From the Dispatch

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

Update: Options for Reining in Corporate Election Cash in Wake of Citizens United Supreme Court Decision

PSN — Thu, 08 Apr 2010 12:52:49 -0400

The Supreme Court’s Citizens United v. Federal Elections Commission (FEC) decision earlier this year gave corporations the same First Amendment rights as citizens with regard to advocating for or against political candidates, unleashing a flood of new corporate cash into state races and a range of new state policy initiatives that aim to protect the integrity of their elections. In response, states are pursuing other reforms, such as requiring shareholder approval for corporations spending election cash, tighter public disclosure and attribution in ads, public financing of elections, and calling for a federal constitutional amendment to reverse the Citizens United decision.

Laws in twenty four states have been directly affected by the Supreme Court’s ruling and many states have already taken action in response to the decision. Alaska’s Department of Law issued a memo this February stating that the state's laws prohibiting independent expenditures by corporations and labor unions in political campaigns were likely unconstitutional, but that laws related to contributions to candidates, coordinated expenditures, disclaimers, and disclosures were not directly affected. In Michigan, the Department of State provided clarification on which portions of the Michigan Campaign Finance Act dealing with the prohibition of independent expenditures by corporations, labor organizations, or Indian tribes were unconstitutional. In Wyoming, the House debated HB 68, which would have expressly referenced the Supreme Court’s decision by saying, “The prohibitions… shall not be construed to prohibit any organization… from exercising its first amendment rights," although the bill ultimately failed to pass.

Other states have denounced the decision as harmful to the process of promoting clean and fair elections. Speaking at a US Congressional hearing on the Supreme Court decision, Montana Attorney General Steve Bullock championed Montana’s laws banning corporate campaign spending in candidate elections that have been in place for about 100 years and warned that corporate money can have extreme effects on local campaigns in states like Montana, where in 2008 the average State Senator won with a total of $17,000 in spending. Read more about Attorney General Bullock’s comments here.

In California, Asm. Pedro Nava introduced Assembly Joint Resolution 3 which calls on Congress to “pass and send to the states for ratification a constitutional amendment to restore the power of Congress and state legislatures to safeguard democracy by placing appropriate limits on the ability of corporations to influence the outcome of elections through political campaign contributions and other expenditures." Hawaii's HR 204, Idaho's HJM 12,
New Jersey's AR 64, Pennsylvania HR 653, South Dakota HCR 1018, and Washington SJM 8027 similarly call on Congress to change the federal constitution to reverse the Citizens United decision.

Still, the main avenue for reform will be alternative approaches to regulating campaign donations. See this page at People For the American Way (PFAW) for an extensive list of individual state bills, but the following are a few examples of state approaches.

Requiring Shareholder Approval: A national poll commissioned by PFAW reveals that following Citizens United, 75 % of respondents believed that a publicly traded company should get shareholder approval before being able to spend money in an election. Bills introduced in Maryland (HB 616, HB 986, and SB 570), New York (A 9948), Iowa (SF 2354), and Wisconsin (SB 540 and AB 812) reflect these findings. If passed, these bills would require companies to get approval from their Boards of Directors and/or stockholders before making independent expenditures. South Dakota (SB 165) and West Virginia (HB 4646 and SB 692) also attempted to pass such provisions, but failed. If passed, these shareholder approval laws could have a great impact on independent expenditures as many companies will not want to attempt the arduous approval process. The Center for Competitive Politics provided a brief overview of some of the potential legal challenges for states in requiring such shareholder approval.

Disclosure and Attribution: States including Alaska, Arizona, Connecticut, Minnesota, New Hampshire, Ohio, South Dakota, Tennessee, and West Virginia are seeking to apply either old or newly-written laws surrounding campaign finance disclosure and political advertisement disclaimers. Language in Connecticut’s HB 5471 would require the maker of an independent expenditure to identify itself. In television or Internet video advertising, this means that an image of the entity’s Chief Executive Officer must accompany the advertisement, with a personal audio statement saying, “I am…(name of entity’s Chief Executive Officer or equivalent), …(title), of…(entity). This message was made independent of any candidate or political party, and I approved its content.” In Tennessee, Rep. G.A. Hardaway and Sens. Reginald Tate and Beverly Marrero are seeking to pass bills (HB 3713/SB 3798) that would make it a class B misdemeanor if corporate funds are used to help or hinder a candidate’s election campaign.

Public Financing of Elections: Ultimately, any restriction on corporate money may be doomed to fail given the ability of companies to launder political support through multiple channels. Instead of restricting "bad" money, many analysts see public financing of elections as the best chance to ensure that alternative voices to corporate speech get heard by the public.

Current public financing systems mostly provide small grants to state parties (10 states), give money to candidates in some selected races (16 states), and offer tax breaks to citizens who contribute to political campaigns (9 states). The National Conference of State Legislatures (NCSL) and Common Cause provide a breakdown of public financing provisions in the states.

A few states, including Arizona, Connecticut and Maine, have more comprehensive “Clean Elections” statutes by which state legislative candidates can receive almost all of their campaign money from public funds, and in exchange, candidates are prohibited from raising private money. While voluntary, this version of public financing can have a huge impact on the way money and politics work together. Maine’s program under the state's Clean Election Act has been hailed as particularly useful in that candidates running for Governor or for the State Legislature raise seed money contributions in order to qualify for full financing from the state. In 2008, 81 percent of Maine’s legislative candidates participated because public opinion favors candidates who run clean. See Public Campaign's website for more on clean election approaches.

With corporate political advertisements already hitting newspapers and the 2010 elections just around the corner, states are beginning to discuss action but most states have a long way to go in finding alternatives to stop corporations from taking over elections in the wake of Citizens United.

Resources:
Progressive States Network -States Act to Limit Judicial Ruling Allowing Corporations to Spend Directly to Elect or Defeat Candidates
People for the American Way - Legislation to Fix Citizens United
Brennan Center for Justice - Shareholder Consent is Key in Political Spending
National Conference of State Legislatures- Life after Citizens United
Public Campaign - In-Depth Resources on Public Financing of State Elections

Theresa Chalhoub is a Progressive States Network Legal Intern. She is a second year student at the New York University School of Law.

