Rick Hasen: For what it's worth, I agree with James. I think Linda understates
the potential of the opinion to change the role of money in judicial
elections. It is true Justice Kennedy talks a lot about this being an
extreme case, but the standard is vague enough (as C.J. Roberts' 40
questions proves) that this could take on a life of its own in the
lower courts. And in the meantime, those who would throw big money
around elections might decide it is risky to do so. In any event, she
expressed a certainty I don's have.
Linda Greenhouse: I sense a bit of "Linda, how could you" from my friends in the progressive community from my failure to salute the outcome in Caperton.
I didn't mean to put words in former Chief Justice Phillips' mouth.
Yes, he told Tony Mauro that the decision established "a principle that
is really important." But here' -- what he also said in that interview
that led me to characterize his views as I did -- his views on the
decision itself, let me emphasize, not on the principle:
He said that as he read the holding, it was limited to the following:
Due process is violated ONLY (my emphasis) when: "(1) a person (2) with
a personal stake in a particular case (3) had a significant (4) and
disproportionate influence (5) in placing the judge on the case ... (6)
when the case was pending or imminent." He went on to conclude: "Given
how narrow that holding is, I'm not sure Caperton will ever be direct
precedent for another recusal."
That's what the man (much more expert that I on this issue) actually
said, and that's what my post reflected. My personal opinion is that if
that's all there is, or all that a majority can manage to extract from
the extraordinary facts, I'm not sure this case was worth the effort.
Linda Greenhouse's analysis, posted by Rick
yesterday, is effectively limited so as to exclude real-world
implications apart from a decision being used as direct, dispositive
precedent. Particularly on the score of judicial disqualification,
where the vast, vast majority of the lifting is done by the rules,
which are now plainly reinforced by a floor of constitutional
magnitude, such a scope of analysis is unduly confined. The narrow view
that for a decision to be effective or meaningful it must be capable of
being immediately operationalized as dispositive precedent it itself
and in a wide class of cases is myopic.
That said, Greenhouse
makes a surprising error in both accuracy and judgment when she
attributes her own views to Texas Chief Justice Tom Phillips. The last
sentence of Greenhouse's post states that Phillips "suggests that very
little will come of Caperton in the end." She is simply wrong to
attribute that view to Phillips, who categorically does not hold it.
Phillips
served, along with Roy Schotland and George Patton, as counsel on the
Conference of Chief Justices amicus brief. The very fact that the
Conference filed a brief in the case is telling. It was the first time
in the Conference's history as an organized entity that it filed in
review of a state rather than federal court judgment, i.e., in review
of one of its own. The CCJ is on the front lines, a fact not lost on
the Court which discussed the brief, which while formally in support of
neither side, was clearly and indisputably supportive of Petitioners'
position, a theme repeatedly referenced during oral argument.
The
CCJ's brief said, in essence two things: (1) that they believed due
process could be jeopardized by the very type of outlier level of
spending and circumstances in Caperton, AND (2) that if the Court ruled
- as it ultimately did - without drawing a bright line, then they were
well prepared to deal with that challenge.
So far the facts are
already bearing that second prong out. Consider just briefly, the
following facts rather than characterizations. Since Caperton, Nevada,
Wisconsin, Michigan, West Virginia, Ohio, and Washington have already
formed commissions and/or have opened up comment periods and/or taken
up or accelerated reviews of their existing recusal practices. That's
meaningless? Hardly. And it is exactly what the "well-meaning folks"
that her post so casually dismisses ---including people like myself and
Phillips and Schotland were seeking. I can tell you that the narrow,
fact-based decision is exactly what I, like Petitioners, believed was
the best case scenario all along, and we framed our briefs accordingly.
If anyone thought the case "promised more" than that, their belief was
founded in their own projection, rather than in something promised by
those close to the case.
Likewise, it would have been
inappropriate for the Court to draw the bright lines that the
dissenters excoriate the majority for failing to draw. Chief Justice
Roberts's questions are well-taken but they are directed at the
majority rather than the states, who should and will address them in
the first instance if at all. Prospectively, it is also worth noting
the backstop aspect of this case. If the Court had done nothing here,
then the questions in dissent could just as easily be flipped. E.g,,
What about $10 million? $100 million? Is that enough? Etc... So the
slippery slope arguments and the floodgates arguments provide for nice
sassy copy, but ultimately they do little substantive lifting.
Phillips,
like the 27 former state supreme court justices from around the country
who supported the Petitioners, is widely on record as celebrating the
decision AND as recognizing its import, including in the Tony Mauro
interview referenced, but apparently only lightly read, by Greenhouse.
