2013-06-19T18:40:16-04:00 Jessica Levinson http://www.huffingtonpost.com/author/index.php?author=jessica-levinson Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Jessica Levinson Good old fashioned elbow grease. tag:www.huffingtonpost.com,2013:/theblog//3.3283009 2013-05-16T12:36:18-04:00 2013-05-16T12:36:24-04:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
Groups with the words "tea party" or "patriot" in their applications were flagged and asked to submit additional materials. Other groups may have been targeted as well. There is little doubt that the IRS' approach to determining whether to grant tax-exempt status should be politically even-handed, without regard to partisan affiliation. But this kerfuffle is merely the tip of the proverbial iceberg.

The IRS' actions evoke a much larger question about which groups should be able to obtain the benefit of tax-exempt status and lack of transparency that inures to certain non-profit organizations. Thanks in large part to the United States Supreme Court's 2010 decision in Citizens United v. FEC, corporations are constitutionally free to raise and spend unlimited sums to advocate for the election or defeat of political candidates as long as that spending is not coordinated with candidate campaigns. This is true for non-profit corporations as well, unless, as discussed below, there are statutory or regulatory restrictions placed on those groups.

How important are nonprofit organizations and other committees to election campaigns? Estimates put independent spending by nonprofit corporations -- political action committees (PACs) and super PACs -- at more than $1 billion during the 2012 elections. Unlimited spending by all of these entities is harmful to the integrity of our electoral process, but the worst offenders may be those entities organized under section 501c4 of the IRS code.

The 501c4s, as they are commonly known, are social welfare organizations. However, the IRS has interpreted the regulations affecting these nonprofit organizations as allowing them to engage in some political activity, as long as that does not become the organization's primary activity. This is, at best, a line drawn in the sand on a windy day, to quote Justice Scalia in another campaign finance case.

And here is the kicker: while these 501c4 non-profit corporations can engage in some political activity, they need not disclose their donors. This leaves the public without the most important piece of information about those spending money to try to sway their votes; the identity of those organizations' supporters. While other organizations, such as PACs and super PACs, must disclose their donors, when those donors are 501c4 corporations then all that is disclosed is the name of the corporation, but again, not those supporting that corporation. This situation blasts an enormous hole through our nation's web of disclosure provisions.

Hence once an organization obtains non-profit status under section 501c4 of the IRS code, any political fundraising by that organization is essentially clothed in secrecy. This is a perilous state of affairs. When organizations "speak" to us by spending money to try to influence whom we chose to represent us in our government, then we the people have an important interest in knowing the identities, the true identities, behind those attempting to persuade us.

In addition, it remains to be seen whether many of these organizations, purportedly dedicated to social welfare, are little more than political committees. Karl Rove's Crossroads GPS comes to mind as but one example. If it looks like a political committee, and it raises and spends like a political committee, then it just might be a political committee. One of the differences between political committees and 501c4s is, of course, that political committees must disclose their donors.

While there has been a good deal of public outcry concerning the IRS' admitted targeting of certain organizations applying for nonprofit status, the problem isn't that the IRS asked for too much information from organizations seeking favorable tax treatment, it is that they only asked for that information from conservative organizations. The IRS should be more, not less, inquisitive, but it should do so in an even-handed fashion.

Aggressive inquiries by the IRS will only help the further the important interests served by disclosure provisions. Entities should no longer be able to wrap themselves in the protective layer of the IRS code only to operate in the shadows.]]> tag:www.huffingtonpost.com,2013:/theblog//3.2747046 2013-02-25T12:28:26-05:00 2013-04-27T05:12:01-04:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
I am eagerly awaiting the day I do not read stories these stories. Both about women's issues and about the record number of women in Congress. This is not because I think there are too many female political representatives, quite the opposite.

In January the 113th Congress was sworn in. Amidst the predictions and prognostications for this Congressional session, came a number of stories about the historic number of women now in Congress. Specifically there are now 101 women in both chambers. This number includes three nonvoting members. There are 535 people in Congress total. Simple math tells us that less than 19 percent of our representatives are women. Women account for slightly more than 50 percent of the population of the United States.