States Act to Limit Judicial Ruling Allowing Corporations to Spend Directly to Elect or Defeat Candidates

Christian Smith-Socaris — Thu, 28 Jan 2010 13:12:10 -0500

Portending a sharp increase in corporate political spending, the Supreme Court has ruled (Citizens United v. FEC) that corporations enjoy the same speech rights of citizens when it comes to advocating the election or defeating political candidates. Elected officials, including U.S. President Barack Obama, have denounced the ruling as striking at the heart of our democracy by putting corporations on an equal footing with real people when it comes to basic constitutional rights. Progressives who are trying to counter the oversized influence of giant corporations on our democracy have long viewed the granting of full first amendment rights to corporations as the moment when these creations of the state would end up rampaging on the political scene like Frankenstein's monster. That day has now arrived and a forceful response is being pursued by policymakers at all levels of government.

Most States Don't Even Have Basic Disclosure Requirements: As expected, much of the early debate has focused on the ability of the federal government to write new rules which will stem the tide of corporate cash likely to flood the political landscape in the mid-term congressional elections and beyond. Yet, only 24 states currently prohibit corporations from spending their treasury funds to promote or attack a candidate for state or local office, and many lack the disclosure and disclaimer requirements that serve as a last line of defense for citizen control over our elections. And even if the federal government does respond forcefully, state and local elections will not be covered in federal statute, meaning that states must act independently to protect their own democratic processes. Given this, there clearly is an imperative for states to strengthen their campaign finance laws, placing limits on corporate spending where possible and allowing access to information on corporate spending to support or oppose which candidates.

Using Corporate Accountability to Rein in Spending: Lawmakers at both the federal and state levels are developing and moving forward with a series of proposals that will seek to directly counter the impact of the ruling by protecting the interests of shareholders, remove tax benefits for political spending, prevent foreign-owned corporations from electioneering, and ban political spending by government contractors, among other things. These are in addition to measures to strengthen current disclosure and disclaimer requirements. The first state to act has been Maryland, where Senators Jamie Raskin and David Harrington, and Delegate Brian Frosh have introduced a package with the following measures:

Require any corporate executives to obtain a two-thirds vote of the shareholders ratifying the specific expenditure. (This is the same percentage of the shareholders required for mergers and acquisitions.)
Prevent "pay to play" corruption (and its appearance) by forbidding state contractors to make campaign expenditures on behalf of political candidates and their campaigns.
Mandate that corporations disclose their expenditures to the Board of Elections just as any other campaign expenditure would be reported.

Speaking to the critical need for these reforms Sen. Raskin commented that:

"[a] strong democracy requires a wall of separation between corporate money and public elections, but five justices on the Supreme Court last week took a sledgehammer to that wall. In Maryland, we are beginning to explore ways to contain the damage of this devastating opinion. By assuring that corporate political expenditures only occur when two-thirds of the shareholders agree, that all such expenditures are disclosed, that state contractors not participate in partisan campaigns at all and that corporate political expenditures not be tax-deductible, we have started to spell out a program that can be used nationally to make sure that 'we the people' doesn't turn into ‘we the corporations."

Corporate Transparency in State Budgets as a Tool: Another key part of campaign spending accountability is making clear how different companies are benefiting from government spending, whether from direct subsidies, government contracts or various corporate loopholes. State lawmakers working with Progressive States Network on our Corporate Transparency in State Budgets campaign are seeking to make sure that key information on all of that corporate largesse from government is publicly available. Any time corporations are seen spending money on elections, information on the spending and tax deals they receive from state governments should be instantly available to voters to put any election claims in perspective.

See here for model corporate transparency legislation and a resource page for the campaign.

Challenging Judicial Bias Towards Corporate Power: In addition to his legislative response, Sen. Raskin and others are also working to generate pressure for a federal constitutional amendment through the website FreeSpeechForPeople.org. Several other groups are moving in the same direction as well (see here, here and here). And moving on another track are advocates from the Fair Elections Now Coalition who have brought together over 40 business leaders to denounce the corporate takeover of campaigns and pledge to not engage in political speech with corporate treasury funds. Members of this coalition are also emphasizing that while these are some basic rules we can lay down to reduce the flood of corporate cash, it is clear that without alternative, clean, funding mechanisms there is no way to free our democracy from the grip of corporate power.

What does the future hold for campaign laws? Likely more change is coming. The current court has taken every opportunity (and even created the most recent opportunity) to strike down restrictions on independent expenditures. In a case argued just yesterday, the DC Court of Appeals made clear that they will strike down the $5000 cap on contributions to political non-profits. This trend makes it even more important that states develop robust disclosure and disclaimer requirements, restrictions on government contractors, requirements for corporate accountability, and clean elections campaign finance reform.

Resources:
Citizens United v. FCC
The New York Times - Justices, 5-4, Reject Corporate Spending Limit
Maryland Corporate Campaign Package Press Release
Fair Elections Now
Free Speech For People
Public Campaign - Clean Elections Overview
Progressive States Network - Corporate Transparency in State Budgets

On the Ballot: Defeating TABOR, Defending Relationship Equality Laws & A Roundup of Other Ballot Issues

Nora Ranney — Mon, 19 Oct 2009 14:12:59 -0400

While New Jersey and Virginia are getting a lot of national press for high-profile governors races, the action on state ballots this year is in Maine and Washington, with scattered other issues playing out in additional states.

In both Maine and Washington, right wing groups have the same anti-tax initiative on the ballot and similar efforts to repeal laws giving gay and lesbian relationships protection under state law -- with the same kind of deception and fraud by the same right wing organizations that we've seen year after year in ballot initiatives.

Along with giving a roundup of the range of initiatives on the ballot in this off-year election, this Dispatch will give special focus to the campaigns against TABOR and defending relationship equality laws.

Table of Contents:

- TABOR Resurfaces in Maine, Heads to Washington

- Defending Wins on Same-Sex Relationships

- Fixing the Initiative Process

- Other Ballot Issues in November

TABOR Resurfaces in Maine, Heads to Washington

The right wing anti-tax movement has seen repeated failures in recent years, yet they are again promoting anti-tax ballot initiatives in Maine and Washington. So-called TABOR ("Taxpayer Bill of Rights") initiatives would, if approved, create a rigid spending formula that would cripple those states' capacity to provide services like education, health care, emergency services, and public safety.

In Maine, TABOR failed at the ballot in 2006 but is back again this year with the backing of the conservative groups Maine Heritage Policy Center (which also supported it in 2006) and Maine Leads, which is under investigation for violating campaign finance laws by hiding the identity of its funders. Behind the I-1033 TABOR initiative in Washington, is the ubiquitous Tim Eyman - referred to by many progressives and conservatives alike as a “professional initiative salesman,” who personally profits from his prolific ballot initiative career. Anti-TABOR forces are branding the message "Vote NO on Tim Eyman's I-1033."

