Following an ACS event exploring the legal and political fallout of the Supreme Court's recent corporate campaign finance decision, constitutional law expert William P. Marshall talked with ACSblog about the ruling and the Roberts Court. Marshall, a law professor at the University of North Carolina School of Law and member of the ACS Board of Directors, said the decision in Citizens Untied v. FEC shows that "although the Roberts Court is conservative politically, it indicates that it is not a conservative court, judicially."

"This is one of the more activist decisions we've seen in sometime," Marshall said. He noted that the decision, which said corporations, may spend freely on elections, "put in doubt over a hundred years of legislation dealing with the regulation of corporate activity in campaigns."

Marshall moderated a panel discussion, including Jan W. Baran, Laurence E. Gold, James S. Portnoy, Joseph E. Sandler and Monica Youn, at the National Press Club on Citizens United. Video of the discussion is here. Watch Marshall's interview with ACSblog below or download of podcast of it here.

 

Large swaths of the American population oppose the Supreme Court's recent ruling on corporate campaign spending, according to a Washington Post-ABC News poll.

"Eight in 10 poll respondents say they oppose the high court's Jan. 21 decision to allow unfettered corporate political spending, with 65 percent ‘strongly' opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits," The Washington Post reported.

The newspaper reported that the polling also revealed "little difference of opinion on the issue among" Democrats and Republicans and that it suggested "a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court's decision."

Gary Langer, director of polling at ABC News, noted that the survey also revealed that even some supporters of the Tea Party movement, which rails against the federal government, oppose the outcome in Citizens United.

"Even among people who agree at least somewhat with the Tea Party movement," Langer wrote, "73 percent oppose the high court's rejection of this particular law. Among the subset who agree strong with the Tea Party's position on the issues - 14 percent of all adults - fewer but still most, 56 percent, oppose the high court in this case."

Langer's post includes the entire polling data here.

The 5-4 ruling in Citizens United v. Federal Election Commission found that corporations have free speech rights to spend on campaigns, overturning decades of precedent upholding regulations on corporate campaign financing.

The Post noted that Sen. Charles Schumer and Rep. Chris Van Hollen are working on legislation addressing the ruling in Citizens United. In response to the new poll, Sen. Schumer, said, "If there's one thing that Americans from the left, right and center can all agree on, it's that they don't want more special interest in our politics."

ACS will host a panel discussion on Feb. 24 at the National Press Club on the implications of the ruling, including how it may impact the midterm elections. The panel discussion will include Jan W. Baran, a nationally recognized campaign and elections law attorney, who filed a friend-of-the-court brief in Citizens United arguing in support of corporations' free speech rights to spend on campaigns, and Joseph Sandler, a former general counsel for the Democratic National Committee, and also a campaign finance law expert. Following the ruling, Sandler told USA Today that it will likely make it a tougher challenge for incumbents seeking reelection.

See here for more information about the ACS event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead." Check here for additional expert commentary on the case from ACSblog. 

On "The Daily Show with Jon Stewart," Stewart and correspondent Jon Oliver examine the Supreme Court's recent decision in Citizens United.

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This fall, at American University (AU) in Washington, D.C., ACS Executive Director Caroline Fredrickson moderated a debate about whether to replace the electoral college with a national popular vote in presidential elections. Critiquing the national popular vote plan were John Samples, Director of the CATO Institute's Center for Representative Government, and Alexander Belenky, author of How America Chooses Its Presidents. Debating on behalf of a national popular vote were John Koza, Chairman of National Popular Vote Inc., and Jamie Raskin, a Maryland State Senator and Director of the Law & Government Program at AU's Washington College of Law, who previously outlined his positions on the electoral college for ACSblog here.

With several states having made some movement towards embracing the national popular vote, video is now available here of this timely debate. 

 

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By Bert Brandenburg, Executive Director, Justice at Stake

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This spring, in Caperton v. Massey, the Supreme Court said that due process required a West Virginia Supreme Court justice to step aside from a case involving a supporter who'd spent $3 million to help elect him. But the 5-4 majority left minimal guidance to the states, inviting them to fill in the blanks through state court rules.

First answers are coming from the Midwest, where divided courts have recently taken Caperton in different directions. Wisconsin's high court rejected proposals to require recusal when campaign spending reached a fixed "trigger" level. The proposal was sparked by record-breaking cash washing through the state's last three Supreme Court contests.

