Secrecy surrounds many of the donations to political groups seeking to influence the presidential race prompting concerns that the public might not ever know the origins  of vast sums of money.

Donations from corporations and unions have ballooned since the Supreme Court’s United decision in 2010. -db

From The New York Times, February 2, 2012, by Nicholas Confessore and Michael Luo.

Full story

A federal judge ruled that San Diego could not enforce its $1000 cap on donations by political parties to local election campaigns.

The city wanted to stem the San Diego’s corrupt political scene, but the judge said she doubted that the anti-corruption interest was credible given the natural connection between parties and candidates. -db

From the Courthouse News Service, January 23, 2012, by Maria Dinzeo.

Full story

The Ninth Circuit U.S. Court of Appeals ruled unconstitutional a Washington state law restricting political action committees from taking in donations of $5000 or more in the last three weeks of an election.

The state argued that the law was intended to protect voters allowed to mail their ballots 18 days before the election. -db

From Jurist, December 31, 2011, by Jaimie Cremeans.

Full story 

The Montana Supreme Court fired a cannon shot across the bow of the U.S Supreme Court decision Citizens United that gave political speech rights to corporations.

The Montana court upheld a 1912 law passed by initiative that at the time put  restraints on copper mining interests that were dominating state politics.

From the Great Falls Tribune, January 2, 2012, by Matt Gouras.

Full story

Two democratic senators have introduced a constitutional amendment to overturn Citizens United. They claim that under the Supreme Court’s Citizens United decision, the democratic system has been damaged with the increased influence of big money in political decisions -db

From Truth Out, November 2,  2011, by Zaid Jilani.

Full story

A day before the elections, the Supreme Court opted not to hear a challenge to a lower court ruling that upheld disclosure requirements for money SpeechNow.org raised and spent. -db

Courthouse News Service
November 01, 2010

(CN) – The Supreme Court on Monday refused to weigh in on federal campaign finance disclosure rules the day before midterm elections.

The high court rejected the appeal of SpeechNow.org, which challenged a D.C. Circuit ruling upholding disclosure requirements for the money it raises and spends independently of candidates.

The justices’ decision not to hear the case leaves intact the federal appeals court’s ruling, which tossed contribution limits for SpeechNow and similar independent groups, but upheld disclosure requirements governing political committees.

“We must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow,” Chief Judge David Sentelle wrote for the unanimous nine-judge panel in Washington, D.C.

But the court backed federal disclosure rules, finding “no constitutional infirmity in the application of the organizational, administrative, and reporting requirements.”

“Requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations or individuals,” Sentelle wrote.

The Obama administration had urged the Supreme Court to reject SpeechNow’s appeal and leave the D.C. Circuit ruling intact.

The high court on Monday turned down the case without comment.

Copyright 2010 Courthouse News Service    FAC Content Use Policy

A U.S. district judge ruled that a Minnesota law requiring corporations and other interests to report their spending on elections helped the public evaluate speakers and their messages and did not violate the First Amendment. -db

Star Tribune
September 20, 2010
By James Walsh

Saying that voters have “an interest in knowing who is speaking about a candidate on the eve of an election,” a federal judge on Monday refused to strike down a Minnesota campaign finance law requiring a corporation to disclose when it spends money to support or defeat a candidate.

U.S. District Judge Donovan Frank ruled that the plaintiffs — Minnesota Citizens Concerned for Life (MCCL), the Taxpayers League of Minnesota and Coastal Travel Enterprises — are unlikely to prove that the law hampers their right to free speech.

Instead, Frank said, the law “serves an important government interest.”

“Such transparency assures that the electorate will be able to make informed decisions and properly evaluate the speakers and their messages,” he said. “Invalidating the election laws at issue here would likely result in corporations making independent expenditures without any reporting or disclosure on the eve of the upcoming general election on Nov. 2. This result so close to the election would clearly harm the state, Minnesota voters, and the general public interest.”

At the heart of the dispute is a law passed this year by the Legislature requiring reports on corporate spending for or against candidates. The law requires two reports to be filed before the primary and two more before the general election. The law also applies to groups supported by unions.

One of the pre-primary reports showed that Target, Best Buy and other corporations gave to MN Forward, a pro-business group that is buying ads to support GOP gubernatorial candidate Tom Emmer. The disclosures riled groups at odds with Emmer’s opposition to same-sex marriage, and they launched a blistering attack on the companies.

