Gavel Grab

In these other dispatches about fair and impartial courts:

• While Wisconsin Supreme Court races are nonpartisan in name, candidates still have political beliefs that they can’t freely state while campaigning, says a Milwaukee Journal Sentinel blog. Wisconsin voters should acknowledge that the elections are not nonpartisan as they claim to be, and deserve to know if a candidate has political opinions instead, it argues.
• Attorney James Bopp, Jr. was named as special counsel to the Republican National Committee this week by RNC Chairman Reince Priebus. According to Election Law Blog, Bopp is considered the architect of the Citizens United case, and a national leader in challenging campaign finance regulation.
• Lake County Indiana judges are “running amuck” these days in refusing to follow the state’s law on merit selection, argues a Northwest Indiana Times editorial by executive editor William Nangle.
• Fourteen House members in North Carolina signed a resolution this week “that calls for creating an official state religion,” and says the state can declare what is constitutional or not, and disregard U.S. Supreme Court decisions. A Salisbury Post article says this “ludicrous resolution” died in committee, but not before sparking “national scorn.”

The Supreme Court has declined to hear an appeal of Minnesota’s restrictions on fundraising and endorsements by judicial candidates.

As a result, the high court left intact rules that bar judicial candidates from endorsing candidates for elective office and from directly soliciting campaign money given by individuals and small groups.

The high court refused to hear an appeal sought by Gregory Wersal, according to an Associated Press article. He who has run for the Minnesota Supreme Court and who has challenged the restrictions since 1996 (see Gavel Grab).

In another action on Monday, the Supreme Court denied an appeal of a  challenge to part of  Iowa’s merit-selection process for choosing state Supreme Court justices.

Four Iowa residents, represented by Indiana attorney James Bopp, challenged  the makeup of the nominating commission that screens candidates for Iowa’s Supreme Court, and it sought to stop the commission’s seven lawyer members from helping to pick finalists to replace three justices whom voters had ousted in November 2010.

The lawsuit contended the nominating commission afforded too much influence to lawyers, and said it was unconstitutional because ordinary citizens did not have a say in appointing those seven lawyer members, who were elected by members of the Iowa State Bar Association.

A lower court and the Eighth U.S. Circuit Court of Appeals rejected the challenge (see Gavel Grab), and the nation’s highest court refused on Monday to hear an appeal, according to LegalNewsline.com.

A divided Tenth U.S. Circuit Court of Appeals panel rejected a lawsuit challenging the way top state judges are selected under Kansas’ merit-based selection system.

According to a Kansas City Star article, Judge Terrence O’Brien wrote, “In the end, this court must defer to Kansas in decisions relating to the structure of its government. Kansas voters adopted merit selection as a middle ground between an appointment process scarred by abuse and an elective process susceptible to politicization.” His statement came in a concurring opinion.

The lawsuit, filed by lawyer James Bopp of Indiana, sought a court order blocking a nominating commission from filling a vacancy on the state Supreme Court created by retirement and death of Chief Justice Robert Davis.  The nominating commission recommends candidates for selection by the governor to the state Supreme Court and the Court of Appeals. The commission is made up of five lawyer members and four non-lawyers; Bopp said  that under this system, ordinary Kansas voters are denied an equal voice in selecting Supreme Court justices.

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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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A challenge to part of  Iowa’s merit-selection process for choosing state Supreme Court justices was rejected by the Eighth U.S. Circuit Court of Appeals, upholding a lower court’s ruling.

U.S. District Judge Robert Pratt last year called the challengers’ argument “fatally flawed” (see Gavel Grab). Their lawsuit challenged the makeup of the nominating commission that screens candidates for Iowa’s Supreme Court, and it sought to stop the commission’s seven lawyer members from helping to pick finalists to replace three justices whom voters had ousted in November 2010.

The lawsuit contended the nominating commission afforded too much influence to lawyers, and said it was unconstitutional because ordinary citizens did not have a say in appointing those seven lawyer members, who were elected by members of the Iowa State Bar Association.

Four Iowa residents, represented by Indiana-based attorney James Bopp, appealed Judge Pratt’s decision. This week, the appeals court agreed with Judge Pratt, according to an Associated Press article. The court said nonlawyers’ rights were not violated by permitting the Iowa bar to select commission members.

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With help from lawyer James Bopp, a leader in challenging campaign finance regulation, a conservative group has asked the Supreme Court to hear its challenge to a Montana ban on corporate election spending.

American Tradition Partnership formally submitted its request on Tuesday, according to an Associated Press article. If the Supreme Court takes up the case, it likely will be urged to use it as a vehicle to overturn its landmark Citizens United ruling from 2010.

