Gavel Grab

In these other dispatches about fair and impartial courts:

• Senate Republican Leader Mitch McConnell wrote a Washington Post op-ed responding to remarks by Attorney General Eric Holder and entitled, “Guantanamo is the place to try terrorists.” A blog post about the two leaders “battling over terror trials” was published by Main Justice.

• Former U.S. Attorney John McKay, a JAS board member, is part of a coalition kicking off an initiative to legalize marijuana in Washington state, a Seattle Times article reported.

• A preview of the 2012 race for the state Supreme Court is published in the West Virginia Record.

• In advance of a Supreme Court ruling in a public financing case, McComish v. Bennett, a WNYC.org article is headlined, “Campaign Financing Ruling May Make NYC a Model for the Nation.”

First, Arizona legislators agreed to ask voters whether to get rid of public financing of elections for statewide and legislative posts.

Next, backers of public financing filed a lawsuit to block that 2012 vote on a constitutional amendment, according to an East Valley Tribune article.

The proposed constitutional amendment does not specifically repeal existing Arizona law but effectively voids it by barring the expenditure of public funds for political campaigns.

Republican state Sen. Steve Pierce said that Arizona’s budget deficit  makes it “totally inappropriate for anyone to run on state funds when that money could be used someplace else,” an Arizona Daily Star article reported. Critics also say participants have abused the system, an Associated Press article said.

Backers of Arizona’s existing system, on the other hand, contend more people can run for elective office by using it, and it reduces the clout of deep-pocketed interests.

The U.S. Supreme Court recently heard oral arguments in a case, McComish v. Bennett, challenging a key provision of the Arizona public funding statute. You can learn about it from Gavel Grab or from a Justice at Stake issues page on the case.

In these other dispatches about fair and impartial courts:

• Ronald Dworkin, a constitutional law scholar teaching at New York University, has written a commentary about the McComish v. Bennett public financing case before the Supreme Court. Entitled “More Bad Arguments: The Roberts Court & Money in Politics,” it is in the New York Review of Books. Click here to read about McComish in Gavel Grab.

• The U.S. Government Printing Office and the Federal Judiciary are launching a one-year pilot program to permit free public access to court opinions through GPO’s Federal Digital System. To learn more, view the announcement at GroundReport, a global news platform.

• Senior Judge Thomas G. Nelson of the Ninth U.S. Circuit Court of Appeals has died at age 74, according to a press release from that court.

• If you want to listen to oral arguments Tuesday on the constitutionality of the federal health care overhaul law, in proceedings before the Fourth U.S. Circuit Court of Appeals, an audio link will be available Tuesday at 2 p.m., the court said in a release.

As a result of legislative action, Arizona voters will get to decide next year whether to change  the merit selection process in place for choosing judges for Supreme Court, Court of Appeals and the trial courts in the two largest counties.

Arizona’s Senate this week  placed a referendum on judicial selection on next year’s ballot, according to an Associated Press article. The referendum will ask whether voters want to make changes that would reduce the State Bar of Arizona’s role in judicial selection and also the influence of judicial screening commissions. The House already had approved a similar measure.

If backers of the referendum prevail, a measure of influence would be shifted from the State Bar and commissions to the governor, who would get more options when it comes to picking judges for vacancies, a Capitol Media Services article reported.

Under current practice, screening commissions include five attorney members who are nominated by the State Bar, and 10 members who are not attorneys. If the referendum is approved, then the State Bar no longer would select the five attorney members; its president would pick one, and the governor would choose the other four.

Currently the screening panels must nominate at least three candidates to the governor for a vacant judgeship, and the governor must pick a judge from that list. If approved, the referendum would change this so the panels would be required to send the governor the names of all candidates who received backing of at least half of the commissioners, and the panels would have to send names of at least eight applicants for a vacancy. Read more

Two legal scholars, saying that “judicial elections are here to stay,” are laying out a case for incremental rather than sweeping reform.

Incremental change offers a more realistic option for reform in an era when state courts have been inundated with campaign cash and voters nonetheless have consistently rejected proposals to eliminate judicial elections and switch to appointive systems, the authors suggest. Specifically, they urged a new legal strategy to impose limits on spending in judicial elections.

Erwin Chemerinsky (photo), dean of the law school at the University of California, Irvine, and James J. Sample, an associate professor of law at Hofstra University, give their analysis in a New York Times op-ed that is headlined, “You Get the Judges You Pay For.” Chemerinsky, a preeminent expert in constitutional law, is author of seven books, including “The Conservative Assault on the Constitution.”

