What’s up with Wisconsin? I’m surprised when I hear that question, seeing as I now live in New York City. As a former Badger, people outside of the state think I have special insight into the mind of Wisconsin’s political class. But just like all of you, I’m dumbfounded.
The past six months have been quite entertaining. Weeks of protests at the state Capitol, a multi-million dollar Supreme Court election and recount, a polarizing drive for a Voter ID bill, and now a series of recall elections that have brought in millions of dollars from outside interest groups. To the rest of the country, Wisconsin is a mad, mad world.
"This is so out of whack from everything we've ever seen,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign, in an interview with Mother Jonesabout the recall elections. Approximately $3.75 million was spent on legislative races in 2010. For Tuesday's recalls, more than $30 million has already poured in, according to McCabe, and that number is likely to rise.
It’s not the candidates spending all this money—it’s outside interest groups, fighting a proxy war over collective bargaining rights, who are keeping voters in the dark. The Supreme Court’s Citizens United decision is largely to blame for this deluge of hidden spending. That decision, and others, opened the floodgates for corporations and unions to spend at will and obscure that spending through so-called “Super PACs.” Without proper laws to bring this spending out of the dark, Wisconsinites don’t know who is trying to sway their vote.
At the same time voters get blasted with outside TV ads, the new Voter ID bill makes it harder for them to vote.
In my four years at UW-Madison, I lived at four different addresses. Each time, I registered at the polls by bringing my proof of residency (a utility bill) and nothing more. I wasn’t trying to subvert the system. I voted in state elections, city elections, and county elections. I even moderated a debate between two County Board candidates. I wasn’t one of these students who came from out of state and voted in Wisconsin without knowing who I was voting for, as some Voter ID advocates claim. I truly engaged with Wisconsin politics.
If I had to get a new driver’s license every time I changed my address, as I would under the current Voter ID bill, would I have been so involved? Probably. But it represents an unnecessary obstacle to voting—the bedrock of our democracy—and one that many Wisconsinites might not choose to overcome, especially the poor or the elderly, who might find it hard to get to the DMV.
This kind of Voter ID requirement disproportionately affects the elderly, minorities, and students. According to a 2005 UW-Milwaukee study, 23 percent of voters over the age of 65 do not have a photo ID, 70 percent of whom are women. Statewide, 55 percent of African American males and 49 percent of African American females do not have a photo ID, compared to 17 percent of white males and females. And for students living in the UWM, Marquette, and UW-Madison dorms, just 3 percent had a photo ID with their current address.
To be sure, we need to do everything we can to protect the integrity of our democracy, including guarding our elections from voter fraud. But modernizing voter registration and tightening election administration procedures furthers this goal much more than measures making it harder to vote.
Protecting this integrity not only requires easing Voter ID restrictions, but also passing new laws requiring disclosure of political spending. After jumping through hoops just to be able to vote, the least we can do for Wisconsin voters is reveal who is spending millions to influence their decision. Without that, the country will be left asking, what’s up with Wisconsin?
Once again, the fight against marriage equality begins with the fight against disclosure.
In November 2012, Minnesota voters will be asked to vote on a constitutional amendment that defines marriage as the “union of one man and one woman.” Supporters and opponents both predict an expensive election campaign fight about LGBT rights and marriage equality. And not surprisingly, the opponents of marriage equality are already taking aim at Minnesota’s disclosure laws, and fighting to ensure that their political fundraising and spending can be done in secret.
Minnesota law already bans gay marriage. But marriage equality opponents claim that an amendment to the state constitution is needed to prevent the issue from being decided in the courts. The state’s Republican-controlled legislature passed the marriage amendment last month — amid reports that Minnesota’s GOP caucus was promised millions of dollars in campaign contributions if they successfully placed the amendment on the 2012 ballot.
Now, the lawyers for the National Organization for Marriage (who have been leading the fight against disclosurethroughout the country) have started lobbying state authorities to weaken disclosure rules — and threatened litigation if they aren’t able to raise and spend millions of dollars in secret.
What do they have to hide? If past campaigns are any indication, NOM and its allies may not want Minnesota voters to know about their reliance on out-of-state money as they launch a political campaign that is estimated to cost between $4 million and $6 million. After all, voters are already telling reporters that they “can't imagine anything worse than having millions of dollars pouring into the state to pay for ads that hammer us with manipulation and lies” — and the campaign hasn’t even begun.