In December, the Montana Supreme Court voted 5-2 to restore the state ban, after a lower state court had found it unconstitutional. The U.S. Supreme Court stayed the Montana high court’s decision, and two of its dissenters in Citizens United went so far as to suggest it is time to reconsider that landmark decision (see Gavel Grab). The Montana decision challenges key portions of Citizens United.

At SCOTUSblog, Lyle Denniston wrote a lengthy piece about the American Tradition Partnership petition, entitled “Citizens United Sequel Filed.”

Lawyer Bopp, architect of the Citizens United case, said in a press release about the request to the U.S. Supreme Court, “If Montana can ban core political speech because of Montana’s unique characteristics, free speech will be seriously harmed.” The Montana Supreme Court opinion had pointed to historic evidence that independent political spending had a corrupting effect in Montana.

Adam Skaggs, senior counsel at the Brennan Center for Justice, said in a press release that the U.S. Supreme Court should uphold the Montana law and revisit Citizens United.

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When the Supreme Court issued its landmark Citizens United ruling more than two years ago, Justice at Stake warned of the grave dangers it posed for the nation’s elected state courts but also identified a “silver lining” in the court’s endorsement of disclosure.

By an 8-1 vote, with only Justice Clarence Thomas dissenting, the court ruled that all groups that spend to influence elections can be forced to disclose their financial sources. “This is a critical victory for fair, open elections,” JAS Executive Direct Bert Brandenburg said then.

A recent New York Times editorial, however, laments developments that have rendered political disclosure of financial sources virtually meaningless at the federal level in the wake of Citizens United:

A major premise of the Supreme Court’s Citizens United ruling is that prompt disclosure of campaign contributions can allow voters to judge whether candidates are “ ‘in the pocket’ of so-called money interests.” But the huge amount of cash funneled through “super PACs” by corporations, unions and wealthy individuals — whose identities are often hidden behind shell entities — makes a mockery of this notion.

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The continuing shadow of Citizens United is at the center of several new stories on money in politics, including two very different articles on a Montana Supreme Court ruling that upheld its state ban on corporate election spending.

In Slate, legal commentator Dahlia Lithwick focuses on a sentence in the Citizens United ruling that increasingly seems at odds with reality:  Justice Anthony Kennedy’s contention that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

As Lithwick notes, that perception is rapidly crumbling, in a 2012 campaign season dominated by supposedly independent Super Pacs that in fact closely coordinate with candidates’ campaigns. Noting that the Montana opinion richly detailed the state’s history of “Copper Kings” buying elected judges and other officials, Lithwick wrote:

“Whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban. … More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress Read more

Lawyer James Bopp Jr., the architect of the Citizens United case that led to a landmark Supreme Court decision, has cut a wide swath in his challenges to campaign finance regulation.

Scott Thomas, a former Democratic chairman of the Federal Election, said in a Bloomberg profile of Bopp that the Indiana-based lawyer’s cases have come close to gutting the 2002 law aimed at curbing the influence of well-heeled donors and outside groups. “We should now call the statute, ‘The Federal Election Campaign Act paid for and authorized by Jim Bopp,’” Thomas said.

According to data from the Campaign Legal Center, Bopp filed 21 out of a total 31 lawsuits challenging campaign finance rules that the Center has tracked. On Wednesday, he was to appear in a federal appeals court in Missouri, challenging a Minnesota law prohibiting corporations from giving money to candidates and political committees.

Bopp is a Republican National Committee member. It was with help from Senate Republican Leader Mitch McConnell of Kentucky that Bopp set up the James Madison Center to help cover his legal fees, according to Bloomberg. Read more

A federal judge declared unconstitutional Wisconsin’s campaign finance disclosure law as it was applied to a man who was required to register before he sent out postcards about a referendum.

As it was applied in the case of Charles Hatchett of Whitewater, who wanted to send postcards about a referendum to approve the sale of alcoholic beverages, the law was unconstitutional, U.S. District Judge Rudolph T. Randa said in an opinion.

The judge declined to rule that the law was unconstitutional on its face. “The area of campaign finance reform law remains too unsettled for this Court to facially invalidate these statutes,” he wrote.

Under the Wisconsin law, someone who spent $25 to influence a referendum was required to register, disclose names of donors and also include disclaimers naming those who paid for materials, according to an Associated Press article.

Scholar Rick Hasen, who operates Election Law Blog, wrote that if the state government chose to appeal the latest ruling, “it has a pretty good chance of obtaining a reversal.”

Justice at Stake has highlighted the importance of campaign finance disclosure on its website, saying “Special interest money poses a unique threat to courts, which have a constitutional obligation to be fair and impartial. Where competitive judicial elections are held, a key reform is the timely public disclosure of all campaign spending.”

Indiana-based lawyer James Bopp Jr. represented Hatchett, who contended that his First Amendment right to free speech had been violated. To learn more about Bopp’s challenges to campaign finance laws, see a separate Gavel Grab post today or these earlier posts.