So what’s it like to be a campaign finance reformer during the first election after Citizens United? Here’s a typical day:
10:00 am. The phone rings. It’s a reporter who wants to know about the spending in the midterm election. I point the reporter to www.opensecrets.org for federal elections and www.followthemoney.org for state elections.
“No, no. That’s not what I mean.” Complains the reporter. “I want to know about the secret money in the election.”
“Well that makes two of us.” I say and I settle in for a longer conversation. By 10:30 am, here’s what I try to explain:
Citizens Unitedis the Supreme Court case which unleashed unlimited corporate expenditures in all future American elections. Citizens United didn’t make this spending secret. To the contrary, the Supreme Court voted 8-1 in favor of applying strong federal campaign finance disclosure and disclaimer rules to the plaintiff in the case, a 501(c)(4).
The secrecy came from a combination of Citizens United’s trashing of the previous federal corporate PAC requirement and decades old disclosure loopholes. In 2004 and 2008, nonprofits accounted for hundreds of millions of dollars of political spending –usually in the form of sham issue ads which pre-Citizens United were the primary legal way for corporate treasury money to come into a federal race. This year is different. Now straight up “vote for bob” election ads can be funded by corporations-- both for-profit and non-profit.
If a for-profit wants to spend secretively, then they can send their dollars through a non-profit who will do the political spending for them. Because of the way our elections and tax code interact, such spending is undetectable. When it comes to federal political ads, the FEC only requires reporting of earmarked donations. This enables Alice in Wonderland filings at the FEC where a $1 million ad buy is magically supplied by no listed donors. The IRS doesn’t require 501(c)(4)s or (c)(6)s to report their donors publicly. Only 527s are subject to public reporting of their donor bases over a certain threshold. This makes 501(c)(4)s or (c)(6)s the perfect way to hide a for-profit corporate role in this election.
Do I know that for-profits are spending in this election? Only if they are spending through transparent PACs. Otherwise I’m as much in the dark about this apocryphal election as any other voter. I’m waiting for a whistle blower to fess up, but I fear they will have the discipline to keep us all in the dark. Now that the President is calling out the potential for foreign money to flow through these nonprofits, I fear that the wagons are circled and we never know who funded this election.
More than any election since Watergate, this midterm is looking like a win for obfuscation and a loss for transparency. It did not have to be this way. What’s standing between the American voter and transparency are changes in the U.S. Code. We can change (1) the election code, (2) the securities code and/or (3) the tax code.
Option 1. The cleanest way to get at this transparency problem is by amending the Federal Election Campaign Act (FECA). Reforms like those embodied in the DISCLOSE Act would get at this issue by reforming the type of information that the FEC requires from political spenders. The reform that might have the most impact would be a requirement to name top funders in the ad itself. So we wouldn’t have any more “Citizens for Better Medicare” bought to us secretly by the pharmaceutical industry or “Americans Working for Real Change” brought to us covertly by business interests. These two examples are real groups. The DISCLOSE Act can still be adopted by Congress in the lame duck session.
Option 2. Because some of the money flowing through the trade association is likely from publicly traded companies, this raises a host of corporate law issues as well. The first tier agency problem is shareholders do not know that corporate money is being sent a political trade association. Then, once the money is in the trade association’s hands, the donor company loses control over how it is spent. In other words, shareholder investments may be leaking into the political system in ways that offer the shareholder zero say. And the problem is compounded because of the lack of transparency. Not only do shareholders have no vote, in most cases, they will be utterly clueless that the spending has happened. All this spending could damage shareholder value. This could be addressed by the Shareholder Protection Act which would require shareholder approval before publicly-traded corporation can spend money on politics. Furthermore, corporations are required by the Act to report where they have spent the money. Again, the Congress can still adopt this bill in the lame duck session.
Option 3. We could change the tax code to require public disclosure of entities who fund partisan, political campaign ads through 501(c)(4)s or 501(c)(6)s. This has not been explored by Congress post-Citizens United. This fix was briefly on the table in 2000 when public disclosure was mandated for 527s. Chairman Max Baucus already has asked the IRS to investigate whether certain nonprofits are abusing their tax status. But the question is bigger that the actions of a handful of bad apples. He also has the authority to hold hearings on the deeper issue of what electioneering disclosure should be adopted across the board to nonprofits after this dark election.
It is not too late to act. We still have time to fix this problem before the 2012 election. Because the only thing that could be worse than all of this secret political spending in a midterm congressional elections is for the same thing to happen on an even grander scale in a presidential election.