Fortunately for voters, the State of Minnesota can require robust disclosure from both sides of the upcoming campaign. As the Brennan Center explained in a letter to the Minnesota Campaign Finance and Public Disclosure Board, there is simply no merit to NOM’s claim that Minnesota lacks full authority to require disclosure just because this is a ballot campaign. The legislative floor fight has already illustrated the stakes here. Ballot campaigns can be just as expensive as candidate elections. Indeed, referenda like the one in Minnesota often are pushed in order to lift the fortunes of political candidates and elected officials who come out to vigorously support or oppose the ballot issues. There will be plenty of opportunities in Minnesota for heavy spending to raise the specter of corruption and undue influence — and voters have a right to know where all the money is coming from.
Marriage equality opponents don’t have a credible First Amendment claim saying otherwise. The Supreme Court has repeatedly endorsed the value of disclosure in both candidate and ballot elections, recognizing that information about political spending can be critical to a voter’s decision on Election Day. Voters who are undecided about the ballot measure will benefit from knowing about the forces arrayed on either side of the issue, including who is raising money from Minnesota voters and who is raising money from out-of-state groups. As the Supreme Court explained in Citizens United, transparency in political spending is necessary because it “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Despite the clear constitutional authority in favor of disclosure, its opponents continue to pull out all the stops. At a recent Minnesota Campaign Finance Board hearing (and in media interviews afterward), one of NOM’s lawyers even had the temerity to argue that corporations should be excluded from disclosure rules that apply to “associations” under Minnesota law because a corporation is a single “legal person” — whereas “associations” involve more than one person. This argument not only defies common sense — it is also wholly foreclosed by Citizens United. Despite common misconceptions, Citizens United never held that a corporation has First Amendment rights because it is like a “person,” or even a “legal person.” To the contrary, Citizens United expressly and repeatedly based its First Amendment analysis on the definition of corporations as associations of people. That opponents of marriage equality are desperate enough to take positions this specious proves they’re out of real, valid arguments to support their cause.
NOM and its allies are trying to eat their cake and have it too — now that they’ve won more robust First Amendment rights for corporations, they are actually trying to pretend that corporations are people like you and me. It’s too bad they won’t offer the same human rights to gay and lesbian Minnesotans.
On April 28th, the Brennan Center hosted a debate between NYU’s Richard Pildes and Chicago’s Geoffrey Stone. The topic: Are elections special under the First Amendment? The debate marked the release of the Center’s new bookMoney, Politics and the Constitution: Beyond Citizens United, published by The Century Foundation Press. Below you will find video and photos from the debate.
Erwin Chemerinsky, Dean of UC Irvine School of Law and author of The Conservative Assault on the Constitution, said of the book: “A brilliant collection of essays on one of the most important contemporary constitutional issues: when can and should the government be able to regulate campaign spending? … If there is to be a new jurisprudence in this area, this book is likely its foundation.”
In Wednesday’s Wall Street Journal, David Marston and John Yoo argue against disclosure of political expenditures by government contractors — in anticipation of an Executive Order that would require this transparency. They argue that a case from the 1950s, NAACP v. Alabama, forecloses this type of disclosure. The only problem with this argument is that the Supreme Court has already said the disclosure of money in politics is perfectly constitutional.
The authors accuse the president of trying to undo Citizens United, but this is a rhetorical sleight of hand because this case stands for disclosure of political money. In Citizens United, the plaintiffs tried unsuccessfully to hide behind the NAACP fig leaf. Citizens United argued to the Court that disclosure requirements would chill donations to their organization “by exposing donors to retaliation.” The Supreme Court did not find the risk of harassment plausible or a credible reason to excuse the organization from FEC disclosure. In fact, the Supreme Court rejected this argument 8-1. As the Court explained, “Citizens United, however, has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.”
Marston and Yoo also use the California Prop. 8 case as an example of why political speech should be anonymous. But back in the real world, in the actual Prop. 8 case, the district judge ruled in favor of transparency in rejecting the application of NAACP to a group called Protect Marriage. The district court found that a group supporting heterosexual marriage was not “vulnerable to the same threats as were … the NAACP.”
Furthermore, the district court in the Prop 8. case was unpersuaded that an injunction of the California disclosure law should issue because the harassment that had been alleged was properly a matter for the criminal authorities. Rather, this court found that the plaintiffs in Protect Marriage were trying to shield themselves from any response: “Plaintiffs’ exemption argument appears to be premised . . . on the concept that individuals should be free from even legal consequences of their speech. That is simply not the nature of their right.” So while transparency opponents like to trot out Prop. 8 as a boogey man, the judge who had all of the evidence in front of him rejected the NAACP argument full stop.
