate Votes to Block Face Recognition on Police Body Cameras,” ACLU of San Diego and Imperial Counties, September 11, 2019, https://www.aclusandiego.org/en/news/california-senate-votes-block-face-recognition-police-body-cameras.

114

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Sheriffs’ Association, CSAC Excess Insurance Authority, Los Angeles County Sheriff Peace Officers’ Association of California, and Riverside Sheriffs’ Association. 115

The influence of law enforcement interests is seen even in the Democratic legislators who broke with their party on this vote. The California bill passed the state’s Senate and Assembly mostly along partisan lines “with a few switched votes due to closeness of law enforcement organizations”.116 An analysis of donor histories for the eight Democratic Assembly Members opposing the bill uncovers direct donations from various “Peace Officers” associations to seven of the Assembly Members. 117 A robust overlap of interest groups opposing the bill and Assembly Members who received donations from these interest groups voting against the bill and against their own party is evident. While the present analysis does not account for the fraction of Democratic Assembly Members who may have voted in favor of the regulatory bill and also received donations from similarly aligned Peace Officers organizations, the results are suggestive that the interests of the government in the form of police forces can make regulation difficult.

Overall, the successful state ban on police use of FRT in body cameras in California suggests that citizens’ group activism helped a Democratic majority counter the government alignment with business interest, leading to the passing of Assembly Bill 1215.

Adding to the outside pressures promoting regulation of FRT in Los Angeles County has been extensive media coverage directly resulting in public activism that has led to regulation. An exposé in the Los Angeles Times published in September 2020 directly led to the city’s Police

115

Evan Symon, “Recap: AB 1215 Banning Facial Recognition From Police Body Cameras,” California Globe, September 24, 2019, https://californiaglobe.com/section-2/recap-ab-1215-banning-facial-recognition-from-police-body-cameras/.

116 Symon.

117 “California AB1215 | 2019-2020 | Regular Session,” LegiScan, accessed April 27, 2021, https://legiscan.com/CA/rollcall/AB1215/id/893587.

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Commission “reviewing the LAPD's use of facial recognition technology”.118 The Los Angeles Times exposé detailed the LAPD’s continued use of FRT with evidence showing that for a decade the department had both misled the public on their use of the technology and completed over 30,000 FRT searches.119 The exposé further promoted regulatory change indirectly by animating activists and citizens’ groups to increase public pressure through “public records requests, staged protests, and encourage[ing] members and supporters to attend live meetings and call into virtual meetings of the Police Commission and other city bodies with oversight over the LAPD”.120 This suggests that media coverage, a factor I did not consider in my theoretical framework, created a window of opportunity for public activism and helped eventually bring about regulatory change.

Media investigations also directly led to a policy change of police use of FRT in Los Angeles County, thus providing another driver of regulation I did not consider in my theoretical framework. The Los Angeles Police Commission in November 2020 announced a policy change banning unapproved third-party FRT searches “after it was told that documents seen by Buzzfeed News showed more than 25 LAPD employees had performed nearly 475 searches using Clearview AI”. 121 The reporting revealed the continued searching through the Clearview AI platform by Los Angeles County law enforcement even though prior statements by the police force explicitly stated Clearview AI to be out of use. 122 This policy change demonstrates how the

118

Rector, “Facial Recognition and the LAPD,” March 31, 2021.

Kevin Rector and Richard Winton, “Despite Past Denials, LAPD Has Used Facial Recognition Software 30,000 Times in Last Decade, Records Show,” Los Angeles Times, September 21, 2020, https://www.latimes.com/california/story/2020-09-21/lapd-controversial-facial-recognition-software.

120 Rector, “Facial Recognition and the LAPD,” March 31, 2021.

121 Brianna Sacks, Ryan Mac, and Caroline Haskins, “LAPD Bans Use Of Commercial Facial Recognition,” Buzzfeed News, November 17, 2020, https://www.buzzfeednews.com/article/briannasacks/lapd-banned-commercial-facial-recognition-clearview.

122 Sacks, Mac, and Haskins.

119

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media are another outside group who have contributed to policy regarding FRT searches.

Because of the ability to bring attention to the police department, which was already under scrutiny surrounding its use of FRT searches, media coverage directly pressured the Los Angeles Police Commission into regulatory action.

The Los Angeles case study shows that successful regulation has been possible. In some cases, citizens’ groups appear to have been key players in raising the salience of the issue in the public and with elected leaders and in writing draft legislation. In other cases, media organizations may have created a window of opportunity that spurred citizens’ groups into action leading to regulation. In the final case of regulation, media coverage alone produced action.

In contrast to Los Angeles, regulatory efforts have been less successful in New York City.