Before suggesting reforms, the scholars point to both history and the jurisprudence. They also highlight polls showing that more than seven of 10 voters “believe campaign cash influences judicial decisions,” and that almost half of state court judges agree.

They  emphasize skyrocketing campaign funding in state high court elections and the “extraordinary comparative power” of deep-pocketed “super spender” interest groups, documented by a report last year called “The New Politics of Judicial Elections 2000-2009: Decade of Change.” Its co-authors included Sample and the Justice at Stake Campaign. Read more

If the U.S. Supreme Court continues its tack toward allowing unrestricted money in politics, “the damage and corruption will be enormous,” a New York Times editorial warns.

The editorial focuses on a challenge to a key provision of Arizona’s law for public financing of political campaigns. At recent oral arguments, the court’s conservative majority was widely viewed as preparing to strike down the provision (see Gavel Grab). It allows publicly funded candidates to get additional dollars, called matching or “trigger funds,” when privately financed candidates or independent groups spend more.

The Times editorial traces back to the court’s landmark Buckley v. Valeo ruling in 1976 that upheld the public financing system for presidential elections. According to the editorial, the court did not rule that political money literally equals speech but that it enabled speech.

“Now the court’s conservative majority is again reshaping politics, ruling that what matters most for money and speech is their ‘fair market’ impact,’” the editorial warns, citing as evidence a 2008 ruling.

The Arizona “trigger funds” mechanism is “one of the most compelling innovations in the country,” the editorial states. Using it, “The state will match for a state-financed candidate what an opponent raises in private contributions up to triple the initial amount of state financing.” Read more

Is North Carolina’s public financing system for statewide judicial candidates threatened?

Republican legislators have introduced two bills to eliminate the system, and another bill would divert money from the fund that pays for public financing and use it for a separate purpose — paying for a proposed voter ID.

Because the U.S. Supreme Court signaled skepticism about a public financing program from Arizona when it heard oral arguments last week, some reform advocates are worried, according to a Charlotte Observer article.

“We certainly feel like there is a well-funded, well-organized national effort to tilt campaign finance regulations for electoral gains,” said Damon Circosta, executive director of the N.C. Center for Voter Education. It is a Justice at Stake partner. Read more

A request for an emergency injunction to halt public financing for the candidates in Wisconsin’s Supreme Court race was rejected by a federal appeals court Friday.

Wisconsin Right to Life sought the injunction after losing an earlier round in U.S. District Court earlier in the week (see Gavel Grab).

According to a Wisconsin Law Journal article, District Judge William Conley wrote in that opinion:

“In light of the State’s undeniable, compelling interest in avoiding a growing perception that the financing of election of the Wisconsin Supreme Court Justices is irreparably tainting them with an appearance of bias, this court will grant summary judgment to the defendants and deny any injunctive relief.”

On Friday, the Seventh U.S. Circuit Court of Appeals turned down the request for an emergency injunction, sought just days in advance of the state Supreme Court election set for Tuesday. The race pits Justice David Prosser against JoAnne Kloppenburg, an assistant district attorney.

Meanwhile James Bopp Jr., an attorney representing Wisconsin Right to Life, told Wisconsin Law Journal that he found the district court’s decision “surprising and disappointing,” especially given the tone of oral arguments before the U.S. Supreme Court this week in a case challenging  a public financing law from Arizona (see Gavel Grab for articles on that case, McComish v. Bennett).

“I was really surprised with the ruling, given the Supreme Court’s hostility over the law enacted in Arizona,” Bopp said. Read more

Two legal challenges to the constitutionality of Wisconsin’s new law for public financing of state Supreme Court elections were dismissed by a federal judge.

The candidates facing off in an election for the Wisconsin Supreme Court on Tuesday have received public funds for their campaigns under the new law. But the law’s future still is uncertain, given a challenge to an Arizona public financing statute that was heard by the U.S. Supreme Court this week (see Gavel Grab).

U.S. District Judge William M. Conley issued a 39-page opinion and order, according to a Milwaukee Journal Sentinel article, denying a request for an injunction to halt  public funding for the election. It was sought by Wisconsin Right to Life, which contended its free speech rights were violated under the statute.

“Wisconsin’s interest in safeguarding even an appearance of bias is stronger than any of the public financing statutes considered by courts to date,” Judge Conley wrote. He said Wisconsin’s law was narrowly tailored toward that goal and should stand.

When Judge Conley referred to a January 2008 public opinion poll, he appeared to be referring to a poll commissioned by Justice at Stake. The poll showed 65 percent of Wisconsin voters backing a plan to offer public financing to qualified candidates, and 77 percent thought the legislature and governor needed to take action on judicial campaign reform before the next election.

Read more

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