Introducing Summary Judgments

Welcome to Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. Intended to be read by lawyers, judges, scholars and students, this blog will offer commentary on legal and policy issues as well as highlight the academic pursuits of the Loyola community.

This forum will feature professors' analyses of legal matters ripped from the headlines. That will be complemented by periodic digests of faculty members' scholarly work and prolific media commentary. From time to time, we'll post summaries of the many academic events Loyola hosts on campus, from law review symposia to policy colloquia. Most importantly, this blog will serve as a clearinghouse for the wide variety of viewpoints here at Loyola Law School.

We will debut this blog with the "11 on '11" series. Eleven members of the Loyola faculty will offer commentary on what they expect to be the most significant legal developments in their respective fields in 2011. My colleague and blogger extraordinaire Rick Hasen will open the series by commenting on McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law.

Thanks for joining us. We hope you return often!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers

The Big Campaign Finance Story of 2011: An Effective End to Public Financing

By Professor Rick Hasen

It is with great pleasure that I kick off the "11 on '11" series at Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. The series asks us to identify what is likely to be the most significant legal development in our field in 2011. In the field of campaign finance, the big story is likely to be the continued demise in public financing of campaigns, a development caused by both court rulings and legislative inertia.

As early as tomorrow morning, I expect the United States Supreme Court to agree to hear McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law. Under the law, a candidate for state office who agrees to take public financing in lieu of private funds to finance a campaign receives extra public financing when the candidate faces a wealthy opponent who spends large sums in the election or by large independent expenditures against the candidate accepting public financing. As I explained in a June post at the Election Law Blog, I expect the Court to not only take this case, but to reverse the Ninth Circuit and strike down the Arizona public financing system. (To be clear, that's not a result I favor: the Ninth Circuit's opinion in the case, and Judge Kleinfeld's concurrence, offer strong reasons to reach a contrary decision in this case and uphold the Arizona regime).

This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

If the Court strikes down the Arizona plan, I expect reformers will push for various alternative plans (which have been proposed over the last few years) to provide public financing to candidates, along with a multiplier match (3 or 4:1) for small contributions. (Give a candidate $100? The candidate gets an additional $300 or $400 from the public financing system.) The idea here would be to provide another way that publicly financed candidates to run competitive campaigns without running afoul of the First Amendment (as likely understood by the Court in McComish). Such plans,however, face two major problems. First, it is not clear if they will actually attract such candidates to participate. Will a rational candidate expect that there will be enough money in the system from these multiplier matches to participate, when facing not only wealthy candidates, but independent spending campaigns which can now be funded by unlimited corporate or union funds through super-PACS? (All of this new funding, of course, is thanks to the big campaign finance story of 2010, the Supreme Court's decision in Citizens United.)

Second, it will be a hard sell to enact new public finance laws during these difficult economic times. Arizona passed its current measure via initiative. It would require considerable work and resources to get a new measure before voters and passed.

The lack of public financing will also be a major story in the upcoming 2012 presidential campaign, which will get going in 2011. As I describe in detail in Richard L. Hasen, The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in THE FUNDING OF POLITICAL PARTIES (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge, forthcoming March 2011) (draft available), no serious candidate in the 2012 presidential campaign will be able to afford to take public financing: the U.S. system for publicly financing presidential elections simply has not kept up with the ability of non-participating candidates to raise funds privately. Though President Obama pledged to fix the public financing system, he's never come forward with a plan to do so, and even if he did, such a plan would have virtually no chance getting out of the Republican House or past a Senate filibuster.

Public financing will still exist in 2011 and beyond, but expect fewer participants and less of an impact of such systems going forward.

States cannot ignore federal role in Medicaid administration

By Professor Brietta Clark

For the past few years, the California legislature has been trying to deal with its fiscal crisis by cutting Medi-Cal spending dramatically. Medi-Cal is California's version of Medicaid -- it is a joint federal-state program that benefits significantly from federal funding, and is also subject to federal law. Health care providers and beneficiaries have used federal law to challenge recent state cuts in federal courts, pretty successfully so far.

The latest round in this battle between providers and the state occurred a few weeks ago, in California Association of Rural Health Clinics v. Maxwell-Jolly (CARHC). CARHC challenged a law enacted last year that eliminated coverage for certain services, including adult dental, podiatry and chiropractic serivces, provided by Rural Health Centers (RHCs) and Federally Qualified Health Centers (FQHCs) to Medi-Cal beneficiaries. RHCs and FQHCs are located in medically underserved areas, and they are required to treat people without regard to their ability to pay.

Read more at Prof. Clark's Health Care Justice Blog.

Supreme Court takes on violence in videogames

By Professor F. Jay Dougherty

The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames". In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.

The lower courts have refused to do that in this case (and in other cases challenging similar laws in other states). The Ninth Circuit refused to extend to violent videogames the rules applicable to obscenity regulation, and, applying the "strict scrutiny" required as to content-based regulations of speech (which the state law would be), found that scrutiny not satisfied. First, there was no credible evidence that violent media causes psychological harm to anyone, including children. Since protecting against such harm was the only "compelling government interest" the state could assert, the law failed strict scrutiny. Even if one assumed the state did prove such a compelling interest, the statute failed the second part of the strict scrutiny test; namely that the law be "narrowly tailored" to effectuate that interest and there are no less restrictive alternatives. The current industry rating system, the availability of parental controls on modern gaming systems, and enhancing education of parents and retailers about that system would achieve the goal in a less restrictive manner, according to the Ninth Circuit.

Prof. John Nockleby awarded rank of Honorary Diplomate by ABOTA

Professor John Nockleby, director of Loyola's Civil Justice Program and founder of its Journalist Law School, was awarded the rank of Honorary Diplomate by the American Board of Trial Advocates.