Supreme Court

Big Money in State Elections

The PFAW Foundation’s Young Elected Officials Network is gathering this week in Washington, in part to discuss how to work on national progressive issues on the state and local levels.

A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.

Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.

Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).

“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”

State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
 

PFAW

Party Line Vote on Goodwin Liu in Committee

In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.

Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.

By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.

But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.

Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
 

PFAW

At a Crossroads

This past Sunday as I was waiting to go on Fox News to talk about the importance of the upcoming debate about the kind of Supreme Court Americans wanted, I had an extra few minutes to walk around the Capitol Hill area near the studio. As I was thinking about one of my key points – that we need a Justice who will keep faith with a Constitution that has been amended by generations of Americans to make sure that “We the people” means “all the people” -  across my blackberry, came word that Attorney General Holder had just said on one of the morning news shows that he wanted Congress to consider modifying the Miranda rule to permit the government to interrogate citizens and legal aliens suspected of being involved in terrorism without advising them of their constitutional right to a lawyer and of their constitutional right not to incriminate themselves. 

Now, I understand that these are troubled and scary times and that Americans understandably fear for their own safety as well as that of their loved ones. The attempted bombing in Times Square certainly was a wake up call.  But, my gut told me that this was a bridge too far – that if we surrender the core constitutional values that make us and our democracy unique in the world, we are left with very little. As hard as it is sometimes, we really do need to make sure that “all the people” and not just some are protected by the Constitution.  

And, as I was pondering this critical crossroads that we find ourselves at as a nation – I came upon the most eloquent reminder of how crucial it is to keep faith with these core constitutional values. It was the small park, near the corner of North Capitol Street and Louisiana Ave that houses the National Japanese American Memorial to Patriotism during World War II. The memorial was created as a tribute to brave Japanese Americans who fought for this country – and for our democracy – during World War II, despite that fact that their families and loved ones had been stripped of their homes and their belongings and were being kept in internment camps because of (what legislation passed by Congress and signed by Ronald Reagan in 1988 called) “race prejudice, war hysteria, and a failure of political leadership.”  The shame of that moment in our history – capped by the Supreme Court’s infamous decision in Korematsu v. United States – should serve as a potent reminder to us of how important it is to keep faith with our core values and who we are as Americans. 

My humble advice – let’s step back, take a deep breath, and think long and hard before we take steps that we will regret in the future.

PFAW

Kagan v. Rehnquist

In their uphill battle to paint Solicitor General Elena Kagan as unqualified for the Supreme Court, some Republicans are complaining that she doesn’t have any experience on the federal bench. It’s an attack that doesn’t hold water for several reasons. But nothing illustrates the double standard more than comparing her resume with that of William Rehnquist, who had strong GOP backing but much less experience.

KAGAN:
1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
1989-91: Associate in Private Practice, Williams & Connolly
1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
1995-96: Associate White House Counsel
1997-99: Deputy Assistant to the President, Domestic Policy Council
1999-01: Visiting Professor, Harvard Law School
2001-03: Professor, Harvard Law School
2003-09: Dean of Harvard Law School
2009-10: Solicitor General of the United States

REHNQUIST:
1952-1953: Clerk For Justice Robert Jackson
1953-1969: Private Practice in Phoenix, AZ
1969-1971: Assistant USAG, Office of Legal Counsel

PFAW

Candidates Begin to Appeal to Voters’ Disappointment with Corporate Court

Republicans say they’re plotting to use any Supreme Court nomination battle to their advantage in November.

But polls show that the issue cuts strongly the other way—the American public is overwhelmingly concerned about the current Court’s pro-corporate sympathies and its failure to fully appreciate how the law affects individual Americans.

Within hours of President Obama’s announcement that he would nominate Solicitor General Elena Kagan to the Supreme Court, Illinois Senate candidate Alexi Giannoulias seized on that message in an email to supporters. Here’s a screenshot:

Giannoulias isn’t the first candidate to appeal to the public’s discomfort with the Court’s pro-corporate bent. Last month, now-Rep. Ted Deutch decisively won a special election in Florida, after running on a platform that included a Constitutional Amendment to reverse Citizens United v. FEC.

Citizens United, Ledbetter, and Exxon v. Baker have brought home the impact that the Court’s corporate leanings can have on all Americans. We’re expecting to see a lot more office-seekers raising these issues as November approaches.

PFAW

GOP Strategy Call: Obstruct Supreme Court Nomination to Delay Policy Debates

The day Justice John Paul Stevens announced his retirement, Senate Republican leadership vowed to obstruct the confirmation of whoever was nominated to replace him. Today, Republican Senators who had previously praised nominee Elena Kagan’s intellect and qualifications have become strikingly less supportive.

