WDC Joins 19 Groups in Filing Supreme Court Brief in Election Spending Case

August 3, 2009

Madison - The Wisconsin Democracy Campaign joined 19 legal and civic groups and a former Georgia Supreme Court justice in filing a brief with the U.S. Supreme Court on Friday arguing that allowing corporations to pour even more into the flood of special interest money in judicial elections “would have a profound and negative effect on the selection of state court judges and could damage the integrity of the judiciary.” The brief says a negative ruling in Citizens United v. Federal Election Commission could cement in place and aggravate problems that have surfaced in recent years in Wisconsin where businesses, unions and other groups can tap directly into their treasuries to secretly fund unlimited campaign spending. It also would spread such activity and the election arms races it fuels to other states.

“Special interest spending on judicial elections – by corporations, labor unions, and other groups – poses an unprecedented threat to public trust in the courts and to the rights of litigants,” said the brief, which added, “As other groups felt pressure to match this corporate treasury spending, these issues would only snowball.”

The Court will hear arguments in the Citizens United case in a special September 9 session.

The outcome of the case will affect all elections, not just those for judges. But Bert Brandenburg, executive director of the Justice at Stake Campaign, the lead signer in the “friend of the court” brief, noted that judges are sworn to be impartial and not give extra consideration to campaign backers.

“The Supreme Court recognized just last term, in Caperton v. Massey, that runaway election spending can tilt the scales of justice, and actually violate a litigant’s constitutional rights to a fair trial,” Brandenburg said. “A negative ruling in Citizens United could make those problems worse than ever.”

Congress enacted the first ban on corporate election spending in 1907. States have a wide variety of laws on corporate spending, and some judges face elections in 39 states. The brief warned that allowing corporations to spend directly from their treasuries on elections ultimately would undermine similar bans on unions and other special interest groups.

The full brief is available online.

The Citizens United case originally was a narrower dispute, dealing with whether federal election laws could be applied to an available-on-demand video called “Hillary the Movie.” The video attacked Hillary Clinton in the weeks before the February 2008 California presidential primary.

In June, the Supreme Court asked lawyers to return in September and argue whether two previous rulings should be overturned that upheld corporate spending bans. Those rulings were Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Elections Commission (2003).

The court’s decision to broaden the case has sparked growing national attention. Numerous groups and other interested parties have filed amicus briefs with the Supreme Court. They include: Senators John McCain (R-Ariz.) and Russ Feingold (D-Wis.), authors of the Bipartisan Campaign Reform Act; the Campaign Legal Center; the Center for Public Accountability-Zicklin Center; Democracy 21; the Brennan Center for Justice; US PIRG; Common Cause; and the Committee for Economic Development.

The brief was signed by 20 groups and Norman S. Fletcher, retired chief justice of the Georgia Supreme Court. Along with the Democracy Campaign, the groups signing the brief include: Justice at Stake Campaign; American Judicature Society; Center for Governmental Studies; Chicago Appleseed; Chicago Council of Lawyers; Citizen Advocacy Center; Common Cause; Colorado Judicial Institute; Democracy North Carolina; Illinois Campaign for Political Reform; Justice for All; Michigan Campaign Finance Network; North Carolina Center for Voter Education; Ohio Citizen Action; Pennsylvanians for Modern Courts; Public Campaign; TakeAction Minnesota; Texans for Public Justice; and Transparency International-USA.