But the court's 4-3 majority took a far more radical step, approving requests from two of the state's most powerful players-the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce-that no contribution or independent expenditure, no matter how large, could ever be the sole basis for recusal. In other words, if Bernie Madoff had spent $100 million to elect a Wisconsin Supreme Court justice, a victim suing him for redress couldn't point to the support and ask the justice to abstain.

In Michigan, the state Supreme Court moved forward instead of backward. A 4-3 majority began by agreeing that a judge should be disqualified when "the judge's impartiality might objectively and reasonably be questioned" -- catching Michigan up with the vast majority of other states that have adopted this standard.

The Wolverine State's Supreme Court went further, adopting a first-in-the-nation provision that a litigant who fails to convince a justice to recuse may appeal to the entire high court (which would have to spell out its reasoning when it decided). "Times are changing and we're becoming increasingly aware of the impact a refusal to disqualify has on the public," said Chief Justice Marilyn Kelly.

Indeed, as spending on high court elections has more than doubled over the last decade, recusal has become a hot issue. Three in four Americans believe that campaign cash influences courtroom decisions. Caperton reaffirmed that this cash matters, and that every state must guarantee litigants a fair trial with due process, including in cases that involve major campaign spenders. And states are very much allowed to set rules that are tougher than the minimum required by constitutional due process requirements.

Since courts typically draft their own recusal standards, watchful eyes are on states like Nevada and Washington, which are now reviewing their rules. But judges don't always get the last word. In Wisconsin, just a week after the high court's retreat, legislators passed a system for public financing of judicial elections -- a reminder that impartial justice is everyone's business.

Following his participation in an ACS preview of the Supreme Court's approaching term, longtime Court litigator Paul M. Smith talked with ACSblog about the major corporate campaign finance case, Citizens United v. FEC and how the Court's decision in that case is likely to reflect a continuing "activism." Smith, a partner at Jenner & Block, said it was "very likely" that the high court could overturn precedent regarding regulation of corporate campaign financing in Citizens United, thereby fundamentally altering the balance of power in elections. Watch Smith's entire interview below or download it as a podcast here. For more discussion of Citizens United, which involves campaign finance regulation and the First Amendment, see an ACSblog guest post from the Constitutional Accountability Center's (CAC) Doug Kendall here. 

In a friend-of-the-court brief filed in Citizens United v. Federal Election Commission, the Constitutional Accountability Center (CAC) urges the Supreme Court to uphold longstanding precedent that allows the government to regulate corporate campaign contributions. On Sept. 9, the high court will re-hear argument in the case that pits Citizens United, the creator of a film that scathingly attacks Hillary Clinton, and the FEC, which said the film amounts to a lengthy campaign attack ad subject to the strictures of federal campaign finance law. Citizens United will argue before the high court that the campaign finance law violates its First Amendment rights.

Elizabeth Wydra, CAC's chief counsel, writes that the "text and history" of the Constitution does not grant corporations the same First Amendment rights as individuals.

Wydra continues: 

Accordingly, the idea that government can act to prevent improper corporate influence in elections is not just reflected in more than a century of campaign finance reform, it is woven into the very fabric of our Constitution.

Perhaps even more fundamentally, affording corporations the same right to participate in the political process as individual citizens would elevate corporations far above the place they have occupied in our constitutional system since the Founding. While the text and history of the Constitution show an ever-expanding concern for the rights of individuals to vote and participate in the political process, constitutional text and history do not suggest an intention to treat corporations in the same manner. To the contrary, the Constitution gives federal and state governments broad power to regulate the acts of corporations.

Wydra's full post is here.

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By Estelle Rogers, Consulting Attorney, ProjectVote

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The National Voter Registration Act (NVRA) has been a disappointment. When the statute was passed in 1993, the civil rights community hailed it as the capstone of the "voting rights revolution" begun by the Voting Rights Act of 1965. In a new report from Project Vote, "The National Voter Registration Act at Fifteen," voting rights attorney Estelle Rogers hones in on several of the most important provisions of the NVRA and finds their impact far less dramatic than expected. Despite the promise of the NVRA, voter registration problems were frequently cited as THE ISSUE marring the 2008 election, just as hanging chads were in 2000 and long lines in 2004.

