Gavel Grab

Archive for March, 2011

AZ Public Financing Provision 'In Jeopardy'

National media gave extensive coverage to Supreme Court arguments in a case challenging Arizona’s law for public financing of campaigns, and most pointed toward the same conclusion.

Judging from comments by justices, it appears almost inevitable that the five justices who made up the majority in last year’s landmark Citizens United ruling on campaign finance will strike down a key provision of Arizona’s law, according to these reports.

Under the provision, publicly funded candidates get additional dollars, called matching or “trigger funds,” when privately financed candidates or independent groups spend more.

“The likely result in the Arizona case…will be an incremental step and the fifth decision from the Roberts court cutting back on the government’s ability to regulate campaign financing,” suggested reporter Adam Liptak in the New York Times.

A USA Today article offered a similar analysis and the following assessment:

“Such a decision would not outright void state public financing systems. But it would undercut one of the incentives some states employ to entice candidates to use public financing and forgo large private contributions that might lead to corruption or the appearance of corruption.”

Justice at Stake has warned in an amicus brief that an adverse ruling could gravely threaten fair courts, due to the “deluge of special interest money [that] is eroding public trust in America’s courts” and the strong promise for public financing  as a viable reform. Four states have adopted public financing for judicial elections with laws that use a provision like Arizona’s. Read more

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Defenders of Merit Selection Speak Out

With merit selection of judges under attack in numerous states, its defenders are speaking up.

In the Nashville Tennessean, lawyer Zan Blue, who is on the board of directors for the Tennessee Business Roundtable, writes that merit selection is effective in keeping courts fair and impartial. Merit selection keeps the judiciary free of partisan politicking and special-interest spending, he adds:

“Ordinary folks want judges to make decisions on the law and the facts. Businesspeople want decisions based on merit and ability. No one should want judges to decide cases based on whom they like or who gave money for their election campaign.”

Glenn Braun, president of the Kansas Bar Association, advocates for merit selection in a KSAL News commentary:

“Our system provides for a fair and impartial judiciary. Our system produces highly qualified judges and justices. Our system works efficiently and effectively. To put it plainly our system works. Let’s keep it that way.”

In the Arizona Republic, David Daugherty of the Morrison Institute for Public Policy discusses a recent roundtable discussion on legislative proposals to change the way judges are selected in Arizona. The panelists included Ruth V. McGregor, former chief justice of the Arizona Supreme Court; and  Mary M. Schroeder, a judge on the 9th U.S. Circuit Court of Appeals.

“Voters should take note because they’ll ultimately be the ones in the jury box deciding how this political trial turns out,” Daugherty notes. A video of the roundtable discussion is available by clicking here, and a recent merit selection report by the Institute is available here.

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Editorials Back Public Financing Law

An Arizona public financing law under challenge in the Supreme Court tends to promote speech, rather than limiting it, a Washington Post editorial declared.

The Supreme Court heard oral arguments Monday in the case, McComish v. Bennett (see Gavel Grab). Here is what the Post editorial asserted in response to those who say the law effectively chills the speech of privately funded candidates:

“If anything, the Arizona law encourages speech — a point made lucidly in an amicus brief written by former Reagan solicitor general Charles Fried on behalf of a bipartisan group of former lawmakers that includes onetime Republican senators Nancy Landon Kassebaum and Alan Simpson and former Democratic senators Bill Bradley and Sam Nunn. ‘By providing a voluntary public financing system for candidates that is viable,’ the brief concludes, ‘the [Arizona] program aims to increase the speech in Arizona’s public discourse, enriching the marketplace of ideas.'”

A USA Today editorial, meanwhile, was headlined, “Our view: Leave public financing in elections.” The newspaper ran an opposing view written by William Maurer, who argued in the high court Monday on behalf of the law’s challengers; the essay was entitled, “Law chills candidates’ speech.”

Check out Gavel Grab’s extensive coverage of the case by clicking here.

