Judicial Elections: You Get The Judges You Pay For
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
Lucy, Charlie Brown And Football: The Politics Of Personal Grievance
Congressional Republicans all but dared President Obama to engage in a fiscal debate on their terms, demanding to know whether and how he’d tackle long-term debt reduction. The president agreed and presented a credible, realistic plan to cut $4 trillion from the debt over 12 years.
GOP officials obviously weren’t going to like his vision, but I’m a little surprised they’re still whining that Obama was mean to them.
The three Republican congressmen saw it as a rare ray of sunshine in Washington’s stormy budget battle: an invitation from the White House to hear President Obama lay out his ideas for taming the national debt.
They expected a peace offering, a gesture of goodwill aimed at smoothing a path toward compromise. But soon after taking their seats at George Washington University on Wednesday, they found themselves under fire for plotting “a fundamentally different America” from the one most Americans know and love.
“What came to my mind was: Why did he invite us?” Rep. Dave Camp (R-Mich.) said in an interview Thursday. “It’s just a wasted opportunity.”
Paul Ryan was reportedly “furious” and complained that the speech “was extremely political, very partisan.”
It’s worth fleshing this out, because there are some important angles to keep in mind.
First, the Republicans’ politics of personal grievance is based solely on their hurt feelings. They’re not saying the president lied or that his numbers don’t add up, but rather, they’re outraged that Obama was a big meanie. That’s kind of pathetic, and it reinforces fears that the House GOP majority is dominated by right-wing lawmakers with temperament of children.
Second, exactly what kind of reaction did Republicans seriously expect? Their fraudulent and callous budget plan, approved yesterday despite bipartisan opposition, eliminates Medicare. It punishes the elderly, the disabled, and low-income families, and rewards millionaires and billionaires. It calls for devastating cuts that would do widespread damage to the middle class and the economy. Were Republicans seriously waiting for Obama to politely pat them on the head and say, “It’s OK, you tried your best. I’ll give you an A for effort”?
Third, why is it Republicans expect one-sided graciousness? They expected a “peace offering” after pushing their own plan that was “deliberately constructed to be as offensive to Democrats as it’s possible to be,” and didn’t even bother with insincere “nods in the direction of bipartisanship.” I’ll never understand why Obama is expected to be conciliatory with those who refuse to do the same.
And finally, having a debate pitting two competing visions isn’t a bad development. Greg Sargent’s take on this rings true.
Throughout the first two years of Obama’s presidency, leading Republicans have regularly claimed that Obama is taking America towards socialism. Yet when a Democratic president stands up and aggressively defends his vision and worldview, and contrasts it sharply with that of his foes, something’s wrong. That’s not supposed to happen.
Obama’s characterization of the GOP vision was harsh. But so what? Politics is supposed to be an impassioned argument over what we all think the country should be. Is it possible to cross lines? Sure, but Obama didn’t cross any lines — in fairness, neither has Ryan — and no one was blindsided. No one was the victim of any sneak attack. We should want politicians who think their opponents’ worldviews are deeply wrongheaded to be free to say so in very vivid terms. Otherwise, what’s the point of it all?
I’d add just one last point. For two years, Obama pleaded with Republicans to play a constructive role, work in good faith, and compromise. They refused. Lucy doesn’t get to complain when Charlie Brown doesn’t want to run at a football that’s going to be pulled away anyway.
By: Steve Benen, Washington Monthly, Political Animal, April 16, 2011
Courage Of Convictions: The Tax Collector And The Republican
Congressional Republicans constantly remind us that principle is more important than principal. They are willing to shrink government at all costs. The latest example comes from the new budget agreement that has an impact on the IRS and tax collections.
Tax collection is one of the IRS’s principle functions as we are all reminded this time of year. There are some who not only refuse to cheerfully pay what they owe but actively take steps to avoid paying taxes they owe. As a result, some IRS employees have as their main job, identifying those people and taking steps to encourage them to pay what they owe.
In 2006, Republicans in Congress came up with a whole new approach that provided employment to the non-governmental sector, a group that is always favored by Republicans. (That is because Republicans know that those who work for the government tend to be lazy and inefficient whereas those in the private sector are hard working and productive. That is, of course, something of a generalization, since occasionally someone in the private sector will disappoint and prove to be lazy and/or unproductive.)
Because of the Republican belief in the virtues of the private sector (which is almost as fervent as its belief that in taking funds from programs for children and the poor it is doing God’s work), in August of 2006 it was announced that within a couple of weeks the IRS would turn over to private collection agencies 12,500 delinquent tax accounts of $25,000 or less. According to the New York Times, this new way of collecting taxes was thought up and put in place by the Bush administration. The plan had, like many plans do, an upside and a downside.