By any stretch of the imagination women are still woefully underrepresented in the halls of Congress (not to mention board rooms and executive offices). Yes, given recent history women are "making progress," however, it is difficult to take too much solace in this lopsided number.

I am frankly deeply saddened that we must find cause for celebration when fewer than one in five representatives, but approximately one out of two members of the population, are women.

I am not someone who advocates voting for (or hiring or promoting) any individual solely because of their gender. Our nation faces real and serious issues; we need the best representatives advocating for their constituents, not the second or third best.

What we need is a society in which we can vote for the best candidates and in which our representatives are actually (at least roughly) representative of the American population. There are many systemic reasons why they are not more and better female candidates, and I do not endeavor to outline them here.

My point is that we are quite far from that place in which roughly equal gender representation is accepted as the norm. This may be why I sometimes cringe when I hear about "women's issues" or how a particular issues (such as the sequester) affect women. Its time to start talking about how issues affect people, period.

Women's issues are conventionally used to mean issues related to healthcare (including issues related to abortion and childcare), education, and workplace issues such as fair hiring and pay equity. These are "people issues" not women's issues. Certainly laws related to abortions more directly affect women, but it speaks volumes about our society that basic issues related to educating children, and pay in the workplace are still considered to be mainly the province of women. A paradigmatic shift is in order.

So please forgive me if I fail to scream my excitement about the record number of women in Congress from the proverbial rooftops. The day there is nothing to write on this topic because it is expected that fifty percent of the population will account for roughly fifty percent of our representatives, and that "women's issues" simply become "issues," is the day I will celebrate.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1914944 2012-09-26T13:03:48-04:00 2012-11-26T05:12:02-05:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
We talked about the event afterwards, shared our thoughts, and posted and tweeted photographs. We spoke of national pride in what we've accomplished. We spoke wistfully and hopefully about what the future holds for our country. We talked of the budget, the economy and changing public-policy priorities.

What was this event that excited so many members of the American public? This is not a rhetorical question.

If you said the 2012 elections, or the presidential election, you're wrong, but I was so hoping that would be your answer.

Elections, even a high-stakes presidential election -- and when is a presidential election ever not high-stakes? -- do not capture the imagination of the American public. By and large we do not engage in a great debate, study the issues and the candidates, take off work to stand in long lines, wave flags, cheer and overtly discuss national pride.

No, when it comes to elections, many of us do not engage at all. Far too few of us exercise our hard-fought, fundamental right to vote. (More on that pesky right to vote in a moment). Instead, we throw up our hands and leave the "nasty business" of politics to others.

Those of us who do vote often do so somewhat begrudgingly. We sigh and complain about having a choice only between "the lesser of two evils." We bemoan the pervasive and pernicious influence of money in politics. We feel, not incorrectly, that politics is largely a game played only by those who can pay the price of admission.

Few of us speak about elections with the same enthusiasm of the actual event I was referring to -- the last flight of the space shuttle Endeavour. Last week, the Endeavour soared through the sky on the back of a 747 airliner. It captured our collective imagination. It was exactly what I read and heard it would be -- a space shuttle on an airplane -- but I still, for a moment, thought it was something wondrous. It represented the best of us, the most impressive strides taken by the best and brightest among us.

Few of us use words like "wondrous" or phrases like "captured our collective imagination" to refer to elections in our country. But in many ways we should. The American experiment in democracy is amazing. Every two, four or six years, we go to a polling place (or mail in a ballot) and anonymously pick our government representatives. We send those elected officials to city halls, state capitals and the District of Columbia to make laws that we hope embody sound public policy.

So why do we feel, at best, lackluster about this grand experiment? Why do those of us who exercise the right to vote feel less than enthused about the experience?

One reason is an issue I've mentioned above. The ubiquitous influence of money in campaigns means that moneyed interests play an outsized role in our electoral process. More than 30 years ago, in a case called Buckley v. Valeo, the Supreme Court found that political money is the equivalent of political speech. That opinion made it difficult -- and in many cases impossible -- to limit the amount of money spent by, in support of, or against political candidates. While the Supreme Court purported to uphold First Amendment rights, it actually harmed those rights by giving moneyed interests a megaphone through which they could drown out the voices of others. The Supreme Court only exacerbated the harm imposed by its flawed framework in Citizens United, when it ruled that corporations must be treated as identical to people for purposes of analyzing restrictions on campaign spending. When people and organizations can spend unlimited sums in the political marketplace, it actually harms, rather than bolsters, the breadth and depth of the political debate.