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High Court 'Skeptical' About AZ Public Financing

The Supreme Court heard arguments Monday in a case challenging Arizona’s law for public financing of campaigns, and the court appeared inclined to strike down a key provision of the law.

Under the provision, publicly funded candidates get additional dollars, called “trigger funds,” when privately financed candidates or independent groups spend more.

The justices “appeared skeptical of the Arizona law because it, in their view, is designed to level the playing field for all candidates,” the Associated Press reported. “The court has said such leveling often runs afoul of the First Amendment.”

At SCOTUSblog, veteran court watcher Lyle Denniston wrote that “it was more than evident on Monday that the Arizona system…was in deep constitutional jeopardy.”

Justice at Stake has filed an amicus brief and has warned that the case could undermine fair courts in four states, where similar laws protect judicial candidates from the impact of special-interest money.

A transcript of Monday’s oral arguments is available by clicking here.

William Maurer, a lawyer representing parties challenging the statute, said it improperly burdens political speech, restricts spending in elections, and was designed to “level the playing field” for candidates, according to a Reuters article.

Arizona’s public financing system violates candidates’ and independent groups’ free-speech rights when “each time they speak…the more their opponents benefit,” the high court was told, according to a Milwaukee Journal Sentinel report.

But the system’s defenders contended it results not in less political speech, but more. Public financing helps fight corruption, and the Arizona statute was drafted to make it a viable option for candidates, they said. Read more

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WI Judge Hits Attack Ad as 'Smear'


Almost overnight, the Wisconsin Supreme Court race has exploded. An ugly campaign ad ripped incumbent Justice David Prosser.  He, in turn, has slammed his challenger as an “unbending ideologue.”

Here’s the latest:

  • The left-leaning Greater Wisconsin Committee launched a TV ad attacking Justice Prosser’s handling, as a prosector, of a sex abuse case more than three decades ago. “Tell David Prosser judges should protect our children,” the  narrator states, “not sex offenders,” according to a Talking Points Memo article.
  • Justice Prosser derided what he called a “smear” and “disgraceful ad.” He added, “And it is not true. It is going to be answered to the best of our ability. But I can assure people that the ad is one of the worst, most untruthful and misleading ads that has ever been run in a judicial campaign,” Fox11 news reported.
  • The attack was so harsh it was labeled “Mother of all Negative Ads” By TPM and “the Supreme Court race’s nuclear bomb” by columnist Patrick McIlheran in the Milwaukee Journal Sentinel. Read more
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McComish Case Arguments Previewed

With Supreme Court arguments scheduled Monday in an important campaign finance case, several major national newspapers have reported on the legal issues to be debated.

In McComish v. Bennett, the Supreme Court will hear a challenge to a provision in Arizona’s public financing law that critics contend violates free speech rights. Four states with public financing of judicial elections have a similar provision in their laws and could be affected by the ruling.  Justice at Stake has urged the high court to uphold the constitutionality of the challenged provision, and Gavel Grab has written extensively about the case.

A Washington Post article about the case was entitled, “With Ariz. case, Supreme Court takes up campaign finance issue again.” “Arizona election law heads to Supreme Court,” declared a Los Angeles Times headline. The Christian Science Monitor published an article headlined, “Supreme Court to decide Arizona’s unique campaign financing  law.”

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In U.S. Spotlight: McComish Impact for Courts

On the eve of oral arguments before the Supreme Court, a New York Times editorial says an Arizona public financing mechanism should stand, and the editorial points to the law’s impact on fair courts.

The Supreme Court will hear arguments Monday morning in McComish v. Bennett, which seeks to throw out the provision. The Times editorial was not alone in commentary spotlighting the case’s implications for state courts.

Justice at Stake has filed an amicus brief and has warned that the case could undermine the courts in four states, where similar laws protect judicial candidates from the impact of special-interest money; the brief was also signed by 13 former state Supreme Court justices and a former trial judge. One national media commentary linked to the JAS brief.