Phillips is hardly new to these issues, having worked tirelessly on
them in Texas; and having written about them widely, including
authoring the foreword to a Brennan Center monograph on recusal last year. For just a brief sampling of Phillips actual views, as
opposed to those wrongly attributed to him, consider the following:
On the day of the decision, Nina Totenberg noted here: "Phillips said his organization is pleased that the Supreme Court has
drawn a line in the sand but left the states with flexibility. 'The
Court has certainly invited the states to explore whether their more
concrete rules on the state level that would exceed the Due Process
floor are needed.'"
Likewise, in the Tony Mauro's insightful
interview, in which Phillips rightly points out the narrowness of the
constitutionally-dispositive aspect of Caperton, here is a short
sampling of what Phillips actually says as to what may come of the case:
Phillips:
"Caperton established a principle that is really important: There are
constitutional concerns with a judge sitting in judgment of a case
where a party is a significant donor. At some point, the support
becomes so substantial and so overwhelming that due process requires
the judge to step aside, even if neither the donor not the judge did
anything illegal or even unethical. Until now, that was an unanswered
issue. That's the most important thing in the case."
Mauro: "What does the decision say about the difference between judicial elections and other elections?"
Phillips:
"That's another important principle in the case. No one would say that
a Senator couldn't vote on armed services appropriations merely because
the defense industry had spent large sums in connection with the
senator's campaign. And yet that is precisely what the Court held with
respect to a state judge. The opinion affirmed that, even if judges are
selected in precisely the same as political officials, they have a
fundamentally different role in government that raises concerns that
are of constitutional magnitude."
And as for the floodgates
arguments, Phillips makes the very correct point that Caperton may lead
to an increase in rules-based recusal motions, but that given the
current state of affairs in judicial elections, that would be a very
good thing:
Phillips: "The majority opinion recognized, even
urges, states to pass recusal rules that are more rigorous than the due
process floor in order to ensure the appearance and reality of
impartial judges. The Caperton case may cause more of those rules-based
motions to be filed, and state courts may have to grapple with the
types of problems that the Chief Justice raised. And, on the whole, it
will be good for these rather murky questions to be fleshed out. And,
moreover, it will be good to have a heightened interest in what is
required to have fair and impartial justices on the bench."
Some
hope states will abandon elections in light of the decision. Others,
like Chief Justice Roberts, fear that the floodgates of Caperton claims
will open. But as Eliza Carney's excellent recent columnstates: "In fact, both scenarios miss the mark. The ruling's more
likely outcome is that state supreme courts will establish and enforce
clearer recusal rules for judges who may face conflicts of interest,
guidelines that are long overdue."
As noted above, and
as previously noted on this list by Roy, significant progress is
already being made in that direction. Whether one thinks such
consequences are or are not positive and meaningful is a matter of
divergent opinion on this list and elsewhere. To that end, it's worth
noting that just 15 months ago, in this debate sponsored by the Federalist Society, Jim Bopp, in high dudgeon,
characterized the very notion of ANY campaign expenditure-based due
process floor as "liberal New York City extremism." But we now know
that it's the law. And suffice it to say that when, among others,
Justice Kennedy, the CCJ, 27 former state supreme court justices,
Intel, Wal-Mart, Pepsi, Lockheed Martin, etc...look "extreme" from
where one sits, it might be time for some re-calibration. (Or at least
it might be time to tone down the dudgeon). It might also be time for
some serious consideration of the unique countervailing interests in
judicial elections.
On that score, i.e., on the far more
consequential level of rules-based disqualification, indeed, even Chief
Justice Roberts's and Justice Scalia's dissents reflect the need for
greater vigilance than displayed by Justice Benjamin (see CJ Roberts:
"States are, of course free to adopt broader recusal rules than the
Constitution requires..."; See Justice Scalia: [S]hould judges
sometimes recuse even where the clear commands of our prior due process
law do not require it? Undoubtedly.")
But whatever
one's views as to the import of Caperton, this much should be clear:
Tom Phillips's view is that it is quite important. Indeed, in his own
actual words, he states that Caperton might even "spur states to
consider whether our 19th century method of selecting judges works well
in the 21st century. The old friends and neighbors method of selcting a
judge has been replaced by the need for expensive media campaigns...and
these huge independent attack ads that so damage the credibility of our
justice system."
Agree or disagree as you wish. But the
actual quotes from Phillips, as opposed to the characterizations,
reflect his actual views. Count me in the camp of agreeing with him,
with Ted Olson, with Roy, and with those other "well-meaning folks."