Both sides said that an injunction by Frank would have allowed corporations to skip upcoming reporting deadlines and spend unlimited money on political advertising without needing to disclose any of it.

Attorney General Lori Swanson, whose office is defending the state from a lawsuit brought by the corporations, said: “An informed electorate is the cornerstone of our democracy. This ruling lets average voters know who is financing elections in Minnesota.”

Corporations were long barred in Minnesota and elsewhere from spending revenues on ads or other material designed to help to elect or defeat candidates, although labor unions could do so in Minnesota and some other states.

The U.S. Supreme Court ruled this year that such prohibitions were an infringement on free speech. But the Supreme Court also said states could require some disclosure of such spending. As a result, the Legislature amended the law to require disclosure.

According to the law, a corporation may donate its own money to an existing independent expenditure committee or fund without providing any information beyond its name and address. If the business solicits and receives contributions beyond its general treasury revenue, it must disclose the source of the contributions.

If the donor corporation is a nonprofit and has donated $5,000 or more to independent expenditure funds or committees in a year, then it must disclose information about the underlying sources of money.

MCCL and the other corporations filed suit, saying that the law unnecessarily burdens companies and forces them to reveal more than is needed for accountability.

MCCL and Coastal planned to spend money advocating support for Emmer. The Taxpayers League wants to spend money supporting Republican Paul Gazelka for state senator. Gazelka defeated fellow Republican Paul Koering of Fort Ripley, who is gay, in the primary this month.

In addition to opposing disclosure requirements on independent political spending, the plaintiffs want to overturn prohibitions on corporations contributing directly to campaigns and parties.

A call to Joseph La Rue, the attorney representing the corporations, was not immediately returned Monday. It is not known if they will appeal Frank’s ruling.

State Rep. Ryan Winkler, DFL-Golden Valley, who authored the disclosure laws last session, praised Frank’s decision.

Copyright 2010 Star Tribune     FAC Content Use Policy

In a paper in the upcoming edition of the Harvard Law Review, two law school scholars suggest that the freedom granted by the recent Supreme Court decision should carry with it new responsibilities to align their spending on political campaigns with the interests of their stockholders. -db

Social Science Research Network
September 1, 2010
By Lucian A. Bebchuk and Robert J. Jackson Jr.

Abstract:
As long as corporations have the freedom to engage in political spending – a freedom expanded by the Supreme Court’s recent decision in Citizens United v. FEC – the law will have to provide rules governing how corporations decide to exercise that freedom. This paper, which was written for the Harvard Law Review’s 2010 Supreme Court issue, focuses on what rules should govern public corporations’ decisions to spend corporate funds on politics. Our paper is dedicated to Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate speech.

Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure – the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.

We assess how lawmakers could design special rules that would align corporate political speech decisions with shareholder interests. In particular, we propose the adoption of rules that (i) provide shareholders a role in determining the amount and targets of corporate political spending; (ii) require that political speech decisions be overseen by independent directors; (iii) allow shareholders to opt out of – that is, either tighten or relax – either of these rules; and (iv) mandate disclosure to shareholders of the amounts and beneficiaries of any political spending by the company, either directly or indirectly through intermediaries. We explain how such rules can benefit shareholders. We also explain why such rules are best viewed not as limitations on corporations’ speech rights but rather as a method for determining whether a corporation should be regarded as wishing to engage in political speech. The proposed rules would thus protect, rather than abridge, corporations’ First Amendment rights.

We also discuss an additional objective that decisional rules concerning corporations’ political speech decisions may seek to serve: protecting minority shareholders from forced association with political speech that is supported by the majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. We suggest that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders are likely to be constitutionally permissible, and we discuss how such rules could be designed by lawmakers.

Copyright 2010 Social Science Electronic Publishing, Inc.    FAC Content Use Policy

Gov. M. Jodi Rell followed through Aug. 2 with her promise to veto a bill that attempts to fix Connecticut’s campaign-finance law after a federal appeals court found parts of it unconstitutional.

News

August 4, 2010

By The Associated Press

HARTFORD, Conn. —The Republican governor issued her veto on the same the day the measure, S.B. 551, arrived on her desk. The Democratic-controlled General Assembly passed the legislation July 30, attempting to save the underlying law, which includes the state’s public-financing program and other election reforms.