At the Supreme Court, eight of nine Justices are for the disclosure of political spending. The one hold out is Justice Clarence Thomas who is alone in thinking there is an absolute right to spend on politics anonymously. John Yoo clerked for Thomas. Is it a coincidence that Yoo would parrot his old boss’s view? Perhaps not. But it is worth remembering that the other eight justices have rejected Yoo’s premise decisively.
The authors are wrong on the law and they are wrong on the policy. Government contractors can’t give directly under the Hatch Act, but they can funnel money through opaque intermediaries like the U.S. Chamber of Commerce. If this is the tactic, it should be done in the light of day where we can see if the political spending lines up with large federal contracts—especially the ones that are no-bid.
Late last night, two hours to midnight, the Maryland legislature did something historic. They passed a groundbreaking campaign finance disclosure bill. Maryland had been one of a handful of states that lacked any disclosure requirements for independent spenders in elections. This left Maryland voters completely in the dark about the source of ads that praised or attacked candidates. The bill tracks policy suggestions urged by Maryland's Attorney General and those outlined in the Brennan Center's report "Transparent Elections after Citizens United", as well as testimony given by Brennan Center Counsel Mimi Marziani
The bill requires disclosure for both independent expenditures (ads which explicitly say vote for a candidate) and electioneering communications (ads that feature candidate in their districts on election eve). And Maryland adapted one innovation that puts it at the vanguard, namely it requires companies that spend in Maryland elections to report that spending directly to their shareholders. This innovation recognizes the new normal created by Citizens United — the 2010 Supreme Court decision that allows unlimited corporate political spending. Maryland already allowed corporations to spend, but nation wide, Citizens United makes such spending more efficient because corporations can engage in multi-state campaigns without the old state-by-state analysis to see whether the spending was allowed.
With this bill, Maryland has declared, "No more dark elections in our state." The next step is the governor's desk.
The Brennan Center believes that clear and comprehensive disqualification rules are essential to a fair and impartial judiciary. As judicial elections over the past decade have morphed into the realm of high cost negative politicking, numerous public opinion polls report that Americans are concerned about judicial neutrality—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.
Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending. To that end, the Brennan Center advocates for clear and comprehensive recusal rules that protect due process and promote public confidence in the judiciary.
In 2009 the U.S. Supreme Court issued a landmark decision in Caperton v. Massey. Recognizing that there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor, the Supreme Court disqualified the judge. At the same time, the Court noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires.
Meanwhile, the American Bar Association (ABA) then-president H. Thomas Wells Jr. applauded the ruling and announced that the ABA would develop “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them. This evaluative process is one way to restore the public confidence in our courts so critical to preserving our government of laws.” The ABA convened a Standing Committee on Judicial Independence, which recently submitted a Resolution and Report on judicial disqualification to the ABA House of Delegates for full consideration. Today, the Brennan Center and Justice at Stake sent a joint letter to the ABA, expressing support for ABA efforts to energize state court recusal reform.
The letter identifies two fundamental principles that the ABA should articulate as minimum standards for state recusal reform efforts. First, states must ensure objective decisions on disqualification requests by implementing a process of neutral review. Secondly, in recognition of the increasing significance—and danger—of money in judicial elections, states must also outline a policy for campaign finance-induced recusal, including disclosure rules.
Observers predicted that the Caperton ruling would affect state judicial elections nationwide. While many states have considered recusal reform, only a handful have implemented meaningful policy changes. The Brennan Center examined state action over the past two years and analyzed current judicial disqualification rules. In Promoting Fair Courts through Recusal, the Brennan Center outlines positive, realistic, and easily implemented steps states can take to embrace meaningful recusal standards.
To begin with, states should not rely on a challenged judge to make the final decision on whether his or her impartiality can reasonably be questioned. If a judge denies a recusal request, states should provide for prompt, meaningful review of the denial. States must create disqualification rules that ensure the challenged justice does not have the sole, unreviewable discretion to decide a recusal request. The report identifies the procedure for handling recusal requests in Georgia’s Supreme Court as a model for ensuring a challenged justice is not the final arbiter of a motion for his or her disqualification, and urges states to take care to require transparent decision-making on recusal requests so that meaningful review is possible.
The Brennan Center has consistently argued for comprehensive disclosure requirements. Here, we again stress that states should acknowledge that judges’ impartiality may reasonably be questioned—and disqualification may be necessary—because of judicial campaign spending by litigants or their attorneys. An ideal disqualification rule should approach campaign finance-induced disqualification with a big-picture perspective and address not only the overall amount a party (or counsel) spent on contributions and expenditures, but also additional factors that bear on perceptions of a judge’s impartiality, including the relative size of a party’s contributions in comparison to the total amount of money raised by a judge and his or her opponent(s); the ratio of the party’s spending to the total amount spent in the election; the apparent effect of the party’s spending on the results of the election; and whether the party’s spending occurred while the litigation in question was pending or imminent.
