Gavel Grab

For the third consecutive year, Kentucky lawmakers are considering a bill for public financing of judicial elections. On Tuesday, a House committee approved a bill permitting for optional public financing of state Supreme Court campaigns.

Common Cause of Kentucky Chair Richard Beliles told legislators that the Supreme Court’s Citizens United ruling “opened the door to a floodgate of money” for elections and fair and impartial courts may be harmed as a result, according to a Lexington Herald-Leader report.

Justice at Stake will participate on Monday, Feb. 11, in a panel discussion about the effect of Citizens United on state judicial elections.

Bert Brandenburg, JAS executive director, will be one of four panelists at the forum sponsored by the American Constitution Society’s chapter of the University of Toledo College of Law and the Federalist Society. The event will be held at the law school and is open to the public.

Also participating on the panel will be Bradley Smith, a former chairman of the Federal Election Commission; Jeff Gamso, a criminal defense attorney with Gamso, Helmick and Hoolahan and former legal director of the Ohio ACLU; and Rick Kerger, a founder of the law firm now known as Kerger & Hartman LLC.

For recent Gavel Grab posts related to Citizens United, click here.

Last summer, the Fourth U.S. Circuit Court of Appeals upheld a federal ban on direct corporate contributions to federal candidates. Now, the Justice Department is asking the Supreme Court to let that ruling stand.

In June, the Fourth Circuit reversed Judge James Cacheris of Virginia’s ruling that, in the wake of Citizens United, had struck down the century-old ban (see Gavel Grab). Judge Cacheris said that under Citizens United, corporations and individuals have the same rights to give money to campaigns.

If upheld, Judge Cacheris’ ruling could have major implications for judicial elections, although the case at hand deals with corporate contributions to federal candidates. A broad ruling that the First Amendment prohibits any ban on direct corporate contributions to political candidates could trickle down to judicial elections at the state level.

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Montana’s Initiative 166 related to campaign finance was overwhelmingly passed with 75% of the vote on Tuesday. Initiative 166 calls for the Montana congressional delegation to propose a constitutional amendment for overturning the U.S. Supreme Court’s Citizens United Decision, the Wall Street Journal reports.

Initiative 166 came five months after the high court “threw out” Montana’s 1912 anti-corruption law that prohibited independent expenditures by corporations on state elections (see Gavel Grab).

The Citizens United decision equates political expenditures to political speech. According to the article, a proposed constitutional amendment would establish that “corporations are not human beings with constitutional rights.” Read more

The 2012 presidential election is the first to be held since the U.S. Supreme Court’s controversial ruling in Citizens United. Since that decision in 2010, “an unprecedented influx of money has corrupted the electoral process” in thousands of races across the country, says Harvey Rosenfield in a Huffington Post blog.

Citizens United, along with a subsequent decision by the D.C. Circuit Court of Appeals in Speechnow.org v. FEC, is widely blamed for many corrosive developments in electoral politics, including the rise of super PACs.

Rosenfield states that five “dangerous trends” have manifested in election politics since Citizens United. One of these trends is the high level of spending by outside groups. Nearly $2 billion has been raised and spent this presidential election, and almost half of that amount was raised by super PACs, Rosenfield says.

Another problem is business interests spending money on “issue advertising.” Rosenfield notes that this allows groups or super PACs to sponsor advertisements that discuss causes, and don’t explicitly urge a specific vote on a candidate. Read more

Justice James Nelson of the Montana Supreme Court, raising concerns about politicization of the courts, shared with a Huffington Post reporter some worries about a recent federal appeals court ruling. It blocked enforcement of a Montana law making it a crime for political parties to endorse nonpartisan judicial candidates (see Gavel Grab).

Justice Nelson is retiring, and two candidates competing to succeed him have said they won’t accept political endorsements. But Justice Nelson expressed this concern:

“Obviously, if it’s a partisan endorsement, some of the public at least will believe that that judge is in agreement with the ideology that endorses him or her. … That may or may not be true, but that’s a fine point that will probably be lost on the public.”

The judge went on to discuss his views about preserving fair and impartial courts:

“It all boils down to this: I think that the public — I don’t care whether they’re Republicans or Democrats or libertarians or whatever — wants judges who are independent. Who think independently and are willing to base decisions on the law, and are willing to protect their constitutional rights. That’s what the public wants. … Republicans come to court, Democrats come to court. Big businesses come to court. What they all expect is fairness. They want impartial fairness. That’s what they should get.”