Another reason for our lack of excitement in the electoral process may be that our fundamental right to vote is under attack all throughout the country this election cycle. Under the guise of protecting voter fraud, conservative legislatures throughout the country have passed voter identification laws. Put most charitably, voter identification laws are a solution in search of a problem, as the fraud that would be prevented by these laws is nearly infinitesimal. We should be honest about what these laws are meant to accomplish. Voter identification laws overwhelmingly harm poor and minority members of the electorate who tend to vote democratic. Let's just say it: These laws are about eliminating the number of democratic ballots cast.

When our elected representatives play partisan games with our fundamental right to vote, the right that preserves so many other rights, it is not difficult to see why the elections that put those politicians in power are seen as less-than-wondrous events.

We can hope that the Supreme Court reverses course and state lawmakers stop enacting laws that burden the ability to vote. In the meantime, our main recourse, perhaps ironically, is at the ballot box. Although it may not be as awe-inspiring as watching a space shuttle glide across the clouds, let's treat the 2012 election as the vitally important event that it is.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1652600 2012-07-09T10:56:05-04:00 2012-09-08T05:12:09-04:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the Court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the Court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The Court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

This case began when a true lowlife, Xavier Alvarez, told people at a meeting of the Three Valleys Municipal Water District governing board in Los Angeles County that he was a Marine who received the Medal of Honor. Seemingly the only honor Alvarez received was being a member of the water district governing board.

Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.

How does one defend this law? The federal government was in the unenviable position of arguing to uphold the Act before the Court. The government essentially argued that statements barred by the Act (lies about receiving military medals and decorations) are false statements that have no value and do not deserve First Amendment protection.

The Court did not buy that argument. Justice Kennedy, writing for the majority, got it exactly right when he said the First Amendment "protects the speech we detest as well as the speech we embrace." Echoing George Orwell's fears in the revolutionary and terrifying novel about totalitarianism, 1984, Kennedy mused that the allowing the government to prohibit speech because it is false would create a Ministry of Truth.

Kennedy's fears are well founded. The First Amendment protects not just what we want to say and hear, but also disgusting, despicable statements that we would rather people not say or hear. I am not terribly worried that the government will prohibit popular speech embraced by the majority of Americans. I am, however, concerned that the government will see fit to bar speech with which it disagrees, or which it simply finds to be vile and contemptible.

Members of the Supreme Court share that fear, and that is why they are suspicious of laws that infringe on speech rights. This distrust of government motives means that the Court applies a high level of scrutiny to most restrictions on speech. Restrictions made on the basis of the content of speech, like the Stolen Valor Act, are presumed invalid.

That is as it should be. Living in a country that prizes the protection of speech, often regardless of how abhorrent that speech is, is not for the faint of heart. Our legal tradition all but ensures that people can say, and may have to listen to, speech which offends us to our core. Difficult as this may be, it is no doubt preferable to living in a country that tells us what can and cannot be said and heard.

The purpose of the Stolen Valor Act is to guard against the devaluation of military honors. While that purpose is undoubtedly a noble one, the solution is not to bar false speech about military medals and decorations. Rather the solution is to foster a free marketplace of ideas, which allows all of us to call people like Alvarez liars and to have an open and robust exchange about military honors. Laws against libel and fraud do tell us that not all lies are created equal, and some may actually harm our ability to have an open and robust debate.

But Alvarez's lie was quickly and easily verifiable and has led to widespread condemnation. It is far better for private citizens to use their own speech rights to hold individuals accountable than it is for the government to prevent people, even those like Alvarez, from speaking.

Luckily the Court agreed. The four members of the so-called liberal wing of the Court, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, joined Kennedy's opinion. Kennedy also persuaded Chief Justice John Roberts who, despite his decision in the health care case, is nobody's liberal. Three members of the Court's conservative faction, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, dissented.