She said she “disagreed profoundly” with the legislature’s decision to increase grants for gubernatorial candidates in order to make the law constitutionally palatable.

“They have taken a program that was intended to remove the taint of special interests and corruption from political campaigns and turned it into a welfare program for politicians,” Rell said in her three-page veto message.

House Speaker Christopher Donovan, D-Meriden, said he was talking with his fellow House Democrats about their availability for a possible override of Rell’s veto.

“We will come back to resolve this,” he said.

Rell had warned legislators prior to the July 30 special legislative session that she would veto the bill if they increased the base grants for gubernatorial candidates who participate in the state’s voluntary public campaign-financing program for statewide and legislative races, known as the Citizens Election Program.

But proponents of the legislation said they hoped that Rell, a supporter of the public-financing system and the various election reforms, would change her mind.

“I am disappointed that in one of her last acts as governor she fails to rise above the negative campaigning she criticizes in her veto message,” Donovan said.

The bill called for increasing the grants for governor candidates from $3 million to $6 million because the 2nd U.S. Circuit Court of Appeals ruled it was unconstitutional to give extra money or matching grants to participating candidates who face well-funded opponents.

Two of the five candidates for governor, Republican Lt. Gov. Mike Fedele and former Stamford Mayor Dan Malloy, the endorsed Democrat, are participating in the public-financing program. Proponents said it wouldn’t be fair to either candidate, should they win the Aug. 10 primary, to not provide them with at least some of the funds they were expecting for the general election to combat a wealthy self-funding opponent.

About $40 million has been budgeted for the Citizens Election Program this year. The money comes from unclaimed monies, such as old bank accounts, that revert to the state.

Among other changes in the bill, the legislation allows lobbyists and their families to contribute to political campaigns but only up to $100. The appeals court ruled that a prior ban on lobbyist contributions was unconstitutional because it violated free-speech rights.

U.S. Solicitor General and Supreme Court Justice nominee Elena Kagan on First Amendment, cameras at the Supreme Court, campaign finance restrictions, libel and antitrust rulings. -SMD

Find Law: First Amendment

Commentary

July 6, 2010

By  Julie Hilden

During last week’s Supreme Court confirmation hearings, U.S. Solicitor General and nominee Elena Kagan made a number of comments relating to the First Amendment — which were then compiled by the First Amendment Center. In this column, I’ll consider what we can glean from Kagan’s views in this area.

(In addition to covering the topics that I comment on below, Kagan also commented briefly on First Amendment-related issues raised by on-campus military recruiting and “Don’t ask, don’t tell.” On that topic, readers may want to consult FindLaw columnist Michael Dorf’s recent OpEd, arguing that Kagan’s views in this area were vindicated by a recent Supreme Court decision.)

Kagan on Cameras at the Supreme Court

Laudably, Kagan strongly endorsed the idea of having cameras in the Supreme Court. But this is only the tip of the iceberg of the cameras-in-court issue — and it is the easy case.

Having cameras in trial-court courtrooms poses some risks — for instance, the risk of inadvertently revealing jurors’ identities. In contrast, having cameras in appellate courtrooms, including in the Supreme Court, has virtually no downside at all. Viewers will only see what visitors already see. And Americans who can never make the trip to Washington, D.C. — whether due to modest means, hometown commitments, disability, illness, or other reasons — will still get to have the precious experience of attending a Supreme Court oral argument.

It is precisely because this issue is a no-brainer that Kagan could effuse that “It would be a great thing for the Court, and it would be a great thing for the American people.” None of her other answers on First Amendment topics was quite as unequivocal.

Kagan on Campaign-Finance Restrictions

Kagan’s comments on campaign-finance restrictions and the First Amendment were purposely unrevealing. As FindLaw columnist Vikram Amar explained, Kagan earlier wrote a law-review essay that encouraged the aggressive, substantive questioning of Supreme Court nominees. Yet Kagan, as nominee, still gave non-answer answers on the topic of campaign-finance legislation and, in particular, on the topic of the Court’s recent decision striking down parts of the federal campaign-finance law.

Kagan had argued, as Solicitor General, in favor of the Court’s upholding the law, and she noted that she had felt that, as an advocate, she was given “a strong case to make.” She also commented that the case was “settled law.” But these are empty banalities. It’s extremely rare that a case makes its way to the Court without both sides having something important and potentially persuasive to say; the Supreme Court chooses its cases, and rarely do the Justices opt for one that is going to be a walkover. And by definition, every decision the Court makes is “settled law” — until it is not, because the Justices say it is not. The Court’s very job, after all, is to settle the law.