Even as communities are postponing and canceling road work because of a lack of funding, Maine voters face an additional anti-tax measure that would reduce funding to roads by cutting the state's excise tax for new and hybrid vehicles. This would be a big tax break for those able to afford a new car, but would force many communities to raise local property taxes to make up for the lost revenue, leading a broad-based coalition called Maine Can Do Better to deem it a similar threat to state prosperity as TABOR.

TABOR's Disastrous Record in Colorado: TABOR passed in Colorado in 1992, leading to terrible results, including large declines in K-12 funding, higher education tuition rates, and hindering the state's ability to address the lack of medical insurance coverage for many children and adults (see our past Dispatch on "TABOR's Disastrous Record in Colorado"). While voters in Colorado partially repudiated TABOR at the ballot in 2005, the legacy of over a decade of TABOR's effects live on in a state ranked one of the lowest levels in K-12 education, drop-out rates, and immunization rates, among other problems.

TABOR uses a rigid formula restricting spending levels based on a simplistic calculation tying spending to population and the consumer price index (CPI). When health or education costs rise more than the specific CPI inflation calculator (as they have in recent years), states have to cut services and programs.

How Coalitions are Fighting TABOR: Broad coalitions of education advocates, health care organizations, community groups, unions and even chambers of commerce have united in both Washington and Maine to oppose to the TABOR measures. The No on I-1033 campaign has highlighted the lessons from Colorado and produced videos detailing personal stories about the likely effects of TABOR. In Maine, the No on TABOR II campaign is emphasizing how TABOR will undermine state efforts to recover from the recession and the campaign brought a number of Colorado Republicans to the state to talk about the damage TABOR did in Colorado.

Defeating TABOR initiatives in Washington and Maine will help stop any trend toward more of these ballot initiatives in the future. In fact, since 2005, TABOR has failed to be enacted in all 28 legislatures where it was introduced, but according to the Ballot Initiative Strategy Center (BISC), any TABOR victories in 2009 could encourage several state legislatures or signature collection campaigns to put it on the 2010 ballot -- the most likely candidates being Arizona, California, Colorado, Florida, Michigan, and Missouri.

While recent polls in both Washington and Maine show narrow leads for the TABOR initiatives, anti-TABOR leaders in both states express confidence that the broad-based coalitions speaking out on its devastating potential effects will win out on election day, as they have repeatedly in other states around the country.

Resources:
Progressive States Network - The Taxpayers' Bill of Goods
No on I-1033
Washington State Budget & Policy Center - Toxic Twins: I-1033 Mirrors Colorado's Corrosive TABOR
No on TABOR II and Maine Can Do Better
Maine Center for Economic Policy - TABOR in Maine
Ballot Initiative Strategy Center
The Bell Policy Center - TABOR
Center for American Progress, TABOR
Center on Budget and Policy Priorities - TABOR: A Threat to Education, Health Care, and Social Services
The Tax Policy Center - "The Economic Effects of TABOR

Defending Wins on Same-Sex Relationships

In contrast to 2006, when the anti-relationship equality movement was on the offensive with a spate of constitutional amendments banning all forms of state recognition for same-sex couples, this year, conservatives are on the defense, having to go to the ballot to try to rollback significant legislative advances in both Washington state and Maine legalizing same-sex unions.

Marriage Equality on the Move: In the 2009 legislative session, four state legislatures (ME, NH, VT, CT) passed bills that were signed by their governors to include same-sex couples in their respective state's civil marriage law. In Washington, since the state introduced its first nondiscrimination bill 20 years ago and passed it in 2006, the legislature has followed up year after year with additional relationship protections that add heft to domestic partnership protections. In both Maine and Washington, conservatives took to the ballot referendum process to rollback those gains:

In Maine, after the crushing blow of Prop 8, by which California voters rejected their state supreme court's ruling to allow civil marriages for same-sex couples, voters are well poised to turn the tide by becoming the first state to defend marriage at the ballot box.
In Washington, voters will be faced with Referendum 71 and decide whether to approve the state legislature's recent expansion of the domestic partnership law to protect couples' right to care for each other, especially in times of crisis.

Deceptive Tactics by the Right Wing: As noted above, initiative campaigns are under fire for ethics violations for fraudulent signature gathering processes. In Washington, signature gatherers for Referendum 71 were caught on video lying to citizens about the law and used deceptive signature petitions in order to trick people into signing their petitions.

While conservative groups like National Organization for Marriage (NOM) are funneling money into Maine, it is a hard sell to argue that the sky will fall with "traditional marriage" surviving quite well in next door Massachusetts with its own marriage equality law (which has existed for over five years). Using the same PR firm as was used in California, the anti-marriage equality campaign is recycling the same threat, that allowing this law to stand would mean altering the eduction system to "promote homosexuality." But a recent poll shows that the public isn't buying it: roughly 62 percent of respondents said they do not believe gay marriage will be taught in public schools if the law is allowed to take effect.

Setting the Stage for Equality Fights in 2010: If marriage equality supporters protects their victory in Maine, that will leave only Rhode Island left to solidify New England as a region for equal civil marriage laws. And while NOM's website talks about fighting marriage equality in "the Northeast and West Coast," they don't seem to want to mention that state legislators refused to repeal civil marriage equality as established by the Iowa Supreme Court or that just this past year, Wisconsin Governor Doyle signed domestic partnerships into law, highlighting that "pro-traditional family" arguments are failing, even in the heartland. In New Mexico, for example, Governor Richardson has pledged to put the domestic partnership issue on the legislative agenda for the 30-day budget session, and other states are moving to enact protections where legally feasible (some states ban any recognition, no matter how small, for same-sex relationships).

Resources:
Maine No on 1 campaign
Washington Approve R-71 campaign
The Task Force - Marriage/Partner Recognition
Human Rights Campaign - about marriage and relationship recognition
Ballot Initiative Strategy Center - LGBT issues on the ballot
Williams Institute at UCLA - economic analysis on Maine - economic analysis on Washington

Fixing the Initiative Process

The high-profile fights on TABOR and relationship equality in both Washington and Maine show how the initiative process has been hijacked in recent years by monied interests, often using the same right wing front groups to try to undermine progressive goals -- and at the least to force progressives to waste money defending them.

As the Ballot Initiative Strategy Center and others have documented, fraud and deception have become all too common in the signature gathering process for state initiatives. Reform of the process is desperately needed to fix the system and assure that initiatives reflect real grassroots concerns and not just those of elite right wing interests playing games with the ballot process.

As we detailed in our Dispatch Reforming the Ballot Initiative Process: Making Direct Democracy Work, there are a number of disclosure and anti-fraud measures that, if enacted, would prevent these kinds of abuses of the ballot initiative process.

