[EL] "Citizens United poised to destroy judicial impartiality"
Trevor Potter
tpotter at capdale.com
Sat Aug 3 12:10:17 PDT 2013
Of course, political consultants will tell us that a "thank you" "issue ad" is not as effective as a full- throated negative express advocacy commercial-- which is no doubt why we see more of the latter post- Citizens United in states that prohibited corporate funded IEs-- like Montana.
Trevor Potter
Sent from my iPhone
On Aug 3, 2013, at 12:38 PM, "Adam Bonin" <adam at boninlaw.com> wrote:
> Perhaps my favorite such example: $1.2M in corporate-funded ads aired in the final week of Pennsylvania’s 2007 election cycle encouraging voters to “thank” Judge Maureen Lally-Green, who happened to be on the ballot for the Supreme Court. (Pre-CU, and PA did not allow corporate contributions or independent expenditures at the time.) Not only did efforts to enjoin the ads fail (because the ads contained no express advocacy), but the Commonwealth was ordered to reimburse the sponsor for its legal fees, and the sponsor was not required to register as a political committee.
>
> http://www.youtube.com/watch?v=bnifj2A7Has
> http://articles.philly.com/2008-05-07/news/24989915_1_corbett-spokesman-kevin-harley-ads-political-expenditures
>
>
> Adam C. Bonin
> The Law Office of Adam C. Bonin
> 1900 Market Street, 4th Floor
> Philadelphia, PA 19103
> (215) 864-8002 (w)
> (215) 701-2321 (f)
> (267) 242-5014 (c)
> adam at boninlaw.com
> http://www.boninlaw.com
>
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
> Sent: Saturday, August 03, 2013 2:19 PM
> To: law-election at UCI.edu
> Subject: Re: [EL] “Citizens United poised to destroy judicial impartiality”
>
> What I always find odd when I read such commentary as that of Justice Nelson (1st item below) is the sense that this is somehow new. Is Justice Nelson unaware that prior to 2010 a majority of states, many of which have an elected judiciary, allowed unlimited corporate expenditures? That even in other states and federally, corporations could fund "issue ads," in some states right up until the election, in a few only more than some days out?
>
> I can understand arguments against Citizens United, and why people disagree with the decision, but I am constantly baffled by what seems to be the sheer unwillingness to consider the probable consequences of Citizens United in light of the law prior to 2010.
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
> Sent: Saturday, August 03, 2013 1:56 PM
> To: law-election at UCI.edu
> Subject: [EL] ELB News and Commentary 8/3/13
>
> “Citizens United poised to destroy judicial impartiality”
>
> Posted on August 3, 2013 10:50 am by Rick Hasen
> Former Montana Supreme Court Justice James C. Nelson, Supreme who dissented (and was ultimately vindicated) by the United States Supreme Court in ATP v. Bullock, has written this oped for the Missoulian.
>
> [A}ccording to the Supreme Court, while contributions directly to a candidate breed corruption, corporate expenditures on behalf of a candidate do not have any such corruptive effect.
>
> For those living in a parallel universe that nuance may make sense, but, in reality it is a dichotomy grounded in utter fiction. Worse, this canard presents a clear and present danger for the majority of states, like Montana, where voters elect their judges and justices. Citizens United applies to judicial elections, too. Make no mistake; its effects will dominate judicial elections.
>
> <image001.png>
> Posted in campaign finance, judicial elections | Comments Off
> “D.C. group not happy with how Indiana handling complaint”
>
> Posted on August 3, 2013 10:46 am by Rick Hasen
> TribStar: “The Washington D.C. watchdog group that accused Terre Haute attorney Jim Bopp Jr. of improperly benefiting from a not-for-profit organization has gotten its first official response to one of its complaints — and it’s not happy.”
>
> <image001.png>
> Posted in Uncategorized | Comments Off
> “Congress: Divided, discourteous _ taking a break”
>
> Posted on August 3, 2013 10:43 am by Rick Hasen
> AP’s David Espo: “The accomplishments are few, the chaos plentiful in the 113th Congress, a discourteous model of divided government now beginning a five-week break.”
>
> More:
>
> Legislation linking interest rates on student loans to the marketplace passed, and, too, a bill to strengthen the government’s response to crimes against women. Two more measures sent recovery funds to the victims of Superstorm Sandy.
>
> Among the 18 other measures signed into law so far: one named a new span over the Mississippi River as the Stan Musial Veterans Memorial Bridge, after the late baseball legend. Another renamed a section of the tax code after former Sen. Kay Bailey Hutchison of Texas.
>
> A third clarified the size of metal blanks to be used by the Baseball Hall of Fame in minting gold and silver commemoratives: a diameter of .85 inches in the case of $5 gold coins, and 1.5 inches for $1 silvers.