And now we have evidence that the obstruction of Obama’s Supreme Court pick, as a way of delaying progress on policy initiatives like climate change regulation and immigration reform, has been the GOP’s explicit strategy all along.

Talking Points Memo’s Brian Beutler obtained a recording of an April 22 RNC strategy call led by right-wing activist Curt Levey:

The crux of the GOP's strategy is to use Obama's nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.

"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."

Levey acknowledged that a filibuster likely won't last--that Obama's nominee, now known to be Solicitor General Elana Kagan, will almost certainly be confirmed. But he hammered home the point to Republicans that there's value in mischaracterizing any nominee, and dragging the fight out as long as possible, whether or not Obama's choice is particularly liberal.

This is frustrating, but not surprising, from a party that has recently displayed an unparalleled mastery of the Senate’s rules for delay. If they’re willing to stall the confirmation of one of their own party’s most prominent spokespeople, why would they not draw out the confirmation process for an obviously qualified Supreme Court nominee?
 

PFAW

People For’s Full Page Ad in the Post: “Is The Supreme Court Corporate America’s Newest Subsidiary?”

People For and a coalition of progressive groups will run a full page ad in the Washington Post next week, criticizing the Supreme Court’s increasing deference to corporate interests. The ad, which pictures judicial robes embroidered with the logos of large corporations and asks “Is the Supreme Court Corporate America’s newest subsidiary?,” was released today.

 The corporate sympathies of the current Supreme Court majority—displayed in cases like Citizens United v. FEC and Ledbetter v. Goodyear Tire Company—have shaken Americans across the political spectrum. Last month, a People For report documented the Court’s 10-year pro-corporate trend, and the emergence of a “corporate bloc” on the Court.

 The ad lays out some of the most startling rulings of the Roberts Court:

The United States Supreme Court was founded to protect the American people, not American big business.

Yet recent rulings have allowed corporations to get away with paying women less than men, discriminating against the rights of older workers, dodging liability for faulty medical devices, ducking the Clean Water Act and avoid paying damages for the Exxon Valdez oil spill.

Most alarmingly, the Court has also just declared that corporations have the same rights as people, with unlimited rights to pour money into electing corporate candidates who will protect their interests.

A poll commissioned by the groups that released the ad—People For, Alliance for Justice, and MoveOn.org—found that the majority of Americans agree that the Supreme Court favors big corporations over individuals, and want a new Justice who will not be part of that trend.

PFAW

The Return of Soft Money

In the New York Times today, Adam Liptak predicts that in the wake of Citizens United, the Supreme Court will reconsider, maybe as early as this summer, the constitutionality of limits on “soft money”—unlimited contributions to political parties. The lawyer who won the Citizens United case appealed last month a lower court decision upholding the ban on soft money donations.

 Liptak explains the difficulty of keeping the soft money ban in the wake of the Supreme Court’s decision to give corporations essentially free reign to spend on elections:

Ever since the Supreme Court’s 1976 decision in Buckley v. Valeo, election law has relied on what many people think is an artificial distinction. The government may regulate contributions from individuals to politicians, Buckley said, but it cannot stop those same people from spending money independently to help elect those same politicians.

Why not? Contributions directly to politicians can give rise to corruption or its appearance, the court said, but independent spending is free speech. A $2,500 contribution to a politician is illegal; a $25 million independent ad campaign to elect the same politician is not.

Citizens United extended this logic to corporations. Corporate contributions to candidates are still banned, but corporations may now spend freely in candidate elections.

The distinction between contributions and spending has not been popular in the legal academy.

“Buckley is like a rotten tree,” Burt Neuborne, a law professor at New York University, wrote in 1997. “Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.”

The return of soft money to elections would not be a trivial matter. In the 2000 election cycle, before the McCain-Feingold bill banned the practice, soft money donations to party committees totaled over $500 million—about a sixth of the total amount spent on federal campaigns that year.

It will be interesting to see if the Roberts Court, given its track record on issues involving large bank accounts, is willing to take us back there.

PFAW

Judiciary Committee Schedules Vote on Goodwin Liu

The Senate Judiciary Committee has scheduled a vote for this Thursday on the nomination of Goodwin Liu to the 9th Circuit Court of Appeals.

Richard Painter—who, as George W. Bush’s chief ethics lawyer helped to shepherd through the nominations of Justices John Roberts and Samuel Alito— brought an interesting perspective to the Liu nomination in this morning’s Los Angeles Times:

A noisy argument has persisted for weeks in the Senate, on blog sites and in newspaper columns over President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals. This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook. Indeed, much of this may have nothing to do with Liu but rather with politicians and interest groups jostling for position in the impending battle over the president's next nominee to the Supreme Court.