Resources:
Progressive States Network - Reforming the Ballot Initiative Process: Making Direct Democracy Work
Progressive States Network - Right Wing Fraud Derails Tax Revolt
Ballot Initiative Strategy Center - Signature Reform Guidelines
Ballot Initiative Strategy Center - The Campaign Finance Reform Blind Spot

Other Ballot Issues in November

While likely to get less national attention, there are other important initiatives on state ballots around the country. BISC has a roundup by state here, but a few key state decisions include:

Bond and Investment Measures: As a likely prelude to 2010, both Maine and New Jersey are moving large bond measures to invest in the state:

In Maine, there is a $71 million bond issue for improvements to highways and bridges, airports, public transit facilities, ferry and port facilities, including port and harbor structures that will make the state eligible for over $148,000,000 in federal and other matching funds.
In New Jersey, a proposed bond act would authorize $400 million in funds to acquire and develop lands for recreation and conservation purposes, preserving farmland, buying flood-prone or storm-damaged properties, and historic preservation projects.

Slate of Texas Constitutional Amendments: A number are non-controversial, but a few would have real impact, including:

Streamlining and equalizing the appraisal process for property taxes;
Protecting public access to beaches on the Gulf of Mexico;
Restricting eminent domain by limiting state and local governments use of eminent domain to promote economic development; and,
Establishing the "National Research University Fund" to dedicate $500 million in a fund to turn seven Texas universities into top Tier 1 research institutions.

Other Ballot Initiative Issues: Additionally, Maine voters will be asked to weigh in on:

Repealing the state's 2007 school consolidation law, which exempted many urban areas and led to opposition in rural parts of the state.
Another initiative would legalize medical marijuana in the state, following fourteen other states that have legalized medical marijuana for the treatment of a host of health problems such as HIV/AIDS, cancer, hepatitis C, and Alzheimer's disease.

Pennsylvania Supreme Court Election: Given the recent history of business groups engineering the takeover of state high courts, there are high stakes in Pennsylvania where ideological control of the high court, currently divided 3-3 between business and consumer-labor friendly judges, will be decided by elections on November 3rd. Labor unions in particular have made the race a priority in both get-out-the-vote and campaign funding decisions.

Resources:
Maine No Bad Roads: Vote No on 2
Progressive States Network - Corporate Influence on State Supreme Courts Show Need for Reform

Open Space for Campaign Reform Created by Former Illinois Governors' Woes

Christian Smith-Socaris — Thu, 05 Mar 2009 10:37:12 -0500

With one former Governor in jail for racketeering and another removed and indicted for selling political appointments for large campaign donations, now might just be the time that Illinois finally reforms its government. The new governor, Pat Quinn, has formed the Illinois Reform Commission. The Commission is tasked with making recommendations within 100 days on how to reform the government and finally stemming the corruption for which the state has long been famous. The commission has already identified loose campaign finance regulations and the lack of transparency as the primary drivers of corruption in state government. Now they are traveling around the state to hear from experts and citizens on what they think needs to be done.

At the most recent public forum Commission members heard from several witnesses that the lack of campaign contribution limits are the fundamental problem with Illinois politics. Cindi Canary of the Illinois Campaign for Political Reform told the Commission "Time and again, our political scandals can be boiled down to one common element: the unbridled quest for campaign money." And while the current system is "obviously not working," lawmakers have "a profound interest in ensuring that the status quo is not changed." One strong piece of evidence to support those contentions is that lawmakers have not funded enforcement of the modest reform that they passed last year, which prohibits people or businesses with government contracts of $50,000 or more from making political contributions to the state officeholders who award the contracts.

At a different meeting of the state legislature's Joint Committee on Government Reform held days later, the same issue came up again when Author Scott Turow, a member of the Executive Ethics Commission, said government ethics reform “cannot proceed effectively unless it’s also accompanied by campaign finance reform.” Regular folks who have come to speak at the Reform Commissions hearings have also expressed strong support for campaign reform, including public financing of elections. It is clear that a concensus is forming on the need for serious campaign finance reform in Illinois, however, only time will tell if the resistance that has prevented reform in the past will be overwhelmed by the string of scandals plaguing the state.

Resources

Progressive States Network - Reduce the Influence of Money in Politics
Illinois Reform Commission
Illinios Campaign for Political Reform (ICPR)
ICPR - Tainted Democracy
Galesburg Register-Mail - 'Pay-to-play' demonstrates need for reform, panel told

Judicial Elections Public Financing: Balancing Independent Courts and Voter Choice

Christian Smith-Socaris — Mon, 27 Oct 2008 12:44:28 -0400

Judicial Elections Public Financing: Balancing Independent Courts and Voter Choice

Once the sleepy backwater of electoral politics, judicial elections have recently become a battleground where right wing and corporate groups spend large sums to fill the courts with jurists who will support their interests. This is perhaps the most troubling example of money corrupting our politics, because instead of pay-to-play politics it gives us pay-to-win justice. The independence of the judiciary simply cannot be maintained in an environment where jurists are competing for votes in high-priced, bare-knuckle political brawls.

Those closest to the process are the most aware of the problems that have infused judicial elections. The American Bar Association itself has endorsed public financing of judicial campaigns. Increasingly, judges are following suit and suggesting a variety of ways to get the money out of judicial politics, including public financing. The group that is leading the effort to reform judicial elections is the Justice at Stake Campaign. Much of the information in this Dispatch is derived from their reports, and legislators and advocates looking to bolster judicial independence in their states will find their resources and assistance invaluable.

For Many Election Cycles State Courts have been Under Attack by the Right

As we've highlighted before, corporate groups, at the behest and with the support of right wing operatives such as Karl Rove, began to shift resources into state court elections in the 1990s after they realized that these races would be the more favorable battleground on which to shift the legal landscape in favor of their anti-consumer agenda. With a relatively small investment compared with what they were spending to push their views at the federal level, they could easily overwhelm the spending of pro-consumer jurists and interest in the states. While the costs would be low (in relative terms, though the actual amounts spent are in the tens of millions) the reward would be great - by flipping the state high courts to business supporters they would save themselves considerable money that would otherwise have been spent in court fighting product liability and other suits.

