7 Sept./Oct./Nov. 2017 Federal Bar Council Quarterly
gation, Judge Newman proposes that all depositions be supervised by a judicial officer a magistrate judge or a member of a panel of experienced lawyers. Judge Newman says that supervising depositions would cut down on the delay, squabbling, and harassment that occurs during depositions. He said that when he was a district judge a lawyer asked for an adjournment of a trial because he had identified a new witness and he needed to take his deposition. Judge Newman told him to ask the questions at that moment in the courtroom. The lawyer was finished in 15 minutes. Judge Newman has been told that Japan has a system of judicially supervised depositions, and there are no depositions in Europe. However, litigants in the United States claim that they need the fullest possible exploration of facts for fairness. In this focus on fairness of result, the fairness in the system is lost. The result is that litigation is too slow and costly.
Certainty before imposing death penalty sentences: After a jury decision to impose the death penalty, the judge should determine whether the defendant's guilt was proven to a certainty a standard beyond reasonable doubt. The court would have to evaluate the evidence and consider whether witnesses were reliable. An example of unreliable witness testimony would be an eyewitness who only saw the defendant once, as opposed to a witness who knew the defendant. Another example would be a jail-
house snitch or a person with immunity who had an incentive to testify to satisfy the prosecution.
Strengthening the federal remedy for official misconduct: Judge Newman points out that the standards for an ordinary tort and a constitutional tort are different. For an ordinary tort the plaintiff has to prove the defendant's negligence and damages. Plaintiffs suing for official misconduct face additional hurdles: immunity and lack of employer liability. Judge Newman proposes to eliminate immunities for officials and make government employers liable for paying damages. Judge Newman recommends changing Section 1983 to permit the U.S. Attorney to bring suit along with the victim; putting the burden on the defendant officer to prove the lawfulness of his or her action, after the plaintiff proves that the misconduct caused harm; and providing for a minimum amount of damages for violation of a constitutional right. Judge Newman's other proposals are eliminating the standing requirement and permitting anyone to sue government officials; limiting diversity jurisdiction and allowing only discretionary access to federal courts; raising the burden of proof for state of mind; taking "beyond a reasonable doubt" seriously; deterring litigation abuse by setting up a system of warnings followed by suspension or disbarment; allowing contingency fees for defendants' attorneys in civil cases; reviewing unobjected to sentencing errors;
using realistic punishment terminology; reducing prison guard assaults by limiting the amount of time guards can serve; and allowing TV in the courtrooms.
The Supreme Court's Worst Decision on Campaign Finances
By C. Evan Stewart
Jesse Unruh was a legendary figure in California (and national) politics for virtually his entire adult life. And one of his most famous statements was: "money is the mothers' milk of politics." He, of course, was right. That is, until this basic truism ran into the U.S. Supreme Court, when the Court truly split the baby: sometimes money is, and sometimes money is not. Huh?
Watergate and the Root of All Evil: Money
For the movie All the President's Men, William Goldman
Federal Bar Council Quarterly Sept./Oct./Nov. 2017
(the screenwriter) attributed the phrase "follow the money" to Deep Throat (a/k/a Mark Felt) in his advice to Bob Woodward on how to disentangle the web of intrigue that was broadly labeled Watergate. And in reaction to Watergate, Congress in 1974 passed a number of amendments to the Federal Elections Campaign Act of 1971 in an effort, not just to "follow the money," but to limit severely its impact upon federal elections. The key provisions of the 1974 amendments directed at limiting the impact of money were (i) to limit to $1,000 what individuals or groups could contribute to federal office candidates, and (ii) to limit independent expenditures by an individual or a group advocating any one federal office candidate. (Other provisions (e.g., public disclosure of the names of contributors of more than $100, creation of the Federal Election Commission, etc.) were also part of the new regime; and while those (and other provisions) were also challenged to the Supreme Court, in my judgment they were not so highly controversial, consequential, or impactful, and thus will not be the focus of this article.)
