A CAUTIONARY TALE

Richard Winger, editor of Ballot Access News and a longtime advocate for the rights of minor parties, has, along with several others, been held liable to pay $243,279.50 in attorney’s fees after losing a lawsuit brought to invalidate California’s new “top-two” primary system, adopted in a June, 2010 referendum.  I understand that a motion for reconsideration has been filed, and I am hopeful that this penalty will be vacated so that Richard’s important work in the area of electoral reform will not be crippled.

This unfortunate situation is a cautionary tale for those of us who seek to advance the cause of electoral reform through the courts. 

Richard and I have worked together for many years in various efforts to open up the electoral process and level the playing field for independent voters and minor parties. We differ strongly on the issue of top-two.  In Richard’s view, top-two hurts minor parties by limiting the candidates on the general election ballot to the two highest vote getters in a non-partisan primary election in which all candidates and all voters, regardless of party affiliation, participate on an equal footing.  Candidates are permitted to list a party preference.  Under the traditional system of party primaries, still operative in most states, each qualified party, major or minor, is assured that its candidate will appear on the general election ballot under the party’s name. 

For independents like me, top-two is a positive reform because it allows independent voters (who are more often than not barred from party primaries) to fully participate in the electoral process, and it breaks the hold of the parties on the candidate selection process. 

In their efforts to defeat this reform, through the courts and otherwise, Richard and other minor party activists have, in my opinion, allowed themselves to be used by the major parties. The parties, major and minor, have opposed the top-two system.  In California, the Democrats and Republicans decided it was best to allow the minor parties to play the more active role both in the media and in the courts.  And since the adoption of top-two by a substantial majority (53.8 to 46.2 percent) of the voters, the major parties have worked to discover how to use the new system to their advantage, while Richard and the minor parties in California have continued to litigate against it. 

In continuing down this road, they ignored warning signals that they would not only reach a legal dead end, but that there might be adverse financial consequences for lawyer and client alike.  The U.S. Supreme Court has upheld top-two as constitutional, and the U.S. Court of Appeals rejected a further challenge after the Supreme Court ruled.  The efforts of Richard and his attorney to enjoin the implementation of top-two also failed.  

The lawsuit in question tried to parlay two minor issues, neither of which had legal merit, into a wholesale attack on the top-two system.  The issues were whether a candidate could list as a party preference only the name of a qualified party, and whether top-two made write-in votes impossible.  By lack of merit, I mean that the Courts had already ruled that neither of these was a constitutional right that state legislation had to respect.  They are questions of public policy, with arguments on both sides.  Furthermore, these alleged defects in top-two can be easily remedied by the legislature. 

Despite all of this, Richard and his lawyer went ahead in their effort to overturn an important pro-democracy reform that the voters of California had supported.  There are lessons here.  They have to do with what you can and can’t accomplish through the courts, and what warning signals you must heed, as an attorney or a litigant, in the electoral arena. 

Perhaps most important, particularly for independents, we must not allow ourselves to be used by the major parties to prop up a partisan political arrangement from which more and more Americans are disaffected.  Did Richard believe his alliance with the major parties would provide legal and financial cover, despite the weakness of his case?  We all have something to learn from these unfortunate events.

 

HOW MUCH TRANSPARENCY IS TOO MUCH?

An important dialogue is taking place around the issue of disclosure by certain non-profit organizations that support or oppose candidates for federal office.  While the issues may seem technical, they impact on how our electoral process works and how we participate in it.

The American Bar Association (ABA) is considering a resolution that would require Section 501(c)(4) organizations that spend money supporting or opposing a candidate for federal office to disclose the names of their contributors.  A 501(c)(4) is a tax exempt advocacy organization such as the League of Women Voters, the National Rifle Association and IndependentVoting.org.  The last-named is my client.

Under present law, such organizations are allowed to spend funds from their general treasury to support or oppose candidates, so long as those expenditures do not constitute a significant portion of their budget.  The ABA resolution recommends that an organization which does so be required to disclose the identity of anyone who has contributed $200 or more to it.  The proposal is similar to H.R. 4010 (pending legislation in Congress regarding these issues), which mandates that a 501(c)(4) that uses funds from its general treasury to support or oppose a candidate for federal office must disclose the identity of all persons who gave more than $10,000 to the organization from the beginning of the calendar year prior to the date of the disclosure in question.  The ABA threshold for disclosure is significantly lower. 

I am wary of the presumption in the press and in the heat of the current presidential campaign that 501(c)(4) organizations exist only for purpose of evading campaign finance regulations.  The proposed disclosure and reporting requirements would impose a significant burden on such an organization should it choose to participate in the federal election process. 

