Campaign Finance

  • January 13, 2016
    BookTalk
    Plutocrats United
    Campaign Money, the Supreme Court, and the Distortion of American Elections
    By: 
    Richard L. Hasen

    by Richard L. Hasen, Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law

    As I was working on my new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, a UC Irvine colleague asked me a key question: Who was I writing this book for? The answer I gave him, half-jokingly, was that I had written the book for a single person: Justice Elena Kagan.

    You see, before Justice Kagan joined the Supreme Court, she was Professor (and later Dean) Kagan, a progressive thinker to be sure but one who expressed some serious skepticism about a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, which upheld the ability of the government to require business corporations to pay for their political expenditures out of a separate PAC fund. Professor Kagan queried whether Austin represented a government passing a campaign finance law to protect incumbents, and whether the Court was wrong in rejecting a First Amendment challenge to the law. The Supreme Court later overturned the Austin case in its notorious 2010 Citizens United case.

    The Kagan story ends with Kagan as Solicitor General of the United States defending the corporate PAC requirement in the Citizens United case, then losing that case, then getting an appointment to the Supreme Court despite misplaced conservative cries that she wanted to ban books, and now with Justice Kagan dissenting from the conservative Supreme Court’s deregulatory campaign finance decisions.

    In Plutocrats United, I argue for a fundamental rethinking of 40 years of campaign finance decisions, beginning with the 1976 case of Buckley v. Valeo. In Buckley, the Court held that the government might have an interest in limiting money in politics to stem corruption, but not to assure political equality, an interest the Buckley Court called “wholly foreign to the First Amendment.”

  • May 21, 2015
    Guest Post

    by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law

    It’s no easy feat to crown a favorite Abraham Lincoln quote. The heartfelt urging of “malice toward none … charity for all,” the challenge to ordain “a new birth of freedom,” the recognition that “our republican robe is soiled and trails in the dust,” the tapping of the “better angels of our nature’, and the “mystic chords of memory stretching from every battlefield and patriot grave.” Many could quickly nominate a dozen others.

    My own is less noted: “Allow all the governed an equal voice in the government, and that, and that only, is self government.” [Though it is etched on the gallery walls at the Lincoln Memorial, our national temple of democracy.] The line comes from Lincoln’s 1854 Peoria address. Taking the national stage to decry Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, that “the nation get right with the Declaration of Independence.” The defining portrait of democracy was the cornerstone, Lincoln reminded, of “our ancient faith.” It is the idea of America.     

    It would be hard to produce a stouter debasement of Lincoln’s sense of our national meaning than the recent parade of presidential hopefuls seeking audience, in humbled supplication, before a creepy and lengthening list of billionaire funders to secure meaningful entry into the 2016 race. The mega-buck primary is apparently more compelling, and decidedly more exclusive and demeaning, than the electoral one.  

    The Koch brothers have announced that a billion dollars is up for grabs for the candidate who pleases. Scott Walker reportedly has the inside track in what The New York Times calls the “Koch Primary.” But the mercurial pair has chosen to delay the purportedly outcome-bending announcement. Suspense, one supposes, augments the drama.

    When Sheldon Adelson let it slip that he was again in the market for a candidate, Chris Christie, Jeb Bush, John Kasich, Scott Walker rushed to Las Vegas to pay homage. The pageant was held, fittingly, in one of the Adelson casinos. The ever-belligerent Christie quickly apologized for prior statements about the Middle East. So much for tough-and-brutal talk. It is easy to see why. Adelson, who coughed up almost $100 million in 2012, suggested he’ll consider putting up serious money this time around. 

    Nor were others idle. Hedge Fund magnate Robert Mercer disclosed he will sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braham will provide at least ten million for Marco Rubio. Jeb Bush’s new super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations by the end of May. The game is underway.

    The Democrats are no better – though they add a grotesque and habitual hypocrisy to the mix. 

  • May 11, 2015

    by Nanya Springer

    Say the words “judicial selection” to average Americans, and their eyes may very well glaze over.  But tell them the story of Wendy Baggett ‒ a woman whose three-day-old baby died because her doctor neglected to take her off of blood pressure medication during her pregnancy ‒ and a spark of concern may appear in those dull pupils.  Then explain that a jury sided with Baggett in her medical malpractice claim against the doctor, only to be overturned by business-backed judges on the Alabama Supreme Court, and that concern may transform into shock, curiosity and perhaps, eventually, action.