Buckley v. Valeo
To challenge the constitutionality of the 1974 amendments, an odd coalition of discordant political and legal forces (e.g., James Buckley (Conservative Senator, New York), Eugene McCarthy (former Democratic Senator,
Minnesota), the New York Civil Liberties Union, the American Conservative Union, etc.) came together and sued the Secretary of the U.S. Senate (Francis Valeo) and the Clerk of the U.S. House of Representatives, both in their official capacities and as the ex-officio members of the Federal Election Commission (also named as defendants were the Commission, the U.S. Attorney General, and the U.S. Comptroller General). Through a complicated process, the lawsuit went quickly to the D.C. Circuit Court of Appeals. And with one very minor exception, the Court of Appeals upheld the 1974 amendments, finding "a clear and compelling interest" in preserving the integrity of the electoral process. Buckley v. Valeo, 519 F.2d 817, 841 (D.C. Cir. 1975). With that judicial determination, the plaintiffs moved on to the U.S. Supreme Court. Lead counsel for the challengers was Ralph K. Winter, a Yale law professor (and later a distinguished judge for the Second Circuit); assisting him (among others) was a young ACLU lawyer, Joel M. Gora, who has gone on to a distinguished academic career at Brooklyn Law School. The challengers argued that "the law was the greatest frontal assault on the First Amendment protection of political speech and association since the Alien and Sedition Acts. It would stifle the voices of outsiders, political underdogs, and dissidents, and thereby ... entrench the incumbents in Congress[,] who had written the law
precisely to barricade themselves in power." Arrayed against them, defending the federal statute, was a cavalcade of legal heavyweights, including Archibald Cox, Lloyd Cutler, and Solicitor General Robert Bork. The case was argued before the Court on November 10, 1975. On January 20, 1976, in a 143 page per curiam opinion, with five separate concurring and dissenting opinions by different Justices, the Court rendered its decision(s). (The per curiam nature of the opinion is itself a tad confusing/misleading. Justice Stevens recused himself from the case and the only thing all eight Justices seem to have agreed upon was that there was a proper "case or controversy" before the Court. Three Justices (Brennan, Powell, and Stewart) did in fact sign on to the whole enchilada. As we will see, the other five Justices could only agree with certain disparate parts of the Court's per curiam opinion.) The per curiam opinion soared with First Amendment rhetoric:
The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate
9 Sept./Oct./Nov. 2017 Federal Bar Council Quarterly
on public issues in a political campaign.
But then the per curiam Court, in applying this soaring rhetoric, drew a line of enormous consequence delineating a Constitutional difference between a campaign contribution and a campaign expenditure. Thus, some federal limits on campaign contributions were fine and dandy, while federal limits on campaign expenditures were unconstitutional. The Court determined that any and all restrictions placed upon what could be spent in federal political campaigns (i.e., expenditures) clearly violated First Amendment rights; such moneys constituted protected speech, irrespective of amount(s). At the same time, however, the $1,000 limitation imposed upon individual contributions was consistent with the First Amendment because of Congress' express concern with avoiding the fact (or appearance) of corruption. (The limits on contributions were further defended on the ground that they would "act as a brake on the skyrocketing cost of political campaigns.") And yet this did not apply to wealthy individuals underwriting their own campaigns; since the wealthy could not "corrupt" themselves, any limitations on what they could spend on their own individual races violated their (the wealthy's) First Amendment rights. On its face, the Court's Constitutional distinction between contributions and expenditures one is not speech, the other is
made (and makes) no sense; neither did the Constitutional carveout for the wealthiest Americans who want to hold high political office. And it did not take any period of great reflection to figure these (and other) problems out; many of the Justices noted a number of them in their own separate opinions. Chief Justice Burger's concurrence and dissent went right after the most obvious flaw. Agreeing with the per curiam opinion's determination that campaign expenditures were protected political expressions that could not be restricted consistent with the First Amendment, Burger contended that "contributions and expenditures are two sides of the same First Amendment coin." He went on, belittling the "word games" employed to distinguish between the two saying that such games "will not wash." Burger went on to predict that the contributions rulings would "foreclose some candidacies" and "also alter the nature of some electoral contests drastically." He also noted that the Court's approved finance regime would give "a clear advantage" to candidates with personal fortunes over less affluent opponents, constrained by the fund raising limits of $1,000; other losers in this system would include minority parties and little-known, first-time candidates. Justice White, in his concurrence and dissent, agreed with Burger's poo-pooing of the delineation between contributions and expenditures. But then he arrived at exactly the opposite conclu-
sion. According to White, neither contributions nor expenditures constituted speech rather, caps on spending of any kind are "neutral" vis--vis political speech. While it made no sense to cap contributions and not expenditures, White would have deferred to those with political expertise (i.e., Congress and the president) to determine what should be done "to counter the corrosive effects of money in federal election campaigns." White also disagreed with the per curiam opinion's carve-out for wealthy candidates' spending as much as they would like on themselves: "Congress was entitled to determine that personal wealth ought to play a less important role ... than it has in past. Nothing in the First Amendment stands in the way of that determination." Justice Marshall's opinion was directed at the per curiam opinion's carve-out for wealthy candidates, pointing out that the political landscape going forward would definitely favor millionaires. Justice Blackmun's opinion dissented from the determination that the $1,000 limit on contributions was constitutional. (Justice Rehnquist's opinion was directed at the per curiam opinion's ruling on public financing of campaigns, believing it would serve to entrench the two party system and unconstitutionally penalize minority parties.)
