Supremes Doing The 'Twist And Shape'

In 1819 Thomas Jefferson wrote: "The Constitution . . . is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

Seems what Jefferson meant as a warning to America, the current majority on the U.S. Supreme Court took as a job description.

Adding Journalistic Injury To Judicial Insult

In yesterday's post, I said first impressions of Supreme Court rulings often create false impressions. A commentary by a nationally syndicated Chicago Tribune columnist is a good example. It spreads two misconceptions. First, that Thursday's decision somehow grants corporations a long-denied ability to speak. And second, that many if not most corporations will not exercise this supposed newfound freedom for fear of alienating customers.

The first misconception shows a profound lack of understanding of both the decision in Citizens United v. FEC as well as practical reality. You need look no further than the national health care debate or recent Wisconsin Supreme Court elections to see how ridiculous it is to suggest that corporations have not had a voice in national or state political affairs. What the court did is give corporations an even louder and more dominant voice. That five out of nine members of our nation's highest court concluded that corporations were not being adequately heard in the marketplace of ideas in this country is truly jawdropping.

The second misconception is based on a terribly naive notion of how corporations will react to the Citizens United decision. It is highly doubtful that the likes of Goldman Sachs or WalMart or Microsoft will sponsor their own campaign ads. But that doesn't mean they will sit on the sidelines. They will send their money to associations like the U.S. Chamber of Commerce, which will do the electioneering for them. Currently, neither federal nor state disclosure laws are sufficient to allow voters to know which corporations will be bankrollling all the election ads. Unless changes are made to those disclosure laws, companies need not worry about angering their customers or even their shareholders.

As I continue to reflect on what will rank right there with the Dred Scott decision as one of the darkest moments in the history of the U.S. Supreme Court, I can't help but wonder if all this is giving any pause to fans of appointed judges who would like to do away with state judicial elections. It will be hard for them to look honestly at this current court and not see how blatantly political it is and how the Citizens United decision was the handiwork of hard-line ideologues who are so obviously tools of wealthy special interests.

Not that we learned anything new Thursday about Chief Justice John Roberts, for example, but he certainly confirmed suspicions that he is a conniving liar who was willing to bear false witness to Congress to secure an appointment for life. After all, Roberts pledged allegiance in his confirmation hearings to the principle of stare decisis, latin for "stand by the decision," meaning courts are bound by previous decisions and what Roberts himself called "settled" law. It is hard to imagine more well-established precedents or more settled laws than those Roberts and his allies just overturned in Citizens United. By this brazen act of judicial hypocrisy, the chief justice further cemented his growing reputation as one of the most radical activists ever to sit on the high court. What will law professors tell their students? How will they teach stare decisis with a straight face?

Anthony Kennedy showed himself to be intellectually double-jointed. He wrote in Caperton v. Massey that huge sums of money spent in election campaigns can violate the Due Process Clause in the Constitution and deny a fair trial to those who face big campaign spenders in court. Then he turned around in Citizens United and wrote this:

"(W)e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

And this:

"The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."

Kennedy offers no evidence and points to nothing in the case record to support these conclusions. He's just sure.

Next

Read it and weep for American democracy. An unfathomably and unspeakably bad ruling. But the temptation to say "game over" is exactly the wrong reaction to the horrible damage the U.S. Supreme Court has done to our democracy. The game is never over.

There is a large menu of possible courses of action. Public financing of elections. Greater disclosure. Shareholder approval of corporate political spending. A constitutional amendment clarifying that money is not speech and corporations are not people. Boycotts of companies that exploit this brazen act of judicial activism to attempt a hostile takeover of elections.

An important first step is to understand what the Supreme Court did and what it did not do. Whenever a high court ruling comes down, there is a flurry of reaction even before the decision can be digested. First impressions inevitably create some false impressions. This case was no exception.

There were media accounts claiming Wisconsin's century-old law banning corporate contributions was struck down. Not true. The case didn't deal at all with corporate donations, nor did the court's decision. It dealt with corporate election spending. Thursday's ruling may end up inspiring an attempted legal challenge to the law, but for now Wisconsin's law still stands, as does the comparable federal law.

Other stories suggested that the bill the state Senate approved on Tuesday is now dead. Also not true. As we noted in the statement we issued the day of the ruling, a supermajority of justices upheld disclosure of election spending, including any done by corporations. The state legislation we've been working for may need to be changed somewhat, but it certainly can move forward. There are even ways it may be able to be strengthened.

Publicly financed elections remain constitutionally sound. Nothing the Supreme Court had to say Thursday has any effect on public financing programs in general or Wisconsin's new Impartial Justice Act specifically. A perfectly appropriate response to the outrageous ruling in Citizens United v. Federal Election Commission would be prompt and aggressive action by both Congress and the Wisconsin Legislature on further public financing legislation.

And then there's this heads-up to state lawmakers from Justice John Paul Stevens in his dissenting opinion: "Legislatures remain free...to condition the types of activity in which corporations may engage, including electioneering activity, on specific disclosure requirements or on prior express approval by shareholders or members."

Let the counteroffensive begin.

Same Song, Different Vocalist

On Thursday the Wisconsin Supreme Court is again going to consider whether to finalize new rules allowing judges to rule on cases involving their biggest campaign supporters. Last fall, four of the court's seven members approved recusal rules written by Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association. About six weeks later Justice David Prosser withdrew his support, causing the new rules to be temporarily suspended.