    It’s well understood that telling human stories is more effective than talking about political, economic or societal problems in the abstract.  That’s why Life of the Law, a bi-weekly podcast series, focuses on compelling, human-driven stories instead of merely analyzing legal arguments and dissecting Supreme Court rulings. 

    The story of Baggett is a true one, used to exemplify how the practice of electing judges affects people from all walks of life.  As explained in the podcast, in states where judges are forced to campaign for the bench, courts are becoming increasingly hostile to tort plaintiffs and to criminal defendants.  This makes sense; campaigns cost money, business interests have plentiful funds from which to donate, and judges, whether consciously or unconsciously, tend to side with the interests of those who helped them win their increasingly expensive elections.  (In criminal cases, judges are often attacked by their business-backed opponents for being “soft on crime” when they side with defendants, merely because it’s an easy attack.)

  • May 5, 2015
    Guest Post

    by Burt Neuborne, Norman Dorsen Professor of Civil Liberties at NYU School of Law.  His most recent book, “Madison’s Music: On Reading the First Amendment” (The New Press 2015), argues that effective campaign finance regulation is fully consistent with the First Amendment.

    Florida’s ban on personal solicitation of campaign funds by candidates for judicial office recently survived a free speech challenge because, in Chief Justice Roberts’ words, “judges are not politicians.”  I fear, however, that the chief justice’s bright-line distinction between “judges” and “politicians” understates the need for independent judgment by “politicians” and overstates the “political” neutrality of judges.

    Judges, especially elected judges, exercise “political” power. Does anyone doubt, for example, that the Supreme Court is exercising “political” power in the gay marriage cases? The chief justice is surely right, though, in recognizing that continued faith in our politically powerful judiciary turns on public confidence that elected judges are not merely engaged in advancing the narrow interests of powerful constituents or financial supporters.  That’s why the Williams-Yulee decision is correct. But the same may be said about faith in democracy itself. Legislators and executive officials cannot – and should not ‒ behave just like impartial judges. They should have close ties to the people who elected them. Their votes and official actions should generally reflect the self-interested preferences of their supporters.  But, as Edmund Burke taught us in his 1774 Address to the Electors of Bristol, there are important occasions in the life of a democracy when even a “politician” with close ties to her constituents should enjoy the appearance and reality of exercising independent judgment free from pressure by financial supporters. Chief Justice Roberts’ bright-line distinction between judges and “politicians” preserves an elected judge’s capacity for such Burkean independence, but obliterates it for legislators and executive officials.

    Instead of relying on a tyranny of labels, the Williams-Yulee opinion should trigger discussion of how best to free “politicians” as well as elected judges from the appearance and reality of excessive financial thralldom to their large financial supporters. Maybe then we can begin to rebuild faith in our democracy; hold real elections, not auctions; and insist that our “politicians” occasionally think for themselves.

  • February 5, 2015

    by Nanya Springer

    Supreme Court Justice Ruth Bader Ginsburg during a discussion yesterday prominently highlighted the deleterious consequences of the Court’s Citizens United decision. When asked at a Georgetown Law event which decision in the past 10 years she would most like to overturn, she responded, “I would have to say Citizens United, because I think that our system is being polluted by money.”

    Ginsburg continued, “It gets pretty bad when it affects the judiciary too. In some 39 states, judges are elected at some level, and when it costs millions of dollars to fund a campaign for a state supreme court, something is terribly wrong. I think we are reaching the saturation point.”

    What Ginsburg references is the well-documented flood of money that has saturated both political and state judicial campaigns since the Supreme Court struck down restrictions on corporate campaign contributions five years ago. One result of this monetary deluge has been harsher treatment of criminal defendants by state supreme court justices. (See the recent ACS report “Skewed Justice” for more on this matter.)

    Ginsburg’s comments touched on an additional cost of astronomical campaign spending: its negative effect on the psyche of the American voter. “One of the really shameful things is the low rate of voting in the United States,” she said.  “In many democracies, the turnout is much higher. The people have a sense -- ‘Why bother?’ It’s a foregone conclusion who is going to win.”

    As Ginsburg put it, it’s time that we reestablish “a democracy for all of the people.” Read a transcript or watch video of of the discussion here. See this post for more commentary and analysis of Citizens United.