The Aftermath of Buckley
While some hailed the per curiam ruling for "declaring for the
Federal Bar Council Quarterly Sept./Oct./Nov. 2017
first time that campaign funding limits violated First Amendment rights," others with political experience knew better. Indeed, as former Senator (and later a D.C. Circuit Court judge) Buckley would later write on the 40th anniversary of the Buckley ruling:
In the wake of the Buckley decision, we are left with a package of federal election laws and regulations that have distorted virtually every aspect of the election-process. The 1974 amendments to the Federal Election Campaign Act were supposed to deemphasize the role of money in federal election campaigns. Instead, the limit on individual contributions has made the search for money a candidate's central preoccupation.
[And for those] reformers [who] complain about the power of political action committees the notorious PACs ... their proliferation and growth are a direct consequence of the restrictions placed on individual giving.
And as Buckley further noted, the still-current delineation between contributions and expenditures "makes politics the playground of the super-rich who can finance their own campaigns." Indeed (and not surprisingly), since 2012, a majority of the members of Congress and Senate are millionaires many times over. As noted by Justice White,
the Court made up of folks who have never run for political office does not have first-hand expertise or experience with money's role in politics. And in subsequent decisions, the Court often displayed similar proclivities when it came to assessing the role of money in politics. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (holding that the Michigan Campaign Finance Act, which barred corporations from making expenditures in political campaigns, did not violate the First and Fourteenth Amendments); McConnell v. FEC, 540 U.S. 93 (2003) (holding that the Bipartisan Campaign Reforms Act's restrictions on "soft-money" contributions did not violate the First Amendment).
While some hailed the per curiam ruling for "declaring for the first time that campaign funding limits violated First Amendment rights," others with political experience knew
But in more recent years, perhaps influenced by Justice Scalia's dissents in Austin and McConnell (that campaign restrictions at issue in those cases were intended to (and had the effect of) stifling critics of elected officials), the Court has moved
in the direction of attempting to correct the crazy-quilt campaign finance system it created by its 1976 ruling in Buckley. The first such case was Citizens United v. FEC, 558 U.S. 310 (2010). Because so much heat (and very little light) has been directed at Citizens United, perhaps a brief re-cap is in order. At issue in that case was whether a non-profit corporation could produce and distribute a movie entitled Hillary: The Movie; the movie was critical of Hillary Rodham Clinton who was (at that time) the front-runner for the Democratic Party's presidential nomination in 2008. (In 2004, Michael Moore had done a similar movie critical of President George W. Bush entitled Fahrenheit 9/11.) The U.S. District Court for the District of Columbia ruled that the Bipartisan Campaign Reform Act (upheld in McConnell) barred corporations (and unions) from making independent expenditures in political campaigns (with criminal penalties for non-compliance). At oral argument before the Supreme Court, Justice Alito asked the government's lawyer defending the law (Deputy Solicitor General Malcom Stewart) whether it could also be used to bar a publishing company from distributing a book critical of Senator Clinton. Stewart answered: "Yes"; at reargument six months later, Elena Kagan (then Solicitor General, now a Supreme Court Justice) essentially affirmed Stewart's candid response that position may have been the straw that broke the camel's back.