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Loyal readers of Gavel Grab already have been exposed to writer Jeffrey Toobin’s account of how Chief Justice John Roberts personally “orchestrated” the landmark Citizens United decision. Now they can learn more details about that and other controversial rulings from Toobin’s new book about conflict between the court and the Obama White House.

Toobin’s “The Oath” provides “a compelling narrative of the early years of the Roberts court, which produced a series of 5 to 4 decisions that pitted the Obama administration against the conservative justices,” according to a book review by Jeffrey Rosen in The Washington Post.

According to Rosen’s review, Toobin examines who, between Obama and Roberts, better represents a model of constitutional conservatism;  explores the changing politics of judicial review; and describes the role of the chief justice in such controversial rulings as Citizens United and the Affordable Care Act challenge.

In other coverage related to the Supreme Court, a Washington Post article was headlined, “[Justice Clarence] Thomas concedes that ‘we the people’ didn’t include blacks;” and a New York Times article was entitled, “From Justice Thomas, a Little Talk About Himself and the Court.” An Associated Press headline declared, “[Justice Samuel] Alito says Supreme Court misunderstood by media.”

Americans’ confidence in fair and impartial courts is eroded when special interests flood judicial elections with campaign money, Justice at Stake warned in a letter to leaders of the Senate Judiciary Committee.

Bert Brandenburg, executive director of Justice at Stake, wrote the letter in connection with a hearing held by the committee this week on the Supreme Court’s Citizens United decision and the federal Voting Rights Act. The letter emphasized the impact of Citizens United on elected state judiciaries, which it called an often overlooked area.

“Over the past 10 years, we have witnessed judicial elections grow increasingly expensive and alarmingly politicized,” Brandenburg wrote. Citizens United and other campaign finance decisions have “laid down the conditions for such distressingly large sums to increase further,” he added.

The letter mentioned an amicus brief submitted by Justice at Stake in a recent Supreme Court case from Montana (see Gavel Grab) that ultimately affirmed Citizens United.

“[W]e continue to believe that at the very least,” Brandenburg wrote, “there should be a judicial elections carve-out, which would empower states to strike a balance between competing constitutional concerns — free speech rights versus the compelling state interest in ensuring a fair and impartial judiciary.”

The JAS letter was placed in the committee’s record of its hearing.

A divided federal appeals court has dismissed claims by a Virginia-based group that an Illinois disclosure law violates the group’s freedom-of-speech rights.

A three-judge panel of the Seventh U.S. Circuit Court of Appeals turned down the claims by the Center for Individual Freedom, a significant spender in state judicial elections, and the panel upheld the Illinois disclosure law, according to a Reuters article.

Under the challenged statute, advocacy groups must disclose their donors, even if influencing elections is not the group’s main purpose.

According to Reuters, the Center said it had wanted to air ads in 2010 that dealt with “judicial matters” and “legal reform” issues, involving incumbents seeking re-election.

Judge David Hamilton wrote for the majority that comprehensive disclosure was “especially valuable after Citizens United,” the Supreme Court’s landmark campaign finance ruling in 2010. Judge Hamilton added, ”Amidst this cacophony of political voices — super PACs, corporations, unions, advocacy groups, and individuals, not to mention the parties and candidates themselves — campaign finance data can help busy voters sift through the information and make informed political judgments.”

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Is it proper for a president to “seek to pressure” the Supreme Court in the manner that President Obama has, by calling for a constitutional amendment to overturn Citizens United?

Columnist Ruth Marcus poses that question — based on her own interpretation of Obama’s recent statement — in a Washington Post commentary. She then opines that such a presidentil gesture makes her feel “queasy,” and so does the flood of big election money from a few individuals and special interests that has followed the landmark ruling:

“I’m dubious that the court, if it is the intended target, would succumb to the pressure of a looming constitutional amendment. I’m fine with the president criticizing the court — yes, even to its face, in the State of the Union. But I’m uncomfortable with the apparent approach of using a proposed amendment as a device to get the court to rethink. As with the president’s while-the-health-care-case-was-pending rant about “unelected” judges threatening to overturn legislation, it makes me queasy.

“Then again, so does the spectacle of hundreds of millions of dollars funneled into campaigns by a few individuals and special interests.”

Obama wrote recently, “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it).” He added, “Even if the amendment process falls short, it can shine a spotlight on the super PAC phenomenon and help apply pressure for change.”

Marcus wrote that when Obama used the words “apply pressure,” they apparently applied to the Supreme Court because “The only change could come from the justices themselves.”