A New Campaign Finance System Based On When Contributors Give

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the Los Angeles The Daily Journal.

This month marks the two-year anniversary of the U.S. Supreme Court's much maligned decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). In that case, a bare majority of the Court found that for purposes of spending money in the political marketplace, corporations must be treated as identical to people. The Court also ruled that expenditures made independent of candidate campaigns - no matter how large those expenditures are - cannot be corrupted.

The result of the Citizens United decision is that corporations can spend unlimited sums in elections. We have already seen the consequences in the Supreme Court's handiwork with the advent of Super PAC spending in Iowa and New Hampshire. This is surely only the beginning.

Since the Supreme Court's January 2010 decision, many have been scrambling to find new ways to limit the influence of money in politics. One largely unexplored way to limit the negative consequences of money in electoral campaigns is to institute temporal restrictions on campaign contributions. I recently published a law review article, entitled "Timing Is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections," in which I advocate for the imposition of limits on when money may be given and spent during campaigns.

Most jurisdictions seek to stem the pernicious influence of money on electoral processes by limiting the size of campaign contributions. Those jurisdictions have concluded that large campaign contributions may give rise to actual or apparent corruption and therefore place per election limits on the size of campaign contributions. However, other jurisdictions impose restrictions based on when those contributions are made and received. These temporal (or time-based) campaign contribution limits may take various forms, including pre-election, legislative-session, off-year, or post-election restrictions on contributions.

Prof. NeJaime weighs in on Ninth Circuit's decision on Prop. 8

By Associate Professor Doug NeJaime

In a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Proposition 8, the California constitutional amendment that eliminated the right to marry for same-sex couples, violates the federal Constitution. Writing for the court, Judge Reinhardt decided the case in the most narrow fashion available, basing his holding on the unique situation in California. The state maintains an entirely separate system for same-sex couples (domestic partnership) and provides all the same state-law rights and benefits of marriage through that system. In addition, unlike in other states, same-sex couples enjoyed the right to marry in California and had that right withdrawn by Proposition 8. Based on these unique facts, the court concluded that Proposition 8 fails to meet even the lowest level of scrutiny under the federal Equal Protection Clause. By ruling in a narrow fashion and basing its holding on the reasoning of Romer v. Evans (the U.S. Supreme Court decision striking down Colorado's Amendment 2, which withdrew and prohibited antidiscrimination protections for lesbians and gay men), the Ninth Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale. In effect, the Ninth Circuit's decision allows the Supreme Court to continue the incremental, case-by-case trajectory of marriage for same-sex couples in the United States.

Occupy the public domain

By Professor Jennifer Rothman

This op-ed, which discussed the implications of the Supreme Court's decision in Golan v. Holder on the public domain, originally appeared in the Feb. 6, 2012 edition of the San Francisco Chronicle.

If you celebrated Martin Luther King Jr. Day by watching the "I Have a Dream" speech on YouTube, you broke the law. Or at least that's what the Martin Luther King Jr. estate contends. It claims that if you want to legally watch a video of the Rev. King's copyrighted speech - one of the most important speeches in our country's history - you need to pay its foundation $10.

Instead of providing for sharing such important moments, our government has been complicit in endorsing a vision of copyright law in which nothing is free for use by the public. Recently, the same King foundation demanded that the federal government pay $800,000 to use King's words and image on the memorial statue of him in Washington, D.C. Rather than asserting the importance of this monument for our culture and its status as a public, nonprofit use of his name and words, the government caved.

Read the complete op-ed in the San Francisco Chronicle.

Ballot Initiatives Have Harmed California

By Associate Clinical Professor Jessica Levinson

When people pose questions like, "Do you want to save our democracy? Our environment? Our schools?" I either answer "no" or keep walking. It is signature gathering time in California, and most of us have experienced that awkward moment when we are approached by an energetic, and often aggressive, petition gatherer. Inevitably the signature gatherer poses the type of question that would seem unimaginable to answer in the negative. And yet, I do, if I respond at all. Why?

The more I think about and study the initiative process, the more I feel committed to the idea that I will not sign petitions for ballot measures. I say this with full awareness of the fact that I am and have been a strong proponent of the independent redistricting commission, which was created by a ballot initiative. I have struggled with the idea that perhaps initiatives should only affect governmental processes such as redistricting, term limits and campaign finance laws. The problem with that approach has played out thanks to our term limit law.

So do not get me wrong, I think at least a portion of these proposed ballot initiatives would support worthwhile ideas or causes, I just do not think they should be made into the law through the initiative process. (The problem, of course, is that some of these ideas may never be enacted via the legislative process as this is a representative democracy, and frankly, that is what happens). In addition, many -- far too many -- of these proposed ballot initiatives sound like great ideas until one actually reads the text of the proposed law.

[Click here to continue reading Levinson's commentary on KCET.org]

Guest Speaker Maxwell L. Stearns on the State of Democracy

Maxwell L. Stearns, Marbury Research Professor of Law at the University of Maryland School of Law spoke on "Direct (Anti-)Democracy" as part of Loyola's Faculty Workshop Series.

Happy Second Birthday, Citizens United: Now On To Your Terrible Twos

By Associate Clinical Professor Jessica Levinson

Dear 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.

[Click here to continue reading Levinson's commentary on the Huffington Post.]

Maples v. Thomas: Putting the "Just" Back into Justice

By Professor Laurie Levenson

Last week, the United States Supreme Court decided Maples v. Thomas, 565 U.S. ___ (2012). Technically, the case was about whether Cory Maples, who had been convicted of murder and sentenced to death, would be able to overcome a procedural hurdle in the federal habeas corpus laws and seek relief in federal court. The problem arose when Maples' pro bono lawyers from the prestigious law firm of Sullivan & Cromwell abandoned him, causing him to miss the deadline for appealing the denial of his state habeas corpus petition.

The Supreme Court unquestionably reached the right result when it ruled that there was cause for the procedural default and that Maples' lawyers' blunder should not undermine his ability to seek habeas relief. However, what was most interesting about the decision was not the technical legal analysis. It was the language Justice Ginsburg used to emphasize why the Court would be ruling the way it did.

She began her decision by stating that "no just system would lay the default at Maples' death-cell door...." (emphasis added). In other words, it is time to put the "just" back into "justice." The laws are full of procedural hurdles for defendants seeking to attack their convictions, but defendants should not bear the brunt of mistakes committed by their lawyers. This is especially true in a system where some states cap defense attorney fees at $1,000 for out-of-court work and these lawyers are paid only $70 per hour. Clients abandoned by counsel should not be left without recourse. The goal should be a "just "system. That system has costs and it is time to open our eyes to them.

While Justices Antonin Scalia and Clarence Thomas dissented, conservative Justice Samuel Alito concurred. He stated that this case presented the "perfect storm of misfortune" leading to the deprivation of Maples' legal representation. He may be right that this was the perfect storm, but the forecast for future cases does not look particularly sunny. Given the lack of qualified death penalty counsel and the absence of resources to pay them, there will inevitably be more storm clouds ahead.