Prosser said at the time he still supported the thrust of the rules but believed the language needed some revision. I said at the time that it looked like he was trying to figure out a way to remove the lobbying groups' fingerprints and make it look like the court did its own writing.

Justice Prosser has now submitted his proposed changes. There is no practical difference between Prosser's rules and those written by WMC and the Realtors. Both clearly allow all state judges to rule on cases even when their biggest campaign supporters are involved.

Not only is what the court majority appears poised to do Thursday wrong on its face, but it also runs contrary to a recent decision by the U.S. Supreme Court. In that case, the nation's high court ruled that a member of the West Virginia Supreme Court violated the constitutionally protected right to due process and denied one side a fair trial by judging the case despite having received $3 million in campaign support from the other side.

Justice Prosser and his three allies on the court on this issue (Michael Gableman, Annette Ziegler and Patience Roggensack) appear to be fixing to ignore that ruling, ignore due process concerns and cement in place an ethics rule proclaiming that judges are free to rule on disputes no matter how much campaign help one side has given them.

If that happens, it will be a sad, sad day for our state court system and a telling commentary on just how compromised the majority of our state's highest ranking judges really are.

Say It Ain't So, UW

Polling done by the University of Wisconsin's political science department shows statewide opposition to the use of public money to send students to private schools. Right-wing think tank that helped pay for the polling doesn't like results. Asks UW to alter presentation of the data. UW agrees to do it.

Holy crap.

Are Supremes Getting Cold Feet?

Just heard that no decision was issued by the U.S. Supreme Court in the Citizens United case today. There had been intense speculation that the ruling would come down yesterday. Didn't happen. Then a new flurry of media alerts from court watchers warned that today could very well be the day. Wrong again. For that matter, there was similar speculation late last fall that a decision was imminent.

Oral arguments in this case were originally heard last March, with a decision expected by summer. Then in June the court's majority decided to significantly expand the scope of its review, ordering a new round of oral arguments in September on whether precedents established in 1990 and 2003 restricting the use of corporate funds to influence elections should be overturned. Most observers took this as an ominous sign and expected a ruling before Christmas radically altering the political landscape.

All anyone can do is examine tea leaves, but my reading is the longer it takes for a ruling to come, the better. I'm not saying that when the ruling finally comes, it won't be bad. But it might not be as bad as many feared. With each passing day a broad, precedent-reversing decision becomes less likely because the delays hint that the extremists on the court are having a hard time finding a fifth vote to throw past Supreme Court rulings and longstanding federal and state laws on the scrap heap.

When Sandra Day O'Connor was on the high court, she was the fifth vote in a court majority that upheld campaign finance restrictions on more than one occasion. Conventional wisdom holds that when O'Connor retired and was replaced by Samuel Alito, a new majority hostile to campaign finance reform was formed.

The court's indecision on Citizens United makes you wonder if Justice Anthony Kennedy, who routinely was on the opposite side of O'Connor and the rest of the old majority in campaign finance cases, has decided against a wholesale dismantling of court precedents in this area. Or maybe all the commentaries published from coast to coast about how hypocritical it would be for Chief Justice John Roberts to overturn previous rulings willy-nilly after preaching judicial restraint in his confirmation hearings have given Roberts pause.

Whatever is going on, it's been months and the court hasn't been able to make a move on Citizens United. I would love to be a fly on the wall in those chambers.

You'll Have To Do Better Than That, Mark Neumann

Mark Neumann became the first 2010 candidate for governor to respond to public discontent with politics and politicians and put forward some government reform ideas, including a couple of good ones. Namely banning campaign donations from employees of companies bidding for state contracts and not allowing government employees appointed by the governor to engage in any kind of fundraising for the governor. Both should have been done a long time ago.

Others on Neumann's list are not so hot. Such as term limits for state legislators and constitutional officers. This is neither a new idea nor a particularly promising one. Something like 36 states have them for governor and 15 have them for legislators. Enacting term limit laws was all the rage in the early 1990s, but after nearly two decades the experiment has been a distinct disappointment.

In California, some label the state's term limits a failure. The Guvernator himself was once a big fan of term limits but has since changed his mind. Others, like the highly respected Center for Governmental Studies, aren't willing to give up on them but acknowledge that changes in the law need to be made.

Likewise, an analysis by the Public Policy Institute of California notes term limits have had some positive effects, like accelerating female and minority representation, but concludes that the law has not fundamentally changed the type of legislator who comes to Sacramento. "Rather than representing a new breed of 'citizen legislator,' however, new members after term limits behave a great deal like their precursors," the report says. It goes on to say "the Legislature is less likely to alter the Governor's Budget, and its own budget process neither encourages fiscal discipline nor links legislators' requests to overall spending goals. In addition, legislative oversight of the executive branch has declined significantly."

Closer to home, Michigan is another state that jumped on the term limit bandwagon. The law didn't bring the institutional change that was hoped for. A Wayne State University professor who wrote a book on the subject concludes that the main effect of term limits in Michigan was to make the legislative branch weaker and the executive branch stronger. She even places a good share of the blame for the state's budget mess on term limits.

One-time supporters of term limits have grown disillusioned with them in places like Colorado and Arizona too.

Mark Neumann is to be applauded for talking about how to make government more responsive to the average citizen. Hopefully other candidates for governor will follow suit. But Neumann and the others will have to offer up much more meaningful change than term limits if they are to have any hope of winning over a citizenry soured on politics as usual.