Gavel Grab

A bill to require disclosure of corporate and labor union spending to influence elections has stalled in the U.S. Senate, but one-fifth of the states have passed legislation to require further disclosure of political spending.

This update comes from an article in USA Today, reporting that states have passed measures quickly in response to the Supreme Court’s Citizens United v. FEC decision in January.

States adopting new rules are Iowa, Alaska, Arizona, Colorado, Connecticut, Massachusetts, Minnesota, South Dakota and West Virginia. In Washington state, existing laws governing disclosure were broadened.

“In most of the states, it’s ‘Hey, what’s the big deal? Let’s provide information,’ ” said Meredith McGehee, policy director of the Campaign Legal Center, a partner of Justice at Stake. Read more

When West Virginia Gov. Joe Manchin selected his former general counsel, Carte Goodwin, to fill temporarily a vacant U.S. Senate seat, Manchin selected a lawyer familiar with judicial reform issues.

Goodwin was named earlier by the governor to head the Independent Commission on Judicial Reform, according to a statement by Manchin Friday. The commission’s honorary chairwoman was retired Supreme Court Justice Day O’Connor. The panel made several recommendations (see Gavel Grab), including a pilot plan for public financing of state Supreme Court elections; the legislature went along with that idea.

A Huffington Post article featured video from a Georgetown University Law School conference in which Goodwin participated in a panel discussion about the Supreme Court’s Caperton v. Massey decision, a landmark ruling involving fair and impartial justice in West Virginia. Goodwin had kind words for Bert Brandenburg, executive director of the Justice at Stake Campaign and another member of the panel.

In recent years, the Supreme Court has staunchly upheld the constitutionality of campaign disclosure laws, saying there is public value in letting voters know who is bankrolling attempts to sway elections.

In the wake of Citizens United, which allowed unlimited election spending by corporations, six states have toughened their disclosure laws. No state was more forceful than Minnesota, where the legislature voted unanimously to require corporations to disclose financial support of election-season advertising. Polls show overwhelming support for such laws.

Enter James Bopp (photo), in his latest attempt to claim that any campaign regulation, no matter how popular and common-sensical, violates the constitutional rights of beleaguered corporations.

In a lawsuit filed in U.S. District Court in Minnesota, Bopp and three groups, including one for-profit corporation, argued that the new law unconstitutionally burdens them with the prospect of … unacceptable paperwork.

According to Bopp’s suit, all three groups would spend money on independent electioneering efforts in the fall, even naming some candidates they are interested in supporting. But they object to forming a political committee, as the new law requires, and filing those infernal campaign disclosure reports that show who’s paying to play come election time. To quote Bopp:

“Political funds have burdensome and onerous registration, reporting and record-keeping requirements. … A political fund must elect or appoint a treasurer. … A political fund is required to … [file] a ‘statement of organization.’ … A political fund must keep an account of the sum of all contributions received.”

To which one is tempted to say, “Horrors!”

In the last decade, independent groups have been a leading source of runaway spending on state court elections, conservatively pumping $39.3 million into Read more

The Wisconsin Supreme Court, bitterly divided 4-3, has formally issued new rules stating that lawful campaign donations from a litigant shall not alone require a judge’s recusal in a case. The new rules were accompanied by stinging, dueling statements in which justices on opposing sides belittled each other.

Justice Ann Walsh Bradley, in a dissenting commentary joined by two allies, wrote that the new rules “signify a dramatic change to our judicial code of ethics” and have fueled a widespread perception in newspaper editorials that they “subvert the integrity of the court.”

Justice Bradley assailed the rules’ adoption in what she called a “ramrod manner.” She also said that following the U.S. Supreme Court’s Citizens United decision, “we should be adopting stronger standards for recusal rather than neutering our existing recusal rules.” Her statement came close to asking the legislature to look at judicial recusal:

“If this court is unwilling or unable to keep its own house in order, perhaps it will require action by others to step in and assist in maintaining the integrity of the court and preserving the public trust and confidence that Wisconsin judges will be impartial.”

Justice Patience Drake Roggensack, joined by colleagues in the majority, labeled Justice Bradley’s dissent as “undeserved” and as “a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution.” Justice Roggensack elaborated:

“Justice Bradley has chosen to base her attack on popular political positions, which she supports with newspaper articles rather than with the legal tenets upon which legal writing customarily is based.” Read more

As her third day of testimony neared an end, Supreme Court nominee Elena Kagan sidestepped opportunities to criticize the current court and cautiously fielded questions about likening a justice to an umpire.

Democratic senators on the Senate Judiciary Committee “opened a broad attack” on the  court under Chief Justice John Roberts Jr. and challenged its “motives and legal integrity,” according to a Wall Street Journal article.

