Legal elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.
An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.
In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”
The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing.
For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change.
Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”
More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.
But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.
Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.
In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.
One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.
A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.
Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.
That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.
The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging.
Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.
States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.
By: Erwin Chemerinsky and James J. Sample, The New York Times, April 17, 2011
April 18, 2011
Posted by raemd95 |
Campaign Financing, Constitution, Corporations, Democracy, Elections, Lawmakers, Politics, States, Unions, Voters | 1st Amendment, Campaigns, Citizens United, Contributions, Due Process, Electorate, Judges, Judicial Elections, Nevada, Sandra Day O'Connor, SCOTUS, State Supreme Courts, Wisconsin, Wisconsin Supreme Court |
Leave a comment
When the Supreme Court ruled that money equals speech 35 years ago, it was responding to forces of technology and economics reshaping American politics that made it much more expensive to run a campaign. While ruling that public financing and limits on contributions are valid ways to limit donors’ undue influence, it struck down candidate, campaign and independent spending limits.
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 result will be closer scrutiny of public financing, while enabling even more rampant spending by wealthy candidates.
In the landmark 1976 case of Buckley v. Valeo, the court said that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” so restricting campaign spending meant restricting political speech. The First Amendment required that political speech be unfettered, so the same was required for political spending.
But when the court ruled that money equals speech, it didn’t mean, literally, that money is speech. It meant that money enabled speech. A political contribution enabled the symbolic, or indirect, speech of the donor and the actual speech of the candidate — and may the best speech win. The focus was on enabling the speech, not the money.
That changed in 2008 when the conservative majority struck down a federal rule that had tripled the limit on campaign contributions for a candidate outspent by a rich, self-financed opponent. Justice Samuel Alito Jr. wrote that the rule diminished “the effectiveness” of the rich candidate’s spending and of his speech.
In oral argument recently, the court’s conservatives appeared ready to take their next step in restricting campaign finance reform and to strike down Arizona’s public financing mechanism called triggered matching funds. This is one of the most compelling innovations in the country. 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.
To William Maurer, the lawyer opposing the Arizona mechanism, whenever “a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.” That “speaks” was not a slip, but a reinforcement of the money-equals-speech notion.
The fundamental problem, he said, is “the government turning my speech into the vehicle by which my entire political message is undercut,” because the public funds triggered are a penalty that reduces the impact of the privately financed candidate’s spending and speech. Chief Justice John Roberts Jr. made clear in the argument that he, too, sees triggered matching public funds as a limit on the privately financed candidate’s speech.
That makes no sense. Arizona’s mechanism means more candidates — not just the wealthy — will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.
By: Editorial, Opinion Pages, The New York Times, April 11, 2011
April 13, 2011
Posted by raemd95 |
Constitution, Corporations, Democracy, Elections, Politics, Supreme Court, Voters | Arizona, Buckley v Valero, Campaign Donations, Citizens United, Conservatives, Matching Funds, Political Speech, Public Campaign Financing, SCOTUS, Speech |
Leave a comment
Although John Boehner and the Republicans are coming off what is widely being scored as a victory on the argument over the 2011 budget, they risk overconfidence as Congress turns its attention to the next debate, which is the fight over raising the federal debt limit.
Perhaps the most important piece of reporting that you’ll read on the debt limit debate is this one, from The Times’ Jackie Calmes:
The Republican leader, Senator Mitch McConnell of Kentucky, has privately urged the conservatives not to filibuster, without success, say three people familiar with the talks. He argued that if Republicans did not filibuster and just 50 votes were needed for passage, the Republicans could try to force all the votes to come from the 51 Democrats — including 17 who are up for re-election. But if 60 votes are required because of a filibuster, ultimately some Republicans would have to vote for the increase lest the party be blamed for a debt crisis.
Mr. McConnell is discouraging his colleagues from filibustering a vote to increase the federal debt limit because he knows that, if push came to shove, some of his colleagues would almost certainly have to vote yea. He’d rather it pass in a 51-vote environment, where all of the votes could come from Democrats, than in a 60-vote environment, where at least seven Republicans would have to agree to a cloture motion.
Although Mr. McConnell’s remarks were made privately, other prominent Republicans have said as much publicly (including Mr. Boehner, who has said that a failure to raise the debt limit would create a “financial disaster,” and the G.O.P.’s designated budget hawk, Paul Ryan, who has remarked that the debt ceiling must be raised and will be raised.)
That doesn’t sound like much of a negotiating position. How to reconcile it against comments from other Republicans, such as Eric Cantor, that the debt ceiling vote will provide Republicans with “leverage” to extract additional policy compromises from President Obama and the Democrats. The obvious answer is that Republicans are running a bluff.
If the Congress does not vote to increase the debt ceiling — a statutory provision that governs how many of its debts the Treasury is allowed to pay back (but not how many obligations the United States is allowed to incur in the first place) — then the Treasury will first undertake a series of what it terms “extraordinary actions” to buy time. The “extraordinary actions” are not actually all that extraordinary — at least some of them were undertaken prior to six of the seven debt ceiling votes between 1996 and 2007.
