Jurisprudence & Litigation

Citizens United, Citizens’ Lives

President Obama has claimed that the U.S Supreme Court’s decision in Citizens United v. Federal Election Commission will empower “powerful interests” to “drown out the voices of everyday Americans.” In an analysis of state-specific data, CCP president Sean Parnell dispels this myth that the “public interest” will be adversely affected by the elimination of limits on independent political spending. CCP compared several policy and general welfare indicators considering that 24 states restricted political spending pre-Citizens United (contrasted with the 26 states which allowed unlimited independent spending). In this analysis, CCP demonstrates that there is no positive correlation between corporate spending and policy outcomes. There is no evidence that freedom for corporations, unions and advocacy groups to exercise their First Amendment rights in 26 states has caused any adverse impact on policy compared to the 24 states that restricted such spending.

Filed Under: Contribution Limits, Contribution Limits Research, Contributions & Limits, Independent Speech, Issue Advocacy, Research, First Amendment, Independent Speech, Jurisprudence & Litigation

The Liberal Mythology of an “Activist” Court: Citizens United and Ledbetter

Opponents of the Supreme Court’s decision in Citizens United v. FEC are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism-when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution-the term is being applied anytime a statute is struck down or when a court delivers an unfavorable decision. Yet, the facts of this case and an examination of the legal analysis applied by the justices in their majority opinion show that there is no merit to any of these claims. Rather, the justices followed the original meaning of the Constitution and the applicable statutes when deciding the Citizens United case. In making their decision, the justices relied on precedents set in the seminal finance cases Buckley v. Valeo and Bellotti v. First National Bank of Boston. The cynical and derisive cries of judicial activism by Citizens United‘s opponents are unfair to the justices who participated in these decisions and injure the public’s faith and confidence in the judicial system.

Filed Under: Jurisprudence & Litigation, Research, Faulty Assumptions, First Amendment, Jurisprudence & Litigation

Judicial Recusal and Expanding Notions of Due Process

This piece considers the merits of applying the Mathews v. Eldridge balancing test when an elected judge threatens a litigant’s due process rights. We argue that this approach is particularly compelling in light of the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. In Caperton, the Supreme Court recognized that a litigant’s due process may be violated if the judge harbors an objective “probability of bias.” In perhaps his most vigorous dissent since joining the Court, Chief Justice Roberts posed over forty questions about the potential scope of the decision. Given the Court’s 2002 decision in Republican Party of Minnesota v. White, Justice Roberts has good reason to be concerned. In White, the Court ruled that once a state allows judges to be elected, it can’t muzzle them – candidates for judicial office have the right to announce their views on contentious issues of the day. Taken together, Caperton and White provide the makings of a constitutional crisis. On the one hand judges have a First Amendment right to say almost anything, even if it seems to effectively bind them in future cases. On the other hand, litigants have a due process right not to face a judge whom a reasonable person may deem biased given his previously advertised views. This Article argues that weighing the due process violation by using the reliable and flexible approach developed in Mathews v. Eldridge keeps both decisions intact, while protecting the rights of both the judicial candidates and the litigants.

Filed Under: Jurisprudence & Litigation, Research, Independent Speech, Jurisprudence & Litigation, West Virginia

DISCLOSE Act—The Legislative “Fix” to Citizens United

On Jan. 21, 2010, the Supreme Court handed down its opinion in Citizens United v. Federal Election Commission. Since then, congressional critics of the Court’s broad holding have promised a legislative “fix.” These Members believe that the decision to recognize constitutional protection for corporate (and labor) independent expenditures in federal elections will have a pernicious effect on American politics. Accordingly, on April 29, 2010, Senator Charles Schumer and Representative Chris Van Hollen introduced the “DISCLOSE Act.”

The DISCLOSE Act contains two main features. First, it requires corporations to include certain notices in their expenditures and file additional disclosure reports. Second, the DISCLOSE Act identifies certain types of corporations that would not be permitted to make independent expenditures.Leaders in both the Senate and the House have promised expedited consideration of this legislation. The sponsors intend for it to enter into effect for much of the 2010 election cycle. 