But despite the fact that the Court gathered more than a bare majority to invalidate the law, advocates of the now-overturned law need not despair. Breyer, joined by Kagan, concurred with the result, but wrote a separate opinion signaling that Congress could write a more narrow law that focuses on specific harms that result from lies about military medals and honors.

Congressman Joe Heck (R-Nev.) put forward a bill, before the Supreme Court's decision, which would bar the less-than-honest among us from financially benefitting or otherwise materially gaining from lying about military medals and honors. The Court found that Alvarez's lies, while "pathetic" were not made to gain benefits or privileges given to those who had actually earned the Medal of Honor.

In the meantime, I will rejoice in our ability to collectively point and laugh at people like Alvarez.

Editor's note: This post has been updated since its original publication.]]> tag:www.huffingtonpost.com,2012:/theblog//3.1221978 2012-01-23T15:01:22-05:00 2012-03-24T05:12:01-04:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ Citizens United,

Happy birthday. I won't wish you many happy returns of the day. I both hope there aren't many more birthdays, and if there are, I trust they won't be happy ones, at least not for democracy.

But congratulations, you've made it, against all odds. You started as a relatively narrow little case, asking only whether a non-profit corporation could use general treasury funds to create and promote a hit piece against then-presidential candidate Hilary Clinton. You, Citizens United, merely asked the Supreme Court to find the now-vanishing McCain-Feingold law could not be validly applied to you.

But then a funny thing happened on the way to that narrow decision, the Supreme Court decided to ask its own question. The Court apparently was not particularly concerned with centuries of tradition which dictates that they resolve the questions asked by the parties, as opposed to asking themselves a question they wish to answer.

So the Supreme Court sent you back, and asked for more information on whether McCain-Feingold could validly be applied to any corporation. You'll forgive my lack of surprise when I discovered that the Court decided to answer its own question in the affirmative. As so many of us know by now, the Court ruled that for purposes of campaign finance restrictions corporations must be treated as identical to people. If a restriction cannot be placed on a person, then it cannot be applied to a corporation. The Court also held that expenditures -- no matter how large -- made independently of candidates have no potential for corrupting candidates. I'll pause here for laughter.

Thanks to some inappropriate legal maneuvers by the highest court in the land you've made quite a splash, Citizens United. No one can say you haven't made your presence felt in the last two years.

I'll give you, Citizens United, credit for the creation and rise of so-called "Super PACs." These charmingly termed groups are independent-expenditure-only committees that can essentially raise and spend unlimited sums in an effort to elect or defeat candidates. Because of some quirks related to non-profit corporations, Super PACs often need not disclose their donors.

So, Citizens United, if a dark day should come, just remember, you've changed the face of American politics. There is now a shadow campaign finance system of unlimited, and undisclosed money. Don't let anyone tell you this hasn't made a difference. Well, come to think of it, the enormous corporate spending may drown those who try to tell you that.

But finally, a note of caution as you enter your terrible twos -- and I do expect this will be a rather trying time -- not for you, but for many in that segment of the population we call voters. We're certainly talking about you, but not all publicity is good publicity.

Very truly yours,
A birthday non-reveler.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
This agency, the California Fair Political Practices Commission, is essentially California's equivalent of the Federal Elections Commission. The FPPC, established more than 35 years ago by the Political Reform Act, is charged with administering, interpreting, and enforcing the Act. The Act covers matters related to lobbying, conflict of interest, and campaign financing and spending. Broadly, the purpose of the Act and the guiding principal behind the FPPC is to ensure that public officials serve the public, not themselves.

However, that simple and rather uncontroversial goal can lead to a myriad of laws and regulations. The regulations of the FPPC are too often confusing and complex. Those wanting to comply with regulations can be left wondering how to accomplish that sometimes-arduous feat. Unfortunately, such complexity can undermine the very purpose of the Act. Simply stated, if people do not know how to comply with the regulations, it is difficult to see how the goals of the Act can be fulfilled.

Realizing that we now have regulations upon regulations, the new Chairwoman of the FPPC, Ann Ravel, and her staff, have begun the arduous task of clarifying many of those regulations. This is, to be sure, no small undertaking. It is also necessary regulatory reform. First up, gift regulations.

