2012 Year in Review

I haven’t been updating this blog much recently. But in the tradition of year-end roundups, I’ve decided to collect a few personal favorites from the things I’ve written over the last year.

This last piece was a personal favorite, and I hope to build on these ideas in the coming year. I hope to get a few long form things written this next year too and to finish another law review piece, this time on federalism.

Thanks to everyone who read and responded.


I read today almost two pages
In a book by a mystic poet
And laughed like one who has cried a lot.

Mystic poets are sick philosophers,
And philosophers are madmen.

Because mystic poets say that flowers feel
And say that stones have a soul
And that rivers have ecstasies in moonlight.

But flowers, if they felt at all, wouldn’t be flowers,
They’d be people;
And if stones had souls, they’d be living things, not stones;
And if rivers had ecstasies in moonlight,
They’d be sick men.

It would take not to know what flowers and stones and rivers are
To talk about their feelings.
To talk about the soul of flowers, stones, and rivers
Is to talk about oneself and one’s own false thoughts.

Thank god that stones are only stones,
And that rivers are nothing but rivers
And that flowers are just flowers.

As for myself, I write the prose of my verses
And I am satisfied.
Because I know that I understand Nature from the outside;
And I don’t understand it from the inside
Because Nature has no inside;
Otherwise it wouldn’t be Nature.

- Alberto Caeiro (Fernando Pessoa)
Poem XXVII from The Keeper of Sheep, translated by Patricia Ferrari

Some Counter-Conventional Thoughts

Calls for an Article V Constitutional Convention on the need for campaign finance and lobbying reform have attracted a good deal of attention in recent months. The lack of effective campaign finance and lobbying restrictions certainly lies at the root of many of our nation’s problems, and there are a growing number of advocates who see Article V as the only way to limit the influence of money in our political system.

bossesWhile I agree that these problems will require a constitutional-level response, the Article V convention process is poorly suited to tackling the conflicts of interest at the heart of American politics. There are, of course, legitimate concerns about a ‘runaway convention,’ but I want to call attention to two other reasons proponents of campaign finance reform might be wary of the Article V Convention route. The first is that there are several ambiguities in the Article V text that will lead to legal and political jockeying among the states and federal branches as they seek to gain influence over the convention. The second is that Article V is not particularly majoritarian by design, and, unless safeguards are made, private interests will exert considerable influence over the convention process.

By far the most common objection to the Article V convention is the ‘runaway convention,’ which, in the words of Michael Stern, “most often [] refers to a convention that proposes an amendment beyond the scope of what the states contemplated when they applied for the convention in the first place.” A number of scholars and public officials have argued that the supermajority requirement for ratification imposes enough of a restraint against a runaway convention, but the fears are not implausible given the lack of legal clarity. Stern has proposed other safeguards, such as a House or Senate resolution that would limit the scope of the convention. Others have suggested that a state compact could limit in advance the scope of a convention. Perhaps both approaches would be necessary, because it’s not clear whether the states or Congress should make this determination or whether either is authorized to make that determination at all.

Concerns about a runaway convention, however, are traceable to a more general problem: the text of Article V is silent or ambiguous on a number of critical aspects of the convention process. (Amanda and Mark discussed a number of Article V procedural issues here and here, respectively). Not only is there little textual clarity regarding the scope of amendments to be considered, the text also lacks guidance on the method by which states petition for a convention, how petitions are counted, the processes for selecting convention participants, and the procedures and voting rules to be used at a convention. And because all twenty-seven of our present Amendments originated in Congress, the only historic precedent for any of these questions is the Philadelphia Convention of 1787. The Article V instruction that “Congress…on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,” for instance, leaves open the question whether Congress has a purely ministerial role or whether Congress may limit the scope or procedures of the convention. Given the stakes, Congress and the states are likely to come to conflicting positions about who controls and on a number of other issues. Records from the 1787 federal convention reveal that the drafters included the Convention method to empower states against the possibility of an oppressive federal legislature. This might be read to suggest that Congress plays only a minimal role, but several founders, including Madison himself, thought these fears were exaggerated and opposed the inclusion of the convention process altogether. In short, that debate has simply been postponed.

Previous convention attempts have not provided definitive answers. The closest the nation ever came to a convention was the 1960s effort to overturn the “one person, one vote” rule from Reynolds v. Sims, which was one state shy of the 34 needed to call for a convention. Congress quickly responded with legislation that set the number of state delegates, excluded the executive from the process, and limited the scope of issues to be debated. The bill never passed the House and the movement’s impetus subsided, but this should give a hint of the state-federal and cross-branch disagreements that would precipitate. If efforts like these had gotten any further off the ground, it’s almost certain that the courts would have been called in.

As it stands, there is no precise answer as to whether Congress or the states would control the convention process, and the Court’s role remains similarly undefined. One of the only Supreme Court cases to address Article V (though not the Convention Clause) is Coleman v. MillerColeman addressed the validity of the Kansas legislature’s decision to ratify the Child Labor Amendment after having previously rejected the amendment, and the Court ultimately held that the issue “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.” While the political question doctrine provides an out to the judiciary, should it want one, the decision whether to get involved ultimately rests with the Supreme Court. Precisely because so little about the convention is defined, even the preliminary issues have all the trappings of major constitutional confrontation. Perhaps, as both James Rogers and Meg Penrose have proposed, an Amendment clarifying Article V procedures might make a wise first step before an actual convention is called.

