Campaign Finance

  • January 28, 2016
    BookTalk
    When Money Talks
    The High Price of "Free" Speech and the Selling of Democracy
    By: 
    Derek Cressman

    by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

    Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

    I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

    Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

    Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.

  • 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.)