Citizens’ groups have been interested in regulatory change, but outcomes have either been more limited in scope of regulation or unsuccessful. A state bill proposing a ban on FRT in police body cameras with similar language to the successful California bill failed to gain attention in New York after its introduction in both 2019 as S6776 and 2020 as S7572. In 2020, the bill never made it out of the Senate’s Internet and Technology committee in which it was proposed.123 The NYCLU was directly involved in the writing of the bill in a similar role as to what occurred with the ACLU in California. 124 A complete list of advocacy groups supporting or opposing the bill is not publicly available, but given the content of the bill and a statement by the NYCLU, it is reasonable to assume that the types of groups supporting and opposing the bill were similar to those in California.125 The failure of the bill might be explained by either of two factors or a combination of both. First, partisanship might have played some role in the failure of the New 123

Hoylman, NY State Senate Bill S7572.

Ben Schaefer, “Northwestern Undergraduate Thesis Research,” April 9, 2021.

125 Schaefer.

124

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York bill. A vote by the Senate’s 2020 Internet and Technology Committee did not advance the bill to the Senate floor, and the bill died in committee.126 The Committee’s Democratic chair, Diane Savino, has been aligned with more conservative policies and political groups including New York’s Independent Democratic Conference. 127 The makeup of the leadership of the Senate Internet and Technology Committee, although Democrat-led, may suggest an ideological or partisan motive behind the Committee’s decision not to report the bill to the Senate floor. A second explanation might be a lack of salience from the public. Without a large public interest in the status of the state bill preventing FRT searches on police body camera footage, S6776 in 2019 and S7572 in 2020 might have failed to gain enough public attention to bring legislative support.

There have been some partial regulatory successes in New York City. Media attention leading to public activism has contributed to legislative efforts to increase the transparency of the NYPD’s use of facial recognition. The NYPD voluntarily published its broad facial recognition policy shortly after a longform New York Times piece written in January 2020 alleged the department’s use of third-party company Clearview AI. 128 Previously, the policy was not public.

The move to disclose present practices may have come from an increase in public attention to the subject due to the exposé. The disclosure did not amount to major changes in practice or any stronger regulation of the department’s use of the technology, but it does indicate the potential power of public salience surrounding the issue. Later in 2020, the Public Oversight of

126

Hoylman, NY State Senate Bill S7572.

David Weigel, “Analysis | The End of New York’s ‘Independent Democrats,’ Explained,” Washington Post, April 4, 2018, https://www.washingtonpost.com/news/powerpost/wp/2018/04/04/the-end-of-new-yorks-independent-democrats-ex plained/.

128 Kashmir Hill, “The Secretive Company That Might End Privacy as We Know It,” The New York Times, January 18, 2020, 2, https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

127

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Surveillance Technology (POST) Act, guaranteeing increased transparency of surveillance practices, successfully passed the New York City Council mostly along partisan lines with a few Democratic members voting against the bill.129 The NYCLU directly helped draft the bill in 2018 when it was introduced, and in June 2020 the group was involved in “shepherding” the bill through the city council.130 Citizen support groups for the Act also included the Stop Spying Coalition and Black Lives Matter.131 Given the bill’s long-dormant status in the New York City Council and subsequent successful passage following increased public salience on FRT use by the NYPD as well as direct action by the NYCLU and other citizens’ groups, the role of citizen activists in leading to the passing of the bill may have been significant. However, public salience arose only after media coverage of the city’s FRT use and the department’s subsequent internal policy change. This suggests that increased action by citizens’ groups may lead to greater regulation in New York City in the future, but increased action may only occur when media coverage is also involved.

A further challenge to regulation in both Los Angeles and New York City stems from the federal structure of United States politics, another factor I did not consider in my theoretical framework. Federal agencies continue to be a direct consumer of private FRT systems.

Therefore, the use of the technology in both cities extends beyond local or state functions as the NYPD and the LAPD/LASD each directly outline their willingness to communicate and cooperate with federal agencies to perform FRT searches in their respective official FRT policy guidelines.132 Presently, no policy regulates federal practices regarding FRT.133 A policy

129

Gibson, Creating comprehensive reporting and oversight of NYPD surveillance technologies.

Schaefer, “Northwestern Undergraduate Thesis Research,” April 9, 2021.

131 Schaefer.

132 “Facial Recognition - NYPD”; “LACRIS Facial Recognition Policy.”

