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Justices Should Know by Now—Money Is Not Speech

Cross-posted from a Seattle Post-Intelligencer piece.

Whenever I admit to fellow guests at a dinner party that I work as a campaign finance lawyer, the following happens. Either their eyes glaze over, hoping for a rapid change of topic, or they launch into a heated discussion of why the case that decided "money is speech" is so wrongheaded—since after all, money is, well, money, and speech is something else entirely. Sad to say, the justices on the U.S. Supreme Court seem to be losing their grasp on this simple point.

Contrary to popular opinion, the landmark case, Buckley v. Valeo, never actually equated money with speech. Instead, the opinion analyzed political campaigns and concluded that lots of money is needed to get a candidate's message to voters. Buckley used gasoline as a metaphor for campaign cash. The fuel of contributions makes the campaign car go.

As Justice Stephen Breyer once wrote, "a decision to contribute money to a campaign is a matter of First Amendment concern not because money is speech (it is not); but because it enables speech." Despite this truth, the bumper sticker version—"money is speech"—has seeped into our collective unconscious. 

> Read entire article here

Tags: Democracy, Campaign Finance Reform, Fair Courts

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Idarraga to Yale

Mr. IdarragaIn case you missed it, there is an inspiring piece in today's Providence Journal chronicling Andres Idarraga's remarkable change of course. In short, over the span of ten years, Idarraga has gone from has gone from prison to graduating from Brown University to finally being admitted to Yale Law School—A.T. Wall, director of the Rhode Island Department of Corrections, actually drove him to New Haven for a meeting with the law school's dean.

Andres Idarraga served as one of the primary spokespeople for the Rhode Island Right to Vote campaign, and he is one of 15,000 Rhode Islanders with a conviction in their past who had their right to vote restored when voters approved a ballot referendum in November 2006. He has written for this blog before. His personal account of having his right to vote restored in Rhode Island can be found here.

Tags: Democracy, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, State-Based Advocacy

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Free Press or Death

Once it was my job to monitor all three of the network nightly news shows.  Not as punishment, but as a way for the presidential campaign that I worked for to keep track of what was and was not getting covered.  It was interesting to see which stories they covered, how they covered them and where, in their programs, they placed them.  But I was often disappointed to see that networks tend to consider things like 120 second consumer report segments more newsworthy than, say, a presidential candidate's universal health care proposal.

Twenty million people get their "news" from network broadcasts each day.  I—and everyone else—had to come to grips with the fact that these shows have lots of power to sway public opinion.  But in an ever expanding media merger landscape where General Electric's outlets (get it—"outlets"!) don't spend a lot of time reporting on the enormous amounts of money our government spends on the defense industry, people have to be careful about the news nutrients they consume.

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Tags: Democracy, Campaign Finance Reform

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Heck—Right to Take WI Legislature to Task

"Brace yourselves for the most ugly and expensive state Supreme Court election in Wisconsin's history in 2009," warns Jay Heck, director of Common Cause Wisconsin. In his Capital Times op-ed, Heck takes shots at Wisconsin's legislature for failing to act on a campaign finance reform bill, and accuses the group of quietly, "smothering it with a pillow" during its special legislative session.

Heck's brashness is understandable. Forget about the fact that Governor Jim Doyle called the special session specifically in the interests of campaign finance reform. Recent candidate special interest spending in Wisconsin's last two judicial election cycles, makes clear that, now, more than ever, comprehensive campaign finance reform is needed in the state.  

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Tags: Democracy, Campaign Finance Reform, Fair Courts, Judicial Advertising

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Administration’s Cracked Eggs

It is unclear whether the White House believed that claiming executive privilege would provide them with fail-proof protection from divulging information it would prefer to keep confidential, or if they really believe all presidential communications are privileged—but it seems as though they've put all their valuable legal eggs into this one, increasingly fragile basket.

Unfortunately for the Bush Administration, this basket has been woven from weak strands of legal theory which are unlikely to hold up upon closer inspection.