By the end of the decade the right wing had scored significant victories in several states, including changing the entire make-up of the Texas Supreme Court. They were so successful that Business Week ran a cover story titled "How Business Trounced The Trial Lawyers." But while some of the races in the 1990's still hold records for judicial campaign spending, recent elections have also seen breathtaking amounts spent on campaigns. Through the first week of October, $7.7 million had been spent on supreme court campaigns this year. Perhaps most tellingly, these high priced races have spread out from a few hot spots and now the vast majority of high court campaigns involve television advertising, a reverse from historical norms where only very few judicial campaign battles made their way to television. And while some states that saw incredible spending in past years have now quieted down, that appears to be because pro-business jurists have taken over those courts and have built huge campaign war chests that discourage any potential rivals.

Here are some recent events from states that currently find themselves in battles over the composition of their judiciary:

Wisconsin: After corporate defeat in consumer safety litigation, business groups in Wisconsin poured millions in the past two election cycles to defeat two members of the Wisconsin Supreme Court and replace them with pro-business jurists. The court has now switched from having a majority of pro-consumer jurists to a majority that supports corporate interests. In both races third party's spent more than what was spent directly by the candidates. Additionally, advertisements associated with the races have been particularly harsh and deceptive.

The first of the two brutal and exceedingly expensive campaigns led the entire supreme court to issue a letter last year supporting public financing of supreme court elections -- even signed by the member recently elected due to massive business lobby spending. Soon after her election, that justice, Annette Ziegler, paid fines and was recommended for censure for previously hearing cases involving a company her husband helped manage. The justice who won the second of these races faces a complaint filed against him by the state's Judicial Commission, which has found probable cause to believe he knowingly lied about his opponent when he ran an ad falsely claiming that he was responsible for the release of a rapist.

West Virginia: Last spring, West Virginia Chief Justice Elliott Maynard lost his re-election bid after a scandal erupted over pictures of him vacationing in Monte Carlo with the CEO of Massey Energy at the same time the company was appealing a $240 million jury verdict to the high court. The chief justice originally refused to recuse himself from the case, but finally relented after the petitioners obtained a rehearing. Massey Energy is a controversial, union busting coal company with considerable power in the state.

Another jurist on the same court, Brent D. Benjamin, has also become embroiled in controversy after he cast the deciding vote in the Massey Energy case that the Chief Justice eventually recused himself from. Justice Benjamin was the beneficiary of over $3 million dollars in independent campaign spending from Massey CEO Don Blankenship in 2004. The petitioner in the case, Hugh Caperton, a businessman represented by former U.S. Solicitor General Theodore B. Olson, is arguing that his right to an impartial hearing was denied because of his opponent’s assistance to Justice Benjamin’s campaign. A decision by the US Supreme Court on whether they will agree to hear Caperton's appeal is imminent.

Alabama: A series of damage awards that were substantially above national averages in the early 1980s led the legislature to enact legislation tightly restricting awards in tort cases. When Alabama's high court subsequently struck down that law, elections became a battleground between tort reformers (primarily the Business Council of Alabama) and pro-consumer groups (primarily the Alabama Trial Lawyers Association). This ongoing battle has brought the cost of elections to record levels - between 1993 and 2006 state Supreme Court candidates raised $54 million, including over $13 million in the 2005-2006 election cycle.

The Public is Losing Faith in the Independence of the Judiciary in Many States With Judicial Elections

The reaction that voters are having to the increased expense and negativity of judicial campaigns is no more subtle than the campaigns themselves. Voters are more and more concerned that justice is being undermined as special interests fund judicial campaigns. Nationally, three-quarters of Americans believe that campaign contributions affect judges' decisions. According to poll results compiled by the American Judicature Society, in states with high profile races the numbers are sometimes more stark:

Wisconsin, 2008 - 65% of Wisconsin voters supported a plan to offer public financing to qualified supreme court candidates. 77% agreed that the legislature and the governor needed to take action on judicial campaign reform before the next election.
Minnesota, 2008 - 59% of Minnesotans agreed that campaign contributions affect the decisions of Minnesota judges. 77% were concerned about judicial candidates having to raise campaign funds, run TV ads, and seek political party and special interest support.
New York, 2003 - 83% of New Yorkers believed that campaign contributions have some or a great deal of influence on judicial decisions, and 87% stated that judges should not be allowed to hear cases involving campaign contributors. 79% of voters believed that having to run for reelection has at least some influence on judges' decisions.
Idaho, 2002 - 67% of Idaho voters believed that judges' decisions were influenced by campaign contributions. 40% indicated that judicial campaigns had gotten worse since 1998. 60% favored publicly financed elections.
Illinois 2002 - More than 85% of voters believed campaign contributions influence judicial decisions. Three out of four voters favored limits on campaign contributions to judicial candidates, and over 60% supported a voluntary system of public financing of judicial campaigns.
Texas, 2002 - 77% of voters believed campaign contributions to judges had a "great deal" or a "fair amount" of influence on their decisions. 73% favored a public financing proposal for judicial elections.

The other group that is becoming concerned is judges themselves:

California, 2001 - 87% of judges expressed concern that, because voters had little information about judicial candidates, judges were selected for reasons other than their qualifications. 53% supported a generic proposal for public financing of judicial campaigns.
Florida, 2001 - 68% said they were under pressure to raise money for their campaigns during election years, and 30% believed campaign contributions made to judges have at least some influence on their decisions. 56% supported a generic proposal for public financing of judicial elections.
Illinois, 2001 - 72% of Illinois judges believed that the tone and conduct of judicial campaigns had gotten worse over the last five years. 69% supported a generic proposal for public financing of judicial campaigns. 91% were concerned that, because voters have little information about judicial candidates, judges are often selected for reasons other than their qualifications.
New York, 2001 - 52% of New York judges reported that they were under pressure to raise campaign funds during election years, 68% strongly supported disclosure of campaign contributions, and nearly 74% favored a generic proposal for public financing of judicial elections.
Pennsylvania, 2001 - 64% of Pennsylvania judges reported being dissatisfied with the tone and conduct of judicial campaigns, and 69% indicated that the situation had gotten worse over the past five years. 72% expressed concern that special interests were trying to use the courts to shape policy.

However, these views do not mean that people in states with elected judges believe that judicial appointment would be an improvement. Voters in these states strongly support judicial elections, even as they become more disillusioned with the process as it is being conduct in their state. This is one reason that PSN sees public financing as a promising remedy to re-establishing judicial independence.

Publicly Financed Elections in Practice

North Carolina has Tremendous Success with Publicly Funded Judicial Elections

Judicial public financing has been instituted in North Carolina [NC Voter Owned Elections Act ], which had its first clean judicial elections in 2004. The success has been astounding:

In 2008, 92% of eligible judicial candidates are participating in public financing.
Participating candidates won 4 of 5 races in 2004 and 5 of 6 races in 2006.
Non-family campaign contributions from PACs, lawyers and other political committees dropped from 73% of the total raised to 14% between 2002 to 2004.