I hang up the phone. At 11:00 am it rings again. It’s another inquiry about the secret spending in the midterm. I take a sip of coffee. I repeat the facts that I know and the facts I don’t know. I pray that the story gets to enough staffers on the Hill so that we change our law in time.
Ciara Torres-Spelliscy is Counsel at the Brennan Center for Justice at NYU School of Law and Adjunct Professor at Rutgers University.
Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit delivered the annual Brennan Center Jorde Symposium lecture Tuesday evening at University of California Berkeley Law School. His topic was "The Rise and Fall of Judicial Self-Restraint." Berkeley Law Professor Robert Cooter introduced Judge Posner to an overflow crowd of law students, faculty and former law clerks of Justice Brennan. Professor Cooter noted that in addition to being one of the nation’s best known judges and the author of countless books, law texts, articles and blogs, citation studies show Judge Posner to be one of the most prolific and influential of living American writers.
Judge Posner's lecture began with a look back at the origins of the doctrine of judicial self-restraint and its adherents in the academy and judiciary. Judge Posner outlined the main tranches of the theory of judicial self-restraint and traced its history back to Harvard Law Professor James Bradley Thayer's 1893 Harvard Law Review article, “The Origin and Scope of the American Doctrine of Constitutional Law” (7 Harvard Law Review 129 (1893)). Thayer reasoned that judges should overturn an act of a legislature only when there is no reasonable doubt that it is unconstitutional. Thayer’s work was admired and followed by Justices Holmes, Brandeis and Frankfurter, jurists that Judge Posner describes as “the pragmatists.” Judge Posner then described how the theory of self-restraint was utilized by each of these justices to serve their underlying judicial and political philosophies. Justice Brandeis, for example, a progressive sitting on a conservative bench at a time of social uneasiness and progressive legislation, advanced the theory to discourage the Court from acting against populist measures.
After nearly 100 years of prominence, why have judges wholly abandoned the theory?
Judge Posner cited three reasons: first, the rationale for the theory was likely laid on too weak a foundation. For example, Professor Thayer believed that if state legislators knew that their work would be given great deference by judges, they would act more responsibly in the first instance, passing only legislation that was certainly constitutional. But, Judge Posner pointed out, this was "just a guess" by Thayer, not based on a modern-style empirical study or other hard research, and similarly, judges who believed that activism might lead the public to question the role of the judiciary were also conjecturing. Second, the activist Warren Court, which invalidated numerous state statutes, fired up conservatives, who reacted by creating even more activist conservative courts from the 1980’s to the present. The third and increasingly significant development, however, has been the rise of academic theories of constitutional review (originalism, textualism, the living constitution, minimalism, moral interpretations, just to name a few). Judge Posner reasoned that regardless of which theory a judge adheres to, he begins with the certainty that there is a key and a correct answer and thus is not inclined to defer to the views of legislatures.
Judge Posner pointed out that though these theories of constitutional interpretation are new, there has been "total abandonment" by the judiciary to the view that one or another should prevail. Judge Posner then cited the example of Holmes' lasting and influential dissent in Lochner, which was one page long because "there was no theory that had to be discredited on the one hand and then defended on his side." He contrasted the Supreme Court's 2008 decision in Heller (which overturned the District of Columbia's ban on handguns): whereas Holmes' would have said simply that cities should be allowed to make their own decisions about whether or not it was permissible to keep a loaded gun in a crime-ridden neighborhood, Justice Stevens, writing for the dissent, was compelled to send his law clerks to search for historical material to counter Justice Scalia's historical material. Though Stevens' historical material arguably trumps Scalia's (Judge Posner speculated that eager clerks might even have searched for "letters in John Adams’ coffin"), Judge Posner said no one reads these long opinions and all that is remembered is that the history is muddy and disagreeable. Few have questioned whether the odd-ball collection of material, including crumbling pamphlets and dictionaries, should have been relevant to the decision in the first instance.
A unique feature of the Brennan Center Jorde Symposium is that prominent scholars provide commentary after the lecture.Stanford Law School Dean Larry Kramer went first: one of the nation's foremost constitutional lawyers and a legal historian, Dean Kramer outlined a historian's view of the theory of judicial self-restraint as practiced by adherents of Jeffersonian popular constitutionalism (which called for great deference to the peoples' view of the Constitution) and the Federalists (expert judges should decide what the Constitution means) but agreed with Judge Posner that theories Constitutional interpretation are a recent development, without an historical basis. Jeffersonian or Federalist, throughout the centuries there was no real disagreement among judges on how to make decisions: they relied on text, history, precedent and consequences. This was the accepted and open-ended process.
