Sheriff says Dem prosecutor is on a ‘witch-hunt’ against Wis. Gov. Walker

Legal Newsline

MILWAUKEE (Legal Newsline) – Milwaukee County Sheriff David A. Clarke Jr. has accused District Attorney John Chisholm, a fellow Democrat, of “abuse of prosecutorial power” in the relentless criminal investigation of Republican Wisconsin Gov. Scott Walker and 29 conservative groups. Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state. Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from […]

Conservatives Forfeit High Ground On Activism

National Journal

For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution’s language and established meaning. On Thursday, the five more conservative justices — and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they’ve said before — forfeited whatever high ground they once held in the judicial activism debate.

I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.

The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.

And while the Court’s green light for "independent expenditures" of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.

 

Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on elections.

 

The End of Restraint

Newsweek

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations-including multinationals controlled by foreigners-will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court’s decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all f…

Campaign Money And The Chief Justice

National Journal

The Supreme Court, especially Chief Justice John Roberts, is at a crossroads.

The immediate issue is whether to demolish Congress’s overly broad, 62-year-old ban on corporate spending in federal elections or, instead, carve out a sensible exception.

The broader question is whether Roberts and Justice Samuel Alito will aggravate the Court’s polarization and give plausibility to charges of conservative judicial activism by providing the fourth and fifth votes for demolition of the ban, and of two important precedents as well.

I fear that the two Bush appointees may be poised to do just that. In their comments during the September 9 oral argument in the big campaign finance case, Citizens United v. Federal Election Commission, they seemed to be pushing for an unnecessarily sweeping decision that would enhance the political power of big business corporations (and would almost certainly be extended to unions as well).

Roberts and Alito would thereby be passing up a golden opportunity for principled compromise held out by liberal Justice John Paul Stevens. He credited a National Rifle Association amicus brief, by conservative lawyer Charles Cooper, with suggesting (as its second-favorite outcome) what Stevens called "the wisest narrow solution of the problem before us." That would be excising with a scalpel, not a meat ax, the one serious First Amendment defect in the campaign finance rules now before the Court.

Campaign Finance And Corporations

National Journal

In an unusual, relatively unpublicized June 29 order, the Supreme Court scheduled a special oral argument for September 9 to consider using a pending case to sweep away the 62-year-old ban on independent corporate spending to influence elections.

That would be the Court’s biggest attack ever on campaign finance laws. It would also be a big mistake. There is no good reason to empower Big Business CEOs to influence elections by spending other people’s money — by which I mean money belonging to ideologically eclectic shareholders, most of whom do not want it invested in election campaigns.

But for all the alarums among liberal election-law experts, I doubt that the Court’s majority is planning to open the floodgates to unlimited campaign spending by Big Business.

I am guessing, and hoping, that the justices will instead use the pending case, Citizens United v. Federal Election Commission, to draw a principled, pragmatic, nonideological line between business corporations and nonprofit advocacy corporations.

Such a decision would uphold the First Amendment rights of citizen groups to spend their individual members’ dues and contributions to support or oppose federal candidates, as long as they don’t serve as conduits for money amassed in the economic marketplace by business corporations.

While many conservatives are all too eager to unleash Big Business to spend on campaigns, most liberals have been all too content to censor nonprofit advocacy corporations. They have also ignored the blatantly self-interested and illegitimate nature of Congress’s decision to draft the campaign finance restrictions so broadly as to hog-tie such advocacy groups, as described below.

Opening Argument – Polarizing Campaign Finance Law

National Journal

The most remarkable aspect of the Supreme Court’s big 5-4 decision on June 25 easing restrictions on corporate campaign spending has gone virtually unnoticed: Like Congress, the Court is so ideologically polarized that even when a principled, pragmatic, nonideological solution to a knotty problem was staring them in the face, all nine justices spurned it.

The knotty problem was that Congress, in the "issue ad" provision of the 2002 McCain-Feingold campaign finance law, had joined a legitimate goal with an illegitimate one.

The legitimate goal was to prevent business corporations — which have no mandate from their ideologically eclectic stockholders to use their money to meddle in election campaigns — from doing just that.

The illegitimate goal was to censor criticism of elected federal officials (along with other candidates) by nonprofit citizens advocacy groups — ranging from the National Rifle Association to the Sierra Club — whose members pay dues and band together precisely for the purpose of promoting political causes near and dear to them.

Congress quite deliberately, and cynically, accomplished both goals in the same provision (Section 203) by the simple and stealthy expedient of making it a federal crime for any corporation (excepting media corporations) to pay for a broadcast ad that refers to any federal candidate during the run-up to an election.

Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent.

“Issue Ads” and Common Sense

The Atlantic

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election—or both. Seeking to determine which purpose predominates—the focus of the current debate—is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

Opening Argument – ‘Issue Ads’ and Common Sense

National Journal

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election — or both. Seeking to determine which purpose predominates — the focus of the current debate — is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

Opening Argument – December 10:A Worrisome Day for the Freedom of Speech

National Journal

The Supreme Court was probably right to uphold the two most publicized provisions of the Bipartisan Campaign Reform Act of 2002. The first bans large, potentially corrupting gifts of soft money to the major political parties at the behest of members of Congress and other federal officials. The second bans any use of business corporation or labor union money to buy broadcast ads naming federal candidates close to the time of a federal election.

Opening Argument – Campaign Finance Reform: What the Court Should Do

National Journal

After seven years of congressional struggle, hundreds of editorials, 1,638 pages of lower-court opinions, dozens of Supreme Court briefs, and four hours of oral arguments on September 8, the fate of the Bipartisan Campaign Reform Act of 2002 appears to be in the hands of Justice Sandra Day O’Connor.