Filed Under: Disclosure, Disclosure Research, Research, campaign finance, campaign finance disclosure, DISCLOSE, Disclose Act, Disclosure, Coordination, Disclosure, Independent Speech, Jurisprudence & Litigation, Stand By Your Ad

The Michigan Auto Dealers Prosecution: Exploring The Department of Justice’s Mid-Century Posture Toward Campaign Finance Violations

In this article, Allison Hayward examines the impetus behind a 1948 decision by the United States Department of Justice (DOJ) to prosecute a Flint businessman for making illegal corporate contributions and the legacy of what transpired. Ultimately, lawyers on both sides questioned the legality of the “corruption” laws, and the case ended without a single conviction. The tenacity of the DOJ in its quest to make convictions is of great interest to Hayward throughout this piece, which she eventually proves was unwarranted. The results beg the question:  why weren’t campaign finance laws enforced before the Voter Registration Act of 1974? Using this case as context, Hayward thoroughly overviews campaign finance regulations before 1974 and provides an interesting look at campaign finance regulation in its infancy.

Filed Under: Enforcement, Research, Independent Speech, Jurisprudence & Litigation

Campaign Finance Disclosure and the Legislative Process

This article analyzes an underappreciated and oft-overlooked method of campaign finance regulation: the use of reporting and disclosure requirements. Although disclosure has long been overshadowed by more prominent forms of campaign finance regulation, disclosure requirements have recently begun to receive new attention as the Supreme Court has signaled an increasingly skeptical attitude toward direct restrictions on the use of campaign funds. This Article demonstrates that both sides of the campaign finance debate have failed to recognize the full range of possible disclosure schemes, and it argues that a particular set of disclosure requirements can have a much more dramatic effect on the legislative process than has previously been recognized. Applying these insights, the Article shows that a carefully crafted disclosure scheme can offer an effective solution to the problem of quid pro quo corruption (i.e., political bribery) and can overcome serious constitutional concerns about retaliation against those who support unpopular views, while at the same time providing public officials with more detailed information about the needs and preferences of the citizens they represent.

Filed Under: Disclosure, Disclosure Research, Research, Disclosure, Jurisprudence & Litigation

The Lonely Death of Public Campaign Financing

This Article argues that the game of reform, having been the victim of two major campaign finance decisions of the Roberts Court, is over. The Supreme Court’s decision in Davis v. FEC will prove to be fatal to most, if not all, asymmetrical public financing schemes, and the Court’s treatment of expenditures for issue advocacy announced in FEC v. Wisconsin Right to Life (WRTL II) will leave most forms of independent expenditures beyond effective limitation. The combination may render public financing systems effectively futile. But the principles underlying WRTL II and Davis have a longstanding pedigree in that jurisprudence. Ultimately, expenditures differ from contributions. It is not the role of the state to level the political playing field. Recognizing the implication of these principles may remind us that democracy may be better served by competition than by control.

Filed Under: Faulty Assumptions, Research, Tax-Financing, Tax-Financing Research, Taxpayer Financed Campaigns, Expenditure, Jurisprudence & Litigation, Taxpayer Financed Campaigns

Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals?

Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections – most offensively, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. As such, the authors investigate citizen perceptions of the impartiality and legitimacy of courts. They focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. Through a representative sample of West Virginians, the authors test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of conflict of interest. Their findings were surprising, particularly in that contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. To conclude, the authors’ apply their findings to the recently decided Caperton v. Massey case. They find that several of the assumptions of the majority in the case are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.

Filed Under: Faulty Assumptions, Research, campaign contributions, Contribution, Contributions & Limits, Jurisprudence & Litigation, West Virginia

The Perverse Effect of Campaign Contribution Limits: Making the Amount of Money that can be Offered Smaller Increases the Likelihood of Corruption in the Federal Legislature

Corruption is an important issue, which poses a special threat to the democratic institutions and integrity of the United States. The purpose of campaign finance regulation is to reduce or eliminate corruption. Congress has enacted substantial legislation for this purpose, yet corruption flourishes. This paper suggests that the campaign finance laws fail to take into account the actual decision-making process of a legislator contemplating a corrupt act. By diagramming that process, this paper demonstrates that the legislation, which focuses on limiting the size of individual campaign contributions, actually increases the likelihood of corruption. An understanding of the decision-making process points to other directions for meaningful regulation of campaign finance.

Filed Under: Contribution Limits, Contribution Limits Research, Contributions & Limits, Research, campaign contributions, Contribution, Contributions & Limits, Jurisprudence & Litigation

Amicus Brief: Rongstad v. Lassa

Amici brief of Center for Competitive Politics and the Reason Foundation, urging the Supreme Court to grant certiorari

Filed Under: Completed Amicus Briefs, Legal, Legal Center, Jurisprudence & Litigation, Amicus Briefs, Completed Cases (Amicus)