Ravel and her staff have waded through the muddled morass of regulations and, with the benefit of numerous public hearings and meetings, have proposed many common sense ways to clarify and streamline those regulations. Specifically, the proposed changes would address when gifts to public officials need to be reported and counted to the annual gift limit of $420 from individuals to many public officials. These changes are sorely needed. It simply should not be that public officials are unclear on how to act in conformity with rules regulating their conduct.

The Commission will vote in early December on many of the proposed changes. Let's hope that real regulatory reform will be in place by the time the gift-giving season is upon us.

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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ arrest on September 2nd of veteran campaign treasurer Kinde Durkee continue to ripple throughout the California political community. Durkee is accused of stealing and misappropriating campaign funds from Assemblyman Jose Solorio (D). However, many more alleged victims have come forward. The reach of Durkee's alleged fraud is unprecedented. No less than 400 political committees were under her control.

Last week, attorneys representing the suspected victims of Durkee's deception (nearly all of whom are democrats or democratic organizations) asked California's political watchdog organization, the Fair Political Practices Commission (FPPC), for help and guidance.

Attorneys representing Durkee's alleged victims asked the FPPC to permit them to raise money from donors who already contributed the legal maximum. Specifically, some attorneys have argued that contributions purportedly misappropriated by Durkee should not count toward individual contribution limits. In addition, they have also asked for the ability to use legal defense funds to raise money to pay for their legal battles. Under existing law, legal defense funds can only be used to pay for legal actions filed against candidates and officeholders.

Attorneys also asked that the FPPC implement changes in campaign finance reporting laws or enact exemptions for them. Those representing the alleged victims have said it is impossible to file correct reports by pre-existing deadlines because they do not know how much money is in campaign accounts, where the money came from, or how it was spent. In addition, attorneys explained that documents needed to file those records are being held by banks, or have been subpoenaed by a grand jury. Ann Ravel, the FPPC's new Chairwoman, has quite rightly stated that those affected by the alleged malfeasance will get some latitude in filing those reports.

It is now up to the FPPC and perhaps the Legislature to fashion an appropriate response for California-based committees affected by the Durkee debacle. Ravel has already proposed that all campaign treasurers attend training about state laws governing the handling of campaign funds. Such a proposal, which would have to be imposed by the Legislature, could make a big difference in preventing this type of widespread fraud from happening again. Ravel has also stated that the FPPC will post the results of investigations into violations by campaign treasurers on its website. This is yet another step in the right direction.

Stay tuned. The FPPC will next meet on October 13th to consider how best to deal with the alleged victims of Durkee's scheme.




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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ It turns out that the solution to all that ails our country is easy, ever so easy.

But before we get to the solution, let's not forget the problem, which -- good news -- is also ever so simple. It turns out that Washington just does not work.

So while the government is the problem, the people are the solution. Break out the champagne. And please do not ruin the mood by pointing out that the government is made up of the people.
Not wanting for humility, the Republican presidential candidates in a clear and straightforward manner laid out their plans to fixing our country -- themselves. These are not individuals in need of self-esteem courses.

While our federal government may appear strapped for cash, according to many on the stage, there are billions and billions of dollars spent on waste, fraud and abuse (the three favorite words of candidates on both sides of the aisle). According to Newt Gingrich (yes, he is still a candidate), if we merely "modernize" our federal government, we could save $500 billion in waste every year. Rick Perry used similar words to essentially echo the same sentiment. Perry optimistically promised that with regulatory reform, and reform to our tax code the economy will "take off like a rocket." Michele Bachmann similarly promised that it is "easy" to turn around our economy; apparently all we need is a little "backbone."

So to all of you feeling blue about the economy, it's time to turn red -- at least according to those vying for the Republican presidential nomination.

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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
Silberman is accused of trying to convince his former opponent, Deputy District Attorney Serena Murillo, to drop out of a 2008 judicial election for the seat Silberman ultimately won. Silberman is charged with offering -- through intermediaries -- to pay Murrillo's filing fees (totaling less than $1,800) if she agreed to drop out of the race. That move would have allowed Silberman to run unopposed. For this purported conduct, Silberman was charged with an elections code violation. The code prohibits the payment or solicitation of money in an effort to deter another from running for office.

