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How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW

Clinton Recognizes the Key Role of Supreme Court Nominations in Protecting Our Democracy

The Clinton campaign talks about how her Supreme Court nominees would affect the right to vote and money in politics.
PFAW

Grassroots Organizing to Make Money in Politics a Key Issue in 2016

From a mailman flying a gyrocopter to the Capitol to protest big money in politics, to Hillary Clinton making the issue a centerpiece of her campaign, to Gov. Chris Christie and Sen. Lindsey Graham being asked about their stances on campaign finance reform at Q&A events, it’s clear that money in politics is shaping up to be a major issue in 2016. Yesterday The Washington Post’s Matea Gold reported on the grassroots push to spotlight the topic of big money’s influence on our democracy:

[F]ive years after the Supreme Court’s Citizens United v. Federal Election Commission decision — which held it was unconstitutional to ban independent political spending by corporations and unions, and helped set off a financial arms race — there are signs that politicians are beginning to confront a voter backlash.

….For those who feel strongly about it, the 2016 primaries and caucuses — and the up-close access they bring to the presidential contenders — offer a ripe opportunity to elevate the topic.

In New Hampshire, nearly 500 people have volunteered to attend public forums and press the White House hopefuls about money in politics, Weeks said.

In an interview aired Friday on National Public Radio, PFAW Executive Vice President Marge Baker underscored the importance of top candidates elevating this issue:

"When the leading candidate for president says she's going to make reducing the influence of money in politics one of the four pillars in her campaign, you know that that's going to be a major issue in 2016," Baker said. "So this is a very, very big deal."

While there are many issues that divide Americans, addressing the big-money takeover of our political system is not one of them. That both Lindsey Graham and Hillary Clinton expressed support for an amendment to get big money out of politics in the past two weeks underscores the fact that fighting to fix our broken democracy is not only the right thing to do, it’s also good politics – across the political spectrum.

PFAW

Thanks, Mitch: Confirmed Judges to Skyrocket From One to Two

McConnell schedules a vote on one - and only one - judicial nominee.
PFAW

More of the Same, As Grassley Delays More Judicial Nominees

Grassley needlessly delays a committee vote on judicial nominees, just as Republicans have done for almost every one of Obama's judicial nominees.
PFAW

95 Senate Roll-Call Votes While Lynch Waits for Hers

McConnell needs to drop his ridiculous demand that the Senate approve an unrelated bill before he allows a confirmation vote for attorney general.
PFAW

Clinton’s Focus on Fighting Money in Politics Mirrors Americans’ Commitment to the Issue

With the movement to take back our democracy from wealthy special interests growing by the day, some of the country’s top political leaders are taking note and bringing the issue of money in politics front and center for 2016.

Yesterday presidential candidate Hillary Clinton expressed support for a constitutional amendment to get big money out of politics and said that campaign finance reform was going to be one of the four pillars of her campaign.

As PFAW’s Executive Vice President Marge Baker pointed out:

That Hillary Clinton will make the fight against big money in politics the centerpiece of her campaign is indicative of how much Americans care about this issue. She’s tapping into a deep-seated belief among people of all political stripes that we have to reclaim our democracy from corporations and billionaires. Americans are ready for a constitutional amendment to overturn decisions like Citizens United, and ready for leaders who are going to make it a priority.

Amending the Constitution to overturn cases like Citizens United is a widely popular proposal with cross-partisan support. A July 2014 poll of Senate battleground states found that nearly three in four voters (73 percent) favor a constitutional amendment, including majorities “in even the reddest states.” In the five years since the Citizens United decision, local organizing has led 16 states and 650 cities and towns to support an amendment to overturn the decision and get big money out of politics. More than 5 million Americans have signed petitions in support of an amendment.

PFAW

Where is Pat Toomey on Phil Restrepo's Nomination?