Public financing of judicial elections not only frees candidates to focus on the campaign instead of on fundraising, it also makes North Carolina far less attractive of a target for private interests that would seek to mold the judiciary - without the ability to try and buy the election, business groups appear uninterested in interjecting themselves in the process. Also, voter support for clean elections and an independent judiciary puts pressure on candidates to accept public funds and the spending limits that go with them. Simply put, impartial justice and clean elections go hand in hand.

The Basic Structure of Publicly Financed Campaigns

No matter the race at issue, comprehensive public financing models generally conform to the following basic structure:

1.   Require that a candidate collects a certain number of $5 or $10 contributions, termed “qualifying contributions,” which establish the seriousness of her candidacy. The number of contributions depends on the office sought, but is generally in the hundreds. Contributions are limited to individuals registered to vote in the district.
2.   Allow candidates to raise a limited amount of “seed money” in small contributions (typically $100 or less) in order to support their qualifying contribution fund raising.
3.   Candidates who have collected the requisite number of qualifying contributions then receive a set amount of public financing in the form of a grant (usually two separate grants for the primary and general elections).
4.   The public funds are disbursed with the condition that the candidate accepts no additional outside campaign contributions and spends no money outside of public funds.
5.   Candidates outspent by privately financed opponents are entitled to additional, “fair fight” funds to maintain their competitiveness in the election. Fair fight funds are also available when independent third parties spend on an opponent’s behalf.

Lawmakers in states with elected judges have an opportunity to protect the independence of their judiciary by advancing clean elections for judicial candidates. Doing so will also build a group of important models which will demonstrate the value of public campaign financing and the support it garners from both voters and candidates.

Resources

Justice At Stake Campaign
Brennan Center for Justice - Fair Courts
American Bar Association - Report of the Commission on Public Financing of Judicial Campaigns
American Judicature Society - Judicial Selection in the States
Progressive States Network - Shutting the Courtroom Door: How the Corporate Right Mobilized in the States
North Carolina Voters for Clean Elections - Judicial Elections
Democracy North Carolina – A Profile of the Judicial Public Financing Program, 2004-2006
North Carolina Judicial Campaign Reform Act Summary
New York Times - Rendering Justice, With One Eye on Re-election

Corporate Influence on State Supreme Courts Show Need for Reform

Nathan Newman — Thu, 22 May 2008 08:52:00 -0400

Over the past decade, elections for state high court seats have gone from sleepy, mildly partisan affairs to major political battles with huge campaign spending, millions in independent special interest advertising, and misleading and negative attacks in the forefront. TV advertising is now apart of virtually all (91%) contested state supreme court elections, up from about one in five elections in 2000. And in 2006 business groups were the source of more than 90% of those ads. Business groups are also the source of almost half of all campaign contributions in these races.

The amount of money now entering these races is staggering. Between 1999 and 2007 candidates for state supreme courts raised over $165 million dollars. This is a situation which troubles Americans greatly, even at the beginning of the decade 84 percent of voters and 79 percent of judges hd concern about special interest groups influencing judicial elections.

Wisconsin Business Groups Spend Millions to Hijack the State's Supreme Court: After corporate defeat in consumer safety litigation, business groups in Wisconsin have poured millions in the past two election cycles to defeat two members of the Wisconsin Supreme Court and replace them with pro-business jurists. The court has now been switched from having a majority of pro-consumer jurists to a majority that supports corporate interests over those of individuals.

Both races have seen more third party spending than that spent by the candidates themselves and have been marked by particularly harsh and deceptive advertisements. The first of the two brutal and exceedingly expensive campaigns led the entire supreme court to issue a letter last year supporting public financing of supreme court elections -- even signed by the member recently elected with the help of massive business lobby spending. Soon after her election that justice, Annette Ziegler, paid fines and was recommended for censure for previously hearing cases involving a company her husband helped manage.

West Virginia's Chief Justice Taken Down by Influence Scandal: West Virginia Chief Justice Elliott Maynard recently lost his re-election bid after a scandal erupted over pictures of him vacationing in Monte Carlo with the CEO of Massey Energy at the same time the company was appealing a $240 million jury verdict to the high court. The chief justice originally refused to recuse himself from the case, but finally relented after the petitioners obtained a rehearing. Massey Energy is a controversial, union busting coal company with considerable power in the state.

Systematically Driving Corporate Policy Through the Courts: As we highlighted in a Dispatch last year, starting in the late 1990s, Karl Rove worked with politically-aligned business interests to begin a systematic takeover of state courts to undermine consumer rights and limit corporate liability for harm to consumers. In 2004, for example, business groups spent $21.5 million on state supreme court elections, eclipsing the amount spent by plaintiffs' attorneys and their allies, with courts including Texas and Alabama shifting to the corporate defendants' side. In 2005-2006 business groups contributed twice as much, $15.2 million, directly to supreme court candidates than lawyers did.

Strategies for Protecting the Judiciary: Many states have avoided problems like those is Wisconsin and West Virginia by implementing basic reforms to insulate the Judiciary from corporate special interest spending:

Public Financing: North Carolina and New Mexico now have full public financing of high court campaigns. New Mexico's system is brand new, but in North Carolina public financing has had a transformative effect on judicial elections. Special interest and attorney contributions have been driven out of the process, from 73% of non-family funds in 2002 to 14% in 2004. Over two-thirds of judicial candidates now run for office under public financing. The North Carolina system is immensely popular with the public, a year after it was implemented 78% of voters approved of maintaining the practice. Public financing is also supported by the American Bar Association, which adopted it as an official policy in 2002.
Merit Selection: Many states have an independent merit selection process for appointing justices combined with retention elections. This so-called "Missouri plan" insulates the judiciary from special-interest dominated election campaigns while still allowing for voters to exert some democratic control over the judiciary. Such systems have almost uniformly been free of expensive campaign spending and politicized campaigns and theses systems instill confidence in the public. In Missouri, 68 percent of voters trust the Missouri Supreme Court to adhere to the letter of the law rather than their own political beliefs.
Recusal Standards: Establishing better standards for when a justice should or must recuse themselves is another way to help limit the influence of big donors. It also reduces the incentive for special interests to insert themselves in judicial campaigns because their favored justice won't be in a position to support them in any dispute before the court.

With corporate special interest money increasingly seeking to control judicial outcomes, states with elected courts have a number of options for helping to reduce the avenues for money-dominated elections to distort justice.