Prosecutors also accused Silberman's consultants -- without Silberman's knowledge -- of later telling Murillo that Silberman would drop out of the race if Murillo would pay more than $80,000 to cover the cost of Silberman's ballot statement. Murillo, instead of accepting either alleged offer, went to the district attorney's public integrity division.

The sordid Silberman affair points to a larger question: should judges be elected? On the federal level, district court judges, court of appeals judges and Supreme Court justices are nominated by the president and confirmed by the U.S. Senate. U.S. bankruptcy judges are appointed to 14-year terms by U.S. court of appeals judges. U.S. magistrate judges are appointed to eight-year terms by district court judges.

Things are often different on the state level, where the voters directly weigh in on the composition of the state judiciary. In my home state of California, for instance, trial judges are elected, or appointed by the governor if there is a vacancy, to six-year terms. Every six years superior court judges stand for retention elections and may be challenged by otherwise qualified California attorneys. Justices of the California Supreme Court and Courts of Appeal are appointed to 12-year terms by the governor and confirmed by the California Commission on Judicial Appointments. Justices stand for retention elections at the end of their 12-year terms.

Does being a good jurist have anything to do with being a good judicial candidate? Would moving to a system where both trial and appellate court judges are appointed and confirmed, rather than elected, create a judicial branch with better-qualified, less political judges?

Since leaving the bench, former U.S. Supreme Court Justice Sandra Day O'Connor has advocated for the abolition of judicial elections. As Justice O'Connor once stated, "Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law's restraints."

Can we count on judges to be truly independent, to make decisions only based only on the law, and not based on politics and/or what is popular, if they must stand before the public every few years in order to keep their jobs?

Judicial elections may be increasingly problematic as the U.S. Supreme Court continues to dismantle campaign finance reforms. Judicial elections are therefore ever more susceptible to the influence of large inflows of money. Will it be any surprise when special interests pour large sums of money into judicial races?

The Silberman matter sheds light on troubling questions concerning the propriety of judicial elections. One thing that does seem clear is that voters will be loath to give up their ability to directly determine the composition of the judicial branch. ]]> tag:www.huffingtonpost.com,2011:/theblog//3.885121 2011-06-27T10:51:44-04:00 2011-08-27T05:12:01-04:00

Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ McComish v. Bennett), the Court invalidated the constitutionality of so-called "rescue" or "trigger" funds provisions. As I have previously blogged (Will the Supreme Court Vote for Speech? and The Supreme Court Could Axe Efforts to Reduce Big Money), rescue funds provisions provide publicly financed candidates with additional money when and if they are faced with privately financed opponents or independent expenditure groups that spend over a threshold amount of money.

Rescue funds provisions essentially serve two goals. First, they are aimed at allowing publicly financed candidates to remain competitive when they are faced with relatively high spending privately financed opponents, or independent expenditure groups that spends money against publicly financed candidates or in favor of their privately financed opponents. Second, the availability of rescue funds also makes it more likely that candidates will opt into public campaign financing programs, which have been held to serve important governmental interests like freeing candidates from the burden of private fundraising and allowing candidates to spend more time with all of their constituents, not just those who can or want to be campaign contributors, and reducing corruption or its appearance.

The Court found that rescue funds provisions violate the First Amendment. Chief Justice Roberts, writing for the majority, essentially held that privately financed candidates and independent expenditure groups will not want to continue spending money over the threshold amounts, which trigger the granting of rescue funds to publicly financed candidates. Therefore, under the Court's logic, the rescue funds provision act to impermissibly limit the spending of privately financed candidates and independent expenditure groups. That is problematic under the First Amendment because the Court long ago ruled that money is speech in this area.

This is a sadly ironic ruling. Far from chilling an open and robust debate, the ability of publicly financed candidates to obtain additional public funds to respond to privately financed opponents and independent expenditure groups actually promotes speech.