Five months into Pennsylvanian Phil Restrepo's nomination, Chuck Grassley has not scheduled a hearing. What is Pat Toomey doing to help?
PFAW

Mitch McConnell: Doing the Least He Can Possibly Do

Lest anyone think that Mitch McConnell hasn’t been paying attention to the judicial vacancy crisis or the Americans who pay the price when their cases are delayed or relocated, today everything changed: today Senator McConnell allowed a vote on … one judicial nominee!
PFAW

People For the American Way's New Spanish-Language Radio Ad Calls Out Marco Rubio

In anticipation of Marco Rubio’s announcement that he is running for President, People For the American Way launched a Spanish-language radio ad criticizing Rubio for his dangerous agenda that ignores the interests of working families, including Latinos. The ad makes clear how Rubio is no different from the rest of the GOP; his far-right positions should disqualify him from the Presidential ticket.

The ad runs this week, starting Monday morning, on Spanish-language radio stations in Miami, FL and Denver, CO.

Listen to the radio ad here:

You can find full Spanish and English transcripts here.

PFAW

Lindsey Graham Says We Need an Amendment to Fix Money in Politics

At an event with a local television station in New Hampshire this weekend, Sen. Lindsey Graham was asked a question about what he would do to fight big money in politics. In his response, Graham pointed to the need for a constitutional amendment to address the Supreme Court’s ruling in Citizens United:

Well, Citizens United has gotta be fixed. Y'all agree with that? You're gonna need a constitutional amendment to fix this problem. I was for McCain-Feingold, the Supreme Court ruled 5-4 that provisions in McCain-Feingold basically no longer apply.

You're gonna get sick of watching TV in New Hampshire. So the next President of the United States needs to get a commission of really smart people and find a way to create a constitutional amendment to limit the role of super PACs because there's gonna be like $100M spent on races in New Hampshire — which'll be good for this TV station — ripping everybody apart. You don't even know who the people are supplying the money, you don't even know their agenda. Eventually we're gonna destroy American politics with so much money in the political process cause they're going to turn you off to wanting to vote. [emphasis added]

This is not the first time Sen. Graham has spoken out against the big money takeover of our elections. In March, Bloomberg’s David Weigel wrote about a comment Graham made to a voter — again, in New Hampshire — about his desire to see some “control” over money in politics so it won’t “destroy the political process.”

While voicing support for an amendment is important, when the Senate voted in September on the Democracy for All Amendment, a proposal that would overturn decisions like Citizens United and help get big money out of politics, Sen. Graham voted against it.

So here’s a follow-up question for Sen. Graham: Will you back up your words with action? Will you work with your colleagues in Congress who are already pushing for an amendment and help tackle the issue of big money in politics? 

PFAW

The GOP Finally Allows a Judicial Confirmation Vote

Later today, the Senate is scheduled to vote to confirm Alfred Bennett to the Southern District of Texas. But if McConnell is expecting congratulations, he should expect to wait a long time … just as he forces judicial nominees to wait for a confirmation vote.
PFAW

Maryland Passes Bill Bolstering Voting Rights for Formerly Incarcerated People

Today the Maryland legislature passed a bill that would allow people to regain the right to vote as soon as they are released from prison. The legislation rights a wrong in current Maryland law, which denies people voting rights until their entire sentence has been completed, including probation and parole. Without this bill, thousands of formerly incarcerated Marylanders — many of whom are people of color — will continue to be needlessly forced to stay home on Election Day.

PFAW activists in Maryland and members of PFAW’s African American Ministers In Action have been working with allies to help change this, calling their state representatives and urging them to support the immediate restoration of voting rights.

Disenfranchising those who have served their time in prison hampers the process of reintegration and shamefully blocks thousands of Americans from participating in elections. It worsens the discrimination already faced by formerly incarcerated people — who pay taxes, work, and contribute to their communities — and it weakens our democracy.

Passage of this bill is a big step forward in the movement for voting rights for all. Now it’s up to Maryland Gov. Larry Hogan to sign it and help make the state’s democratic process as fair and accessible as possible.
 

PFAW

Warren Buffett: Citizens United Pushes U.S. Toward a Plutocracy

In a wide-ranging interview with CNN’s Poppy Harlow released this week, Warren Buffett had some strong words about Supreme Court decisions like Citizens United that have handed increasing political power to the super-rich. Responding to a question about income inequality, Buffett raised the issue of money in elections:

With Citizens United and other decisions that enable the rich to contribute really unlimited amounts, that actually tilts the balance even more toward the ultra-rich…The unlimited giving to parties, to candidates, really pushes us more toward a plutocracy. They say it’s free speech, but somebody can speak 20 or 30 million times and my cleaning lady can’t speak at all.