Even as Supreme Court nominee Sonia Sotomayor's campaign finance credentials
are brought to light, reform-minded court-watchers are on pins and
needles as to what the next big Roberts' Court decision in that area
will be. The Supreme Court is poised to decide this week a critical
case for the future of campaign finance reform efforts.
The case, called Citizens United v. Federal Election Commission,
is a challenge to part of the 2002 Bipartisan Campaign Reform Act
(popularly known as "McCain-Feingold") - the ban on corporate spending
on broadcast campaign ads
- asking whether it also prohibits the spending of corporate dollars on
a 90-minute on-demand broadcast of "Hillary: The Movie." As its name
implies, the documentary film was originally intended to torpedo
"Hillary: The Presidential Candidate" at a time when she was the top
contender in the Democratic primary.
At least one member of the three-judge lower court reportedly
snickered aloud at oral argument when asked to consider that the movie,
which features the likes of Ann Coulter and portrays Clinton as
"steeped in sleaze," was not an assault on her qualifications for
office. In the most recent case considered by the Supreme Court on
campaign finance, Wisconsin Right to Life II,
the court concluded that an ad that questions the qualifications or
character of a candidate for federal office was rightly subject to the
ban.
Yet March's oral argument in the Supreme Court was humorless. Many
reformers grew deeply worried about where the court was headed after
the Deputy Solicitor General Malcolm Stewart took up its invitation to
speculate about whether a similar ban could reach books downloaded on
Kindle or other, non-broadcast media.
The "what-ifs" posed by the Supreme Court utterly disregarded the
specific terms of the reform, the 2002 so-called "McCain-Feingold" law,
which extended only to "broadcast advertisements." Although its 2003
opinion did not rule out other regulations, the decision to uphold the
law focused on the problem at hand: corporate spending on television
ads that overwhelmed the airwaves during election season.
In that decision not too long ago, the Rehnquist-led Court
acknowledged congressional concern over the "corrosive and distorting
effects of immense aggregations of wealth ... [on expenditures that]
have little or no correlation to the public's support for the
corporation's political ideas." The court also noted that the
provisions were justified to stop the circumvention of other limits on
corporate spending on elections, which has been generally prohibited in
federal races since 1907.
Fast-forward six years and it is now another day, another dollar in the Supreme Court. The Citizens United oral
argument was full of flights of fancy about entire categories of speech
no one had actually imagined were at issue, including books.
But the court's parade of horribles did not instruct so much as
obscure the questions before it. While the Justices could simply have
asked whether the term "advertisement" applies to a full-length movie,
or whether "on-demand" communications are distinct in nature from
general broadcasts (they might be), the court instead showed a
dangerous, and not very "umpire-like," tendency to look past the terms of the statute to the great unknown.
If the First Amendment or any other constitutional provision is
considered in the abstract, untethered from its concrete and specific
goals, then any mere law - including McCain Feingold - has little
chance of measuring up. Indeed, the version of First Amendment
absolutism that this court appears to practice, and may apply here, is
in stark contrast to the sober assessment of practicalities, and
balancing of competing goals, that every prior court since Buckley
used to evaluate campaign finance rules. But freelancing - even when it
comes to questions regarding the reach of the First Amendment - is
hardly what we expect of our courts.
The question of how to adapt statutes written for a previous age to
fit new technologies - i.e., whether there is any conceivable
corruption interest in books purchased and downloaded to a Kindle - is
not a question best first addressed in a courtroom at oral argument,
but by a legislature or regulatory body charged with solving a specific
harm, and proposing a particular plan to address it.
It is obviously the case that major adaptations in campaign finance
law - as in many other areas - will follow in the wake of tectonic
shifts in how we share and process information. And it is likely that
new rules will need to be evolved to grapple with corruption concerns,
where they do persist.
Persist they will, because where there is power, there will be those
who try to corrupt it. Recent scandals, such as those in the rotten
mortgage bond market or the attempts to sell a U.S. Senate seat in
Illinois, show that addressing both actual and possible political
corruption remains a pressing concern for the health of our democracy.
Web-based tools mean that it will be easier and simpler than ever
before to report and track information about contributions and other
campaign spending, which may actually shift the balance in favor of
regulation. The real issue is not whether one may draw lines around
protected and prohibited categories of communication, but who
is best suited to develop and draw those lines. Should it be Congress
and the Federal Election Commission? Or should it be the court?