The upside was that the debt collectors were part of the private sector. Under the private debt collection system the collectors would collect $1.4 billion each year of which they could keep $330 million, thus lining the private sectors’ pockets by that amount instead of having it go into a government pocket where it would, in all likelihood, get lost. Although that seems like a win-win, in 2002 Charles Rossotti, the Commissioner of Internal Revenue, had told Congress that if it hired additional IRS employees to handle collections, it could collect more than $9 billion each year at a cost of only $296 million, considerably less than the cost if the same work was done by private collection agencies. That came out to a cost of $.03 per dollar collected. According to the NYT, his testimony was correct but Congress didn’t want to swell the size of government by authorizing the hiring of additional personnel for the IRS. Charles Everson, IRS Commissioner in 2006, when the private debt collection program was implemented, agreed with Mr. Rossotti and said it was more efficient to hire more IRS personnel but Congress would not appropriate the funds it needed to do that. Congress’s reluctance is a perfectly sensible approach since if you want to shrink government you have to make sacrifices and in this case, the sacrifice is increased revenue.
In 2008 Democrats took control of both houses of Congress and in March of 2009 it was announced that the IRS had determined that IRS employees could do collection work more efficiently than the private debt collectors, just as Rossotti and Everson had said some years earlier, and there was no reason to continue the program. Senator Grassley, who was the top Republican on the Senate Finance Committee, was outraged. Ignoring the fact that the government would have more money if the IRS were responsible for collections, he said the IRS was caving in to “union-driven political pressure.” He would have rather seen the federal government lose money than take away business from the private sector. The last chapter in this saga, however, has not been written.
Now that the budget compromise had been reached here is one of the things that has happened. The White House had requested an increase in the IRS budget of approximately 9% which would have enabled the agency to hire an additional 5000 personnel. Many of those could have been used to collect taxes which would have helped reduce the deficit. Echoing what Messrs. Rossotti and Everson had said years earlier, Treasury Secretary, Tim Geithner, who testified before Congress in March, said: “Every dollar invested in IRS yields nearly five dollars in increased revenue from non-compliant taxpayers.”
Republicans have refused to authorize the hiring of additional personnel at the IRS in order to collect taxes. A release from John Boehner’s office said increased funding for the IRS had been denied as part of the budget agreement. This shows that the Republican majority has the courage of its convictions. The rest of the country can enjoy the benefits of living off the fruits of its follies.
By: Christopher Brauchli, CommonDreams.org, April 16, 2011
Teaparty Republican Governors Seek Big Cutbacks To De-Regulate The Environment
Gov. Paul LePage wants three million acres of North Woods forests opened to development. Weeks after he was sworn in as governor of Maine, Paul LePage, a Tea Party favorite, announced a 63-point plan to cut environmental regulations, including opening three million acres of the North Woods for development and suspending a law meant to monitor toxic chemicals that could be found in children’s products. Mr. LePage said workers’ and businesses’ interests should be defended “with the same vigor that we defend tree frogs.”
Another Tea Party ally, Gov. Rick Scott of Florida, has proposed eliminating millions of dollars in annual outlays for land conservation as well as cutting to $17 million the $50 million allocated in last year’s budget for the restoration of the dwindling Everglades.
And in North Carolina, where Republicans won control of both houses of the Legislature for the first time in 140 years, leaders recently proposed a budget that would cut operating funds to the state’s Department of Environment and Natural Resources by 22 percent.
In the past month, the nation’s focus has been on the budget battle in Washington, where Republicans in Congress aligned with the Tea Party have fought hard for rollbacks to the Environmental Protection Agency, clean air and water regulations, renewable energy and other conservation programs. But similar efforts to make historically large cuts to environmental programs are also in play at the state level as legislatures and governors take aim at conservation and regulations they see as too burdensome to business interests.
Governor LePage summed up the animus while defending his program in a radio address. “Maine’s working families and small businesses are endangered,” he said. “It is time we start defending the interests of those who want to work and invest in Maine with the same vigor that we defend tree frogs and Canadian lynx.”
When Republicans wrested control across the country last November, they made clear that reducing all government was important, but that cutting environmental regulations was a particular priority. Almost all state environmental budgets have been in decline since the start of the recession, said R. Steven Brown, executive director of the Environmental Council of the States, which works with environmental agencies across the country. What has changed this budget season is the scope and ambition of the proposed cuts and the plans to dismantle the regulatory systems, say advocates who are already battle-hardened. “Historically, we’ve taken pride in being a leader in environmental quality in the Southeast,” said Molly Diggins of North Carolina, director of the state chapter of the Sierra Club. “But there is now such fervor to reduce the size of the environmental agency. The atmosphere is the most vitriolic it’s ever been.”