133 Crawford and Schultz, “AI Systems as State Actors.”

130

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announced in early 2021 by the Los Angeles Police Commission prevents any officials from running searches on third party platforms other than the three approved by the county.134 However, the Los Angeles County policy explicitly states a willingness to cooperate with federal investigations.135 This presents the opportunity for third-party searches to be run on images or videos captured in Los Angeles County. The NYPD refused to publicly comment on their use of third party searches and has to date not responded to a media request on the topic.136 The department outlines an ability to use databases of images outside of mugshots “if there is a legitimate need to do so”.137 Additionally, the NYPD states their willingness to cooperate in federal investigations. As in Los Angeles County, federal cooperation explicitly allows images and videos captured in New York City to be searched on third-party FRT platforms. Records obtained through Freedom of Information Act (FOIA) requests by MuckRock confirm the use of private FRT algorithms by specific federal agencies such as the FBI and Department of Homeland Security with specific mentions of third-party company Clearview AI. 138 The Washington Post reports that the United States Immigration and Customs Enforcement (ICE) runs FRT searches on millions of photos not included in mugshot databases.139 Cooperation with federal officials in both cities thus directly undercuts local policies in each of the two cities

134

Kevin Rector, “LAPD Panel Approves New Oversight of Facial Recognition, Rejects Calls to End Program,” Los Angeles Times, January 13, 2021, https://www.latimes.com/california/story/2021-01-12/lapd-panel-approves-new-oversight-of-facial-recognition-rejec ts-calls-to-end-program.

135 “LACRIS Facial Recognition Policy.”

136 Nober and NYPD Legal, NYPD Facial Recognition Third-Parties.

137 “Facial Recognition - NYPD.” 138 Beryl Lipton, “Records on Clearview AI Reveal New Info on Police Use,” MuckRock, accessed April 26, 2021, https://www.muckrock.com/news/archives/2020/jan/18/clearview-ai-facial-recogniton-records/.

139 Drew Harwell and Erin Cox, “ICE Has Run Facial-Recognition Searches on Millions of Maryland Drivers,” Washington Post, February 26, 2020, https://www.washingtonpost.com/technology/2020/02/26/ice-has-run-facial-recognition-searches-millions-maryland -drivers/.

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limiting facial searches to occur only or mostly within facial image databases created locally from mugshot images.140 The setup of multiple levels of government each being direct consumers of private technology limits the scope of regulation at any single level of government.

Nonetheless, the hesitation of both cities to take steps to fully prevent third-party searches, even under public pressure, indicates an alignment of government interest opposed to that of the public.

Implications Significant barriers affect the ability to regulate the government’s use of FRT in law enforcement. The speed of innovation of AI in general and FRT specifically along with rapidly evolving applications of AI systems across diverse domains limit the scope of action responsibly available to legislators. The role of both the NYPD and Los Angeles County as well as federal agencies as direct consumers of private FRTs and subsequent lack of regulation in the face of public outcry might indicate a reluctance to create additional internal restrictions. Interaction and cooperation between law enforcement agencies at the local, state, and federal levels further highlight regulatory challenges.

Regarding consumer advocacy, partial support exists for the argument that regulation of government use of AI will only come when there is direct involvement by citizens’ groups.

California and subsequently the LAPD and LASD have seen some regulation limiting FRT use by police departments as a direct result of citizens’ groups mobilizing to take advantage of the window of opportunity. New York has not. Direct involvement by a host of citizens’ groups led to the passing of a California law banning FRT in police body cameras while a similar law has

140

“LACRIS Facial Recognition Policy”; “Facial Recognition - NYPD.”

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failed to gain public attention in New York even with some degree of backing by citizens’ groups.

The Los Angeles and New York City case comparison suggests that public salience may matter. The hypothesis on the importance of the role of citizens’ groups entailed two key assumptions on consumer advocacy. First, citizens’ groups would increase the public salience of the issue. Second, increased public salience would raise the costs of inaction for elected officials.

Analysis from the case studies uncovered instances where the first assumption, citizens’ groups increasing public salience, proved pivotal to regulatory change. However, unaccounted for in the hypothesis was the central role of the media in increasing public salience and in directly pushing regulatory action. Public outcry instigated by a Los Angeles Times exposé led to demonstrations by citizens’ groups against the LAPD and its FRT usage that ultimately brought regulatory change in the city. Regulatory change in the city also came from a direct media investigation into the LAPD. In New York City, media coverage leading to regulatory change and media coverage leading to citizens’ group activism has driven city regulation of FRT focused on heightened transparency. Regulating AI might require significant involvement from citizens’ groups including raising the salience of the issue with elected officials and developing framework legislation. However, citizens’ groups may not always be the primary actors pushing the public salience. This step may need independent action from media organizations. While engagement and pressure from citizen activists brought regulation in some instances, each city did see other instances of regulatory action as solely a result of media involvement with no role played by public activists. This suggests the role of citizens’ groups in being necessary for regulation of government use of AI is incorrect. A further limit to testing the importance of citizens’ groups in

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driving regulation related to AI is the lack of a high quantity of legislation written to date and the resulting need to focus the analysis along regulatory outcomes rather than interest group involvement. The second assumption in the hypothesis is that public salience would matter because it raised the cost of inaction for electorally-focused officials. Successful regulatory outcomes are consistent with that argument, but the case studies did not uncover any “smoking gun” evidence that legislators were concerned about the electoral consequences of inaction.