By the 1980’s, post Brown vs. the Board of Education, there was universal acceptance of the legitimacy of judicial review. At the same time, liberals and conservatives disagreed about the substantive decisions of the courts, and consequently began focusing the debate sharply on the process by which decisions are made, leading to the development of competing academic theories of constitutional interpretation. But Dean Kramer also noted that both sides still adhere to the doctrine of judicial restraint when it serves their ends: for examples, conservatives believe judges should be restrained in entitlement and civil rights cases, liberals tend to think judges should be restrained in economic matters.
Professor Pamela Karlanargued that judicial restraint is alive and well: several types of cases are especially subject to great deference by federal judges, such as rationality review in executive privilege claims, habeas review of death penalty appeals and Section 1983 challenges. Yet in other areas, the concept of judicial review is so pervasive that we now observe instances of politicians supporting politically popular laws knowing they are unconstitutional and that the courts will likely strike them down. "Take Senator Spector, please," she joked. Professor Karlan described Senator Spector's support of a bill adverse to the rights of Guantanamo detainees. Shortly after the bill’s passage, the Senator filed an amicus brief challenging the law and describing it as "anathema to Constitutional liberty." She cited immigration laws as especially vulnerable to this kind of manipulation.
Professor Karlan reasoned that the concept of judicial review is so pervasive that courts may now feel they have no capacity to be restrained. She sympathized with judges who are inclined to judicial self-restraint but, because of pressure to intervene, strain for rationales to uphold odious state legislation. She pointed to the tortured logic of a recent New York Court of Appeals decision to restrict marriage to heterosexual couples. A bill allowing same-sex marriage failed in the New York legislature in 2008.
This short summary cannot do justice to a great evening of discussion and debate. Judge Posner’s lecture and the commentaries by Professor Karlan and Dean Kramer will be published in an upcoming issue of the California Law Review. Part II of the Brennan Center Jorde Symposium will take place in April 2011 at the University of Chicago Law School.
To read more about the Brennan Center Jorde Symposium, including past events, click here.
Tom Jorde, founder of the Brennan Center Jorde Symposium
Lawrence Norden—ReformNY Editor in Chief and Senior Counsel at the Brennan Center—testified yesterday before the New York State Senate Standing Committee on Elections on the introduction of optical scan voting machines in the 2010 primary election. His testimony focused on three areas where the Brennan Center sees room to improve administration of the new optical scan machines, and where both local boards and the State legislature can take concrete steps to improve the use of these machines going forward: (1) ensuring that poll worker training focuses on allowing voters to vote and vote privately, regardless of problems with the machines; (2) improving ballot design so that New Yorkers can easily read and complete their ballots; and (3) adopting policies for using machines to ensure that votes are counted as they were intended to be cast.
At 9:00 a.m. on Friday at the Washington Convention Center- Room 145-B, Chairman John Conyers (D-MI) will host a panel titled “Criminal Justice Reform: The Continuing Challenges to Equality” to examine racial disparities in the legal system. Erika Wood will speak about the importance of restoring the right to vote for formerly incarcerated people and why it is crucial that representatives support the DRA. The DRA will restore the right to vote in federal elections to over 4 million Americans who are living in their community but have been barred from having their voice heard in elections. The DRA also ensures that people on probation will be able to vote and that people are provided with voter registration information upon ending their sentence or beginning their time on federal probation. Among others, Harvard Law Professor Charles Ogletree, Ben Jealous of the NAACP, and Ronald Hampton from the National Black Police Association, will be speaking on the panel.
Later in the morning, the National Black Law Students Association will host a Social Action Rally at the University of the District of Columbia. The rally will begin at 11:30 a.m. and allies of the DRA and those impacted by the current law will be speaking to encourage Congress to pass the bill. It should be an exciting day to raise awareness about the right to vote.
Save the Date: November 1, 2010 will be a national call-in day to support the Democracy Restoration Act. Visit www.brennancenter.org/dra for details.
This summer the New York legislature took decisive action to create two important policy reforms: requiring that people in prison be allocated to their home communities for redistricting purposes; and requiring criminal justice agencies to provide voting rights information to people who are again eligible to vote after a felony conviction. While Albany has long been labeled “dysfunctional,” these particular reforms actually stand to make aspects of our state government models for democratic fairness and participation.