>
> <image001.png>
> Posted in legislation and legislatures, political parties, political polarization | Comments Off
> Slate Gabfest Tackles Holder’s Voting Rights Gambit
>
> Posted on August 3, 2013 10:40 am by Rick Hasen
> Here.
>
> <image001.png>
> Posted in Voting Rights Act | Comments Off
> “Judging the (un)productivity of the 113th Congress”
>
> Posted on August 2, 2013 8:09 pm by Rick Hasen
> WaPo reports.
>
> <image001.png>
> Posted in legislation and legislatures, political parties, political polarization | Comments Off
> Two from CLC
>
> Posted on August 2, 2013 1:28 pm by Rick Hasen
> Reform Groups Urge FEC Chair to Buck Partisan Political Pressure to Undermine Enforcement
>
> and
>
> Watchdogs Urge FEC to Reject Democratic & Republican Parties’ Request to Use “Recount Funds” as Slush Funds
>
>
>
> <image001.png>
> Posted in campaign finance | Comments Off
> Can Democracies Ban “Anti-Democratic” Political Parties?
>
> Posted on August 2, 2013 12:08 pm by Richard Pildes
> Though this blog usually focuses only on U.S. issues, I wanted to flag a story in today’s Wall Street Journal that might provoke the interest of many readers (since the WSJ is behind a paywall, see here). In Bangladesh, a court has barred the country’s largest Islamist political party from participating in upcoming elections later this year or early next. Although the party, Jamaat-e-Islam (JI), is relatively small, it could well be the tipping force in the struggle for control of the govern between the two major political parties; JI aligns with the opposition.
>
> The court banned JI on the ground that the party’s charter acknowledges the “absolute power” of God and does not acknowledge the sovereignty of the people of Bangladesh. This judicial action is a timely illustration of two central issues in the post-World War II struggles over what “democracy” means and entails. The first is the idea of “militant democracy,” which is the view that democracies can and should be militant in taking measures to ensure the continued democratic nature of the state and to ban or contain anti-democratic forces, including political parties. Though coined in 1937 by Karl Loewenstein, the idea caught on powerfully in Europe in the aftermath of WWII. The second issue this recent court decision raises, of course, is what role religiously-based political parties should be permitted to play in democracies — an issue particularly acute right now in working out the appropriate relationship between Islam and democracy, surely among the most significant political issues of our era. The decision sounds similar to earlier decisions of the Turkish Constitutional Court and the European Court of Human Rights, which upheld bans on Islamist parties that were judged to be anti-democratic. For a survey of these decisions, see here.
>
> Violent protests have been going on in the country since February, after the International Crimes Tribunal Bangladesh sentenced leading figures in JI to death or long sentences for their role in the country’s 1971 war for independence (see here), when JI aligned with Pakistan in resisting the move for Bangladesh’s independence. The country became a democracy in 1991.
>
>
>
>
>
> <image001.png>
> Posted in political parties | Comments Off
> Justice Scalia Ties Supreme Court Prisoner Release Decision to Gay Rights Overreach: “Power of the Black Robe”
>
> Posted on August 2, 2013 12:06 pm by Rick Hasen
> From today’s dissent on the denial of a stay in the California prisoner release case:
>
> It appears to have become a standard ploy, when this Court vastly expands the Power of the Black Robe, to hint at limitations that make it seem not so bad. See, e.g., Lawrence v. Texas (Scalia J. dissenting); United States v. Windsor (Scalia, J., dissenting). Comes the moment of truth, the hinted-at limitation proves a sham. As for me, I adhere to my original view of this terrible injunction. It goes beyond what the Prison Litigation Reform Act allows, and beyond the power of the courts. I would grant the stay and dissolve the injunction.
>
> UPDATE: Interesting double entrendre in Scalia dissent.
>
> <image001.png>
> Posted in Supreme Court | Comments Off
> “House Committee Subpoenas Treasury for Tax-Exempt Application Documents”
>
> Posted on August 2, 2013 11:29 am by Rick Hasen
> Bloomberg BNA Breaking News: “House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) issued a subpoena Aug. 2 to Treasury Secretary Jacob Lew to compel the production of various documents the committee wants for its investigation into the Internal Revenue Service’s treatment of groups applying for tax-exempt status.”
>
> <image001.png>
> Posted in campaign finance, tax law and election law | Comments Off
> “Leahy Eyes ‘Nuclear Option’ Threat to Confirm Judges”
>
> Posted on August 2, 2013 11:13 am by Rick Hasen
> Roll Call reports.
>
> <image001.png>
> Posted in legislation and legislatures, political parties, political polarization | Comments Off
> “North Carolina Voter ID Law Could Lead To Increased Voter Intimidation, Harassment, Election Officials Fear”
>
> Posted on August 2, 2013 10:54 am by Rick Hasen
> HuffPo reports.