One final reason that the Article V Convention is a bad solution to the problem of money in politics is that, in a number of important respects, the Convention doesn’t exist outside of ‘politics as usual.’ Congress and the states play a large role, and the Convention Clause does not map out a particularly majoritarian process. In the words of Kris Kobach,

“The first, and perhaps the most important, structural characteristic of the amendment process laid out in Article V is that it embraces deliberative action by representative bodies, rather than direct action by citizens. The text refers only to action through representative assemblies, be they ongoing (Congress and the state legislatures) or temporary (a national proposing convention and state ratifying conventions). The omission of avenues of direct popular action was deliberate; the intent of the Framers is clear on this issue.”

On this point, it’s extremely noteworthy that the closest the country has come to a convention was a state-led effort to eliminate the “one person, one vote” requirement. Anyone who views the convention process as a way to disentangle concentrated wealth from political power will have to confront the fact that the same institutions they see as problematic will exercise considerable control throughout.

Unless precautionary measures are taken, Article V leaves open a number of potentially fatal influence points for moneyed interests to undermine what comes out of the convention. As described above, Congress and/or the states will play some role in the ultimate selection of convention delegates, the content of the convention, and the adoption of procedural and voting rules. Furthermore, any amendments proposed by a convention have to be approved by three-fourths of the state legislatures or state conventions in order to be ratified, introducing yet another opportunity for state legislators (and hence lobbyists) to exert control over the convention’s outcome.

Sandy Levison recently argued that opacity was a crucial element at the drafting of our current constitution and made the point that outside pressure could disrupt or derail any subsequent convention. I would certainly agree with that, but as things stand, I worry that an Article V convention exists too much inside our ‘broken politics’ to provide the political insulation that a constitutional convention would require. Sincere advocates of the convention method should also be concerned that more legal clarity about the process might just mean more control for existing political actors. The utter lack of guidance in the Convention Clause suggests, if anything, how excruciatingly little the framers must have wanted the country to depend on it.

This article was originally published at Just Enrichment.

Forget About Your House of Cards

This entry was originally written for the HLPR Blog: Notice and Comment.

On Friday of last week, the Department of Justice issued an indictment charging the founders of Full Tilt Poker, PokerStars, and Absolute/UB Poker, as well 8 other individuals in the online poker industry, with bank fraud, money laundering, and illegal gambling offenses. The government also announced $2 billion in civil money laundering charges and in rem forfeiture actions against the defendants and their assets and issued injunctions that would seize 5 online domain names and 76 bank accounts. The DOJ’s press release is here (pdf).

The online poker community is still reeling from the government’s move. The domains for UB.comPoker Stars, and Absolute Poker have already been seized and now display a notice from the DOJ.  Many players found that they could not get access to money they had in their online accounts.  Less than a day after the indictment, Full Tilt and Poker Stars issued announcements that customer account balances were safe and that they would continue processing customer withdrawals. But not everyone has been able to recover their money. Online poker has become a major, if not the primary, income stream for thousands of Americans in recent years, and the indictments have a number of people worrying about where their next paycheck will come from.

The indictment filed by Preet Bharara, U.S. Attorney for New York’s Southern District, contains nine counts. Of the charges, four are alleged violations of the Unlawful Internet Gambling Enforcement Act of 2006 (or UIGEA) (31 U.S.C. §§ 53615367), and three are in connection with a federal prohibition on “illegal gambling business” (18 U.S.C. § 1955). The eighth count is for conspiracy to commit bank and wire fraud (18 U.S.C.§ 1343), and the ninth is for money laundering conspiracy (18 U.S.C.§ 1956).  A breakdown of which defendants were charged with which of these violations can be found here.

The theory behind the UIGEA and “illegal gambling business” charges is that poker is gambling.  The merits of these charges could hinge on whether courts determine that poker is a game of skill or chance. Freakonomics had a series of posts on the question, and Harvard’s own Charles Nesson discussed the issue a few years back with the Wall Street Journal (pdf).  At the moment, courts around the country remain split on the issue, but most people who’ve spent any time playing recognize the skill-component involved. Poker is arguably more a game of skill than much of what goes on in our financial sector, which is perhaps why Congress saw the need to create a statutory exemption for all SEC-regulated activities in the UIGEA.

The other claims are more straightforward allegations of fraud.  According to the indictment, “defendants…arranged for the money received from U.S. gamblers to be disguised as payments to hundreds of non-existent online merchants purporting to sell merchandise such as jewelry and golf balls.” The DOJ further has alleged that the online poker companies incentivized banks to cooperate in these payments by paying bribes. These disputes will probably turn on the particulars of the payment arrangements involved and the degree of transparency and honesty that existed between parties.

There is a longstanding movement for the legalization of poker that’s probably about to pick up some steam. A lot of the criticisms speculate that Congress only acted against online poker because of pressure from physical casinos (consider Reid’s proposal to move online poker into the hands of U.S. casinos during the Dec. 2010 tax debate). It may be possible to identify some public interest that is being served through making online poker illegal, but that doesn’t seem to be what’s going on.



Natalie Portman in Black Swan

“What a sorry, almost absurd thing it is, how annoyingly it chafes the mind, to observe and register quite by accident how someone believes herself to be thinking and acting cunningly on her own, without her noticing that it is merely a shameful repetition of a general pattern.”

 - Thomas Mann, Joseph and his Brothers