11 Sept./Oct./Nov. 2017 Federal Bar Council Quarterly
On January 21, 2010, Jus- "The government may no more deeper into the legacy of
tice Kennedy issued the Court's restrict how many candidates or Buckley v. Valeo, see Volume
(four to five) opinion, ruling that causes a donor may support than 25, Issue 1 of Brooklyn Law
the Bipartisan Campaign Re- it may tell a newspaper how many School's Journal of Law and
form Act's provision violated the candidates it may endorse." Jus- Policy (December 2, 2016).
First Amendment: "If the First tice Thomas concurred separately Floyd Abrams, who success-
Amendment has any force, it pro- (thus providing the fifth vote), but
fully argued Citizens United
hibits Congress from fining or argued that all limits on contri-
v. FEC in the Supreme Court,
jailing citizens, or associations of butions are unconstitutional (i.e.,
has recently published a
citizens [including corporations McCutcheon left intact the limits
wonderful book: "The Soul
or unions], for simply engaging on how much individuals can give
of the First Amendment"
in political speech." By this rul- to an individual political candidate
(Yale Univ. Press 2017). As
ing, the Court's prior decision in (which now maxes out at $2,700
Abrams makes abundantly
Austin was overturned, and Mc- per election)).
clear, the purpose of the
Connell was partially overruled Buckley what the Wall Street
First Amendment is to pro-
as well. (Professor Gora, in writ- Journal has called the Court's
tect Americans from gov-
ing about Citizens United, has "original First Amendment sin"
ernmental attempts (to quote
taken to task Mrs. Clinton for her thus still stands, albeit signifi-
Justice Robert Jackson) to
"chutzpah" in the 2016 election, cantly weakened in breadth and
seize "guardianship of the
in which she "repeatedly prom- devoid of much (if not all) sense.
public mind." Abrams has
ised to great applause each time And notwithstanding the Buck-
been castigated by the politi-
not to nominate anyone to the ley Court's prediction, discussed
cal left for aligning himself
Supreme Court who was not pre- above, money keeps flooding
with the political right in that
pared to overrule [Citizens Unit- exponentially into our political
case. But Abrams does not
ed]." Professor Gora not only campaigns at ever faster rates.
view the constitutional prin-
thought such a litmus test im- So let me give the last word to proper, but noted "the irony of a the principal litigant in Buckley,
ciple (and amendment) at issue in political terms. As he
leading presidential candidate at- Senator/Judge Buckley, who has
has written: "What threatens
tacking a decision that permitted written: "The answer ... is not to
democracy is any law, such
a group of citizens to question her place further restrictions on the
as that at issue in Citizens
fitness for office." J. Gora, "Mon- freedom of speech, as so many
United, that makes criminal
ey, Speech, and Chutzpah," Liti- continue to argue.... [Rather,]
the showing on television
gation 48, 52 (Summer 2017).) [o]ur current law addresses the
of a documentary like a
More recently, the Court had problem [of corruption] by re-
movie denouncing a candi-
the opportunity to review some quiring a timely disclosure of
date for the presidency of the
of the 1974 amendments to the all contributions over a specific
nation simply because the
Federal Election Campaign Act. amount. That enables opponents
organization that prepared
In McCutcheon v. FEC, 572 U.S. to publicize any gift that might
it had received some corpo-
____, 134 S. Ct. 1434 (2014), arise to an adverse influence, and
rate grants. The film at issue
the Court (by a five to four vote) the public can then judge whether in Citizens United Hillary:
struck down the limit on contribu- the contribution in fact is apt to The Movie was, in my view,
tions an individual can make over corrupt the recipient."
grotesquely unfair to then-
a two-year period to national party
Sen. Clinton. But that sort of
and federal candidate campaign Postscripts
political speech is precisely
committees. Chief Justice Roberts
what the First Amendment
wrote in his plurality decision: For those wanting to delve most obviously protects."