Casual Friday Talks Campaigning & Citizens United

Many observers, including President Obama, are concerned about the effect the U.S. Supreme Court’s controversial decision in Citizens United v Federal Election Commission will have on the 2010 federal midterm and state elections. But University of Maryland law professor Sherrilyn Ifill says the real concern should be for judicial elections.

Judicial elections  — especially for state Supreme Courts  — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states.  The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution.

Ifill said the Court created the problem in another decision, 2004’s Republican Party of Minnesota v White, which held a state law forbidding judicial candidates from taking public stances on contested legal issues that may come before them on the court.

Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th.  Yes, judicial candidates have free speech rights.  But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal.

Since that case, she points out, former justice Sandra Day O’Connor, the majority’s swing vote in a 5-4 decision, has publicly regretted her vote and called for an end to judicial elections. Current justice Ruth Bader Ginsburg has done the same.

What’s the big deal, you ask? It seems that 85 percent of money poured into the 2006 judicial elections came from business (Chambers of Commerce, etc.) After Citizens United, it will likely get much worse. Much of this money is used for attack commercials by interest groups.

Business advocates argue that this is to counter the influence trial judges had in the 1980s, when they were the largest contributors to judicial campaigns.  Whatever the history, the reality is that there are strong, well-financed forces favorable to business and to conservative political principles that exert powerful influence over state judicial elections.

But what can you really do, short of ending judicial elections? Citizens United says businesses have the same right to contribute to politics as everyone else.  West Virginia recently passed a law to publicly fund judicial elections, but does that really do anything? What does a candidate limited to public funding do against a deluge of attack ads funded by (relatively) unlimited funds of special interest organizations?

Ifill’s answer is to create judicial campaign conduct committees that monitor campaign ads for veracity, tone and “civility.” You mean like the toothless FEC? By the time such a committee could act, the ad would be out there and the damage would be done.

Now, the appointed U.S. Supreme Court is not exactly a bastion of impartiality. But, to me, a political divide caused by governors appointing the most partisan judges possible is less dangerous than an elected judiciary with even a sniff of a debt owed to its campaign benefactors both known and unknown.

When Robocallers Attack It’s early in this election year, yet some are already receiving robocalls from campaigns or special interest groups attacking other candidates. This is with the primary elections still five months away.

Many of the calls are anonymous and negative, particularly against Democrat Virg Bernero and GOP candidates Pete Hoekstra, Michael Bouchard and Rick “One Tough Nerd” Snyder. (Gee, who’s missing?)

Among false or out-of-context accusations leveled in recent robocalls targeting gubernatorial candidates:

• Bernero, who enjoys strong union support, is no friend of labor.

• Hoekstra, a fiscal conservative, supports big government because of votes for the bank bailout.

• Snyder shipped jobs overseas and put Americans out of work, as a former board member and CEO of Gateway.

Attorney General Mike Cox, a GOP candidate for governor, has been roundly accused of connections to the calls and negative ads because the attacks have focused on the other three leading Republican candidates.

Cox’s campaign denied any connection.

The Michigan House of Representatives passed a bill last June to curb robocalling, but it died in the Senate without a vote. It working on a new bill, but the bill in its current form would only require the source of the call to identify itself and forbid calls made between 8pm and 9am. I’m not sure how effective this would be.

The problem is not so much with the calls as the message and source of the message. Heck, it could be those evil Canadian trash shippers paying for the calls. Who’s to know?

Ever heard of Eagle Strategies? Neither have I. Nor has the State of Michigan.

It’s less clear who’s paying the bills for robocalls and radio ads attacking Hoekstra for votes in Congress on the federal stimulus package, gun ownership and other issues. Eagle Strategies is the sponsor named in the spot. Some media accounts have linked the group to Eagle Forum, a conservative Washington-based group launched by Phyllis Schlafly. Not so, the organization’s officials say.

“People assume we’re involved. But, I assure you, we’re not running any ads against Pete Hoekstra,” said Suzanne Bibby, legislative director of the group. She said Eagle Strategies claimed to radio stations to be a nonprofit outfit in Lansing but no such group is registered.

Go ahead and Google it. You’ll get at least seven “Eagle Strategies” companies, none of which are in Michigan. But a so-named company bought these anti-Hoekstra radio ads in the Detroit area. And no one seems to it is.  Still think unfettered, anonymous corporate spending is a good idea?

1 thought on “Casual Friday Talks Campaigning & Citizens United

  1. Pingback: Was the Michigan GOP’s attorney behind anti-Hoekstra ads? « The Michigan Lawyer

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