Painter is right that Liu’s nomination has served as a flashpoint for partisan squabbles and a testing ground for new conservative talking points. We hope that the Judiciary Committee will be able look past the political expedience of bickering over Liu, and recognize him as the qualified, fair nominee he is.

PFAW

Majority of Americans Comfortable with Obama Picking Supreme Court Justice

Jeff Sessions take note: a new Washington Post-ABC News poll has found that a large majority of Americans are just fine with President Obama picking the next Supreme Court Justice.

Overall, two-thirds of Americans say they are comfortable with Obama selecting the nation's next justice, including nearly a third of Republicans. That is comparable with a Fox News poll conducted last May before the president chose Sonia Sotomayor to be his first nominee to the court.

The poll finds 65 percent of Americans -- 63 percent of registered voters -- comfortable with Obama making the choice. In June 2005, a Fox poll found 54 percent of registered voters comfortable with President George W. Bush choosing a replacement for the retiring Justice Sandra Day O'Connor.
 

PFAW

Senators Introduce Crucial Citizens United Fix

This morning, Senate Democrats announced a sweeping legislative remedy to the Supreme Court’s decision in Citizens United v. FEC, which opened up elections to unlimited corporate spending. The DISCLOSE Act would require the disclosure of corporate money spent on influencing elections, and it would prevent foreign companies, government contractors, and bail-out recipients from spending money in American elections. People For’s President, Michael Keegan, weighed in:

Only a constitutional amendment or new ruling can truly 'fix' Citizens United, but the DISCLOSE Act goes far in mitigating its corrosive effect on our democracy. Americans want government by the people, not corporations. But as long as corporations have the ability to pour money into elections, Americans have the right to know how that money is being spent.

The Supreme Court enabled companies to spend money on elections while hiding behind front groups, PR firms, and advocacy groups -- without any disclosure whatsoever. It also opened American elections to spending by foreign corporations, government contractors, and companies that receive billions in government bailouts. The DISCLOSE Act would close these outrageous loopholes.

Not surprisingly, the main opposition to the legislation so far has come from the U.S. Chamber of Commerce, which has plans to spend $50 million on this fall’s elections.

The Chamber may be up for a tough fight. A PFAW poll in February found that 78% of those surveyed believe corporations should be limited in how much they spend to influence elections; 70% though corporations already had too much influence in the process. Other polls have found similar levels of displeasure—across the political spectrum—with Citizens United and the increasing role of corporate money in politics.

PFAW

Sessions warns of Obama’s “dangerous” SCOTUS philosophy

Don’t say he didn’t warn you. Sen. Jeff Sessions has taken issue with several of President Obama’s criteria for picking a Supreme Court nominee, but he’s especially concerned about the stipulation that the new justice have a “keen understanding of how the law affects the daily lives of the American people.”

That priority, Sessions warned ABC News this week, is “dangerous.”

One has to wonder if Sessions was similarly terrified in 2006, when in his confirmation hearings before Sessions’ committee, now-Justice Samuel Alito made an eloquent speech about his ability to identify with the concerns of immigrants, children, victims of discrimination, and people with disabilities.

He shouldn’t have worried: despite his professed understanding, Alito helped bring us a variety of decisions that have ignored the realities of daily life in America.

But if he sees out-of-touch as the most desirable quality in a Supreme Court justice, Sessions may have found his ideal Justice in John G. Roberts. Roberts has already reassured us that he missed the Internet age entirely. And on Monday, the Chief Justice showed us his lack of concern for low-wage laborers when he belittled the situation of workers forced to sign bad contracts as “economic inequality or whatever.”

If Sessions is looking for a Supreme Court that disregards the lives of ordinary Americans, he’s got it. But maybe it wouldn’t be so dangerous for our newest Justice to understand the difference between “economic inequality” and “whatever.”

PFAW

Two Must-Read Op-Eds on the Stevens Vacancy and What This Court Fight Should Be About

In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.

We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.

Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

Read the whole thing here >

Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.

Conason writes:

What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...

Click here to read the whole piece >

PFAW

New People For Report Tracks the Rise of the Corporate Court

When the Supreme Court decided this year to open the electoral process to floods of money from corporate interests, it provoked a vehement public backlash. But Citizens United v. FEC was just the tip of the iceberg of a decade of rulings—some high-profile and some less noticed— made by a Court that has been disturbingly deferential to corporate interests. A new People For the American Way Foundation report outlines the rise of the corporate court under Chief Justice Rehnquist and the new life it has taken on in the Roberts court.

Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.

Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.

Take a look at the full report here.
 

PFAW

An economic historian debunks the originalist rhetoric of Citizens United

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.


 

PFAW

Kyl disagrees with 69% of Americans on SCOTUS nominee

In his remarks on the retirement of Justice John Paul Stevens, President Obama alluded to his displeasure (which he hasn’t exactly been keeping secret) with the Supreme Court’s ruling in Citizens United v. FEC. Now the GOP is crying “litmus test”:

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.

And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.

Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
 

PFAW

Democrats Figure out GOP Strategy on Nominations

In an article in Politico today, titled “Dems: Ignore GOP in court choice,” some Senate Democrats show that they’ve got the GOP strategy on the upcoming Supreme Court nomination figured out already.

“I don’t think you can count on any Republican support — no matter who he nominates,” said Sen. John Rockefeller (D-W.Va.). “Even if he nominates a conservative, it wouldn’t be conservative enough.”

. . .

“I’m afraid we’re going to face that criticism whoever he suggests,” said Senate Majority Whip Dick Durbin (D-Ill.), a Judiciary Committee member.

Since the Senate GOP is willing to force cloture votes even on nominees with unanimous, bipartisan support, I think Rockefeller and Durbin are onto something here. They don’t call the GOP the “Party of No” for nothing.

PFAW

Legislative Achievements Will Live or Die in the Courts

President Obama was elected on a promise of change, but in order for any of his legislative accomplishments to remain in place, they will need to survive court challenges.

Health care reform has passed. Major financial regulatory reform could be on the horizon. But these reforms will live or die in the federal courts. We immediately saw litigation from right-wing state attorneys general challenging the constitutionality of the health care bill. Will the fate of that bill and others be decided by George W. Bush-appointed judges? That looks increasingly likely if many of the lower federal court vacancies are not filled in a timely manner. Republican obstruction and threats of filibuster cannot be allowed to deter or delay the confirmation of much-needed judicial nominees.

Barry Friedman has an op-ed in today’s Politico that hammers home this point while providing some relevant examples:

Administrations frequently find their regulatory plans in judicial trouble. The Supreme Court gutted the Carter administration's plans to regulate toxic benzene in the workplace. When the Bush administration's Environmental Protection Agency refused to regulate greenhouse gases, claiming a lack of statutory authority, the justices disagreed. The Reagan administration suffered defeat on air bags, the Clinton administration on tobacco regulation.

Just last week, the D.C. Circuit Court ruled the Federal Communications Commission does not have the authority to require broadband providers to treat all customers equally regardless of the type of lawful content they're sending and receiving -- called "net neutrality."

Read Friedman's full piece here:
http://dyn.politico.com/printstory.cfm?uuid=F8683704-18FE-70B2-A857018EEDBEBF04
 

PFAW

Corporate Spending in Judicial Elections Skyrocketing

For those still in doubt about the potential for corporate influence in national elections in the post-Citizens United world, it might be helpful to look at the growing sway of corporate money in state-level judicial elections.

Eliza Newlin Carney at the National Journal found some staggering statistics:

Predictions that the Citizens United v. Federal Election Commission ruling will unleash a torrent of corporate money are wildly overblown, free speech advocates insist. As evidence, they argue that corporate money has yet to flood elections in the 26 states that already impose no limit on corporate spending.

But a closer look at state-level elections suggests that independent political expenditures by corporations, unions and other special interests are substantial. This is particularly true in judicial elections, which have gotten dramatically costlier, nastier and more controversial over the past decade. The Citizens United ruling may impact judicial races even more drastically than federal elections, some experts argue.

Campaign spending in state Supreme Court elections for the 2008 cycle topped $45 million, continuing a trend that started in the early 1990s, according to Justice at Stake, a nonprofit promoting judicial impartiality. Judicial campaign fundraising totaled $206.4 million between 2000 and 2009, according to a forthcoming Justice at Stake report, more than double the $83.3 million raised between 1990 and 1999.

Corporate money dominated those expenditures, according to Justice at Stake spokesman Charles Hall, who said some 30 percent of the $206.4 million had "clear links" to the corporate sector. Other big judicial campaign money sources were lawyers and lobbyists, who accounted for about 28 percent of the $206 million-plus total.

The Supreme Court itself highlighted the dangers of this trend in last year’s decision banning a West Virginia Supreme Court justice from participating in a case involving a man who had spent $3 million helping him get elected. The funder in question was Massey Energy Company owner Don Blakenship—who has recently earned criticism as an example of what can happen when corporations have more regulatory influence than the citizens they employ.

PFAW

Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

PFAW