On Tuesday’s fourth anniversary of the Supreme Court’s landmark Citizens United campaign finance ruling, JAS Executive Director Bert Brandenburg said the decision had “poured gasoline on the already burning fire of judicial election spending, further eroding public confidence in our courts.”
“In the first full election cycle since Citizens United, independent spending by special interest groups in judicial races surged by more than 50 percent over the previous record,” he said in a statement. “The deluge of special interest and political campaign cash signals a race to the bottom in judicial elections, and they are becoming barely distinguishable from mudslinging political contests for executive or legislative offices.
“Given Citizens United and subsequent court rulings, we’re on our way to creating a Wild West for elections generally. In judicial elections, this trend is of paramount concern because a relatively modest amount of money can tip the scales of justice.”
Justice at Stake called the anniversary one to regret. Its statement advocated an array of reforms in the wake of Citizens United.
Retired Supreme Court Justice Sandra Day O’Connor discussed in remarks on Wednesday her deep concerns over the challenges caused by Citizens United, the court’s blockbuster campaign finance ruling in 2010.
“Citizens United produced a decision that, over the years, is going to cause lots of issues for the public to resolve,’’ she told an audience at Roger Williams University School of Law in Rhode Island, according to the Associated Press.
‘‘I think it may have caused more problems than answers given,’’ she said. ‘‘I don’t know what we’re going to do with the problems raised by Citizens United.’’ Justice O’Connor retired well before the court’s 2010 ruling, which struck down key restrictions and allowed unlimited independent spending by unions and corporations to influence the election of federal candidates.
President Obama, in the midst of a partial government shutdown, has repeated his criticism of the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission. It “contributed to some of the problems we’re having in Washington right now,” in his opinion, he said.
Huffington Post reported the following remarks by the president about the blockbuster ruling that cleared the way for unlimited independent spending by corporations and unions to influence the election of federal candidates:
“I continue to believe that Citizens United contributed to some of the problems we’re having in Washington right now.”
“You have some ideological extremist who has a big bankroll, and they can entirely skew our politics. And there are a whole bunch of members of Congress right now who privately will tell you, ‘I know our Read more
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.
Election Law blog has an abstract of a draft paper by James L. Gibson of Washington University and Gregory Caldeira of Ohio State University entitled, “Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey.” Here is the abstract:
“Legal scholars have of late become quite worried about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially elected state courts, and what might generally be termed the politicization of the judiciary. The purpose of this article is to assess the effectiveness of judicial recusals at rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign activities by litigants. Read more
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
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.
“[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.
After the Supreme Court issued its landmark Citizens United ruling in 2010, some reform advocates warned of Watergate-like scandals ahead. Now, a prominent election analyst says the new campaign finance order is even “Worse than Watergate.”
In a Slate essay under that headline, Richard Hasen of the U.C.-Irvine School of Law writes of a shockingly legal “influence free-for-all” that has evolved since Citizens United:
“How does the brave new world of campaign financing created by the Supreme Court’s Citizens United decision stack up against Watergate? The short answer is: Things are even worse now than they were then.
“ The 1974 scandal that brought down President Richard Nixon was all about illegal money secretly flowing to politicians. That’s still a danger, but these days, the biggest weakness of our campaign finance system is not what’s illegal, but what’s legal. … The rules increasingly allow people and corporations with great wealth to skew public policy toward their interests—without risking a jail time, or a fine, or any penalty at all. It’s an influence free-for-all.”
In affirming Citizens United this week, the Supreme Court “opted to see no evil, hear no evil and speak no truth,” a Bloomberg editorial said.
“It’s understandable that those [majority] justices would turn away a case that forced them to confront error. But in shrinking from the task, they’ve simply piled cowardice atop confusion,” the editorial concluded.
This week, the Supreme Court struck down a Montana law that barred indirect corporate expenditures on all state elections. It declined to revisit Citizens United, a hugely controversial ruling from 2010 that allows corporations and labor unions to make unlimited expenditures from their treasuries for advertising in support, of, or in opposition to, federal candidates.
A starkly opposing view came from a Chicago Tribune editorial. It stated:
“If and when corporations decide to start laying out large sums to advance their views in political campaigns, they will find that spending and winning are not the same thing. Montanans, meanwhile, will find they can reach their own conclusions. The message from the Supreme Court: It’s free speech. Get used to it.”
With its action on Monday reaffirming Citizens United, the Supreme Court “has chosen to turn its back as elections are bought by the biggest check writers,” a New York Times editorial said.
The court “couldn’t be bothered” to revisit the “disastrous” effects of Citizens United, the editorial said, suggesting the five justices in the majority couldn’t have been unaware of the impact of the 2010 ruling and related court and administrative decisions:
“They could hardly have missed the $300 million in outside spending that deluged the 2010 Congressional elections or the reports showing that more than $1 billion will be spent by outside groups on Republican candidates this year, overwhelming the competition.
“They might also have seen that many of the biggest donations are secret, given to tax-free advocacy groups in defiance even of the admonition in Citizens United that independent contributions should be disclosed.”