On the campaign-finance topic, Kagan also refused to “take off the advocate’s hat and put on the judge’s hat.” That stance is troubling, though, for Kagan has never been a judge, and surely we deserve some insight into what kind of judge she will be. That is the kind of insight that a history of prior judging — such as existed, for instance, in the case of now-Justice Sonia Sotomayor — typically provides. Lacking any such history, Kagan should have at least been willing to “put on the judge’s hat” for her Senate questioning.

To be fair to Kagan, every Supreme Court nominee since the disastrously candid Bork hearings has given empty answers and offered banal comments that were lacking in insight. But as Vikram Amar has argued, one could at least have hoped that Kagan — whose own essay reveals that she clearly sees the wrongness in this practice, and whose lack of judicial experience provides a special reason for candor — might break the pattern.

Kagan on the Law of Libel

Kagan’s comments on libel law were, in my view, a bit disturbing. Kagan gave a nod to the First Amendment implications of libel law, but she also heavily emphasized the other side of the equation — stating that ” we should also appreciate that people who did nothing to ask for trouble … can be greatly harmed when something goes around the Internet, and everybody believes something false about a person. … That’s a real harm, and the legal system should not pretend that it’s not.”

Granted, Kagan’s questioner had asked her if she favored “balance” in this area of law — and it’s hard to argue against “balance. And granted, people can indeed be harmed by Internet falsities. But Kagan’s response, itself, would have been much more balanced had she also acknowledged the ways in which the Internet allows those who are not celebrities or public figures to debunk false allegations.

From a libel perspective, the Internet is a double-edged sword — providing both the opportunity to libel widely, and the opportunity to respond widely. Indeed, as I noted in a recent column drawing on a New York Observer article, some ascribe the recent, stark drop in libel suits against media entities to the Internet’s ability to give everyone an effective podium. For the libel victim, it helps, especially, that Google and other search engines tend to unearth both the libel and the reply.

Kagan’s response was also unnecessarily hyperbolic. Even the strongest First Amendment advocates don’t claim that harm to reputation isn’t “a real harm,” and key Supreme Court precedents like New York Times Co. v. Sullivan certainly don’t imply anything of the kind. What they do imply is that honoring the First Amendment may, in some cases, be more important than addressing this very genuine harm. Thus, in her answer, Kagan simply created a straw man — a legal system that falsely pretends that libels don’t do “real harm” to reputation — and knocked it down. But that isn’t the legal system that we have — not remotely.

In reality, Supreme Court precedent is quite clear that the choice between protecting reputation and protecting speech is brutal, a choice between averting two very real harms. But it also recognizes that free speech alone enjoys the protection of a constitutional amendment.

In sum, it’s worrisome that when asked about libel, Kagan dwelt on reputation, not free speech. Let’s hope that it was the question regarding “balance,” and not Kagan’s own inclinations, that led to this skewed emphasis. If Kagan does indeed value reputation over free speech, that view could ramify into other areas of law — for instance, leading her to over-value privacy.

Kagan Versus Franken on Antitrust and the First Amendment

Like Kagan’s comments on libel law, her exchange with Senator Al Franken on antitrust and the First Amendment suggested that Kagan may not see what is now happening in the media world as truly revolutionary — revolutionary enough to possibly call for legal changes to mirror changing practical realities. However, I think that many, many people would disagree with her on that point.

In questioning Kagan, Franken insisted that the First Amendment should play a role in issues such as media consolidation and Net neutrality — such that the Court’s review of antitrust issues could also trigger the First Amendment. But Kagan — in one of the very few definitive answers she gave relating to free speech — categorically resisted any First-Amendment-law role here, though she did see a place for “First Amendment values.”

In her answer, Kagan also indicated an inclination to defer to those “who know a lot more about antitrust policy than I do.”

Unfortunately, these two stances, put together, make it sound like Justice Kagan will be more or less a rubber-stamp for government antitrust policy. We need more searching review from the Justices in an era of rapid technological and media-industry change. The Justices may still end up agreeing with regulators the lion’s share of the time, but they need, now more than ever, to at least start off with a close look at the basis for policy.

