Oral argument requests in the BCRA case Yesterday was the day for
the parties to file their proposals for how the 4 hours of oral argument in
the BCRA case should be divided among the parties. I have seen some of these
requests. The government made the following request: "one hour and 20 minutes
for the Executive Branch parties, which the government contemplates would
be divided relatively equally between the Solicitor General and the Principal
Deputy Solicitor General, and 40 minutes for the McCain parties." The government
further suggested that the Court allot "two hours for Title I and Section
213 of BCRA, and two hours for the remainder of the challenged BCRA provisions."
Further: "If the Court wishes to subdivide the argument time further, it
could do so as follows: one hour and 30 minutes for Title I; 30 minutes for
Section 213; one hour and 30 minutes for Title II (other than Section 213);
and 30 minutes for the challenged provisions contained within Titles III-V."
The congressional sponsors (the McCain parties) joined in the government's
motion and noted that Seth Waxman would argue on behalf of the sponsors.
Seven of the 11 plaintiffs groups joined in a motion for divided argument
filed by the McConnell plaintiffs. The plaintiffs agree that two hours of
the argument (one hour for each side) should be dedicated to soft money issues
and two hours to the electioneering communications (issue advocacy) issues.
The seven plaintiffs groups agreed to further allocations as follows:
Ken Starr on soft money (what the plaintiffs refer to as non-federal funds
issues and forced choice issues): 20 minutes
Bobby Burchfield on the same issues: 40 minutes
Floyd Abrams on electioneering communications: 40 minutes
Laurence Gold (AFL-CIO) on electioneering communications and coordination:
20 minutes
Perhaps most interestingly, this adds up to two hours for the plaintiffs,
and allocates no time for the Adams, Echols, NRA or Paul plaintiffs. As to
these plaintiffs besides Echols, the plaintiffs suggest that the Court deny
the motions from these plaintiffs for separate time on grounds that "to the
extent that those plaintiffs have separate theories or claims, they have
been sufficiently aired in the briefs on the merits." That is pretty outrageous,
as each of these plaintiffs has a different theory of the case that it should
be allowed to pursue. The Adams plaintiffs have a theory that the higher
individual contribution limit is unconstitutional--they are the only plaintiffs
pursing this theory. The NRA brief---one of the best plaintiffs briefs in
my opinion---presents some strong arguments as to why the Court might want
to treat for profit corporations different from ideological corporations
like the NRA. The Paul plaintiffs are the only plaintiffs pursuing a "freedom
of the press" theory for striking down some provisions. Even if the arguments
advanced by these plaintiffs are long shots (I think they are), why should
the Court deny these plaintiffs their chance to make their case and give
extra time to the other plaintiffs?
As to the Echols plaintiffs, the group of seven advocates adding perhaps
20 minutes of additional time to the 4 hours to address the minors issue.
The Adams plaintiffs' separate request seeks 15 minutes and adds this footnote:
"The Adams appellants sought to coordinate this request with the appellants
filing a joint submission regarding oral argument on claims challenging provisions
of Titles I and II of BCRA. The appellants making that joint submission
refused to include a request for any time for the Adams appellants."
I have not seen separate requests from the Echols, NRA or Paul plaintiffs.
Effect of Georgia v. Ashcroft
redistricting ruling on South Carolina See this
report (link via How Appealing).
UPDATE (California recall lawsuit): More reports at the
Los Angeles Times and the
Sacramento Bee.
"FPPC appeals decision in Santa Rosa tribal
gaming case" See this
FPPC press release (see also this
one). Thanks to Ed Feigenbaum for the pointers.
New article on judicial elections Michael
R. Dimino has published Pay No Attention to That Man Behind the Robe:
Judicial Elections, the First Amendment, and Judges as Politicians, 21
Yale Law and Policy Review 301 (2003). Here is the abstract:
Judicial candidates are subject to state regulations
concerning the matters they may discuss during campaigns. Most states model
their regulations after Canon 7 of the 1972 ABA Canons of Judicial Ethics
or its 1990 successor, Canon 5 of the Model Code of Judicial Conduct. The
1972 version prohibits candidates from "announc[ing] their views on disputed
legal or political issues," while the 1990 version somewhat more mildly prohibits
candidates from making "statements that commit or appear to commit the candidate
with respect to cases or controversies likely to come before the court" for
which he is running. Both versions, however, prohibit candidates from promising
conduct in office. These regulations are defended from First Amendment challenge
(with varying degrees of success) on the grounds that they protect the impartiality
and independence of the judiciary, and the appearance of both of those values.
In 2002 the Supreme Court struck down a Minnesota regulation, patterned
on the 1972 ABA Canon 7, which prohibited candidates from announcing their
views on disputed legal or political issues. The Court did not, however,
decide whether the First Amendment forbids states from prohibiting candidates
from making statements that appear to commit them with regard to issues likely
to be heard in court, nor did the Supreme Court decide whether judicial campaigns,
as a general matter, may be more strictly regulated than legislative or executive
ones.
This Article concludes that preserving the appearance and reality of impartiality
and independence are insufficient justifications for the Canons' restrictions
on campaign speech. The author argues that litigants' right to an impartial
judge is not impinged by issue-oriented judicial campaigns, and that there
are considerable advantages to employing judges who have taken positions on
legal issues. Furthermore, because there can never be an "independent" judiciary
in any system where judges stand for reelection or reappointment, the threat
to independence in judicial election campaigns comes from the selection system
itself rather than from campaign speech.
The Article further argues that the "appearance of impartiality or independence"
cannot provide a sufficient basis for upholding the speech restrictions.
Insofar as speech restrictions attempt to make judges appear apolitical
and unwavering servants of pre-existing law, those restrictions project a
false image -- discredited for nearly a century -- that judges "find" rather
than "make" law. The Article argues that such paternalism is wholly inconsistent
with the First Amendment, and that any governmental attempt to inculcate
those falsities is per se illegitimate.
Judicial campaign conduct regulations, then, should face the reality that
elected judges are, for First Amendment purposes, just another variety of
politician. Judges make policy, and elected ones do so based on both their
personal beliefs and those of their constituents. Accordingly, codes of
ethics should cease the charade of treating judges as being above politics,
and allow voters to choose judges based on the policy impact those judges
will have.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com