More Resources

Washington House Passes Public Financing for Local Offices

J. Mijin Cha — Thu, 31 Jan 2008 09:55:15 -0500

In the wake of a bitter 2004 Governor's election and state Supreme Court races that took in more money from third-party groups than any other high court campaign in the country, Washington State's House took the first step toward public financing by passing HB 1551. Introduced by Senator Joe McDermott, HB 1551 allows cities, counties, and other jurisdictions to provide local candidates with government financing. The bill only allows local taxes to be tapped for the public campaign accounts and the public funds cannot be used for campaigns for state offices or school boards.

As we highlighted before, public financing is essential to maintaining fair and equitable elections. Arizona and Maine have clean elections for all campaigns, North Carolina and New Mexico have clean elections for specific offices. New Jersey's pilot clean elections program successfully showed that candidates' focus on issues was greater in public funded districts than the rest of the states and 16 of 20 total candidates participated in public financing, including all nine of the winning candidates. The program is up for re-authorization with calls for expansion to full public financing. A complete public financing bill is also active in the Washington House. Introduced by Rep. Mark Miloscia, HB 1360 calls for public financing for state all offices.

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Shutting the Courtroom Door: How the Corporate Right Mobilized in the States

PSN — Thu, 04 Jan 2007 10:28:00 -0500

When an impeccably pro-business outfit like Business Week declares victory for the business lobby in shutting the courtroom door to victims of corporate negligence, you know injured consumers and workers have been losing badly. But this week's cover story, How Business Trounced The Trial Lawyers, illustrates how the corporate right leveraged campaign contributions in the last decade to hijack state policy on civil justice.

Changing State Policy: The first step was corporate lobbies recognizing that state policy mattered more than federal policy. After ignoring state policy for many years, "by the mid-'90s, national groups like the U.S. Chamber of Commerce and the American Tort Reform Assn. realized...'that the greatest return on investment is at the state level.'" This quickly led to vastly more money spent in the states than by defenders of consumer rights and changes in state law that left injured consumers and workers with few options for legal redress:

Courthouse doors have slammed shut on a wide variety of claims. Michigan, for example, has virtually wiped out all lawsuits against drugmakers in the state.
Six states have passed laws seriously restricting the kinds of asbestos suits that can be filed, and 23 now have statutes saying you can't sue the likes of McDonald's for making you fat.
The American Lawyer, an influential trade publication, recently declared an end to the era of mass-injury class actions...As for class actions in Texas, a series of judicial rulings has set the bar so high for a judge to approve them that it's effectively impossible to meet, practitioners say.
Damage limits in many states have rendered medical malpractice litigation nearly comatose.
Georgia, for instance, limits punitive damages to $250,000, unless "the defendant acted with a specific intent to harm," and New Hampshire bars them altogether.
The far-ranging changes passed by Texas lawmakers in 2003 included one that bars injury suits against a seller more than 15 years after a product is sold. One result: After a doctor was decapitated by a Houston hospital elevator in August, 2003, no suit could be filed against the manufacturer, since the elevator was too old.

Taking over the courts. Bush's political advisor, Karl Rove, was a key player in mobilizing business lobbies to intervene in judicial elections. "By 1998, had converted the makeup of the Texas Supreme Court from 100% Democratic to 100% Republican. He played a similar role in flipping Alabama's high court." "In 2004, for example, business groups spent $21.5 million on state supreme court elections, eclipsing the amount spent by plaintiffs' attorneys and their allies ($13.3 million)." The result:

The Alabama Supreme Court reversed 27 of 31 plaintiffs' verdicts during its 2004-05 session.
According to Texas Watch, an Austin consumer advocacy group, of the 69 consumer cases accepted for appeal by the Texas Supreme Court during its 2005-06 term, it decided against the consumer in 57, or 83%, a trend Texas Watch says has been consistent for the past six years.
"When you have a large verdict that you receive from a jury, you can't settle the case anymore because the defendants will walk in and say: We know we're going to win in the Supreme Court," says Frederick M. Baron, a Dallas attorney.

So What About the Benefits of "Tort Reform"? The business lobby has won the battle for "tort reform", so where are all the promised benefits? Remember when people said tort reform would slash health insurance costs? Instead, as a 2005 Economic Policy Institute paper detailed, the costs of medical malpractice were always overblown by "tort reform" lobbyists and health care costs continue to rise across the country. Texas was a leader in slashing injured patient rights, yet it remains the state with the highest number of uninsured in the country with family health insurance policy rates rising at a rate nearly three times faster than wages and inflation.

The only thing that has changed in the wake of "tort reform" are escalating corporate profits at the expense of consumer and workers' pocketbooks -- a triumph of using lobbying power to rob from working families to benefit the wealthy.

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Cleaning Up Corruption in the Statehouses

PSN — Mon, 10 Apr 2006 15:09:00 -0400

At the core of many voters' frustrations with government is the sense that, too often, politics is for sale. High-priced lobbyists offering "gifts" to lawmakers swarm state legislatures; companies looking for public contracts get too cozy with those handing out public money; and corporate campaign contributions grease the wheels as public policy is auctioned to the highest corporate bidder.

On May 12th, Progressive States is sponsoring a conference (PDF Flyer) with partners the Center for American Progress, MoveOn Civic Action, Democracy for New Hampshire, New Hampshire Public Research Interest Group (NH PIRG), Common Cause, New Hampshire Citizens Alliance and Americans for Campaign Finance Reform, in Concord, New Hampshire to highlight both the problem and what state governments are doing or could be doing to clean up our statehouses and restore a system where big corporate campaign contributions can't buy our political process.

This special Stateside Dispatch will detail three of the main solutions to be highlighted at the conference: lobbying reform, ending "pay to play" for government contracts, and promoting "clean money" financing of elections.

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Lobbying Reform

The Problem: The federal lobbying scandal tied to Jack Abramoff, who was recently sentenced to almost six years in prison for bribery, is unfortunately just a mirror of the flow of crooked money in our statehouses as well. The most prominent recent examples are Governor Bob Taft of Ohio pleading guilty of not disclosing gifts and golf outings paid for by lobbyists, and a Tennessee investigation leading to the May 2005 arrests of five current and former lawmakers on charges of accepting bribes, conspiracy and extortion.

Lobbying at our statehouses is a billion dollar per year business. Nearly 47,000 separate groups hire more than 38,000 lobbyists or an average of five lobbyists and $130,000 in expenditures per state legislator. Especially in states with few legislative staff, this army of lobbyists often becomes the dominant source of legislative information and powerï¿½greased with lobbyist-paid dinners and entertainment boondoggles.