Finally, to see issues like the ones Franken has raised as being strictly antitrust issues is, I believe, a seriously blinkered way of seeing what is a truly new media landscape. The heavy-handed fairness doctrine — which I strongly oppose — once gave government intervention in free-speech markets a bad name. But that is only one kind of tool — a kind of forced speech. Other tools — such as playing-field-leveling strategies — may be much more attractive from a First Amendment perspective.

In sum, it seems very possible that, in the Internet Age, the government may want to intervene to address media-market problems that are not just antitrust problems, but, in practice, First Amendment problems too. Let’s hope that Justice Kagan, when she is confirmed — as it seems she will be — keeps a more open mind about these issues than she has displayed as a nominee.

The Supreme  Court ruling in the Citizens United case opens the door for corporate and union interests to produce ads to influence elections in 2010, and Congress is working on a bill to shed light on sources of the ads. But a Sunlight Foundation blogger says Congress needs to amend the DISCLOSE Act to make information about the sources available online in a timely, clear, and accessible format. -db

Sunlight Foundation
Commentary
May 17, 2010
By Lisa Rosenberg

House members have introduced a bill that would force disclosure of corporate expenditures on elections and ban foreign companies, federal contractors and bailout beneficiaries from spending on political campaigns.-db

In accordance with the U.S. Supreme Court’s recent decision in the Citizens United case, a federal judge struck down several provisions of San Diego’s campaign-finance law and particularly a ban on contributions from political parties and a $500 cap on donations to independent expenditure committees. -db

A new Washington Post-ABC News poll finds that nearly 80% of Republicans, Democrats, and Independents are  united in their opposition to the recent Supreme Court ruling that opens the door for corporations, labor unions, and other organizations to spend money directly from their general funds to influence campaigns.

Left and right united in opposition to controversial SCOTUS decision

The Newsroom
By Brett Michael Dykes, a contributor to the Yahoo! News blog

Much has been made of late about the hyper-partisan political environment in America. On Tuesday, Sen. Evan Bayh explained his surprising recent decision to leave the senate by lamenting a “dysfunctional” political system riddled with “brain-dead partisanship.”  It seems you’d be hard-pressed to get Republicans and Democrats inside and outside of Washington to agree on anything these days, that if one party publicly stated its intention to add a “puppies are adorable” declaration to its platform, that the other party would immediately launch a series of anti-puppy advertisements.

But it appears that one issue does unite Americans across the political spectrum.

A new Washington Post-ABC News poll finds that the vast majority of Americans are vehemently opposed to a recent Supreme Court ruling that opens the door for corporations, labor unions, and other organizations to spend money directly from their general funds to influence campaigns.

As noted by the Post’s Dan Eggen, the poll’s findings show “remarkably strong agreement” across the board, with roughly 80% of Americans saying that they’re against the Court’s 5-4 decision. Even more remarkable may be that opposition by Republicans, Democrats, and Independents were all near the same 80% opposition range. Specifically, 85% of Democrats, 81% of Independents, and 76% of Republicans opposed it. In short, “everyone hates” the ruling.

The poll’s findings could enhance the possibility of getting a broad range of support behind a movement in Congress to pass legislation that would offset the Court’s decision. Of those polled, 72% said they supported congressional action to reverse its effects. Sen. Charles Schumer, who’s leading the reform effort in the Senate, told the Post that he hoped to get “strong and quick bi-partisan support” behind a bill that “passes constitutional muster but will still effectively limit the influence of special interests.”

The findings of the poll are a bit surprising considering the fact that the case split the Supreme Court, with the five conservative justices in favor and the four more liberal justices against it. The decision was almost universally hailed by Republicans in Washington, who saw it as a victory for the free speech provided for under the Constitution, while President Obama and prominent Democrats in Washington almost universally derided it as a dark day for American democracy.

However, Sen. John McCain, one of the original sponsors of the campaign finance law struck down by Court’s decision and one of its few prominent Republican opponents, may have been prophetic when he predicted Americans would turn against the Court. McCain told CBS’s “Face the Nation” that there would be a “backlash” once awareness grew about “the amounts of union and corporate money that’s going to go into political campaigns.”

Perhaps the new poll numbers show that McCain might have been onto something.