The NVRA was enacted in response to the shocking statistic that 44 percent of the eligible electorate did not vote in the 1992 presidential election. The legislation's sponsors believed that making it easier to register would eliminate one major barrier to low participation in the future. The primary means Congress chose to increase the number of registered voters was to mandate that registration be offered at places not generally used for that purpose, such as motor vehicle offices and public assistance and disability agencies. Actually, "motor voter" was the original concept. Other agencies were only added later, at the urging of voting rights advocates, who recognized that a broad swath of the American public-particularly low income and minority citizens-does not interact with the DMV at all.

Unfortunately, these other agencies have been treated as the poor stepchildren of the law ever since. Enforcement of the states' obligation to offer registration at public assistance, disability and military recruitment offices has been woefully inadequate. One disability rights activist, who was "present at the creation" of the NVRA, remarked recently that he has not yet displayed the "signing pen" given to him by President Clinton because the law has not yet been meaningfully implemented. But he's hopeful that a new era of enforcement has begun and that his pen will come out of the mothballs soon.

Another big obstacle to realizing the potential of the NVRA is the seemingly limitless creativity of the states when it comes to inventing mechanisms to squelch voter registration drives. The law recognized that these drives would be an effective way to reach out to traditionally disenfranchised communities. But some states have required registration workers-often volunteers from church or community groups-to be deputized or made official agents of the state. Others have prohibited applications from being submitted in a group or required detailed filings with the state before a registration drive could begin. Still others have imposed tight deadlines of 3 or 5 days for the submission of applications, even though the DMV and agencies have 10 days to transmit applications to the state.

"Purging" also received a lot of attention in the 2008 election. The NVRA sets clear and explicit standards for when a voter may be dropped from the rolls, but these standards are widely misunderstood and/or ignored, leading to wholesale purges of eligible voters, often because they haven't voted regularly. Not surprisingly, this was a common occurrence in 2008, when large numbers of African Americans were voting for the first time in many years. Erroneous purges have also led to the disenfranchisement of many voters mistakenly confused with ineligible (in many states) convicted felons, notably a 2004 Florida "match" process in which 15 percent of those dropped from the rolls were not felons at all.

While the NVRA has fallen far short of the great expectations surrounding its passage, several simple fixes could go a long way toward fulfilling its goals. The key word here is leadership. First, the Department of Justice is charged with enforcement of the law. A few strategic lawsuits, for example against states whose agencies are not in compliance, would undoubtedly have a "trickle-down" effect. Experience has shown that states' agency registration rates skyrocket after litigation, and more aggressive enforcement in this area will show dramatic results in the defendant state and send a message to other states as well.

The Department of Justice also has the authority to issue guidance to the states, telling them what will and what will not be considered compliance with the NVRA. Such gentle persuasion might help recalcitrant state election officials to understand all of the NVRA's requirements with respect to agency registration, purging, and registration drives, among others.

Leadership by state election officials will also have a profound impact. When the mandates of the law are obeyed--

1. when state employees are properly trained,
2. when election officials are not given unbridled discretion to interfere with legitimate registration drives, and 
3. when agencies are made to understand that voter registration is part of their mission and not an optional activity

--then increases in the number of registered voters and in the diversity of the electorate are sure to follow.

If the NVRA were finally vigorously enforced and properly interpreted, this 15-year old statute could well be the transformative law that its authors envisioned.
As the debate swirls around "universal registration," "automatic registration," "internet registration," and many other ambitious proposals, we would do well to remember that the NVRA remains an underutilized but powerful tool for the expansion of our democracy.

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By Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, and author of the Election Law Blog, where this post was initially published.

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As judicial elections in recent years have become, in the words of Roy Schotland, "noisier, nastier, and costlier," litigants have consistently sought to limit some of the excesses sometimes seen in judicial elections, which 39 states use for at least some of their judges. Until today's opinion in Caperton v. Massey, the Supreme Court refused to impose limits as a matter of constitutional law. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down on First Amendment grounds a state judicial code provision barring judicial candidates from "announcing" their views on disputed legal or political issues. Since White, as I've chronicled, lower federal courts have continued relying on the First Amendment to strike down a number of judicial codes seeking to keep judicial campaigns as something somewhat different from ordinary elections. (Justice O'Connor has since expressed regret about her crucial fifth vote in White, and has been working on the issue of judicial independence since retiring from the Court.) Since White and until today's decision in Caperton, the Supreme Court refused to consider other judicial election cases.

