[EL] Breaking News: Summary Reversal in Montana

Tue Jun 26 13:49:17 PDT 2012

Regarding:

Why was CU limited to an analysis of whether independent  expenditures 
result in quid pro quo corruption?

Because the Court is CU said that this is the only form of  "corruption" 
that the Court has recognized to limit campaign activity.

Also, because there is a conceptual difference between qui-pro-quo  
corruption and due process bias against parties.  Jim Bopp

In a message dated 6/25/2012 5:57:47 P.M. Eastern Daylight Time,  
danielkabramson at gmail.com writes:

Caperton held:  "We  conclude that there is a serious risk of actual 
bias--based on objective and  reasonable perceptions--when a person with a 
personal stake in a particular  case had a significant and disproportionate 
influence in  placing the  judge on the case by raising funds or directing the 
judge's election campaign  when the case was pending or imminent. The inquiry 
centers on the  contribution's relative size in comparison to the total amount 
of money  contributed to the campaign, the total amount spent in the 
election, and the  apparent effect such contribution had on the outcome of the  
election."

It should be noted that the Court appears to erroneously refer to  
independent expenditures as "contributions."

I understand, of course, that Caperton involved a recusal of a judge, and  
that it was not about quid pro quo corruption.  However, that is exactly  
the point.  CU, while making this distinction, failed to explain why the  
distinction should exist.  Why was CU limited to an analysis of whether  
independent expenditures result in quid pro quo corruption?  In Caperton,  the 
Court found that IEs can create "a serious risk of actual bias."  How  is this 
different than the longstanding rule allow campaign finance laws that  limit 
"corruption or the appearance of corruption"?  It seems impossible  to 
square the notion that independent expenditures create "actual bias" in the  
context of a judicial election with the statement that "independent  
expenditures are never corrupting as a matter of law."

Perhaps such corruption was not conclusively proved in CU, or perhaps the  
remedy was overbroad.  But I don't see how one can argue that independent  
expenditures are never corrupting without also arguing that Caperton is  
incorrect.

Daniel

On Mon, Jun 25, 2012 at 1:23 PM, <_JBoppjr at aol.com_ 
(mailto:JBoppjr at aol.com) > wrote:

Caperton involves recusal of a judge based on bias against  parties.  It 
has nothing to do with quid-pro-quo corruption in  CU.  Further, CU rejected 
this argument on that  grounds.  JIm

In a message dated 6/25/2012 1:19:53 P.M. Eastern Daylight Time, 
_danielkabramson at gmail.com_ (mailto:danielkabramson at gmail.com)  writes:

Jim,   

The problem with the statement that "independent expenditures are  never 
corrupting as a matter of law" is that it ignores Caperton.  Rather than issue 
a per curiam decision, it would be more helpful if  the Court explained why 
the facts alleged by the State of Montana are more  similar to the facts in 
Citizens United than the facts in Caperton.  Without that analysis, we are 
left guessing.

Though I think we can assume that judicial elections are somehow  
"different" and therefore subject to a different analysis, there Court has  never 
adequately explained why this should be true.

Daniel

On Mon, Jun 25, 2012 at 7:33 AM, <_JBoppjr at aol.com_ 
(mailto:JBoppjr at aol.com) > wrote:

The per curiam decision says that  "Montana's arguments in support of the 
judgment below either were  already rejected in Citizens United or failed to 
meaningfully  distinguish that case."  This closes the door on the argument 
that  unique facts in a certain state can be employed to overturn  CU.  
Further, it means that independent expenditures are  never corrupting as a 
matter of law.

    Justice Breyer says that there is no  prospect that the majority of the 
Court will reconsider  CU.  

    This is an excellent result.  Jim  Bopp

In a message dated 6/25/2012 10:10:43 A.M. Eastern Daylight Time,  
_tokaji.1 at osu.edu_ (mailto:tokaji.1 at osu.edu)  writes:

5-4 according to _SCOTUS blog_ 
(http://electionlawblog.org/wp-admin/www.scotusblog.com) , which is _live-blogging_ (http://scotusblog.wpengine.com/) .  
Justice Breyer wrote the  dissent. 
Daniel Tokaji  
Robert M. Duncan/Jones Day Designated Professor of  Law 
The Ohio State University | Moritz College of  Law 
55 W. 12th Ave. | Columbus, OH  43210 
_614.292.6566_ (tel:614.292.6566)  | _tokaji.1 at osu.edu_ 
(mailto:tokaji.1 at osu.edu)  

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