The Supreme Court’s majority opinion written by Justice Kennedy and the dissent by Justice Stevens shows contrasting views of the First Amendment, one, that untrammeled free speech will eventually produce good results in a democracy, and, two, that free speech must sometimes be regulated to produce the free flow of ideas so essential to a flourishing democractic society. -db

The executive director of the Sunlight Foundation says that the Supreme Court’s decision striking down key provisions of the McCain-Feingold campaign finance law will unleash a flood of money in the political arena making it even more likely money will influence executive and legislative decisions. -DB

A study by the Center for governmental Studies shows that finance laws aimed at taking the undemocratic influences of money out of elections have been circumvented by politicians who have been able to raise money far exceeding contribution limits. -DB

Center for Governmental Studies
Press Release
December 17, 2009

Loopholes, Tricks and End Runs: Evasions of Campaign Finance Laws, and a Model Law to Block Them, a new report issued today by the Center for Governmental Studies (CGS), concludes that while many campaign finance reforms have taken some of the negative influences of money out of electoral and governmental processes, they have been undermined by “loopholes” in existing laws that have allowed candidates and elected officials to raise money far in excess of existing contribution limits.

Loopholes, Tricks and End Runs describes “legal defense funds,” “charitable fundraising,” “political party fundraising,” “reimbursed travel,” “candidate-controlled ballot measure committees” and other devices that politicians use to collect large, and often undisclosed, payments from moneyed donors. The report recommends a comprehensive a model law to plug these loopholes and control the flow of money into politics.

Current campaign finance laws assume that these types of payments to candidates and elected officials are substantively different from the money politicians receive through regulated campaign committees, that they don’t unduly influence their recipients, and that they can be made in addition to the limits placed on normal campaign contributions. Loopholes, Tricks and End Runs describes recent examples of these payments made through non-campaign entities:

· California Governor Arnold Schwarzenegger has aggressively raised money through a candidate controlled ballot measure committee, “Schwarzenegger’s California Dream Team.” Although California’s campaign finance law limits the governor to raising no more than $25,900 in regulated contributions, per election, from a single contributor, Schwarzenegger, who will leave office in January 2011 and cannot run for office again, raised more than $6.5 million between January 1, 2009, and June 30, 2009. During this non-election year, his committee received 8 contributions that each exceeded $100,000, 15 contributions of $100,000, 16 contributions between $50,000 and $100,000, and 44 contributions between $25,000 and $50,000.

· In Georgia, the inaugural committee of Governor Perdue accepted $200,000 from AT&T in 2007, four times as much as any other donor and 20 times what the corporation could have donated directly to the governor’s reelection campaign. AT&T later joined with Bell South to lobby for the passage of legislation to make competition with cable providers easier by revamping the process of granting cable franchises in Georgia. Governor Perdue signed the “Georgia Consumer Choice for Television Act,” which became effective on January 1, 2008.

· In Alaska, post-election donations to Governor Palin’s inaugural committee came from four mining companies, including Northern Dynasty, a co-developer seeking to influence Palin to speak out against a state-wide measure that would have imposed costly environmental regulations on mining operations. The mining interests did not play a major fundraising role in the 2006 gubernatorial campaign. Alaska Inaugural Committee, Inc., the nonprofit corporation that raised funds for the events surrounding the inauguration, was not required to publicly disclose the amounts donated to it for inaugural balls and travel for the governor and her family.

The proposed model law, the “Political Contributions, Payments and Expenditures Transparency Act,” would consider all money raised by officeholders and candidates from any donor and through any entity, including campaign and non-campaign entities, to be raised for a political purpose, subject to contribution limits (with two exceptions), aggregation and full disclosure. This all-encompassing definition of “contribution” along with disclosure requirements will allow citizens to know who is funding elected officials and candidates.  The model law would:

In Senate confirmation hearings, Supreme Court nominee Sonia Sotomayor said she favored camera access in the high court but said should she be confirmed she would act with circumspection in making her views known to the Court. -DB

First Amendment Center
Analysis
July 16, 2009
By Tony Mauro

WASHINGTON, D.C. — If the Senate confirms Sonia Sotomayor as the next justice on the Supreme Court, she may become the most unabashed supporter of camera access the justices have had in their midst.

In questioning over the last two days from the Senate Judiciary Committee, senators have asked Sotomayor several questions related to the First Amendment and access issues. She has been circumspect in response, as with any other legal topic she has been asked about.