Last week, the House Judiciary Committee challenged Justice Department lawyers' efforts to throw out of court the Committee's civil lawsuit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten. Allegedly, these two White House employees have crucial information regarding the forced resignations of a number of U.S. Attorneys who were not, as Ms. Miers once said, "loyal Bushies."

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Tags: Justice, Liberty & National Security, Checks & Balances

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Fine’s Tome Incomplete Without Ashcroft

Cross-posted from The New Republic.

Last week's report by the Justice Department's Inspector General reveals that working in the Bush Administration really does mean never having to say you're sorry—or, indeed, anything else you don't want to for that matter. And this applies even when it's your executive branch colleagues who are trying to get you to talk.

The Justice Department's inspector general Glenn A. Fine has issued a thorough and unblinking report about the concerns FBI agents had about the harsh interrogation tactics, possibly rising to the level of torture, that were being used on detainees in Afghanistan, Iraq, and Guantanamo. These were concerns, Fine discovered, that were systematically ignored and discounted by cabinet members and other political appointees. Conspicuously absent from Fine's 437-page opus, however, is any input from one of the most important of those political appointees: former Justice Department leader John Ashcroft. The phrase "Attorney General Ashcroft declined to be interviewed for this review" or its equivalent appears repeatedly throughout the report—often followed by an indication that the report is necessarily incomplete because of it. For instance, due to Ashcroft's absence, we don't know which agency or individual made the decisions regarding what interrogation tactics would be used on specific detainees; whether Ashcroft himself objected to the use of any particular tactics; when he first became aware of his subordinates' concerns; or whether he conveyed those concerns to high-level officials outside the Justice Department and, if so, how those officials responded.

Read entire piece here...

Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy

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Thrilling! But No Sequel, Please.

I just sat through a nail-biting, emotionally exhausting two hour TV movie.  The opening ten minutes were especially nerve-wracking.  The film begins with elderly Floridians squinting at their butterfly ballots, then stabbing at the ballots, scary music playing, over and over, voting by accident for Pat Buchanan.  Think of the shower scene in "Psycho" with your grandmother instead of Janet Leigh. Even more exciting: would the panting, lurching advance man catch up with Al Gore before he walked onstage to concede?

Maybe not everybody would find this as thrilling.  But Recount,which airs on HBO this Sunday, is one of the better political movies I've ever seen.  It "gets" the motives and methods of political players better than anything in years.  More relevant to the work of the Brennan Center, it brings to life the ways our elections can go wrong, and the rickety and often corrupt machinery by which we still cast and count votes.

(Full disclosure: I am an old colleague and friend of Ron Klain, the protagonist; I see GOP lawyer Ben Ginsberg at the beach many summers; and I go duck hunting with James Baker every year.  Well, that part isn't true. But like anyone involved in politics, back then I had a rooting interest in the outcome of the recount.) 

The narrative crackles and does a good job portraying the legal machinations that led to the Supreme Court's 5–4 intervention to stop the counting, thus making George W. Bush President.  It's all here, from the "Brooks Brothers riot" in which Republican congressional staffers shut down the counting in Miami, to the frenzied efforts to read and understand the Supreme Court opinion that announced its reasoning only applied to this case.  The acting is terrific, and the dialogue is sharp and as profane as real life politics (and HBO).

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Tags: Democracy, Voting After Criminal Conviction, Voting Rights & Elections, Allegations of Voter Fraud, Other Voter List Issues, Purges, Voting Technology

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Conyers Subpoenas Rove Over DoJ

RoveYesterday, attempting to get to the bottom of the alleged politicization of the Department of Justice under the Bush Administration—and an investigation of Alabama Governor Don Siegelman (D) specifically—Rep. John Conyers (D-MI) issued a subpoena to former White House Deputy Chief of Staff Karl Rove.

According to CNN, the subpoena had been authorized earlier but was only delivered yesterday after "The Architect" conveyed through his lawyer he would not appear voluntarily. Not surprisingly, the lawyer also stated Rove must honor White House orders not to testify. Read Conyers' cover letter for yourself here.

Tags: Justice, Liberty & National Security, Checks & Balances

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