Tuesday Gavel Grab Briefs

A commentary in The Nation about the Supreme Court’s Arizona Free Enterprise Club v. Bennett decision cited Justice at Stake in discussing those reformers who found a measure of hope in the ruling.

The article quoted Bert Brandenburg, executive director for Justice at Stake, as saying, “Today’s ruling is disappointing, but not fatal for America’s courts. State judicial elections are drowning in special-interest spending.” He added, “Properly crafted public financing laws are more critical than ever, so that judges do not have to dial for dollars from major donors who may appear before them in court.”

In other dispatches about fair and impartial courts:

  • The New Jersey Senate voted to confirm Gov. Chris Christie’s nomination of Anne Patterson to the state Supreme Court, following a year-long stalemate, according to a Newark Star-Ledger report.
  • “The longer the judiciary rejects cameras [in the courtroom], the longer it will prolong public ignorance about the courts,” stated an editorial in the Scranton (Pa.) Times-Tribune.
  • A constitutional challenge involving back pay for U.S. judges was returned by the Supreme Court to the U.S. Court of Appeals for the Federal Circuit, according to a Blog of Legal Times article. To learn background about the case, see Gavel Grab.

WI Governor: 'Worth Looking at' Merit Selection

Wisconsin Gov. Scott Walker (photo at right) has expressed concern that the state Supreme Court’s reputation has been harmed by infighting, and he also suggested it is “worth looking at” merit selection of members of the court.

The Republican governor made his remarks in the wake of an altercation between a liberal Supreme Court justice, Ann Walsh Bradley, and a conservative, Justice David Prosser. Justice Bradley alleged that Justice Prosser put her in a chokehold in a disagreement at her office, and her allegation is under formal investigation.

“Whether you’re Republican, Democrat, liberal or conservative, there’s got to be confidence that the people on the court can rationally discuss and debate,” the governor said, according to an Associated Press article. “This is very serious, and it’s got to be resolved.”

The Wisconsin State Journal, in an editorial calling the judicial confrontation “another reason for reform,” reported that Walker had telephoned the editorial board.  He said the latest court episode “suggests ‘a huge problem’ that’s ‘serious no matter whose story is right.’”

According to the editorial, “Walker also said merit selection of state Supreme Court candidates is ‘worth looking at.’ Walker added: ‘Something’s got to happen.’” (more…)

Editorial: Finance Ruling a Setback for Democracy

In two national newspaper editorials, a Supreme Court opinion that struck down part of an Arizona public financing law was alternatively condemned and saluted for its “silver lining.”

“The Supreme Court decision striking down public matching funds in Arizona’s campaign finance system is a serious setback for American democracy,” protested a  New York Times editorial entitled “The First Amendment, Upside Down.” The editorial said, “It takes away a vital, innovative way of ensuring that candidates who do not have unlimited bank accounts can get enough public dollars to compete effectively.”

A USA Today editorial, entitled “Public Finance Ruling Leaves a Silver Lining,” offered a different emphasis. It said “the big news from Monday’s ruling wasn’t that the Arizona law was struck down, but that the majority said it had no interest in killing public financing altogether. For anyone fed up with government going to the highest bidder, that’s reassuring.”

Some commentary took an entirely different view and applauded the ruling in Arizona Free Enterprise Club v. Bennett. The court voided a provision for matching or “trigger” funds, the extra dollars made available to publicly funded candidates when a privately funded opponent or group spent beyond a specific threshold. (more…)

Analyst: Finance Ruling has 'Surprisingly Good News'

A prominent election law analyst calls the Supreme Court’s Arizona Free Enterprise Club v. Bennett ruling a clear defeat for campaign finance proponents, yet he finds “surprisingly good news” in it.

Richard L. Hasen, a law professor who runs Election Law Blog, identifies the following “unexpected” good news in a commentary about the Arizona case that he wrote today for the New Republic:

  • “First, the Roberts Court seems to have retreated from the suggestion that all campaign finance laws, aside from disclosure, are in constitutional trouble.” The high court confirmed that its landmark Citizens United decision last year did not invalidate federal law regarding campaign contribution limits, he says.
  • Justice Elena Kagan “has emerged as a forceful intellectual voice for the constitutionality of reasonable campaign finance regulation.” She is “a pugnacious, take-no-prisoners’ writer on an issue about which she feels passionately.” Justice Kagan wrote the dissent in Arizona Free Enterprise Club v. Bennett, which was consolidated with another case, McComish v. Bennett.
  • The court “did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is ‘not our business.'”

Hasen concluded, “[W]e may not be seeing the full end of campaign finance law, at least not yet, and Justice Kagan has shown that the other side won’t go down without a fight.”

