Daily Media Links 5/5: Getting the Politics Out of Proxy Season, FEC Conflicts: the Choices of the Chair and the Responsibility for Non-Enforcement, and more…

May 5, 2015   •  By Scott Blackburn   •  
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SCOTUSblog: Symposium: The judicial-elections exception to the First Amendment
By Ilya Shapiro
By now anyone who would be reading this will know that last week the Supreme Court decided that the First Amendment’s speech protections are weaker in the context of judicial elections than in other kinds. In effect, the five-Justice majority found that a state’s interest in preserving public confidence in its judiciary extends beyond preventing the “appearance of corruption” that’s at play in the context of candidates for legislative or executive office. Accordingly, states – or, as in this case, state bar associations – can limit political speech that aims to raise money for judicial candidates.
I think the Court got it wrong: while I don’t like the idea of judicial elections – though they’re better than any alternative but the federal model – if you’re gonna have em, the Constitution doesn’t allow you to pick and choose between the salubrious and unseemly parts of democracy. But at this point I don’t have any novel analysis beyond the dissenting opinions and the coverage provided in this symposium.
Accordingly, rather than go over well-trodden ground, I’ll pick out an excerpt from each opinion that epitomizes the point being made and offer a brief comment.
NY Times: Justices’ Opinions Grow in Size, Accessibility and Testiness, Study Finds
By Adam Liptak
WASHINGTON — The Supreme Court seems to be in a foul mood.
It heard its last arguments of the term on Wednesday, including an exceptionally bitter one in a death penalty case. That same day, it issued a 5-to-4 decision on judicial ethics that generated six overlapping opinions, some of them laced with venom and scorn.
The discord may only deepen over the next two months, as the justices exchange draft opinions in what seem certain to be intensely divided decisions on health care and same-sex marriage.
Corporate Governance 

Wall Street Journal: Getting the Politics Out of Proxy Season
By James R. Copland
Using proxies as a political soapbox has costs beyond those directly incurred by companies to respond to the proposals. Social-activist shareholders of companies that produce oil, pharmaceuticals, military equipment, cigarettes and agricultural products regularly leverage this process to generate press attention inimical to the companies’ core interests. Public-employee pension funds headed by elected partisan officials—most notably, those for New York City and state, respectively led by comptrollers Scott Stringer and Thomas DiNapoli—exploit the proxy process to browbeat companies into leaving trade associations and other groups that the officials view as unhelpful to Democratic Party interests.
The SEC’s legal mandate is to protect investors, facilitate capital formation, and promote efficient markets. Allowing social and policy issues to dominate corporate annual meetings conflicts with these goals. Here’s hoping that the agency revisits this issue and removes politics from proxy process, for good. 
Candidates, Politicians, Campaigns, and Parties

National Journal: Nine Former Members of Congress Still Sitting on Millions in Campaign Cash
By Lisa Hagen
They may have left Capitol Hill, but many former members of Congress retain active campaign accounts—some of them holding millions of dollars that continually stoke rumors of political comebacks.
A few decades back, former members of Congress could take their campaign cash with them, for personal use, when they retired. That avenue has long since been closed off, but former federal candidates are still free to hoard what campaign funds they had left and use it to donate to charities, candidates, and state or national party operations.

More Soft Money Hard Law: FEC Conflicts: the Choices of the Chair and the Responsibility for Non-Enforcement
By Bob Bauer
In op-eds and interviews, FEC Chair Ravel has chosen a particular course for her one-year term as the agency’s leader.  She is making use of the pulpit she now commands to express her view that the law is going unenforced.  It is question of Republican intransigence, she argues, and the consequences are “destructive to the political process.”  Commissioner Weintraub has advanced the same position. Republicans inside and outside the FEC have strenuously objected to this conclusion and the manner in which she has expressed it.  And they have added to their complaint the allegation that, in a “listening tour” on dark money and a forum organized on the role of women in politics, the Chair has acted outside her mandate and invited the appearance of partisan bias.
This is all very nasty and has led to collective “acting out,” as in the recent dispute over whether to have bagels or donuts at a 40th anniversary event.
Two different claims are getting thrown together in this clash, and separating them out may help focus on what ought to matter here.  One is the contention that the Chair is taking the agency, maybe for political purposes, beyond its proper mandate, and the other is the recurring charge that only one side of the Commission is serious about “enforcing” the law.
State and Local

Massachusetts –– WWLP: Campaign mailer is subject of free speech case

By Andy Metzger

A state representative attempting to hold one of his political detractors criminally responsible for an election-season pamphlet has set the stage for arguments Thursday over the constitutionality of a 1946 state law limiting political speech.
At issue before the Supreme Judicial Court is the constitutionality of a law that punishes deliberate attempts to make false statements to boost or hinder an electoral candidate. The court has also been asked to decide whether a woman accused of making the mailers can be arraigned in Falmouth District Court.
Last fall in the midst of his first re-election campaign, Rep. Brian Mannal (D-Barnstable) made high-profile accusations, accompanied by an application for criminal complaint, against the treasurer of the Jobs First Independent Expenditure PAC.
New York –– NY Times: M.T.A. Board Votes to Ban Political Ads on Subways and Buses
By Emma G. Fitzsimmons
The board of the Metropolitan Transportation Authority voted on Wednesday to ban political advertising on New York City subways and buses to avoid the legal challenges it had faced after rejecting some ads with political messages.
The vote followed a lively debate over free speech as dissenting board members and advocacy groups argued that the transit system was a public space that should be a forum for debating political issues. The new policy, which took effect immediately, prohibits ads for political parties or ballot referendums or any ad that is “political in nature.”
The authority still allows commercial advertising, paid messages by the government and some public service announcements. Officials at the agency said the legal challenges over contentious ads had become a distraction.
New York –– Wall Street Journal: N.Y. State Senate Leader Dean Skelos, Son Arrested on Corruption Charges
By Rebecca Davis O’Brien and  Erica Orden
The 43-page criminal complaint released by the U.S. attorney’s office in Manhattan charged Mr. Skelos, the state’s highest-ranking Republican, and his son, Adam Skelos, with two counts of conspiracy, two counts of extortion and two counts of solicitation of bribes and gratuities.
The complaint describes an alleged scheme to extort businesses for money to benefit the senator’s son, with the expectation that the payments would influence the senator’s official actions. It also alleges both men went to great lengths to conceal their activity, including using coded language and a so-called burner phone.
“I know that I will be found not only not guilty, but innocent,” the 67-year-old senator from Long Island said after he and his son emerged from court Monday afternoon. “I will be found innocent and my son will.”
Wisconsin –– Milwaukee Journal Sentinel: Wisconsin Supreme Court divided over chief justice
By Patrick Marley
Patience Roggensack and Shirley Abrahamson are both laying claim to the title. A majority of the state’s high court agrees with Roggensack, but a federal judge may ultimately be called on to sort out the matter. 
For 126 years, the job of chief justice went to the most senior member of the court, and Abrahamson got the position in 1996 because of her veteran status. Having Abrahamson, a liberal, in that position for years has frustrated conservatives who control the court. 
Republicans in the Legislature adopted a measure to change the state constitution to allow the members of the court to pick the chief justice. The issue went to voters, who adopted the change 53% to 47% last month. 
Scott Blackburn

Scott Blackburn


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