Campaign Finance

  • 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.

  • January 30, 2015

     
    Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives. 

    Almost immediately after the Citizens United decision, outside spending in elections spiked.  Over the next five years, it more than doubled.  Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections. 

    Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices.  Further, the last five years have seen a flood of dark money into elections.  As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

    Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning.  Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts.  For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

    Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Joanna Shepherd and Michael S. Kang

    Five Years Later, Citizens United Wreaks Havoc on Our Democracy, Fred Wertheimer, ACSblog

    The Top Five Myths About the Democracy For All Amendment, John Bonifaz, ACSblog

    Supreme Court Briefing: Williams-Yulee vs. The Florida Bar, Video

    Interview with Professor Tracey George on Williams-Yulee, Video

    Democracy and Our State Courts: Fighting Back After Citizens United, Video

     

  • January 21, 2015
    Guest Post

    by Fred Wertheimer, President, Democracy 21. Democracy 21 is a nonprofit, nonpartisan organization that works to strengthen democracy, prevent government corruption and empower citizens in the political process.                                                                    

    On January 21, 2010, five Supreme Court justices rejected decades of the Court’s own precedent and a century of national policy aimed at keeping corporate money out of our elections to issue the Citizens United decision.

    In issuing the decision, Chief Justice Roberts and his four colleagues wreaked havoc on our democracy and our constitutional system of representative government.

    Five years later, these five justices have bequeathed the following to the American people:

    • More than $1 billion in unlimited contributions that have flowed into federal elections through Super PACs – including more than $300 million through single-candidate Super PACS used by federal candidates and their supporters to circumvent and eviscerate candidate contribution limits.
    • More than $500 million in secret, unlimited contributions that have flowed into federal elections through tax-exempt 501(c) organizations.

    Citizens United has returned to federal elections massive amounts of the same kinds of money that played a central role in the Watergate corruption scandals – unlimited contributions and secret money.

    In 1976, the Supreme Court in Buckley v. Valeo upheld the constitutionality of contribution limits that were enacted in response to the Watergate scandals.  The Court found that “corruption” is “inherent” in a system of unlimited contributions.  The Court also upheld disclosure on the grounds that “disclosure requirements deter actual corruption.”

    In 2012, more than thirty-five years later, U.S. Seventh Circuit Court Judge Richard Posner explained the destructive impact of Citizens United.  Judge Posner, widely considered the most influential conservative judge not on the Supreme Court, said in an NPR interview:

    Our political system is pervasively corrupt due to our Supreme Court taking away campaign- contribution restrictions on the basis of the First Amendment.

    The Citizens United decision, written for the majority by Justice Anthony Kennedy, is based on a series of indefensible, if not astonishing, premises.

  • November 13, 2014

    by Caroline Cox

    Linda Greenhouse asserts in The New York Times that the Supreme Court’s decision to review the challenge to the Affordable Care Act in King v. Burwell is “a naked power grab by conservative justices.”

    Richard L. Hasen writes in the Los Angeles Times that Chief Justice John Roberts may not protect the Affordable Care Act in the new case before the Supreme Court.

    In the New Republic, Michael Lewis argues that growing wealth inequality is bad for the poor and wealthy alike.

    At the blog for the Brennan Center for Justice, Avram Billig examines the campaign finance victories of the recent election.

    Nina Totenberg at NPR examines the oral argument for the Alabama redistricting cases that took place on Wednesday at the Supreme Court.