Before today, lawmakers (and the citizens via the initiative process) were free to use a number of tools to develop the public campaign financing program that best fit the needs of political candidates in that area. The Supreme Court has now taken the power to determine whether, when and how to give candidates in competitive and/or expensive races more funds power, and away from jurisdictions. The Court has also ignored the reality that rescue funds actually facilitate, rather than chill, political debate.

* Jessica Levinson authored an amicus brief in favor of respondents in this case, and consults for Common Cause on issues related to this case.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/
The question is, will Edwards go from disgraced politician to criminal? Edwards was indicted on federal criminal charges stemming from his 2008 presidential campaign and affair with videographer/former campaign aide Rielle Hunter. Specifically, in the in the 19-page indictment which contains six felony charges, the government charged Edwards with accepting close to a million dollars in campaign donations which were actually used to keep his affair with Hunter secret.

The factual background is salacious and disturbing. Edwards cheated on his terminally ill wife and then lied about it. And then lied about it again. And then he lied about it some more. If convicted, however, it must be only because he violated campaign finance laws, and not because he acted like a jerk. The second part is, as we say, already well settled.

The legal argument is, well, a bit muddy and presents some unique questions. Much more typically, campaign donations used for a personal benefit are handled as civil cases, where a fine, not a prison sentence, is imposed. The government will need to prove, beyond a reasonable doubt, that money given to Edwards to be sent to Hunter falls within the definition of a "contribution" -- which is "anything of value" given "for the purpose of influencing any election for federal office." Hence the question is whether the money given to Edwards to be sent to Hunter (to keep her quiet and out of the public eye) was given in order to influence his campaign. The government argues that it was, because maintaining Edwards' all-American, squeaky-clean image was key to the campaign. Edwards' defense is and will be that the money was given to hide his affair with Hunter, but not to bolster is campaign.

If those donations were in fact "campaign contributions" then they were over the legal limits and went undisclosed. The government will further have to show that Edwards had intent to knowingly and willfully violated the law. Edwards has already expressly disclaimed such intent. The government faces an uphill battle.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ Corporations Can Now Donate Directly to Candidates (According to One Federal Judge)." It now looks like that one federal judge may have changed his mind, as he has asked the parties in the case to file additional briefings on that issue.

As I noted in my article, Judge Cacheris did not address controlling Supreme Court precedent -- a 2003 case called FEC v. Beaumont in which the Court upheld the very law at issue, a ban on corporate contributions to candidates.

I have argued that despite the grievously broad language in the now-famous case of Citizens United v. FEC, in which the Court states that corporations must be treated like natural persons in the campaign finance context, it is up to the Court, and only the Court, to overturn its own precedent. In addition, Citizens United addressed the right of corporations to make independent expenditures, not contributions. Since the Court's seminal ruling in the area of campaign finance law in Buckley v. Valeo in 1976, it has analyzed contributions and expenditures under different analytical frameworks. Specifically, the Court has generally upheld restrictions on contributions, while striking down restrictions on expenditures. In part the Court has stated that direct contributions give rise to fears of actual or apparent corruption, while independent expenditures do not.

Judge Cacheris gave the parties until Wednesday, June 1st to file additional briefs, and ordered that oral argument be set for Friday, June 3rd. His unusual request for additional information and arguments very likely indicates a willingness to change his mind.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ U.S. v. Danielczyk, United States District Judge C. Cacheris did not consider a 2003 Supreme Court case, FEC v. Beaumont, upholding the constitutionality of a ban on direct corporate contributions to federal candidates.

The Danielczyk decision relied heavily on the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC. In Citizens United the Court used unnecessarily sweeping language to suggest that corporations and living, breathing humans must be treated as identical in the campaign finance context. However, Citizens United addressed only the right of corporations to spend money independent of candidates, on ads that supported or opposed those candidates. The ruling did not address the right of corporations to make direct contributions to candidates. For decades the Court has applied a separate analysis to the right to make contributions from the right to make expenditures in political campaigns.

In Beaumont, the Supreme Court correctly focused on the dangers posed by corporate contributions, the lack of expressive consequence of those contributions, and the need to defer to legislative judgments in upholding the ban on direct corporate contributions to candidates. Whether or not the Supreme Court ultimately upholds Beaumont in light of its conclusory and erroneous assertions in Citizens United is, of course, up to the nine justices.

