This piece will argue that the Roberts Supreme Court’s protection of lying and its choice to fence government speech as outside of First Amendment analysis have created a perfect storm for a figure like President Trump to do incredible damage to voting rights specifically and trust in American democracy more generally.

In my 2019 book, Political Brands, I explored how commercial branding techniques are being used in politics to sell American voters, politicians, ideas and ideals. Branding includes the targeted repetition of messages until they are accepted as true by an audience, even if the message is a lie, a myth or fantasy.

In the months before the 2020 election, experts predicted that because of COVID-19 pandemic, millions more voters than normal would vote by mail. These experts put out a white paper entitled “Fair Elections During a Crisis” encouraging states to process mail-in votes as early as possible so that there would not be a delay in processing overall votes total. The white paper predicted what is now known as either the Blue Shift or the Red Mirage—that if Re-publicans voted in person and Democrats voted by mail, that Re-publicans would appear to “win” on election day, but that once all ballots were processed it was possible for Democrats to actual win.

This Blue Shift/Red Mirage indeed happened in the 2020 general election for president. At 2:00 a.m. after the election, President Trump prematurely declared victory. Key swing states like Nevada, Georgia and Pennsylvania took days after the election to process all of their votes. It was on Saturday November 7, 2020 when Biden’s victory became clear. President Trump then spent every day since the 2020 election claiming that there was massive voter fraud, voting machines cannot be trusted, and Republicans legislators should appoint pro-Trump electors. His campaign filed multiple lawsuits attempting to get states to throw out certain votes and in a particularly bold suit, his campaign attempted to get all votes from Pennsylvania to be thrown out. The courts did not indulge him or his campaign.

Trump’s failure to concede by itself likely would not cause last-ing damage to the American political process. But the nonstop rhetoric during the 28 days (and counting) that his supporters should “stop the steal” of the election, while questioning whether the integrity of the 2020 election had been profoundly undermined by voter fraud or failed voting machines, Trump’s rhetoric has the potential to undermine voting rights and trust in American democracy. The longer-term damage that could be that Trump’s fantasy problems will be used as justifications for voter suppression laws which make voting by mail more restrictive.

In this piece, I examine the political branding of Asian immigrants by comparing the rhetoric used in the political platforms of the Democratic and Republican parties from 1876 to 1924 to the language deployed in U.S. Supreme Court opinions during the same time period. The negative verbiage repeated at national political conventions branded the Chinese  is a threat to labor, immoral, unassimilable, diseased, and invaders. Interestingly, the Republican authors of their political platforms were multiracial, and yet they produced rhetoric as  harshly anti-Asian as their Democratic counterparts, who included ex-Confederate soldiers and even KKK members. And disappointingly, the Supreme Court picked up this derogatory language found in both parties’ political platforms and continued to echo it in cases that diminished the rights of Chinese and other Asian immigrants. This history is then linked to the present day through the example of the negative impact of politicians’ calling the contemporary COVID-19 pandemic “Kung Flu.”

This piece discusses how the case Kelly v. United States, which was pending before the Supreme Court when this piece was written, was likely to expand two different developments in the Roberts Court’s jurisprudence: (1) expanding the constitutional protections for lying under the First Amendment and (2) narrowing the definition of corruption. This Piece describes how lower courts ruled in the Kelly case as well as arguments deployed by Kelly’s lawyers at the Supreme Court to try to exonerate their client Bridget Anne Kelly for her role in the Bridgegate scandal.

Epilogue: As this piece was being printed, the Supreme Court decided Kelly v. United States, 590 U. S. ____ , No. 18-1059 (U.S. May. 7, 2020). As predicted by the piece, the Supreme Court in Kelly expanded the Skilling case and narrowed what counts as corruption concluding “not every corrupt act by state or local officials is a federal crime.”

The Roberts Supreme Court has, or to be more precise the five most conservative members of the Roberts Court have, spent the last twelve years branding and rebranding the meaning of the word “corruption” both in campaign finance cases and in certain white-collar criminal cases. Not only are the Roberts Court conservatives doing this over the strenuous objections of their more liberal colleagues, they are also breaking with the Rehnquist Court’s more expansive definition of corruption. The actions of the Roberts Court in defining corruption to mean less and less have been a welcome development among dishonest politicians. In criminal prosecutions, politicians convicted of honest services fraud and other crimes are all too eager to argue to courts that their convictions should be overturned in light of the Supreme Court’s lax definition of corruption. In some cases, jury convictions have been set aside for politicians who cite the Supreme Court’s latest campaign finance and white-collar crime cases, especially Citizens United v. FEC and McDonnell v. United States. This Article explores what the Supreme Court has done to rebrand corruption, as well as how this impacts the criminal prosecutions of corrupt elected officials. This Article is the basis of a chapter of Professor Torres-Spelliscy’s second book, Political Brands, which will be published by Edward Elgar Publishing in late 2019.

Is President Trump illegally profiting from the Presidency? Answering this question actually requires complex constitutional interpretation that breaks new legal ground and could change the rules for all future presidents.1The answer may also impact thosewho wish to deal with President Trump’s businesses. Depending on the outcome of cases invoking the Constitution’s two Emoluments Clauses,2many commercial interactions with the Trump Organization that are kosher today, may be ruled unconstitutional tomorrow.

This piece explores the early litigation over whether President Trump violated both the foreign emoluments clause and the domestic emoluments clause of the U.S. Constitution. Litigation over these matters was still on-going in 2020.

There are just not enough hours in the day to get the job done! This type of “time drought” identified by cognitive scientists takes on democratic significance if the person experiencing it is a democratically elected official. Those elected officials may thereby lack the ability to effectively represent the constituents who put them in office. For federal elected officials, one of the causes of the lack of time to craft policy (the job) is caused by political fundraising burdens (the distraction). As one Congressman put it bluntly, campaign fundraising has become an incredible “time suck” for lawmakers.

The election in 2016 was the most expensive federal election to date. The high price tag in 2016 was attributable to Congressional races. Thus my primary focus in this piece will be on the fundraising burdens experienced by incumbent Members of Congress. Participating in the fundraising arms race is rational behavior for most candidates, because typically the candidate with the bigger campaign war chest wins the election. This fundraising treadmill leads to deleterious effects including dependence on lobbyists for fundraising assistance and for policy making, as well as an unhealthy reliance on a small oligarchic subset of American political donors. Without public financing for Congressional candidates, the only way to avoid the burden of fundraising is to be independently wealthy. And yet, the Roberts Supreme Court seems particularly tone deaf to arguments about preserving the ability of a non-wealthy incumbent elected officials to do their official duties under Article I of the Constitution.

I gave a speech at Columbia Law School at the request of the Federalist Society about campaign finance and boycotts. This is the transcript of that speech as annotated by Harvard Law students.