But once the Treasury exhausts this authority, the United States would default on its debt for the first time in its history, which could have consequences like the ones that Mr. Boehner has imagined: a severe global financial crisis (possibly larger in magnitude than the one the world began experiencing in 2007 and 2008), and a significant long-term increase in the United States’ borrowing costs, which could cost it its leadership position in the global economy. Another severe recession would probably be about the best-case scenario if that were to occur.
A second recession would almost certainly hurt Mr. Obama’s re-election chances, regardless of how articulate he were about trying to pin the blame on the Republicans. But it would also hurt virtually every other incumbent, including the Republicans (and likely also the Democrats) in the Congress.
While it’s hard to know exactly what the political consequences might be — a debt default has never happened before — some combination of the following might occur:
1. Mr. Obama would be significantly less likely to win a second term;
2. Mr. Boehner, Mr. Cantor, Mr. McConnell and other Republicans would have more difficulty retaining their leadership positions in the Congress;
3. All incumbents would have more difficulty winning re-election, both because of the magnitude of the policy disaster and because the debt default (in addition to hurting the poor) would have a large impact on wealthy individuals and corporations, who are key to fund-raising;
4. Similarly, all incumbents, including Mr. Obama, would become significantly more vulnerable to primary challenges;
5. The two major parties would be significantly discredited and might fracture, possibly leading to the rise the rise of a credible presidential candidate from a third-party, or a spin-off of one of the existing parties;
6. A Constitutional crisis might ensue, because the Treasury has contradictory obligations in the event of a debt default with few clear rules (and no precedent) to guide them;
7. The challengers that were elected in 2012 would have significant difficulty retaining their seats in 2014 and 2016 because the fiscal crisis brought on by the debt default would probably last for several years and would lead to extremely unpopular austerity measures — so any immediate-term gains by either party could prove fleeting.
In short, this as close as you can get in American politics to mutually assured destruction. No matter how Machiavellian your outlook, it’s very hard to make the case that any politician with a significant amount of power would become more powerful in the event of a debt default. They also would be harmed personally, since many Congressmen have significant investments in credit, stock or housing markets, all of which would be adversely affected.
A lot of the reporting I’ve seen on the debt limit vote, especially in those publications that focus more on politics than policy, has portrayed it as a zero-sum game. That’s the wrong characterization. In contrast to a government shutdown — which could have some negative consequences for incumbents of both parties, but not ones so large that they couldn’t be outweighed by strategic considerations — a debt default would be a bigger emergency by at least an order of magnitude. Its consequences are also much less linear and much less predicable than those of a government shutdown: you can’t partially default any more than you can be half-pregnant.
Now, that doesn’t mean that Republicans won’t be able to extract any concessions at all out of the Democrats. It’s possible that the White House — which has been risk-averse in recent months as it has focused on Mr. Obama’s re-election — might not be willing to take the chance of something going wrong. It’s possible that the White House could give the Republicans some concessions that they viewed as minor, inevitable, or actually desirable from a political and policy standpoint.
But Mr. Boehner may face just as much risk as Mr. Obama, if not more. He has promised his more conservative members that he will extract significant concessions from the Democrats before he agrees to an increase in the debt limit. A White House that was willing to play hardball could put him to the test, and perhaps cause a substantial loss of face.
I don’t know that this particular (and rather cautious) White House is likely to do that. But the equilibrium outcome is probably some fairly token concessions — enough to provide Mr. Boehner with some cover with the Tea Party but not much more.
That’s assuming, of course, that both sides play the “game” optimally, which is far from assured. If Mr. Obama is a good poker player, he’ll know not to disregard Mr. Boehner’s earlier rhetoric, which gave away the vulnerability of his hand. And he’ll recognize Mr. Boehner’s more recent and more confident rhetoric for what it is: the oldest “tell” in the poker book, a show of strength betraying the ultimate weakness of his position.
By: Nate Silver, Five Thirty Eight, April 11, 2011
April 12, 2011
Posted by raemd95 |
Congress, Conservatives, Constitution, Corporations, Debt Ceiling, Debt Crisis, Democrats, Economic Recovery, Economy, Elections, Federal Budget, GOP, Government, Government Shut Down, Ideology, Lawmakers, Politics, President Obama, Republicans, Right Wing, Tea Party, Voters, Wealthy | Cloture, Debt Default, Debt Policy, Deficit Hawks, filibuster, Global Economy, Incumbents, Recession, Rep Eric Cantor, Rep John Boehner, Rep Paul Ryan, Sen Mitch McConnell, Treasury |
Leave a comment
While the process of crafting a budget plan for this fiscal year implodes under the weight of GOP intransigence, today also happens to be the day next year’s budget fight begins in earnest. And if you think the current fight is a mess, prepare to have Republicans take your breath away.
And if you’re a disabled senior on Medicaid, relying on an oxygen tank, that expression should probably be taken literally.