Now, should a 501(c)(4) allow itself to become a conduit for wealthy people seeking to use it as a “pass through” for money spent to elect candidates, then this activity and the source of its funding should be disclosed.  It might happen, however, that in the course of a campaign, a candidate for Congress makes a statement on an issue related to the 501(c)(4)’s mission that prompts the organization to speak out against the candidate, even though the organization had not planned to do so, and had not and did not contemplate participating in the electoral arena. 

Under the ABA’s proposal, such expenditure would trigger disclosure of the identity of all contributors of $200 or more, including those who did not intend and had no knowledge that their money would be used for such expenditure.  This might discourage persons form contributing to the organization at all.  Consider a person living in a small, conservative, rural community who is strongly pro-choice.  Such a person might not contribute to a pro-choice 501(c)(4) for fear that her support would be disclosed and make her a target of hostility in the community where she lives and works. 

In First Amendment legal parlance, this is called "a chilling effect."  A person is less likely to exercise her right to free speech and free association for fear that doing so would cause her harm. 

Isn’t it enough to require that the organization making the expenditure disclose its identity?  That might cause a past contributor who did not agree with the expenditure to not give again.  But it would not discourage contributions for fear of possible disclosure and retaliation against the contributor. 

Sometimes, too much transparency can be a bad thing.

HOW DID WE END UP MAKING PEOPLE BUY PRIVATE HEALTH INSURANCE? IS IT CONSTITUTIONAL? ONE LAWYER’S VIEW

The debate and the litigation over Obamacare and its “individual mandate” has been cast in traditional left/right terms. Those on the left favor requiring persons to buy health insurance so that it is possible to insure everyone, including those with pre-existing conditions. Those on the right oppose it as an unacceptable intrusion by government into the lives of Americans by requiring them to buy a product they may not want.

I consider myself a progressive, and I have serious misgivings about the individual mandate, legally and otherwise. Our country, unfortunately, has a system in which private insurance companies, operating at a profit, are the means we have to access health care. This has proved far more expensive than systems like that in Canada, where a government-run plan paid for by taxes provides free medical care to all. In addition to the expense, our privately financed and run health care system pits the provider, the insurer and the patient against each other. The provider seeks to charge as much as possible, the insurer seeks to avoid coverage, and the patient is at the mercy of both.

One response has been for people to opt out of the system altogether, and accept the risk of being uninsured in the face of serious illness. Some do so because they cannot afford private insurance (or do not want to belt-tighten when it comes to necessities like food and education) and do not qualify for Medicaid. Others do so because they consider the risk a better alternative to entering the health insurance market.

This is the context in which the government – which has failed for generations to come up with an affordable, compassionate and medically sound system -- seeks to force citizens to pay and participate. This is the “solution” they have come up with.

Now, it is true that we live in a profit-based economic system, whether we like it or not. A rationale for such a system is that people are free to participate when and how they want to. You don’t have to get cable TV or a new car if you prefer to spend your money some other way.

Obamacare and its individual mandate is the worst of both possible worlds. It is a for profit system in which you do not have the freedom of choice that free enterprise promises.

Is this constitutional?

Birth Control and Religious Freedom

The nation’s Catholic bishops and some other religious leaders are protesting the Obama administration’s determination that church operated schools, hospitals and charitable institutions that provide health insurance to their employees (most of whom are lay people) must include coverage for contraceptive pills and devices. They argue that religious institutions and those who operate them cannot be made to spend money for things that violate their religious beliefs.

Let’s be clear. Nothing in the law requires any person or institution to use or provide contraceptive services. All that is mandated is that employee health plans include coverage for them.

The principle that people cannot be made to pay for things they do not want for themselves and do not believe in could have broad ramifications. Residents of Texas must pay taxes that are used to carry out executions in capital cases. The federal government requires that we pay taxes that are used to support wars, even if we think war is morally wrong.

Now, you might argue that opposition to capital punishment or war is moral, not religious, in nature, and therefore the First Amendment protection for religious freedom doe not apply. However, conscientious objector status has been accorded to exempt persons from the draft if they oppose war on religious or deeply held moral grounds. So, if the bishops are correct, shouldn’t conscientious objectors be allowed to withhold that portion of their tax obligation that supports the military budget?

As for the death penalty, the Anglican and Episcopalian churches oppose it.

The bishops might argue that requiring persons to pay taxes is different from requiring them to buy health insurance. But don’t the bishops lobby to prevent federal tax dollars from going to support abortion?

These are some of the thorny issues that must be engaged as this fight between the bishops and their allies and the federal government plays out.