Rather than follow tradition by generally ruling on cases unanimously or with strong majorities, the Roberts Court overturns precedent regularly, voting 5-4 with a majority made up of Republican-picked justices, Sen. Sheldon Whitehouse, D-R.I., told Kagan. Some judges may have a mission and “are selectively knocking out precedent that does not coincide with their ideological views,” Whitehouse said.

The U.S. solicitor general and former Harvard Law School dean did not signal agreement.

“I’m sure everybody up there is acting in good faith,” the Washington Post quoted Kagan as saying. “You wouldn’t want the judicial process to become in any way a bargaining process or a log-rolling process.”

She also told Whitehouse, “Every judge has to do what he or she thinks the law requires,” according to a USA Today article.  “But on the other hand,” she said, “there’s no question that the court is served best and our country is served best when people trust the court as an entirely non-political body.” Read more

The U.S. Supreme Court dealt a setback Tuesday to backers of public financing for election campaigns, barring Arizona from providing matching funds to qualifying candidates for statewide and legislative offices at least temporarily.

The high court’s order threw “a number of high profile campaigns into disarray just weeks before candidates were to start receiving money,” according to an Arizona Capitol Times blog post. The Supreme Court blocked matching fund payments under Arizona’s public financing system after critics of the provision signaled their challenge to a recent appeals court ruling that upheld it (see Gavel Grab).

“The developments in Arizona show just what a tough litigation environment it is right now for those in the lower courts seeking to defend reasonable campaign finance regulations,” wrote legal scholar Rick Hasen in his Election Law blog.

The controversial provision distributes additional taxpayer dollars to publicly-funded candidates if their privately-funded opponent or independent political groups exceed a spending limit set by the state. The Ninth U.S. Circuit Court of Appeals upheld the provision last month.

Critics have challenged the constitutionality of the provision, contending that giving taxpayer matching funds to qualifying candidates amounts to a penalty on their privately-funded opponents’ speech by inhibiting their fundraising. Read more

The Supreme Court’s landmark Caperton v. Massey decision in 2009 already has led to improvements in protecting courts from the influence of campaign cash, according to a legal scholar’s draft law review article.

James Sample of the Hofstra School of Law (photo), and formerly of the Brennan Center for Justice, takes a look at state court reform developments in the year since the high court decision.

Sample’s draft article is entitled, “Court Reform Enters the Post-Caperton Era” (thanks to Rick Hasen’s Election Law blog for the tip.) Sample discusses reform efforts involving judicial recusal and public financing, chiefly in Wisconsin, Michigan and West Virginia (all of which Gavel Grab has tracked closely: click here for Wisconsin, here for Michigan or here for West Virginia). Read more

An article delving into the recusal views of two sitting Michigan Supreme Court justices also relies on Justice at Stake for data on past Michigan election spending.

The article in Michigan Messenger reports that Justices Robert Young Jr. and Maura Corrigan participated in an amicus brief filed in the landmark Caperton v. Massey case. They and some other current and former justices sided with Massey Energy and opposed rules that would disqualify judges from hearing cases involving major campaign donors.

Justice Young, who is up for reelection, likely will gain from business groups pumping millions of dollars into advertising, the article said. When Michigan’s Supreme Court toughened disqualification standards last year, Justices Young and Corrigan voted in opposition.

Examining the growth of independent political spending, the article used data from Justice at Stake to report that five candidates for the high court raised more than $1.6 million in 2004, compared to independent groups spending $1.8 million on TV ads. Justice Corrigan got more TV ad support from third party groups in 2006 than she raised for her campaign, the article added. Read more

Colorado has enacted a new law requiring disclosure of corporate and labor union spending on political elections. It joins a growing number of states taking action to blunt the impact of the Supreme Court’s Citizens United decision.

Gov. Bill Ritter signed into law on Tuesday a bill requiring corporations and unions to disclosure independent political expenditures of more than $1,000 through registration as independent expenditure committees. It is intended to allow citizens to follow the corporate political money.

These political ads also will have to tell who paid for them, the Durango Herald reported.

State Sen. Morgan Carroll, a sponsor of the bill, said in a statement, “To ensure fair and free elections, Colorado voters have consistently voted for transparency and accountability in the election process. We are protecting that legacy by holding corporations and unions to the same standards of accountability and transparency as we do for individuals.” Read more

Chief Justice Eric Brown, newly named as Ohio’s top jurist, has made a personal telephone pitch inviting people to attend a campaign fundraiser.

For judicial candidates, “direct solicitation and receipt of campaign contributions is prohibited under the state’s judicial code of conduct,” according to a Dayton Daily News article. Justice Brown is a Democrat, and the Ohio Republican Party released an audio recording of his making a solicitation call, the Associated Press reported.

An Ohio Republican Party spokesman said the GOP was weighing whether to file a disciplinary complaint.

An adviser to the Brown campaign said the candidate did not break the rules. He was encouraging attendance, not asking directly for campaign contributions, the adviser said. Read more