Both proposals are long overdue and have been introduced again and again and again, and both have garnered strong support in the legislature. Nevertheless, political wrangling repeatedly stymied their progress. This year, democracy trumped politics. Well, not quite. The legislation was pushed through in the budget revenue bill with no public hearing or debate. We will continue to criticize Albany for passing legislation behind closed doors with no opportunity for public input. But that’s for another post. Here, we hail the result.
The first reform assures that long under-represented communities have a full and fair voice in our state government. At present, incarcerated individuals are counted for federal Census purposes as residents where they are incarcerated rather than as residents of their home communities. In New York, where people are often imprisoned far from home and incarceration rates have skyrocketed in the last decade, this policy has produced increasingly harmful results. Public officials in prison districts have an incentive to build their districts on the backs of “ghost voters,” packing in prisoners who count toward the district size but who are not permitted to vote. So while officials who profit from the prison economy have an outsized voice in incarceration policy, the voting strength of the home communities – to which the vast majority of incarcerated people return – is diluted, resulting in under-representation in our state government.
The new legislation requires the Department of Correctional Services to provide the legislature with the necessary information to determine the home addresses for people in prison, and it instructs that incarcerated people should be allocated back to their home communities for redistricting purposes. This corrects a skew that has decimated the voting strength of poor and minority communities for decades, and assures that all communities in New York have equal representation and an equal voice in our government. Both Maryland and Delaware recently passed similar legislation.
The second policy reform is no less urgent. It will correct years of misinformation, promote successful reintegration and help protect public safety, while building civic participation among traditionally disenfranchised communities. Reliable information about voting rights is needed to address widespread, persistent, and well-documented misinformation in New York. Under New York law, people convicted of a felony lose the right to vote while in prison and parole. People on probation do not lose the right to vote. Once someone serves his maximum prison sentence or is discharged from parole, his right to vote is automatically restored. He need do nothing more than fill out a voter registration form like everyone else. Nevertheless, New York election officials have consistently misapplied the law and some have required people to provide unnecessary (and sometimes nonexistent) paperwork before being allowed to register. Not surprisingly, this confusion among election officials has affected the public. In 2005, researchers found that nearly 30% of people with criminal convictions surveyed in New York thought they would never be eligible to vote again.
New York’s new law is the latest in a national trend. Twenty-four other states and New York City already require certain state and local agencies to inform people when their voting rights are restored following a criminal conviction. It is a simple, workable policy that promises to have a major impact in assuring successful reintegration and reduced recidivism. Last year a retired New York parole chief testified before the New York Senate Elections Committee, “having the right to vote and learning how to exercise that right gives one a voice and a stake in the community; it promotes positive behavior and serves as a powerful conduit for making the transition from criminal to becoming a law abiding member of the community.”
The political jousting and escalating rhetoric of this seemingly endless New York budget season have been baffling, and at times excruciating. But this legislation shows that sometimes behind the shenanigans important policy reforms can be achieved. These two proposals in particular have the potential to make at least some aspects of our representative government a model for the rest of the country, and that’s not something we say lightly.
Yesterday the threat of filibuster in the Senate killed — at least for the moment — a transparency bill the country both needs and wants. This is another example of how the continual threat — and use — of the filibuster is bringing our democracy to a halt. Tuesday’s victim? Americans who might want to know who is funding political ads in our elections.
The Constitution set up two different houses of Congress, and each governed by different rules. The House is designed for speed. The Senate, by contrast, has a different design which by its very nature slows down the pace of legislation and encourages deliberation — that’s why its members are older, serve longer, staggered terms, and why power is dispersed among committee chairs instead of being concentrated in the majority leader. As a former Senate staffer, I have seen firsthand how the Senate counters the impulsiveness of the House.
But, while debate and compromise make our country’s laws better, an overused minority veto makes progression impossible. The filibuster was never intended to be a tool for permanently derailing every piece of legislation. In recent years, the filibuster — and even the threat of a filibuster — has morphed from the exception to the rule, preventing the Senate from addressing critical policies, even those that the voters demand.
The latest casualty of the Senate filibuster was the DISCLOSE Act, which would have ensured that corporate and union political spending on future federal elections (including this fall’s upcoming election) was fully disclosed to voters. The act also would have banned foreign-owned companies from spending in U.S. elections and kept TARP recipients and large federal contractors from running campaign ads. Now, thanks to the threat of filibuster, all of these doors are wide open to abuse.