Watch the interview clip here:

PFAW

Half a Million Americans Urge President Obama to Shine a Light on Dark Money

This afternoon activists from PFAW and ally groups participated in a petition delivery at the White House calling on President Obama to issue an executive order requiring corporations that receive government contracts to disclose their political spending. More than 550,000 petition signatures were delivered in support of this executive order, collected by a collaborative effort of more than 50 organizations.

In addition to leaders from organized labor, civil rights, environmental and consumer protection groups, PFAW Director of Outreach and Public Engagement Diallo Brooks (pictured below), was one of the individuals to speak at the event. Highlighting the fact that transparency is essential to accountability, Mr. Brooks and other speakers reiterated the strong message sent by the half a million petition signers.

President Obama has shared his support for reform on numerous occasions. Most recently, in his State of the Union address this January, the president called attention to the issue by speaking out against “dark money for ads that pull us into the gutter.” Obama went on to call for a “better politics.”

Rallies like the one held in Washington today also occurred in nearly 60 cities across 28 states, all encouraging the president to use his authority and issue an executive order to help bring about that “better politics.”

Have you added your name to the petition yet?

 

PFAW

Fighting against Big Money in Politics: The One Year Anniversary of McCutcheon v. FEC.

Today, April 2nd, marks the one year anniversary of the Supreme Court decision, McCutcheon v. FEC. The Supreme Court ruled in a 5-4 decision to remove limits on the total amount of spending an individual could contribute over a two year period to a federal level candidates, parties, or political action committees. Previously, the law limited the amount of money an individual could spend to $48,600 for individual candidates or $74,600 to a party or political action committee over a biannual period. The plaintiff in the case, Shaun McCutcheon, claimed that the limit on political spending was a violation of his First Amendment right to freedom of speech. Using a severely cramped definition of the type of corruption that campaign finance limitations can legitimately address, Chief Justice John Roberts wrote “Congress may target only a specific type of corruption—‘quid pro quo’ corruption . . . Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties”. The court, agreeing with McCutcheon, said that having limits on aggregate spending and campaign contributions was unconstitutional and a violation of the First Amendment.

The impact the McCutcheon v. FEC decision had on the 2014 elections was enormous. There was no longer an aggregate restriction on the amount of money an individual could give to candidates, parties and political committees. One of the biggest impacts of the court’s decision was the expansion of joint fundraising committees as fundraising tools. Joint committees are committees where candidates can combine their separate committees, party committees, and PAC’s into one single committee that fundraises together. As a result, nearly four billion dollars was given to candidates, parties, and political action committees combined, the most money ever spent in any midterm election. In 2014, out of the ten Senate races where the most money was spent on candidates, six of them finished within a ten point margin of victory, while in the ten House races where the most money was spent on candidates in 2014, seven of them ended within a five point margin of victory.

The McCutcheon decision has solidified the need for a constitutional amendment because big donors can now give virtually unrestricted amounts of money to influence elections. This money is used to produce television ads for or against candidates, send out direct mail attacking opponents, and to boost a candidate’s own credentials. Such dependence on campaign cash results in our elected officials becoming further beholden to the big donors interests instead of their constituents.

 Fortunately, a nonpartisan movement is growing to get big money out of politics and overturn Supreme Court decisions like McCutcheonand Citizens United. Sixteen states, over 600 towns and cities, and over five million people have already gone on the record in support of a constitutional amendment that levels the political playing field and reduce the influence big money in our political system.

PFAW

Arkansas Governor Does Only a Partial Retreat on RFRA

Gov. Hutchinson's call for a RFRA bill paralleling the federal one still leaves the door open to discrimination, thanks to the Hobby Lobby ruling.
PFAW

Gov. Pence's Claims Ignore Indiana "Religious Freedom" Law's History

Indiana's Mike Pence is less than convincing in his claims about that state's new RFRA law.
PFAW

Hobby Lobby Comes Home to Roost as States Consider "Religious Freedom" Legislation

This op-ed was originally published at The Huffington Post.

Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.

Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.

Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.

But then came Hobby Lobby.

In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."

Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.

Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.

As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.

PFAW