>
> <image001.png>
> Posted in The Voting Wars, Voting Rights Act | Comments Off
> Stewart Baker Mea Culpa
>
> Posted on August 2, 2013 10:49 am by Rick Hasen
> Wow. Stewart Baker crosses out most of his post yesterday (about which I and others were critical) and adds the following:
>
> CORRECTION/UPDATE: Having talked in some detail with folks at Facebook, I’ve concluded that this post was just wrong, and I owe an apology to both Facebook and the Obama campaign, not to mention the co-bloggers and readers who joined the fray. Facebook’s terms of service do say all the things that I and Michael Vatis’s post quoted – they prohibit password sharing and the soliciting of password sharing and so on. But it turns out that Facebook also maintains Facebook Platform, whose rules permit users to grant app developers access to their user data, including a user’s list of friends. The Obama campaign created an app that adapted this platform to its turnout goals, and it did so within the rules set by Facebook. Because the program was authorized by Facebook, it was also authorized under the Computer Fraud and Abuse Act. I’ve deleted the bulk of the post but left it up so that any links to the original post will come to this correction.
>
> Maybe next time he should be more careful not to insinuate without some evidence that a presidential candidate was colluding with the Justice Department to engage in illegal activity to get the candidate illegally elected.
>
> <image001.png>
> Posted in Uncategorized | Comments Off
> “The slow deaths of presidential super PACs”
>
> Posted on August 2, 2013 9:21 am by Rick Hasen
> CPI reports.
>
> <image001.png>
> Posted in campaign finance | Comments Off
> “The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and a Proposed Rule for the United States Senate”
>
> Posted on August 2, 2013 9:01 am by Rick Hasen
> Former Senator Russ Feingold has posted this draft on SSRN. Here is the abstract:
>
> Most scholarly attention on constitutional interpretation is focused on the judicial branch and the role of the judiciary in our system of separation of powers. Nonetheless constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the Courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his House colleagues, called for a “sea change” in the way the House of Representatives operates, with “a closer adherence to the U.S. Constitution,” and amended House Rule XII to require members of Congress who introduce bills or joint resolutions to provide a Constitutional Authority Statement (CAS) outlining Congress’s authority to adopt the bill or joint resolution.
>
> This Essay identifies, explains, and critically explores four key deficiencies in House’s Rule in light of the history of constitutional interpretation in Congress, the incentives of members of Congress, and the realities of the legislative process. While the House’s Rule represents an important step in improving the quality of constitutional deliberation in Congress, it is unnecessarily bureaucratic, underinclusive, fails to capture the importance of constitutional interpretation for all members of Congress, not just the introducers of legislation; and most importantly, reflects a severely limited notion of what constitutional issues need to be considered in voting on legislation by completely ignoring constitutional infirmities involving individual rights, civil liberties, and any other potential constitutional issue aside from merely Congress’s authority.
>
> To address these concerns, the Essay offers a proposed rule for adoption in the United States Senate. The Proposed Rule requires a Constitutional Authority Statement for all legislation — not just bills or joint resolutions — but only when that legislation will actually receive a vote. Furthermore, the Proposed Rule makes it clear that all members of Congress — not just the introducer — have an individual obligation to consider the constitutionality of legislation on which they vote. Finally, the Proposed Senate Rule requires a CAS include not just information about Congress’s Article I authority to enact a bill, but also address other possible countervailing constitutional issues like individual liberties.
>
>
>
> <image001.png>
> Posted in legislation and legislatures | Comments Off
> The Law of Democracy: 2013 Supplement
>
> Posted on August 2, 2013 8:54 am by Richard Pildes
> How many books thank both Barack Obama and John Yoo? I know of one — and it might well be the only one: The Law of Democracy: Legal Structure of the Political Process. Back in the mid-1990s, when we were working on the first edition, Barack Obama was a mere state senator and law professor at the University of Chicago Law School; John Yoo was a professor at the University of California, Berkeley School of Law. Both taught from the materials and provided us significant substantive analysis and commentary. Some others thanked in the First Edition (1998), who were not well known at the time – indeed, many were law students – but have since gone on to became major academic or public-policy figures include Lani Guinier (Harvard Law); Sherrilyn Ifill (now President and Director-Counsel of the NAACP LDF); Daryl Levinson (NYU Law); Nate Persily (Stanford Law); Jeff Fisher (Co-Director, Stanford Supreme Court Litigation Clinic); Tom Goldstein (the lawyer who created and runs SCOTUS Blog). If I left anyone out, assume it’s because I considered you already well known back in 1998. . .or you worked on later editions.
>
> I thought of all this when I looked through the book while getting ready to post a notice about the 2013 Supplement to last year’s Fourth Edition now being available. One of the most gratifying aspects of creating this casebook has been the amazing people we have had a chance to work with along the way. As for the 2013 Supplement, suffice it to say it covers all the important developments that need to be covered, and more, and that it’s available from Foundation Press for immediate download here.
>
> <image001.png>
> Posted in election law and constitutional law, pedagogy, Uncategorized | Comments Off
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
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