As governing AI appears to fall somewhere between literature on public and private regulation, political science frameworks and theories fail to fully explain the outcome. Aspects of both types of regulation exist, with the role of interest groups in guiding legislative outcomes and the role of the public in guiding industry practices. Because the government is a direct consumer of the technology, these two understandings of regulation must expand to account for cases currently missed by both.

A final, overarching finding in this study is an alarming lack of transparency. The level of information unavailable presently in the field that contributes to a complexity in understanding.

The lack of laws allowing for clear public knowledge of present practices regarding FRT must be immediately addressed. Police departments, having already developed a track record of misguidance in the past decade, continue to mislead the public on their present usage of FRT. While Los Angeles County and New York City have serious shortcomings in information available, the two locales are far ahead of many major cities in the country that do not publish any public information on FRT use.141 Preventing these gaps in information available to the public and allowing for scrutiny of present practices first requires a level of transparency not yet

141

Garvie, Bedoya, and Frankle, “The Perpetual Line-Up.”

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guaranteed or seen today.

VI. Conclusion Given the present macro-level changes across industries resulting from AI, conversations on shifts in governing strategies must exist. To focus these conversations, this thesis considered instances where the government directly consumes the technology. A case study of police use of facial recognition searches first and foremost highlights the present lack of transparency limiting the ability for public scrutiny of the technology. Beyond this inadvertent finding, initial insights into the role of citizen activists in shaping the regulatory field along with the aligning interests of legislators and corporate interests in the technology sector are explored. In California, activists played some role in changing state and city policies while in New York, less change has to date occurred. This suggests activism might play a role in advancing public interests in the regulation of AI. Additionally, media organizations were found to drive regulation both directly and indirectly through promoting citizens’ groups. Instances of each role played by the media were seen in each city. Caution should be taken in generalizing from these findings. Not enough data presently exists to effectively compare large-N sets of data on the regulation of AI in government uses. Will regulation in the future address these ambitious emerging technologies head-on?

Existing political science literature does not fully address regulation concerning the technology. Traditional models of public regulation through legislation or rulemaking explain that legislators are influenced by both the public and through corporate interests. Literature on private politics examines how activists can alter the behavior of firms through their purchasing power as direct consumers. Neither body addresses cases where the government is the direct consumer nor cases where the public is left without purchasing power. An assessment of industry

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self-regulation provides little insight due to the prevalence of information held unavailable to the public.

Optimism over emerging legislation at all levels of government provides a hopeful look for the future. The Facial Recognition and Biometric Technology Moratorium Act of 2020, the National Artificial Intelligence Initiative Act of 2020, and the FUTURE of Artificial Intelligence Act of 2020 mark some of the 175 bills introduced in the 116th congressional session related to AI.142 Although no bills to date have been signed into law at the federal level (excluding those providing more research funding for the technology), the sheer amount of attention that lawmakers have given to the subject must be seen as a recognition of present shortcomings.

Further excitement stems from scholarly insight into sweeping regulatory solutions. To directly address concerns on input bias and prevent discrimination before it happens, solutions from environmental governance can be applied by installing algorithmic impact assessments.143 The approach is based on environmental law solutions meant to mitigate possible irreversible damage before physical development. The strategy applies directly to the regulation of AI systems. Algorithmic impact assessments could mitigate certain concerns by providing a detailed report of expectations for that system from rigorous testing.144 The proposed solution imagines a more transparent rollout of AI systems. Another legal proposal calls for the application of the state action doctrine to increase accountability towards AI systems performing roles of governance.145 By arguing that AI systems performing the role of the state should be accountable to “constitutional liability,” the present gap in accountability surrounding government use of AI

142

“Legislative Search Results,” legislation, accessed April 27, 2021, https://www.congress.gov/search.

Reisman et al., “Algorithmic Impact Assessments: A Practical Framework for Public Agency Accountability.”

144 Reisman et al.

145 Crawford and Schultz, “AI Systems as State Actors.”

143

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systems could be bridged. As more AI systems impact more sectors, the amount of literature on better governance should only increase.

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Northwestern Undergraduate LawJournal

2022

Acknowledgments The Northwestern Undergraduate Law Journal would like to thank the following people for their contributions for the journal and to our organization:

Annah Hillary, Benjamin Nober, Claire Lu, Jamie Miller, Jessa Davidson, Joseph Lattal, Kaitlyn Seese, Lynn Page, Professor Andrew M. Koppelman, Professor Galya Ben-Arieh, Professor Joe Mathewson, and Rose Genaris.

Spring 2022

2022 Journal

Issue 2 Volume 1