And on the cameras issue, she specifically stated that her respect for the Court’s collegiality would dictate how and when she expresses her views on cameras to her new colleagues.

But she still dropped enough hints in her testimony that it would be fair to conclude that she would join the Court as a supporter of camera access who won’t be reluctant to say so when the time is right.

For example, when on July 14 Sen. Herb Kohl, D-Wis., asked her views on cameras, Sotomayor said, “I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

Her current court, the 2nd U.S. Circuit Court of Appeals, allows camera access under rules that have permitted individual federal courts to do so, in spite of the Supreme Court’s longstanding resistance to the idea.

She then cautioned that in the interest of collegiality, “I wouldn’t try to come in with prejudgment so that they thought I was unwilling to engage in a conversation with them or unwilling to listen to their views.”

Kohl, who supports cameras in the Court, interrupted impatiently to ask, “How do you feel? … Think it’s a good idea?”

With a smile, she replied, “I’m a pretty good litigator, or I was a really good litigator, and I know that when I worked hard at trying to convince my colleagues of something after listening to them, they’ll often try it for awhile. I mean, we’ll have to talk together.” She added, “I would be … the new voice in the discussion. New voices often see things and talk about them and consider taking new approaches.” Kohl seemed satisfied.

Yesterday Sen. Arlen Specter, D-Pa., who has introduced legislation to require camera access, returned to the subject when it was his turn to ask Sotomayor questions.

After forcefully reviewing the arguments in favor of allowing cameras, Specter asked, “Shouldn’t the American people have access to what is happening in the Supreme Court?”

Sotomayor responded more directly. “As you know, when there have been options for me to participate in cameras in the courtroom, I have. And as I said to you when we met, senator, I will certainly relay those positive experiences, if I become fortunate enough to be there to discuss it with my colleagues.”

She also noted that the Court, “because of this issue,” has taken other steps toward public access, such as same-day release of oral-argument transcripts. “It’s an ongoing process of discussion,” Sotomayor concluded.

Of course there’s no telling what will happen once Sotomayor becomes immersed in the Supreme Court’s culture of invisibility. Justice Samuel Alito Jr. at his confirmation hearing in 2006 revealed that he too supported camera access when his court, the 3rd Circuit, voted on the issue. But since then, Alito has indicated that he now believes that the Court’s other measures, including the same-day transcripts that Sotomayor mentioned, have given the public adequate access without going all the way to cameras.

Other First Amendment topics Sotomayor has addressed during her Senate testimony:

Free-exercise clause: Sen. Ben Cardin, D-Md., asked her about Ford v. McGinnis, a 2003 case in which Sotomayor ruled for a three-judge panel that a Muslim prison inmate deserved a fuller hearing on whether prison officials legitimately denied him access to a religious meal marking the end of Ramadan. She said that the free-exercise clause is “fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the state from establishing a religion, and that we have freedom of expression in speech, as well.”

She added that in the decision she was “applying very important Supreme Court precedent that said, It’s the subjective belief of the individual. Is it really motivated by a religious belief? It’s one of the reasons we recognize conscientious objectors, because we’re asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual’s religious belief and then look at what the state is doing in light of that.”

Hate speech: Sen. Charles Schumer, D-N.Y., asked Sotomayor about Pappas v. Giuliani, a 2002 case in which she wrote a dissent that sided with a New York City police officer who had been fired for circulating racist materials from his home.

“Nobody, including the police officer, was claiming that the speech wasn’t offensive, racist and insulting,” she said. “I don’t think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people’s rights to engage in hateful speech.”

National security: Sen. Dianne Feinstein, D-Calif., asked about Doe v. Mukasey, a 2008 decision in which Sotomayor joined a decision that struck down a part of the Patriot Act that prohibited recipients of national security letters from telling the public about the letters. National security letters are a form of administrative subpoena that government agencies have served on companies and individuals to gather information, without the requirement that a judge issue a search warrant.

She said that because of deference to the executive and legislative branches, especially in national security matters, “We had, as an appellate court, to be very cautious about what we were doing in this area.” She said that under Supreme Court precedent, “if the government was going to stop an individual from speaking in this particular context … the government had to come to court immediately to get court approval of that step… . We are a court that protects the Constitution and the rights of individuals under it and we must ensure and act with caution.”