The Times editorial is entitled “Arizona’s Boon to Free Speech.” It says the public financing mechanism provides public funds to qualifying candidates in ways that “support, expand and promote political speech, carrying out a central purpose of the First Amendment.” The editorial adds about the provision:

“It has the support of respected former state judges who know that this and similar public financing mechanisms are the best way to eliminate corruption from state judicial elections. It deserves the Supreme Court’s strong endorsement.” Read more

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Iowa Brief to Court: Don't Toss Public Financing

Top legal officials in Iowa, where voters dumped three state Supreme Court justices last year over a ruling that permitted same-sex marriage, are examining ways for states to restore public trust in the courts.

They’ve taken their concern to the U.S. Supreme Court, which will hear oral arguments Monday in a case challenging part of a public financing law from Arizona.

Iowa’s attorney general, Thomas J. Miller, and solicitor general, Mark E. Schantz, asked the court in an amicus brief to affirm the constitutionality of the provision — and they suggest they have an eye on public financing:

“We wish to share our view that public financing of state elections should remain available as a tool to restore public confidence.”

“In states with elected judges, campaigns heavily financed by the plaintiffs’ bar on the one hand, and the defense bar, insurance companies and other large organizations with important business before the courts on the other, have surely eroded public confidence in the fundamental concept of equal justice before the law.”

“Whether Iowa will follow the lead of other states that provide public financing in judicial elections is unclear, but some form of it might well be considered an appropriate means of restoring confidence.”

Joining Iowa in its amicus brief were Connecticut, Maryland, New Mexico and Vermont. Justice at Stake has made similar arguments in its amicus brief to the court, joined by 13 former state Supreme Court justices and a former trial court judge. “Public financing eliminates the need for judges to ‘dial for dollars’ from major contributors, many of whom appear before them in court.  It is therefore one of the most powerful reforms in shielding courts from special-interest influence,”  the JAS brief says.

“McComish is important to the future of public financing, and to the future of courts that are seen as fair and impartial,” said Bert Brandenburg, JAS executive director, in a press release. Read more

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Scholar Handicaps Court on McComish

In a major campaign finance case to be argued before the Supreme Court Monday, election law scholar Rick Hasen expects an ultimate legal ruling favoring “free speech for the wealthy.”

Hasen has written a commentary in Slate entitled, “Rich Candidate Expected to Win Again/Does the Supreme Court care more about free speech for the wealthy than about political corruption?”

The case, McComish v. Bennett, challenges part of Arizona’s public financing law, which was enacted to combat corruption after a highly publicized scandal.

Wealthy, privately financed political candidates and outside groups attack the provision, which provides extra “trigger funds” to publicly funded candidates when their opponents exceed specified limits. They say the provision violates their First Amendment rights.

Hasen examines the arguments and the Supreme Court’s record and concludes:

“Five conservative justices on the Supreme Court appear to have no problem with the wealthy using their resources to win elections—even if doing so raises the danger of increased corruption of the political system.” Read more

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Air Wars Looming in WI Court Race

Are the air wars starting in Wisconsin’s Supreme Court race?

According to a Politico article, the Issues Mobilization Council of Wisconsin Manufacturers & Commerce states in a fundraising pitch that it “is launching a television ad campaign to counter the distortions from government unions and their allies about Justice [David] Prosser.”

A WMC ad captured by YouTube touts Justice Prosser as “protecting Wisconsin families” and drawing praise for his work from “more than 60 sheriffs and district attorneys.” It opens with apparent sounds of protesters shouting “kill the bill,” and a narrator exhorts, “Take a moment to look past the noise.”

The April 5 contest between Justice Prosser and challenger JoAnne Kloppenburg has taken a higher profile in the aftermath of Republican Gov. Scott Walker’s successful legislative effort to strip most public employees of collective bargaining rights.

WMC President and CEO James S. Haney warns in the pitch of efforts by labor unions to influence the makeup of the court through spending:

“The government worker unions are openly attempting to overturn the November elections, buying an activist majority on the Wisconsin Supreme Court, and grinding our democracy to a halt because Governor Scott Walker has refused to raise taxes to balance the budget.” Read more

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