Today, House Budget Committee Chairman Paul Ryan (R-Wis.) unveils his plan for fiscal year 2012. He promised a truly radical approach to our entire system of government, and he wasn’t lying — Ryan’s budget is based on his radical “roadmap” and effectively rewrites the American social contract.
Medicare would be eliminated and replaced with a voucher system. Medicaid would be gutted and sent to the states as a block grant. The Affordable Care Act would be scrapped, tax rates on corporations and the wealthy would be slashed, and all told, Ryan’s plan intends to slash roughly $6 trillion from the federal budget over the next 10 years.
This is madness.
There’s obviously no way Democrats in the Senate or the White House will even consider such extremism, but House Republicans don’t much care. This is the plan they want; this is the plan they’ll pass; and this is the plan that will set a truly ridiculous benchmark for future negotiations. If a shutdown seems inevitable this week, wait until the House GOP votes to eliminate Medicare as part of their next budget pitch.
Those of us hoping the chattering class will recognize the Republican plan as extremist nonsense are likely to be disappointed. David Brooks gushed today about the radical roadmap.
The country lacked that leadership until today. Today, Paul Ryan, the Republican chairman of the House Budget Committee, is scheduled to release the most comprehensive and most courageous budget reform proposal any of us have seen in our lifetimes. Ryan is expected to leap into the vacuum left by the president’s passivity. The Ryan budget will not be enacted this year, but it will immediately reframe the domestic policy debate.
His proposal will set the standard of seriousness for anybody who wants to play in this discussion…. Paul Ryan has grasped reality with both hands. He’s forcing everybody else to do the same.
Jonathan Zasloff’s point-by-point takedown of the Brooks column is worthwhile, but my biggest fear is that the D.C. establishment will start to assume that Brooks is correct. He’s not. Ryan’s budget plan is stark raving mad.
“Courageous”? To the extent that a major political party and House majority is actually willing to rally behind such extremism — without a hint of shame or trepidation — I’ll gladly give Republicans credit for actually putting their ridiculous wish list on the table.
But in this context, real, meaningful courage requires sound judgment, not just a willingness to fight for millionaires and corporations, while screwing over the elderly, the poor, the disabled, and working families.
By: Steve Benen, Washington Monthly, April5, 2011
April 5, 2011
Posted by raemd95 |
Affordable Care Act, Constitution, Consumers, Corporations, Democrats, Economy, Federal Budget, GOP, Government Shut Down, Medicaid, Medicare, Middle Class, Politics, Rep Paul Ryan, Republicans, Senate, Wealthy | Extremists, House Republicans, Poor, Vouchers, Wealthy, White House |
Leave a comment
Efforts to pass a constitutional amendment banning flag-burning have, thankfully, not been successful. Approve an amendment banning burning of the flag, and you might as well burn the U.S. Constitution while you’re at it. That’s the point of the First Amendment; even stupid “speech” is protected.
But it’s still stupid, and stupider, still, when a previously-obscure pastor at a tiny Florida church burns a Koran.
Terry Jones, who heads the small, Gainesville, Fla., Dove World Outreach Center, warrants skepticism and suspicion aside from the Koran matter; as Kevin Sieff writes in a very thoroughly-reported piece tucked inside Monday’s Washington Post, Jones treated the church like his own “personal fiefdom,” using parishioners for unpaid work and dividing families when some members displayed less-than-full allegiance to him.
Last year, Jones threatened to burn a Koran on the anniversary of the September 11 attacks. He wisely backed off, and one would think he wouldn’t bother to rethink the idea, since he got a great deal of media attention just for talking about it. But perhaps the attention had waned too much for Jones; members of the church apparently did conduct a symbolic burning of a Koran, putting the evidence on the Internet in case news didn’t spread quickly or far enough to get a reaction.
It got a reaction, all right: More than 20 people have been killed and many more injured in three days of violent protests against the burning, which Muslims (along with sensible non-Muslims as well) rightly found offensive. Is it right to kill out of protest over a symbolic burning of a holy book? No. Was it worth it for Jones to make his little First Amendment stand by doing something that was, by definition, intended to incite anger? Ask the families of the victims of the violence that ensued from the protests.
General David Petraeus condemned the burnings, and the U.S. Senate may follow. Perhaps that is what Jones and his ilk are looking for—a chance to portray President Obama, wrongly and ridiculously, as secretly Muslim, and the saner members of Congress as sympathizers to followers of a faith many Americans don’t understand. This country was founded on a great democratic tradition, one we should be proud of showcasing to those who don’t fully understand us. Abusing the rights guaranteed in the Constitution isn’t the way to do it.
By: Susan Milligan, U.S. News and World Report, April 4, 2011
April 5, 2011
Posted by raemd95 |
Congress, Constitution, Democracy, Human Rights, Ideology, Liberty, Media, Muslims, President Obama, Religion, Right Wing | !st Amendment, 911, Americans, Constitutional Amendments, Dove World Outreach Center, Flag Burning, Florida, Gen David Patraeus, Incitement, Koran, Terry Jones |
Leave a comment
mykeystrokes.com 