As special interest spending in judicial elections escalates, disqualification guidelines and related necessary disclosure rules are essential to protect fair and impartial courts. Recusal does not threaten the independence of the judicial branch, rather clear and comprehensive rules enhance the judiciary by creating transparency and shoring up confidence in a cornerstone of American democracy—the judiciary.
“I have promises to keep, And miles to go before I sleep,” so wrote poet Robert Frost in 1923. These are words that should be ringing in the ears of elected officials one year after Citizens United. The by now infamous decision allows corporations and unions to spend unlimited amounts on political ads about candidates. One year later, corporate, securities and election laws across America remain largely unchanged. These laws must be fixed to catch up to the new reality of money in politics after Citizens United.
What is that reality? The mid-term election showed the perils of running tens of millions of new money through a disclosure system that is utterly broken. As the NYC Public Advocate noted in a post-election break down of the congressional elections, over 1/3 of the money spent in the federal election was anonymous. The reason a City official such as the Public Advocate cares about the vast spending on congressional races is he oversees the multi-billion dollar New York City pension system as a trustee. Part of his job requires him to be concerned that the interests of the pension as an investor are not being compromised by this political spending. He may be left wondering if some of that new money in politics is money from publicly traded companies traceable to pensioners’ investments, and whether that money should properly be going to retired New York City Fire Fighters and their widows, for example, instead of lining the pockets of a political consultant or enriching broadcasters who make a small fortune every election cycle on ad buys.
Shareholders large and small need to keep an eye on corporate political spending. As the Supreme Court said, such information is vital to the shareholders’ ability to check the actions of mangers and to determine whether the political spending is likely to lead to profitability. Unfortunately, most publicly-traded companies are not transparent when it comes to their political spending. This robs shareholders of their ability to exit an investment either because they fundamentally disagree with political choices of managers on deeply held ideological grounds or they think that corporate managers are foolishly wasting corporate assets which could be better spent on research and development or hiring a new employee.
Congress tried and failed to pass legislation in 2010 to bring transparency and shareholder consent into corporate political spending. There is slim hope that the new Congress will pick up the pieces and try again – federal solutions seem unlikely. In the states, Iowa was first to recognize that political spending needed some internals oversight from companies. In Iowa, they improved their law by requiring board approval of corporate political spending. Lawmakers across the nation should focus on the fact that 92% of Americans (according to polling by the New York Times) want more transparency in their elections.
Yet not every reform requires a change in the law. Rather, some of these changes could be accomplished by administrative rule makings. First, federal campaign finance regulations need to be tightened. Much could be gained if merely the directions on FEC Forms 5 and 9 were modified to require those who purchase political ads in federal elections to divulge their underlying donors. The SEC should also change companies’ annual and quarterly public reporting (Forms 10-K and 10-Q) to require periodic disclosure of political spending by publicly-traded companies. Furthermore, if political spending is going to be funneled through nonprofits, then the IRS needs the resources to track which nonprofits have abused their tax status and which are complying with the rules.
Meanwhile, back in the states, disclosure laws in both the campaign finance context and the corporate governance context need improvement. All states should require reporting of who is funding political ads. Interested legislators can refer to the Brennan Center’s Writing Reformto see how to structure these laws. And states also have nearly plenary power to change corporate laws to give shareholders a means to consent to political spending through a vote or they could adopt Iowa’s approach of board approval which is a step in the right direction.
Given how much remains to be done to respond to Citizens United after a full calendar year and a dark election, citizens must insist that our political leaders repair our broken systems – starting with providing more transparency. With the 2011 legislative sessions revving up around the country, the time to act is now.
70 percent of those surveyed said they support establishing a system of public campaign financing for elections in New York. The effort has bipartisan support with 76 percent support of those who identified themselves as Democrats and 63 percent support by those who identified themselves as Republicans.
Faring even better, requiring full disclosure of legislators’ outside income and clients showed 84 percent support -- with 85 percent support among Democrats and 89 percent support among Republicans.
Less encouraging however, is the public’s expectation that these reforms are likely to become a reality this year – a clear sign of New Yorker’s disillusionment with their government. Only 16 percent believed passing the ethics bill this year is “very likely”, and 36 percent responded as “somewhat likely.” On the public financing of elections, 9 percent responded as “very likely” and 35 percent as “somewhat likely.”
The public's desire for reform in Albany is clear. As we await the promised ethics bill, we hope that the Governor's office and the Legislature are paying close attention to what their constituents demand.
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