Lower courts are bound by Supreme Court precedent if and until it is overturned by the High Court itself. The Eight Circuit correctly recognized this, ruling only a few weeks ago in a case called Minnesota Citizens Concerned for Life, Inc. v. Swanson, that the ban on direct corporate contributions to candidates remains valid under Beaumont.

Even if the ruling stands, there is an argument to be made that it will make little practical difference. As a result of Citizens United, corporations can spend unlimited sums in opposition or in support of candidates. Direct contributions limits are currently set at about $2,500 per candidate per election. Twenty-five hundred dollars will likely not be transformative under our current campaign finance system. However, it is important to remember that individuals can form an indefinite number of corporations. Whether people would chose to do that, as opposed to simply making independent expenditures, remains to be seen.

The government should appeal Cacheris' ruling on this issue and take the case to the Fourth Circuit Court of Appeals.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ announced that three past and current public officials and one local developer were indicted on, among things, charges of bribery and misappropriation of public funds. As I have previously noted the residents of San Bernardino are unfortunately no strangers to disgraced representatives.

The alleged $102 million bribery scheme includes former supervisor Paul Biane, who is currently a fugitive from justice, Mark Kirk, the director of government relations in the county administrative office and former chief of staff for county supervisor Gary Ovitt, Jeff Burum, a partner at the now-infamous local developer, and James Erwin, former assistant assessor. "WANTED" posters for Blaine now hang in San Bernardino. That can hardly do much for public confidence.

Burum is being held on $10 million bail, while bail for Kirk and Erwin is set at $2 million. The four indictees are facing maximum sentences in state prison of between 6 and 14 years.

In the latest installment of a seemingly endless saga of political corruption, former supervisor Biane and his cohorts have been indicted based on charges stemming from a purportedly corrupt 2006 settlement involving flood control improvements in Upland. The indictment charges that Biane and company threatened and bribed members of the Board of Supervisors to approve the settlement with a developer, Colonies Partners. The indictment says that Erwin conveyed threats from Burum to Biane, Kirk and disgraced former chairman of the Board of Supervisors, Bill Postmus. (Postmus has since pleaded guilty to more than a dozen felony counts and is now cooperating with ongoing investigations).

For his part, Kirk allegedly accepted money to sway the vote of another board member. Not to be outdone, Biane and Postmus purportedly accepted six figure bribes to approve the settlement. The settlement was approved, against the advice of the county counsel and others. But why let the county's attorney stand in the face of a nice bribe?

There is, of course, something quite offensive about agreements that are reached not because they are objectively beneficial and/or productive, but because members of the deals receive kick backs. If the charges are true, there is something particularly abhorrent about public officials, who are, by definition supposed to uphold the public trust. That seems like an almost laughable goal when it comes to charges of bribery and misuse of public funds.
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Jessica Levinson http://www.huffingtonpost.com/jessica-levinson/ Citizens United v. FEC, we have seen the proliferation of spending by government contractors and other groups, spending which can go largely undisclosed.

There are always downsides to disclosure, it might chill some speech and it can present administrative burdens. Having said that, particularly when it comes to government contractors, the benefits of disclosure outweigh the detriments. It is useful for the press, and the public, to know which individuals or groups trying to get business from the government are filling campaign coffers. Such information could, for instance, give rise to or put to rest questions as to why certain contractors are awarded government contracts.

Disclosure is an incremental step and treads a middle ground between a system of no regulations that allows for anonymous spending and set of laws that would prohibit contractors and would-be contractors from giving donations. A bill circulated in Congress last year would have taken that second route and banned certain contractors from giving campaign donations.

While there is buzz about whether President Obama's potential move in favor of more disclosure is politically motivated, perhaps the story behind the story here is how this law would be accomplished -- not by legislation, but by executive order. Why? President Obama and many Congressional Democrats attempted to implement these disclosure reforms via the legislative route, but to no avail. Finding no success in the legislative process, President Obama may go it alone.

As important as it is for the public to receive information regarding campaign contributions by federal contractors, it is worth at least debating the propriety of President Obama's method for implementing this reform. ]]>