The mere existence of novel media does not somehow render obsolete
the concern, dating back to the Constitutional Convention, of how to
balance the access of special interests to public institutions and
officials to make them less prone to corruption, capture and other
delegitimizing influences. Thoughtful campaign finance rules demand a
reconciliation of First Amendment protections with the equally serious
need to check political corruption and the appearance of such
corruption.
This court, as well as any future composition of it, would do well
to decide cases in the campaign finance area carefully, based on the
statute before it and the weight of precedent. We hope that this week,
and in the future, it will allow the other branches of government to
adapt this part of the law to changing circumstances, rather than
allowing the shadow-boxing possible in oral argument to gain substance
in constitutional precedent.
In a post on The Hill Blog, The
Incumbency Problem Has Everything to do with Money, I wrote that the
availability of low contribution limits and public financing help challengers
in elections against incumbents. Professor
Hayward replied here, and was
somewhat dismissive of the Brennan
Center research inspired
by Randall v. Sorrell that proves
these points.
After paraphrasing Prof. Hayward's statements at our
recent conference for the blog, I checked the transcript. Here's what Prof. Hayward said, "So ask
yourselves, and this is my closing thought: as passionate reformers, how much
of what you dislike about political funding is a problem of incumbency rather
than a problem of money?" Given this, I
do not think it was misleading to write: "panelist Professor Allison Hayward, a
skeptic of campaign finance reform, asked whether reformers should really focus
more on incumbency than they do on limits on money in politics."
As Court watchers eagerly await the latest decision on campaign finance in a case called Citizens United, new research from the Brennan Center indicates that the Roberts’ Court’s first campaign finance decision three years ago, Randall v. Sorrell, suffered from a key empirical flaw. In that case, the Court wrongly assumed that low contribution limits hurt challengers and entrenched incumbents.
This misperception is still widely shared. At the Brennan Center’s recent conference, “New Horizons for Reform,” panelist Professor Allison Hayward, a skeptic of campaign finance reform, asked whether reformers should really focus more on incumbency than they do on limits on money in politics. This is a false dichotomy. The Brennan Center has long worked to address both money in politics and the strength of incumbency. Our work on campaign finance reform, redistricting and voting rights is intended to assure that the basic structures of democracy are geared to truly capture the voters’ collective will, so that those incumbents who no longer serve the public will face a realistic prospect of electoral defeat.
The banking industry, recently described by Senator Dick Durbin (D-IL) as the “most powerful lobby on Capitol Hill,” has maintained its hold over Congress even after causing the current financial meltdown. While discussing the mortgage crisis on Bill Moyers’ Journal on May 8, Senator Durbin, co-sponsor of the Fair Elections Now Act (FENA), stated that the “way we finance our campaigns” lies at the heart of the current crisis. His solution is FENA, a bill that will provide public financing to congressional candidates.
By giving congressional candidates the option to run their campaigns with money free of any strings attached, FENA ensures that politicians will not make legislative decisions out of a sense of indebtedness to large contributors but will vote their conscience. Senator Durbin declared that now is the “time for us to move to public financing, for the good of the country,” and it certainly seems that the potent combination of economic collapse and political challenges means that there is no time like the present to fully consider how to change business as usual in Washington.
At a press event on Monday May 11, Representative Larson (D-CT), co-sponsor of the House version of FENA, stated that due to the bill’s importance, he hopes to push the bill through the House before the end of the summer. The House version of FENA, co-sponsored by Rep. Larson (D-CT) and Rep. Walter Jones (R-NC), now has 31 co-sponsors.
Last week's TARP stress test results reminded us to ask ourselves: now that the federal taxpayer owns nearly 80% of AIG, are AIG's interests ours? We own a quarter of Citibank; does that mean the bank's desires are now in sync with ours? Is Bank of America—currently afloat with $45 billion in taxpayer dollars—now truly America's bank? In a word: No. The political interests of bailout recipients aren't necessarily consistent with public interest which is one reason recipients should be held accountable for all political or partisan spending they do with our money.
Government ownership of big portions of the economy could threaten democracy; for one thing, it creates massive conflicts of interest for those who manage bailed out companies. Do they have a fiduciary duty to the taxpayer or the companies they manage? What happens when those duties aren't perfectly aligned? Alarmingly, if not surprisingly, the AIG bonus debacle suggests managers' inclination to act in the corporate, not the public's, interest.
A widely attended conference convened by the Brennan Center for Justice brought together academics, activists, politicians, Obama Administration officials and even an actor in a packed hall at the National Press Club in Washington, D.C., on May 8th (click here to learn more about the conference).
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