To give just one example, the Center for Public Integrity recently highlighted the pharmaceutical industry's lobbying, a $44 million state operation during 2003 and 2004. And they used every dollar to shoot down a wide variety of state reform efforts to lower the cost of prescription drugs for consumers. Dozens of key lawmakers across the country were treated to lunch and dinner, flown to resorts, given tickets to sporting events, and invited to golf outings.

But these gifts paled in comparison to the "revolving door" jackpot for some legislatorsï¿½a cushy lobbying job for the legislators themselves when they leave office after serving the industry's interests.

A third of federal lobbyists hired by the drug companies are former government officials and their state lobbying army includes dozen of former state lawmakers.
In Massachusetts, former Speaker Thomas Finnerman became head in 2004 of the Massachusetts Biotechnology Council, an industry trade group, after years of using his legislative position to kill drug cost-saving bills.
In Georgia, former Democratic Leader Pete Robinson and former Republican Leader Arthur Edge IV became pharmaceutical lobbyists.

And the drug companies are just one player in a lobbyist bazaar dangling the promise of a billion dollars worth of lobbying jobs for legislators after they leave their postsï¿½if they vote right and follow the industry line on legislation.

Lobbying Reform Solutions: While the problem of lobbyist influence is severe, many state governments have been taking steps to improve the situation:

Disclosure: Even as the federal government does almost nothing to force lobbyists to disclose their activities, most states force some degree of disclosure on lobbyists with Idaho and New Hampshire toughening their disclosure laws in recent weeks. Still, twenty states don't even require lobbyists and their employees to report their compensation, and loopholes remain in many existing state laws.
Banning Gifts: Seven states ban gifts from lobbyists completely, while most states limit and require officials to report such giftsï¿½but no states require lobbyists themselves to report what gifts they hand out to government officials.
Ending the Revolving Door: Most importantly, six states have imposed a two-year moratorium before former legislators can become lobbyists, while twenty states have imposed a one-year moratorium. If an initiative backed by its Governor qualifies for the ballot, Montana may join the states with a two-year moratorium ï¿½ with tough enforcement measures often lacking in other states' laws.

More Resources

Increasing-Democracy

Ending "Pay to Play" on Government Contracts

The Problem: Just as corporate lobbying corrupts the legislative process, the scramble for government contracts corrupts the executive branch and its agencies. Again, Ohio has been a focal point of this corruption in the last year, as campaign contributors illicitly received legal contracts by the attorney general's office, no-bid contracts from the secretary of state's office, and control of workers comp investments in the notorious Coingate scandal. Similar scandals have enveloped New Jersey, New York, California and other states' politicians across the country.

Increasing this "pay to play" problem in recent decades has been the wave of privatizations of public services that has handed work previously done by the government itself to private businesses plying officials with political contributionsï¿½creating an environment ripe for corruption. The result has been not just inflated costs from companies bilking the taxpayer, but a degradation of services. For example, Texas turned management of its human services call centers over to the corporate consulting firm, Accenture, in a controversial $1 billion private contract, only to see repeated delays. Kentucky has run into similar charges of corruption in its bidding system for private companies to manage its Medicaid system.

One outcome of this privatization corruption, as a federal Government Accountability Office report detailed recently, is that 43 out of 50 states now offshore jobs administering at least one federal aid program. It's a cruel irony that a majority of states are sending jobs overseas to run food stamps, family assistance and unemployment insurance programsï¿½in many cases no doubt on behalf of state residents previously employed by the state before the corporate contractors took over.

"Pay to Play" Solutions: A number of states have taken action to assure greater accountability in the public contracting system through common-sense solutions:

Banning Campaign Contributions by Contractors: Connecticut, West Virginia, South Carolina, and Illinois have all passed laws that bar companies bidding on contracts from making campaign contributions to government officials, although New Jersey has passed the most far-reaching "pay to play" law in the wake of local contracting scandals in recent years. The New Mexico state House and state Senate recently passed different bills barring contributions by contractors.
Forcing Contractors to Prove Privatization is Cost-Effective: Over a decade ago, Massachusetts passed a law prohibiting private contracting of government services unless private companies prove they can perform those functions more efficiently than government workers ï¿½ an automatic check on corruption that multiple studies found saved Massachusetts from the typical bilking suffered by other states privatizing public services under the pressure of corporate lobbying. Other states put a range of restrictions on privatization of various services.
Tightening Contracting Standards: Where private companies do perform public functions, the tighter the standards for the bidding processes, the less likely incompetent or corrupt companies can buy them with campaign contributions. Vendor-performance requirements help protect taxpayers from being ripped off, while prevailing or living wage laws and responsible contractor laws screen out shady employers who cut corners on public services. New Jersey and Arizona have flatly prohibited companies that offshore jobs from bidding on their state contracts.

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Increasing-Democracy

"Clean Money" Financing of Campaigns

The Problem: Still, while reforms of the lobbying and contracting systems can diminish corruption of our political system, the domination of our elections by corporate money will undermine the best reforms over time. As the Los Angeles Times observed: "even those [states] that imposed the toughest restrictions and oversight continue to grapple with problems of corruption and how to keep it in check." Just in recent weeks, special campaign committees were created to indirectly funnel campaign money from companies barred from making campaign contributions under New Jersey's "pay to play" law to candidates.

With over $2 billion in campaign contributions for state elections in 2004, there is really no way the political process will be cleaned up without dealing with the fundamental source of corrupt politicsï¿½the funding of our elections by narrow corporate interests. As the failure of McCain-Feingold to stem the money flow to politicians at the federal level has shown, mere tinkering with contribution limits and disclosure doesn't accomplish much.

Clean Money Solution: Luckily, states like Maine and Arizona have pioneered public financing systems that have fundamentally diminished the role of special interest money ï¿½ and Connecticut just voted to join them this past December.

The "Clean Money, Clean Elections" systems in those states require candidates to collect a set number of small $5 contributions to establish their broad-based support, after which they are supplied with enough public money to run a viable campaign ï¿½ as long as they agree not to accept any other outside money for their campaign. The result was that in 2004 more than 80% of legislative candidates in Maine and 56% of candidates in Arizona rejected all private money for their elections, freeing them from the grasp of big spending interests.

Clean money reforms not only undermine the power of big money contributors, they free candidates to spend less time fundraising ï¿½ meaning they spend less time hanging out with lobbyists and more time with regular voters hearing about their concerns.

With tightened lobbying rules and reform of government contracting, enacting clean money systems could largely drive corruption out of our statehouses.

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