The details of Caperton are set out at the beginning of the opinion by Justice Kennedy. Briefly, a litigant with a $50 million case pending before West Virginia courts spent up to $3 million on independent activity (some directly, some through a 527 organization) supporting a candidate for the West Virginia State Supreme Court of Appeals. The candidate won, and he refused to recuse himself upon a motion brought by the other side. The justice, Justice Benjamin, cast the crucial vote in favor of the litigant. After the case was set for rehearing after recusal of two other Justices, he again declined to recuse and again cast the crucial vote. Today, in a 5-4 decision, the U.S. Supreme Court held that Justice Benjamin's failure to recuse violated the Due Process Clause of the 14th Amendment. Here are some of my thoughts on the case.

1. Judicially manageable standards. My first thought in reading this case with its 5-4 lineup was one of relief. With Justice Kennedy, the swing vote in play, I was worried we'd have another 4-1-4 split as we saw in the partisan gerrymandering case of Vieth v. Jubelirer in which Justice Kennedy, writing only for himself, bemoaned the lack of judicially manageable standards leaving the standard murkier than ever. But fortunately for the sake of judicial administrability, we have a 5 justice majority opinion (with no concurrences), that sets forth a relatively clear standard. Though the general language is one of "probability of bias," the main test is the one that appears on page 14 (page 18 of the pdf):

We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign,the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

The Court repeatedly notes that the facts have to be extreme, and in most cases campaign spending will not be enough to trigger recusal.

2. The dissent. Though this is a relatively clear test, and one that will rein in the most egregious cases of potential bias, Chief Justice Roberts is right that the standard leaves open many questions about its implementation. In his dissenting opinion for himself, and Justices Alito, Scalia, and Thomas, the Chief lists 40 different questions that he says need to be answered in subsequent cases about how this standard is to be implemented. To be fair to the majority, I think the list overstates the nature of the uncertainty. Some of the questions, such as the question of causation, are answered by the majority (see slip. op. at 15.) But other questions raised are legitimate ones. The key difference between the majority and the dissent appears to be this: Is it worth the risk of many more recusal motions and additional litigation to flesh out the details of the new recusal standard? To the majority, the effort is worthwhile to promote the fundamental fairness of the judicial process in cases brought before elected judges. For the dissent, the effort is going to undermine faith in the judiciary, by increasing the amount of accusations of unfairness against judges.

3. Caperton and Campaign Finance. One of the most interesting subtexts of the decisions in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges---creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns---isn't the same true of candidate for other office, and doesn't that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy's words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context. Moreover, given the key distinction in campaign finance law between contributions and expenditures, I thought it was very curious that Justice Kennedy frames the issue at the beginning of the case as follows: "The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages." (My emphasis.) Only $1,000 of the $3 million spent supporting Justice Benjamin came in the form of a contribution to his campaign, thanks to a campaign contribution cap. The remainder were for independent expenditures and contributes not received by the Justice but by a 527. Perhaps this inadvertent equating of contributions and expenditures will disappear when this opinion is finalized for the U.S. Reports.

The dissenters' views are more in line with their view on campaign finance. Because they don't see anything objectionable about large (even one-sided) campaign spending supporting or opposing candidates, they see less of a constitutional problem with judges benefitting from such spending. It is just in the nature of campaigning that this kind of thing can happen. And, as the Chief points out, as far back as Buckley the Supreme Court recognized that independent spending can sometimes work against the interest of the candidate supported. (My sense in the real world is that this happens quite rarely, and that usually independent spending tracks the movements of the candidate campaigns, and seeks to independently emulate those movements.)

4. Overall significance. This is not just a victory for liberals who generally support more regulation of campaigns (though it certainly is that in terms of getting Justice Kennedy's vote). Recall that Ted Olson was the one who argued for recusal in this case before the Supreme Court. Some in the business community too will be happy with this ruling. Judicial elections are not going away---we haven't seen a state abolish them since White. Caperton provides a backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited. Given Chief Justice Roberts' 40 questions, it will be interesting to track how much uncertainty actually comes out of this opinion. My sense is that things won't be as dire as the picture painted by the Chief Justice.