Campaign finance: Sen. Russ Feingold, D-Wis., co-author of the McCain-Feingold campaign-finance law, asked Sotomayor about the Supreme Court’s decision to hear arguments in September about the constitutionality of the law’s ban on corporate expenditures in election campaigns.

Sotomayor, who is viewed generally as a supporter of campaign-finance restrictions, demurred. “If I were confirmed for the Court, it would be the first case that I would participate in. Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I’m going into that process with some prejudgment.”

Copyright 2009 First Amendment Center

By Peter Scheer

In America, a judge ordinarily may not take a “gift” of money from a person or company appearing before him in a legal case. Such a brazen assault on judicial independence is plainly unethical and potentially criminal.

Suppose, however, we alter the facts slightly so that the money is offered as a contribution to the judge’s reelection campaign. A nonlawyer would say, wisely, that that is a distinction without a difference: a bribe is still a bribe, even when it goes into a judge’s campaign war chest. But in the strangely counterintuitive world of the law, this distinction is crucial—so much so that the issue of a judge’s receipt of campaign contributions from litigants has gone all the way to the US Supreme Court, which this week heard arguments in the case, Caperton v. Massey Coal.

The Caperton case involves the CEO of a corporation, a party to a West Virginia Supreme Court appeal, who made contributions and expenditures totaling $3 million in support of a candidate for a Supreme Court judgeship who, following his election, voted with the court majority in favor of the CEO’s company. The US Supreme Court is considering whether principles of Due Process should have required the newly elected justice to recuse himself from participating in the appeal.

However the US Supreme Court decides the issue, the Caperton case highlights the hypocrisy of judicial ethics. State ethical rules, including California’s, obsessively admonish judges to avoid conduct that gives even the appearance of a conflict-of-interest. But when it comes to judicial elections, the same ethics rules self-servingly bless financial dealings, benefiting judges, that constitute an actual conflict-of-interest of the most blatant kind.

In fairness, this ethical blindspot makes many judges uncomfortable. In fact, twenty-seven former chief justices and current justices of 19 state supreme courts filed an amicus brief in the Caperton case urging the high Court to rule that the West Virginia candidate-turned-judge should have stepped aside.

Few state judges relish raising money for their election campaigns. And few would disagree that judicial independence is undermined by the flow of contributions into judicial campaign coffers. Judges nonetheless defend fundraising as a necessary byproduct of an elected judiciary. Most probably would prefer to replace elective judgeships with appointed judgeships, as in the federal system. Many judges would support government financing of judicial elections as a way to avoid conflicts-of-interest.

Those reforms, although desirable, are not in the cards in most states. Nonetheless, many state supreme courts already have the power to revise their ethics rules in ways that would greatly diminish the flow of campaign cash to judges, with all of its attendant problems.

By far the biggest share of campaign contributions to judges are made by the group that has the greatest interest in the outcome of judicial elections–namely, lawyers. Under current ethics rules in California and elsewhere, lawyers may contribute to an incumbent judge’s (or judicial candidate’s) campaign on Monday and appear in court before the same judge for a hearing on Friday. Judges in California are urged to post the names of their lawyer-donors in their courtrooms, but few do (and, in any event, disclosure doesn’t cure the conflict.)

This system makes no sense. State supreme courts should revise their ethics rules to forbid lawyers–and their colleagues in law firms–from practicing before a judge to whom they have contributed financially for, say, one year from the date of the contribution. Such a rule would, as a practical matter, cause campaign contributions in judicial elections to dry up–which is precisely the point.

Most lawyers actually would welcome this development, since they would no longer be under pressure for contributions they never wanted to make in the first place. Most judges would also welcome the change since the falloff in contributions would affect judicial candidates more or less equally. Without funds to buy expensive mailers and advertising, they would be forced to campaign the old fashioned way: by meeting with voters in small gatherings and describing their qualifications.

To those who would resist this reform, it is worth asking the question, what do lawyers expect for their campaign contributions to judges? Some lawyers genuinely wish only to show support for a friend or colleague. They will continue to do so, since the preclusion of practice before the judge will be of no consequence to them. Other lawyers would say that, as in the case of contributions to political representatives, they are purchasing “access, not influence.” Except that in the case of judges, access–aka ex parte contacts–is illegal.

It’s time judges stopped wringing their hands about the ethical sleeze of judicial elections and adopt rules to take money out of the selection process. This they can do by barring lawyers from practicing before judges to whom they have contributed.
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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. www.cfac.org