Category Archives: Election Law

Constitution Day Open Thread: Top 3 Amendments You Would Make

Blog Discussions, Constitution, Crime and Punishment, Criminal Justice Reform, Election Law, Elections, Equal Protection, Founding Fathers, History, Legal, Strategies For Advancing Liberty, The Bill Of Rights, Theory and Ideas

Today marks the 223rd anniversary of the U.S. Constitution, allegedly the supreme law of the land. The framers of the Constitution recognized that over time changes would need to be made through an amendment process. In the intervening 223 years, this document has been amended only 27 times.

This brings me to the question I want to pose to readers: what top 3 amendments would you make if you could and why?

Here are my top 3 in no particular order:

1. Rebalancing the Scales of Justice Amendment: The 4th 6th Amendment’s guarantee for the accused to have a court appointed [see comments below] lawyer is a wonderful idea but incomplete. Sure, the accused can be represented by a public defender but does not have nearly the resources available as the prosecution. My proposed amendment would go further than the 4th 6th Amendment and state that the accused would be guaranteed the same resources in his or her defense as the prosecution. For every tax dollar spent to prosecute a dollar would be made available for the defense (whether or not the accused uses a court appointed attorney). This amendment would also guarantee compensation for the wrongfully accused, hold prosecutors criminally and civilly responsible for withholding exculpatory evidence from the jury, and clearly state that a compelling claim of “actual innocence” (due to newly discovered evidence or technological breakthroughs) would be reason enough for a new trial for the previously convicted.

2. Term Limits Amendment: A single 6 year term for president, 2 terms for senators (keep the current 6 year term), 6 terms for representatives (keep the current 2 year term). These terms would be limited for consecutive terms only; if a president wants to make another run, s/he could do so after sitting out a term while senators and representatives would have to sit out a full 12 years (and make them deal with the consequences of their laws as private citizens for awhile) or run for a different office.

3. Accident of Birth Amendment: This would revise Article II, Section 1 removing the requirement that the president must be a natural born citizen and changing the requirement to match that of a U.S. senator. While this requirement might have made sense 223 years ago when the nation was getting started, we are now to a point to where we can do away with it. I don’t like the idea of disqualifying an individual for something s/he had absolutely no control over. Also, this would force the birthers to think about something else other than Obama’s birth certificate : )

Now it’s your turn.

Stephen Littau
http://fpffressminds.blogspot.com/

Supreme Court Strikes A Blow For Free Speech

Election Law, Elections, Free Speech, Individual Rights, Legal, Politics, Supreme Court, The Bill Of Rights

By driving a stake through the heart of McCain-Feingold:

WASHINGTON — The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

(…)

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

As I’ve said many times before, the only campaign finance regulation that we need is full and complete disclosure.

Every candidate for Federal office should be required to disclose all contributions and disbursements and a regular basis (possibly even more frequently than the quarterly reports that are now the law), and that information should be easily available to the public so that people can know where a candidate’s money comes from and where it goes. After all, isn’t that what the First Amendment is really all about — let the information out and let the public decide what to think about it ?

Here’s the full opinion and dissent:

Citizens Opinion

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court Seems Poised To Overturn Campaign Finance Precedents

Constitution, Election Law, Elections, Free Speech, Individual Rights

Based on the oral argument that occurred before the Supreme Court today, it seems pretty clear that the Court is prepared to strike down many restrictions on political advocacy that it had previously allowed:

WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The only open question was how broad that victory would be.
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Elena Kagan, the solicitor general, all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested that the Citizens United, the conservative advocacy group that produced the documentary, “Hillary: The Movie,” may not be the sort of corporation to which campaign finance restrictions should apply. The group lost a lawsuit last year against the Federal Election Commission in which it had sought permission to distribute the film on a cable television service.

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment.

That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

Indeed, it would not be hard for the court to rule in favor of Citizens United by interpreting or narrowing the 2002 McCain-Feingold campaign finance law, which bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications ”susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The court could say, for instance, that the law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory but that the court would have to confront the larger question soon enough.

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

Lyle Dennison agrees that at least two campaign finance precedents would seem to be in jeopardy:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

You can listen to the full audio of today’s oral argument here.

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court May Overturn Previous Rulings On Campaign Finance

Constitution, Democracy, Election Law, Elections, Free Speech, Individual Rights

Tomorrow, the Supreme Court will hear re-argument in a case that could lead to a big change in campaign finance law:

The Supreme Court’s unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation’s campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.

The court will consider whether the “proper disposition” of a case — pitting a conservative group’s scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws — requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

The case, Citizens United v. Federal Election Commission, has already been heard once by the Court. However, in June, the Court took the somewhat unusual step of asking the attorneys for both sides to re-brief and re-argue to address the question of “whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.”

As I said at the time, this seems to indicate that there’s at least some sentiment on the Court for revisiting previous ruling and, perhaps, putting a stake into the heart of one of the most invidious pieces of legislation of the past decade.

One can only hope so, at least.

Doug Mataconis
http://www.belowthebeltway.com

Fixing California Finances — Ignore The Voters!

Democracy, Economics, Fiscal Policy, Petitions

California is not a well-governed state. But for a long time, I heavily blamed the voters on that one. After all, they did stupid things like voting for a $9B bond issue to start a high-speed rail line in the middle of a horrendous deficit.

But perhaps I spoke too soon. Yes, California voters are more than willing to vote for huge spending to be financed by bonds. That’s a big problem, if the spending (and thus the bonds) occur. But if Tim Cavanaugh of Reason is correct, it’s not the problem I once thought. Why not? The state isn’t spending the money:

One favorite trick for avoiding disaster at the level of state budgets is to keep authorized expenditures cooped up by never writing the checks. This practice can go on for years or decades, depending on the lobbying power of the people who stand to gain from the spending. A former California budget director once set my mind at ease when I asked about the hundreds of billions of dollars in bonded debt the ballot-initiative mobocracy has committed the state to. It turned out that only a small portion of those bonds had been issued. (And it’s pretty stunning to consider that the Golden State’s fiscal self-destruction would be even worse if anybody took an interest in honoring the will of the voters.)

So, that is good one one front. The state has shielded us from some of the stupidity inherent in democracy.

But there’s another worse aspect. The state has spent us into oblivion even without the voters’ help! I used to think it was a competition between idiotic direct democracy voters and idiotic gerrymandered politicos in an effort to bankrupt the state. It turns out I was wrong — the politicos want to hoard all the “glory” for themselves!

Brad Warbiany
https://thelibertypapers.org/
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