From a different vantage point, however, former Federal Election Commissioner Hans von Spakovsky says in a Heritage Foundation blog that the ruling “is in the best tradition of American liberty and freedom.” (more…)

Public Financing of Judicial Campaigns Highlighted

The National Center for State Courts issued today a special edition of its Gavel to Gavel publication, a report on state legislation affecting the courts; the special edition is about public financing of judicial campaigns.

The National Center for State Courts is a JAS partner. The Supreme Court’s decision in Arizona Free Enterprise Club v. Bennett prompted publication of the special edition. Arizona Free Enterprise Club v. Bennett was consolidated with another case, McComish v. Bennett.

Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • A Wisconsin Supreme Court justice’s allegation that another justice put her in a chokehold (see Gavel Grab) is under investigation by the Wisconsin Judicial Commission and the Dane County Sheriff’s Office, according to a Milwaukee Journal Sentinel report.
  • Judicial nominations are coming up as an issue in the presidential campaign for 2012, according to a Blog of Legal Times article. An advertisement by Republican candidate Tim Pawlenty spotlights his record naming conservative judges to the Minnesota Supreme Court when he was governor.

Public Finance Ruling: Advocacy Groups React

Advocates of strong campaign finance reform predicted that in the wake of the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett, public financing systems that meet constitutional standards still can thrive.

“The reform movement to create new public financing systems nationally and at the state and local level will go forward without interruption,” said Fred Wertheimer, president of Democracy 21.”

“Public financing remains Constitutionally strong,” said Michael Waldman, executive director of the Brennan Center for Justice, which helped defend the Arizona law before the high court.

Waldman  said “such systems can exist and thrive without the kinds of triggers in the Arizona law.” The high court on Monday declared unconstitutional in Arizona Free Enterprise Club what is called the “trigger funds” mechanism in Arizona’s law (see Gavel Grab).

Tara Malloy, Campaign Legal Center associate counsel, said that “the silver lining to the Supreme Court’s decision is that it invalidates only one model of public financing and leaves open other avenues for reform.  Citizens and legislators will simply have to work harder in the design of public financing programs to ensure that they clear the new constitutional hurdles created by the Roberts Court.” (more…)

Public Finance Ruling: In the Court's Words

When the Supreme Court ruled Monday that a provision in Arizona’s public financing law violated the First Amendment, it split 5-4 along ideological lines.

The views of the sharply divided court are reflected in the majority opinion, by Chief Justice John Roberts Jr., and the dissent, authored by Justice Elena Kagan. The court struck down a provision permitting publicly funded candidates to get additional dollars, called matching or “trigger” funds, when privately financed candidates or independent groups spend more (see Gavel Grab). The case is called Arizona Free Enterprise Club v. Bennett.

“Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand,” Chief Justice Roberts wrote, according to a New York Times article. The majority said rights of privately financed candidates were violated by the provision, because these candidates may shy from spending campaign cash if they’re aware it could result in the government paying for speech by a publicly funded foe.

“ ‘Leveling the playing field,’ ” he wrote, “can sound like a good thing. But in a democracy, campaigning for office is not a game.”

At another point, he added, “We do not today call into question the wisdom of public financing as a means of funding political candidacy.”

In her dissent, Justice Kagan disagreed with the majority’s premise, saying that First Amendment values were advanced by the Arizona statute.

“The system discriminated against no ideas and prevented no speech,” she wrote. She characterized the impact of the public financing law as “less corruption” and “more speech.” (more…)

Fox Deflates an Exaggerated Claim

In the ongoing debate over merit selection, a Fox News article heavily deflated a claim that the Open Society Institute has spent $45 million to end competitive judicial elections.

That claim was erroneously sounded last year in a report by the American Justice Partnership, a leading national spender on judicial elections.

The Fox News article stated that a review of the Open Society Institute’s tax returns for the past 10 years showed that barely 10 percent of the AJP’s claimed total, a little more than $5 million, “was explicitly earmarked for projects about either ‘merit selection’ or ‘judicial selection.'”

After the September 2010 AJP report, Justice at Stake said only four of 56 groups identified in the AJP report actually favor merit selection over other judicial reforms, and that those groups received $2.6 million. Most of the $45 million went to groups with no position on merit selection, or which support a wide range of judicial reforms, such as public financing of competitive elections.


WI Budget Axes Public Financing Dollars

Wisconsin Gov. Scott Walker has signed a two-year budget that includes eliminating funds for the public financing of state Supreme Court elections.

Justice at Stake and the Wisconsin Democracy Campaign recently defended the public financing program in an op-ed published in Wisconsin (see Gavel Grab). The op-ed said:

Rather than gut the state’s young public financing system for appellate court races, Wisconsin’s legislature must stand up and preserve one of the most powerful reforms available to help preserve courts that are fair, impartial and free of special-interest influence.”

Walker’s signing of the bill was reported by the Associated Press. The budget legislation represented one of multiple assaults on public financing, as it was signed one day before the Supreme Court struck down a provision of Arizona’s campaign public financing law (see Gavel Grab). (more…)