After the Supreme Court granted corporations and unions the constitutional ability to spend their treasury funds on elections in theCitizens United case last winter, polls of likely voters showed that approximately 80 percent the American public vehemently disagreed with the decision and wanted Congress to enact legislative remedies. What did the voters want? According to the polling, significant majorities from across the political spectrum wanted foreign corporate dollars to stay out of U.S. elections, shareholders to have a say on how their investments were used in politics, pay-to-play politics to stop, and real transparency of where political money was coming from. The same polls showed majorities also support the Fair Elections model of funding campaigns to empower voters and small donors over big special interest money. Happily, even in the wake of the defeat of the DISCLOSE Act, other reform options — such as the Shareholder Protection Act and the Fair Elections Now Act — remain alive for Congress to embrace as responses to Citizens United.
Democrats have seen one bill after another watered down in pursuit of 60 votes in the Senate, where a lock-step Republican opposition has mounted more filibusters and filibuster threats this session than in all of post-war history combined. Mimi Marziani, David Roberts, Sen. Tom Udall, David Waldman, Matthew Yglesias.
Summer conference season is upon us. Every summer (even in election years), our nation’s busy election officials take a “break” from the day-to-day business of running elections and get together to share information and discuss how to improve election administration. Last week, the International Association of Clerks, Recorders, Election Officials, and Treasurers (IACREOT) held its annual conference and trade show in Chicago, Illinois. This weekend, the National Association of Secretaries of State (NASS) will convene for their summer conference in Providence, Rhode Island. A consistent point of discussion among state election officials at gatherings like these has been how to save money yet improve the voter registration system.
The economic climate has not been kind to state budgets, and officials at the state-level are more pressed than ever to reduce costs without sacrificing election administration quality and integrity. Voter Registration in a Digital Age, a new Brennan Center report released yesterday, explains how a number states have achieved such a crucial balance.
Based on documentary research and interviews with election officials in fifteen states, the ground-breaking report is the first in-depth survey of two key voter registration modernization reforms at the state level: “automated” voter registration, in which government offices such as DMVs collect and transfer voter registrations electronically, and online voter registration, in which citizens submit voter registration applications over the Internet.
Christopher Ponoroff, the author of the study, finds that as states modernize their voter registration process, they save significantly. For example, Delaware’s paperless voter registration at DMVs saves election officials more than $200,000 annually on personnel costs, above the savings they reaped by partially automating the process in the mid-1990s. And officials anticipate further savings.
As states reap substantial cost benefits, they are also improving their voter registration systems. Upon modernizing their systems, states discover that paperless registration is more accurate and reliable than paper forms. In fact, a 2009 survey of incomplete and incorrect registrations in Maricopa County, Arizona found that electronic voter registrations are as much as five times less error-prone than their paper-based counterparts.
And to complete the modernization benefits trifecta, states also see an increase in registration rates once they have implemented these reforms. After Arizona introduced online and automated registration, rates among 18-24 year-old citizens rose from 28 to 53 percent.
Wendy Weiser, Director of the Voting Rights and Elections program and editor of the report, presented these findings at IACREOT and will do the same at NASS next week. Many states have already reaped the benefits of modernization, reducing costs and improving their voter registration systems. Our hope is that other election administrators will use this as an opportunity to assess their own systems and see how they, too, can improve their voter registration system while saving money.
But, Judge Posner pointed out, this was "just a guess" by Thayer, not based on a modern-style empirical study or other hard research, and similarly, judges who believed that activism might lead the public to question the role of the judiciary were also conjecturing. Second, the activist Warren Court, which invalidated numerous state statutes, fired up conservatives, who reacted by creating even more activist conservative courts from the 1980’s to the present. The third and increasingly significant development, however, has been the rise of academic theories of constitutional review (originalism, textualism, the living constitution, minimalism, moral interpretations, just to name a few). Judge Posner reasoned that regardless of which theory a judge adheres to, he begins with the certainty that there is a key and a correct answer and thus is not inclined to defer to the views of legislatures. 
argued that judicial restraint is alive and well: several types of cases are especially subject to great deference by federal judges, such as rationality review in executive privilege claims, habeas review of death penalty appeals and Section 1983 challenges. Yet in other areas, the concept of judicial review is so pervasive that we now observe instances of politicians supporting politically popular laws knowing they are unconstitutional and that the courts will likely strike them down. "Take Senator Spector, please," she joked. Professor Karlan described Senator Spector's support of a bill adverse to the rights of Guantanamo detainees. Shortly after the bill’s passage, the Senator filed an amicus brief challenging the law and describing it as "anathema to Constitutional liberty." She cited immigration laws as especially vulnerable to this kind of manipulation. 
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