David Guest, the managing attorney for the Florida office of Earthjustice, a national environmental law firm, said Governor Scott’s budget was “the most radical anti-environmental budget” he had seen in two decades of environmental work. Comparing Mr. Scott’s proposed changes with those of Florida’s previous Republican governors, including Jeb Bush, he called them “a whole new world.”
The strategies have been similar across the affected states: cut budgets and personnel at regulatory agencies, prevent the issuing of new regulations, roll back land conservation and, if possible, eliminate planning boards that monitor, restrict or permit building development.
In New Jersey, for example, Gov. Chris Christie, another favorite among Tea Party loyalists, has said the Highlands Water Protection and Planning Act, which preserves more than 800,000 acres of open land that supplies drinking water to more than half of New Jersey’s residents, is an infringement on property rights. Mr. Christie has moved to shift power from planning boards and government agencies to administrative judges, political appointees who, environmentalists say, tend to rule more often in favor of developers’ interests.
In Florida, Governor Scott has asked to cut staff members to 40 from 358 at the Department of Community Affairs, which regulates land use and was created to be a control on unchecked urban sprawl. Lane Wright, a spokesman for Governor Scott, said the cuts would enable businesses to grow again in Florida. The governor “does care about the environment,” Mr. Wright said, “but feels it is more important to get people back to work.”
In the first round of federal budget fights, Republicans appear to have won some of what they sought: $1.6 billion in cuts from the E.P.A. and $49 million from programs related to climate change. But they fell short in other areas. Daniel J. Weiss, director of climate strategy at the Center for American Progress, a liberal Washington policy group, said that by his calculation the Republicans had sought nearly $10 billion in cuts related to efficiency and renewable energy but got less than $3.7 billion. “The Democrats successfully defended investments in clean energy,” Mr. Weiss said.
The eventual outcome at the state level is much less clear. Florida and North Carolina’s budget battles are in the early stages. In New Jersey, where Governor Christie has been in office since 2010, he has held up stricter drinking water standards, saying he is waiting for further research by the E.P.A. And yet, in Maine, Governor LePage’s agenda has engendered such an angry response that the newly elected Republican majority in the State Legislature seems to be backpedaling from many of its strongest components. Mr. LePage’s proposal to open the woodlands has not yet been introduced as a bill. And this month the Legislature made a point of enacting a ban on a chemical detected in sippy cups. All but three legislators voted for it. (Mr. LePage has questioned whether the science is strong enough to support such a ban.) Adrienne Bennett, the governor’s press secretary, acknowledged that Mr. LePage had not gotten everything he wanted, but pointed to some victories. The governor just signed a law that will reduce restrictions for building on sand dunes, and his proposal to provide incentives to businesses to police themselves on a variety of environmental regulations is still in the Legislature. “‘We will continue to move forward,” Ms. Bennett said.
By: Leslie Kaufman, The New York Times, April 15, 2011
How Quickly We Forget: Dick Cheney, “Deficits Don’t Matter”
Sure, it’s huge, but big deficits don’t always lead to bad economic health. As we found during The Great Depression, the opposite is also true.
For those worried about the future, huge federal deficits remain the gift that keeps on giving, or taking, depending on your point of view. They are always around, always huge, and seem to be an issue that neither party has immunity from.
If you care to bash Republicans over this issue you need look no further than former Vice President Dick Cheney who told former Treasury Secretary Paul O’Neill that “deficits don’t matter” when the latter voiced concerns about the size of the federal bill. Cheney later fired O’Neill, presumably for thinking deficits actually mattered.
Still, Cheney was true to his word, as the White House of George W. Bush raised the federal deficit every year it was in office. When Bush started his presidency, the national debt as a percentage of gross domestic product hovered at 60%. By the time he exited, it was closer to 80%. Surely the first part of President Obama’s term will see that ratio only rise further, as the federal government fully deploys the $700 billion Troubled Asset Relief Program, the $200 billion Term Asset Backed Loan Securities Facility and the $500-$1 trillion Public-Private Investment Program, among other alphabet soup bailouts.
Of course, to critics of Obama, including conservatives, now deficits do matter a lot more than they did a year ago. Look no further than the well-covered “tea parties” to see an instance where partisanship has seemed to trump fiscal stewardship, or at least short-term memory.
By: David Serchuk: Article originally posted August 5, 2009, Forbes.com
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