A SECOND LOOK AT AN ISSUE IN CHURCH-STATE RELATIONS

In September, 2008 the New York Court of Appeals was scheduled to hear oral argument on the issue of whether the Archdiocese of New York could demolish historic St. Brigid Church without the permission of the parishioners. The parishioners claimed that Section 5 of the Religious Corporation Law required their permission before the chief asset of a religious corporation could be used for a purpose other than the support and maintenance of the corporation.

The Archdiocese argued that the hierarchical nature of the Roman Catholic Church exempted it from that stricture. The parishioners responded that the Archdiocese waived any such special treatment when it elected to incorporate St. Brigid and many other parishes under the Religious Corporation Law; it could not claim the benefit of corporate status (such as limited liability) without abiding by its requirements.

On May 19, 2008, before the case was to be heard, the Archdiocese announced that an anonymous donor had come forward with $20 million to restore and reopen St. Brigid. The appeal became moot and this important legal issue was not decided by New York’s highest court.

On November 15, 2011, however, the Court of Appeals will hear argument on the same legal issues in a case involving Our Lady of Vilna Church in lower Manhattan, built by Lithuanian immigrants in the early twentieth century. The outcome of the case will determine the fate of this and other churches among the hundreds of incorporated parishes in New York.

I will be arguing on behalf of the parishioners. Peter Johnson, Jr. will appear for the Archdiocese.

WILL THE EDWARDS PROSECUTION UNRAVEL CAMPAIGN FINANCE REGULATION?

John Edwards has been indicted for receiving large gifts from friends that he used to cover up his affair and love child with Rielle Hunter during his presidential campaign. According to federal prosecutors, these were campaign contributions and expenditures and should have been reported as such. In addition the amounts given to Edwards exceeded the $2,500 contribution limit.

The theory of the prosecution appears to be that the gifts and expenditures were meant to benefit the campaign by avoiding disclosure of what would surely have damaged Edward’s status as presidential contender.

As a candidate in a presidential primary, Edwards received $12,882,877.42 in federal primary matching funds. These funds are available to a candidate to be used for “qualified campaign expenses.” It follows under the prosecutions’ theory that Edwards could have used federal money to conceal his sexual peccadilloes.

OK, so I am running for president and the recipient of primary matching funds. My teenage daughter gets pregnant, and I am concerned it might damage my campaign, so I arrange for an abortion, with her consent of course. Can I use matching funds for this? Or, I am accused by a masseuse of making a pass at her during a massage. She threatens to go public if I don’t give her $250,000. Can I use matching funds for this? What if a young woman threatens to expose a titillating tweet I sent her? Under the theory of the Edwards prosecution, the answer would have to be yes.

Should the government compile a list that states which such expenditures are allowed and which are not? If they don’t, and surely Edwards will contend, they have not, how is a candidate to know what is legal and illegal. And if the funds are so used and reported, how much information must be given about their purpose? Would not a filing that disclosed the purpose defeat the purpose of spending the money in the first place? What is a candidate to do?

Tune in to the John Edwards trial to find out.

TO BAIL OR NOT TO BAIL

There is certainly an issue as to whether or not Dominique Strauss-Kahn posed a sufficient flight risk to be denied bail. After all, he is a citizen of France (a country that does not have an extradition treaty with the U.S.), and he was arrested on an airplane about to take off for Paris.

On the other hand, his crime, while serious, is not murder, and he had to post one million in cash and five million in collateral to remain free pending trial. Cleary, no matter what decision the court made on the issue of bail, it was bound to cause controversy. Since his arrest, the tabloids have bombarded us with headlines like, “LePerv’s Palace, Outrage as Dom Gets Bail” and “Pepe Le Pew! East Side High Rises Slam Door on Skunk.”

Part of what is fueling the controversy is that a clean decision was not made. There appears to have been a negotiation with the court, the prosecutor and the defense team in which, in addition to bail, Strauss-Kahn and has family agreed to pay a private security firm to place him under house arrest and electronic monitoring. So was he granted bail or wasn’t he? Was he allowed to substitute arrest in more comfortable surroundings (at his expense) for being housed at Rikers Island with the regular folks who have been denied bail? According to the NY Post Strauss-Kahn has rented a Tribeca townhouse for $50,000 per month.

What appears to have been an effort to cover both sides of the controversy may have actually exacerbated it. It is the spectacle of justice negotiated that is so questionable. Who can afford such a negotiation? And who is allowed to engage in it even if they could afford it? We elect and pay our judges to make decisions and take the heat, not to avoid hard choices by compromising the values that underlie our legal system, in particular, “equality before the law.”