Separation of powers

  • January 21, 2010
    Guest Post

    By Bert Brandenburg, Executive Director of Justice at Stake, a nonpartisan, nonprofit campaign with more than 50 partners, working to keep America's courts fair, impartial and free from special-interest and partisan attacks.

    For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

    But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

    The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

    In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

    It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

  • January 21, 2010
    Guest Post

    By Daniel JH Greenwood, Professor of Law, Hofstra University School of Law. Greenwood co-authored an amicus brief in the case for American Independent Business Alliance (downloadable here). This post reflects only his own views.

    Today, the Supreme Court announced that corporate campaign spending is protected by the First Amendment. That is, the Federal government and states may not restrict corporations' use of corporate money -- money that corporations got by charging customers more than they had to or paying employees, suppliers, and investors less than they could have -- to influence elections. Obviously, business corporations will be forced by the pressures of competition to use their funds to try to use politics as a new forum for competition. Producing a better product is far less likely to be profitable than winning legislative changes in the rules of the game that advantage companies that are already profitable and hinder potential threats to those profits, whether in the form of competing products or health, safety, anti-pollution or other efforts to support the common good.

    The decision turns the First Amendment on its head. The First Amendment has two main purposes: first, to protect republican and democratic politics by ensuring that citizens are free to criticize the government, and second , to create a space free from government intervention where people can follow their own idiosyncratic whims regardless of the taste of others. This decision is a major set-back to both purposes.

    Most importantly, if corporations -- which are not citizens and many of which are multi-national organizations with interests that may be radically opposed to those of ordinary Americans -- are allowed to freely intervene in our elections, then each citizen must have a corresponding decrease in influence. My contribution means less if I must compete with BP-Amoco and not just my fellow Americans' money.

    Moreover, at least for the managers who will now view themselves as required by law and market competition to spend corporate money to influence elections, the Supreme Court's radical revision of the Constitution forces them to use the corporations they run to advocate policies they may well know are wrong for the country.

  • January 21, 2010
    Guest Post

    By Democracy 21 President Fred Wertheimer

    Today's Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court.

    The decision will unleash unprecedented amounts of corporate "influence-seeking" money on our elections and create unprecedented opportunities for corporate "influence-buying" corruption.

    Today's decision is the most radical and destructive campaign finance decision in Supreme Court history. In order to reach the decision, five justices abandoned longstanding judicial principles, judicial precedents and judicial restraint.

    With the Citizens United opinion, Chief Justice Roberts has abandoned the illusory public commitments he made to "judicial modesty" and "respect for precedent" to cast the deciding vote for a radical decision that profoundly undermines our democracy.

    In a stark choice between the right of American citizens to a government free from "influence-buying" corruption and the economic and political interests of American corporations, five Supreme Court Justices today came down in favor of American corporations.

    With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.

    The radical nature of today's decision can be seen in the fact that the Court is overruling cases decided in 1990, 2003 and 2007, without any changed circumstances to justify these abrupt reversals.

  • January 20, 2010
    Guest Post

    Gregory T. Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology 

    The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

    A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

    The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

    After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

  • January 19, 2010

    After publishing his latest, extensive review of the Seton Hall study on three questionable detainee deaths at Guantanamo Bay, Harper's Magazine's Scott Horton took to the airwaves last night to discuss the details provided by a new whistleblower and the government's response.

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