5. Justice Scalia's brief opinion. Justice Scalia's two page opinion quotes from the Babylonian Talmud: "A Talmudic maxim instructs with respect to the Scripture: 'Turn it over, and turn it over, for all is therein'.' The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935)." As I remarked when Justice Scalia made reference to the sanhedrin during oral argument in NAMUDNO, Justice Scalia does not mind citing foreign law, so long as it is a few thousand years old.

A recent MIT study reveals that during the 2008 election, millions of voters were prevented from voting due to registration problems, with millions more deterred from casting a ballot because of long lines or other obstacles. Those numbers are roughly comparable to the numbers of voters who encountered problems voting during the 2000 election.

You may now be scratching your head in wonder. Every major media outlet reported that the 2008 election ran smoothly, so what gives? And didn't we fix this problem already? The 2000 election was a crisis so great that it prompted Fidel Castro - admittedly not a man cursed with self-awareness - to threaten to send election monitors to Florida. How is it possible that so little has changed?

As I discuss in my new book, The Democracy Index: Why Our System is Failing and How to Fix It, the reason for our failure to achieve meaningful reform is simple: the invisible election. That may seem like an odd claim given that the last presidential race, with its riveting primary and raucous general election, transfixed the nation. What Americans didn't see - unless they happened to be one of the unfortunate voters discussed in the MIT study - were the nuts-and-bolts problems that occurred in 2008 ... and every election year in recent memory. We think that election problems we saw in Florida in 2000 and Ohio in 2004 were unusual, caused by a level of partisan mismanagement and incompetence that doesn't exist elsewhere. What made Florida and Ohio distinctive, however, was not that problems occurred, but that the election was close. The media will only report on problems that affect the outcome, and most elections are won by gigantic margins. In the absence of the rare study like MIT's, we learn about how things are working only when the race is tight. It's a bit like measuring annual rainfall based on how often lightening strikes.

Because election problems are largely invisible, the pressure for reform is episodic at best. The media stops paying attention the moment the election is resolved, which means the window for getting reform passed is short. Worse, what little reform sees the light of day tends to address the symptoms of the problem, not its underlying causes. For example, while the Help American Vote Act, the toothless bill that Congress passed in the wake of 2000, helped states buy new voting machines, it failed to address what most think are the root causes of the 2000 fiasco: inadequate funding, amateur staffing and partisanship. It's the policymaking equivalent of whack-a-mole.

The whack-a-mole problem also traces back to the invisible election. Election administration is a world without data. What made the MIT study so unusual is that it actually contained some. But we still lack even the most basic information on how well the system is functioning, let alone the type of comparative data that would help us identify the drivers of performance. We know more about our dishwashers, our local baseball team, even (God help us) the companies in which we invest than we do about how our election system is working. Data-driven analysis is so common in the business sector that Walmart can tell you that when a hurricane approaches, people purchase not just generators and flashlights, but strawberry Poptarts. But while much of the public sector relies on data-driven management, election administration - an area that all but lends itself to measurement - lags far behind. The result is that we have less information about our most precious non-commodity - the vote - than we do about strawberry Poptarts.

The best hope for achieving meaningful reform in the long term is data. In the book I propose creating a Democracy Index, which would distil basic information about the election process (how long were the lines? how many ballots were discarded?) and rank states and localities based on how well they perform. I first proposed the idea in 2007. Within a few months then-Sens. Obama and Clinton put the idea into separate bills. Within the year, Congress set aside $10 million to fund the efforts of five states to improve their data-collection processes. During the same period, foundations and think tanks have organized several meetings to discuss the proposal. The idea has attracted keen interest from several foundations, including the Pew Trusts' Center on the States, which has played a leading role in improving state governance and promoting data-driven decision-making.

The Democracy Index would make election problems visible, whether or not the election is close. By making problems visible, the ranking would be useful for the three, key leverage points for reform: voters, policymakers and bureaucrats. Voters would have the information they need to hold election officials accountable for their missteps and reward them for good performance. Policymakers would have the information they need to figure out whether their state is doing as well as it should and to identify cost-effective strategies for improving performance. Election administrators would have a means of diffusing the professional norms that are the hallmark of a well-run system. As I argue in the book, the Democracy Index, in short, is the kind of reform that makes bigger, better reform possible.