FIRST ONE @ ONE FIRST

Citizens United/Caperton Symposium @ GULC

Posted in Anticipation by Mike Sacks on January 22, 2010

My law school has lined up quite a day on Tuesday for the symposium, ““State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Change the Way States Pick Judges?” I have no classes on Tuesdays, so F1@1F will be there.

Justice O’Connor will be the keynote speaker.  Since retiring from the Court, she has led the fight to eliminate state judicial elections as impediments to judicial independence.

Here’s the morning lineup:

9:15 – 10:15 am.

Panel 1: Caperon v. Massey Coal and the Recusal of State Court Judges

Bert Brandenburg, Executive Director, Justice at Stake Campaign

Carte Goodwin, Partner, Goodwin & Goodwin, PC and Chair, West Virginia Independent Commission on Judicial Reform

Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School

Roy Schotland, Professor Emeritus, Georgetown University Law Center

Moderator: Nina Totenberg, Legal Affairs Correspondent, NPR

10:20 – 11:20 a.m.

Panel 2: Citizens United and the Election of State Court Judges

Jan Baran, Partner, Wiley & Rein, LLP

Karl Sandstrom, Of Counsel, Perkins Coie

Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School

H. Thomas Wells, Jr., Immediate Past President, American Bar Association

Fred Wertheimer, President, Democracy 21

Moderator: Tony Mauro, Supreme Court Correspondent, National Law Journal

Some commentators have already noticed the not-so-easily reconcilable fact that Justice Kennedy wrote the majority opinions in both cases, each decided 5-4.  In Caperton, he wrote for the liberal bloc in holding that the 14th Amendment’s Due Process Clause required an elected state supreme court judge recuse himself from judging a case in which one of the parties had previously donated $3 million to his judicial election campaign–and for whose side, “coincidentally,” the judge, once elected to the bench, ultimately gave the winning vote.

In Citizens United, as we all know know, Justice Kennedy wrote for the conservative bloc in holding that the same corporations that he felt under the Due Process Clause unconstitutionally sleazed up judges elected to state courts could, under the First Amendment, constitutionally spend all they wanted in local, state, and federal elections.  On page 51 of Kennedy’s opinion, he offers a distinction between the two cases:

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the elector- ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora- tion or any other speaker. McConnell, supra, at 144 (quot- ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).
Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by rais- ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.
The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex- penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi- tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471– 481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe- diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

Stevens’s spends pages 67-70 of his dissent on why Kennedy’s two opinions are at odds:

The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Vir­ ginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads tar­ geting Benjamin’s opponent. Id., at ___ (slip op., at 2). “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘ “to sup­ port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its common sense, this Court accepted petitioners’ argument that Blankenship’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse him­ self from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminal influence” was involved, we recognized that “Justice Ben­ jamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than its actual existence.

In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received cam­ paign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign con­ tributions . . . had a significant and disproportionate influence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.

Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the ex­ treme difficulty of proving corruption, “prophylactic meas­ ures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involve­ ment” may likewise be needed to “hedge against circum­ vention of valid contribution limits.” McConnell, 540 U.S., at 205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit cor­ porations associated with electioneering communications will often prefer to use nonprofit conduits with “mislead­ ing names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communica­ tions, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.

And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integ­ rity of their judicial systems.

Kentucky Flyin’ Tefillin

Posted in Non-justiciable by Mike Sacks on January 22, 2010

The NYT reports “Jewish Teenager’s Tefillin Diverts a US Airways Flight” to Louisville, KY.  Somewhere, Justice Brandeis–a Louisville-born, ardently secular Jew–doesn’t know whether to laugh or cry:

The plane, a 50-seat regional aircraft that was less than a third full when it took off from La Guardia Airport, had been climbing through the early-morning sky for about 25 minutes. A 17-year-old passenger in a whitish sweater took out something he had carried onboard, and strapped it onto his wrist and his head.

To some people in New York, that is a relatively common sight: an observant Jew beginning the ritual of morning prayer. But to at least one person on US Airways Express Flight 3079 on Thursday — the flight attendant — it looked ominous, as if the young man were wrapping himself in cables or wires. [...]

The pilot decided to divert the Kentucky-bound plane to Philadelphia. In less than 30 minutes it was on the ground, police officers were swarming through the passenger cabin, and the Transportation Security Administration was using terms like “disruptive passenger” and “suspicious passenger” to describe the boy.

An hour or so after that, Lt. Frank Vanore, a spokesman for the Philadelphia police, had another explanation.

“It was unfamiliarity that caused this,” he said.

He said the flight crew had never seen tefillin, small leather boxes attached to leather straps that observant Jews wear during morning prayers. The flight crew “didn’t understand what it was,” he said, and the pilot “erred on the side of caution and decided to radio that in and to divert the flight.”

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