"How Campaign Finance Laws Made the British Press So Powerful"

A lesson in unintended consequences from across the pond.

"As a result, whoever controls the newspapers has a much greater capacity to steer the course of an election debate. Given the relatively small number of titles with a national audience and levels of concentration, this influence lies in the hands of a small number of companies. News Corporation alone has over a third of the market share for national newspapers. This explains why so many politicians went out of their way to win the favour of Rupert Murdoch and his lieutenants. While elections are not won or lost as a result of a newspaper endorsement, most politicians do not want to take the risk of receiving unfavourable coverage.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued.

Such measures would be unthinkable under the First Amendment—but much of the UK campaign finance laws would not survive that standard either."

No Obstruction of Minority Nominees

Today’s Politico reminds us of the Left’s fallacious claim that, thanks to Republicans, “the Senate has been particularly slow to confirm Obama’s diverse candidates.” For example, Caroline Fredrickson, executive director of the American Constitution Society, charges that

“The president has tried to diversify the federal bench, but this effort has hit a wall of Republican obstructionism in the Senate.”

Politico also presents the other side with this quote from me:

“In an attempt to play the race card, the left ignores the obvious fact that when you increase the percentage of female and minority nominees, you also necessarily increase the number women and minorities that get caught up in the myriad of practical and political delays typical of judicial nominations. If senators perceive that race and gender are becoming more important in the selection process than finding the most qualified nominee, that can also add to the delays.”

Med Mal Reform a Key to Budget Deal

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice applauds the inclusion of medical malpractice reform in the bipartisan Gang of Six debt ceiling plan that was reported to be gaining traction on both ends of Pennsylvania Avenue yesterday. CFJ takes no position on the overall structure of a deal. However, we believe the inclusion of malpractice reform in any compromise is good news both for conservatives’ long-held goal of reforming the nation’s medical liability system and – because it will encourage conservatives’ acceptance of a deal – for hopes of resolving the debt ceiling impasse.

The Gang of Six plan follows the recommendation for “an aggressive set of reforms” to the medical liability system contained in the December 2010 budget-balancing report of the bipartisan Bowles-Simpson Commission. The Commission concluded that the current liability system “leads to an increase in health care costs … both because of direct costs – higher malpractice insurance premiums – and indirect costs in the form of … ‘defensive medicine.’” Accordingly, the commissioners recommended at least four major changes to the rules of malpractice litigation, in addition to the creation of specialized “health courts” for medical malpractice lawsuits.

Under the Gang of Six plan, the final details of medical malpractice reform would fall to the Judiciary Committee. The Gang’s plan requires various congressional committees to write the legislation implementing the plan’s promised savings in entitlement programs.

Medical malpractice reform is arguably conservatives’ favorite prescription for containing health care costs. Thus, its inclusion in the Gang of Six plan could play an important role in motivating otherwise skeptical House Republicans to support the plan.

The bad news is that the initial summary of the Gang of Six plan released yesterday contains no specifics about the malpractice reform. To be worthy of conservatives’ support, a final debt ceiling compromise must contain specifics, such as a requirement for implementing all of the litigation rule changes recommended by the Bowles-Simpson Commission and a specific savings target that would encourage aggressive implementation of the reforms. As the details of the Gang of Six plan are hashed out, we encourage Republican negotiators to focus on these specifics.

A study by PriceWaterhouseCoopers estimated that ten percent of the nation’s health care spending is consumed by the costs of defensive medicine, medical malpractice insurance, and malpractice litigation. Thus, if done right, aggressive medical malpractice reform would result in huge budget savings through lowered Medicare, Medicaid, and other federal spending for health care.

Including malpractice reform in a deal would not only help sell it to conservatives, but would also make it popular with the American people generally. After all, “83 percent of the nation's electorate want Congress to address reform of the medical malpractice system as part of any health care reform plan,” according to a 2009 survey reported by Medical News Today.

Finally, fairness requires the inclusion of malpractice reform in any budget deal. Given that up to 40 percent of medical malpractice lawsuits are groundless, according to a study by the Harvard School of Public Health, reigning in the excesses of trial lawyers in this area is a moral as well as financial imperative. As the Bowles-Simpson Commission implicitly recognized, those excesses are part of the reason for our runaway budget deficit. If the pain of balancing the budget is to be shared by all, surely trial attorneys must bear their share of the burden.

As former Democratic National Committee chairman Howard Dean admitted, the only reason why medical malpractice reform was not included in ObamaCare was “because the people who wrote it did not want to take on the trial lawyers." If President Obama and Congressional Democrats are now ready to take on the trial lawyers, we welcome their help in accomplishing this important and long-sought reform.

Calls for Ginsburg’s Resignation

The past week has seen two pieces on the growing chorus of calls from the Left for Justice Ginsburg to step down now, while she is assured of having her replacement named by President Obama. The Associated Press notes that

“Ginsburg has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015. She will turn 82 that year, the same age Justice Louis Brandeis was when he left the court in 1939. Ginsburg, who is Jewish, has said she wants to emulate the court's first Jewish justice.”

Yale Law School Professor Stephen Carter argues that the calls for Ginsburg’s resignation arise from “the [mistaken] belief that judges exist, in effect, to serve a constituency. Carter emphasizes the importance of Justices, instead, remaining impartial where

“’Impartiality’ means not that members of the court have no views, but that their ultimate fealty is to the Constitution and the institution they serve, rather than to particular issues or movements.”

Well said, especially for a Yale law professor.

Sen. Lee on 14th Amendment & Debt Limit

A Picture Worth 1,000 Words

Randy Barnett on Curt Levey's Article in American Spectator

From Randy Barnett at the Volokh Conspiracy, in a post titled "The Dangerous Effort to Delegitimate Supreme Court Justices:"

The motive for this assault?

When explaining why he introduced his Supreme Court ethics bill, Rep. Murphy admitted “My interest is certainly piqued by the fact that [the justices] may be taking on...the health care law.” Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: “If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision.” In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.

Yes, that Anthony Weiner, who was until recently the point person making these charges. The existence of this assault is clear, and was continued this week by the New York Times advancing another empty charge against Justice Thomas. This is a very dangerous maneuver. Just as the personal attacks on Republican judicial nominees discourage many qualified persons from accepting nominations and have resulted in a downward spiral of tit-for-tat personal attacks on Democratic nominees, this sustained “ethics” attack on conservative justices will eventually lead to similar attacks on the liberals. No one is so virtuous as to be above false attacks. This campaign will also serve to undermine the bite of genuine ethical lapses, which will inevitably get lost amid the noise of manufactured pseudoscandals. When “ethics” is used as a political weapon, ethics will ultimately suffer. And, in the process, the authority of the Supreme Court, which relies on its authority rather than on its power, will be undermined. By this route, another check in the scheme of “checks and balances” on Congressional and Presidential power will be dangerously weakened.

There is absolutely nothing wrong with criticizing the substance of decisions of the Supreme Court, and there is much to criticize. And there is nothing wrong with bringing genuine ethical lapses and conflicts-of-interest to light. But baseless politically motivated personal attacks on sitting justices are another matter entirely. Although nothing can stop these ad hominem attacks by activists from continuing, one way of muting their influence is simply to be more aware of their sources and motives. Reading Levey’s article is a useful start.

Race Decision: Outrageous Judicial Activism

Statement of CFJ Executive Director Curt Levey on today’s decision invalidating Michigan’s ban on racial preferences:

In one of the most outrageous examples of judicial activism ever seen, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has struck down the voter-approved Michigan Civil Rights Initiative (MCRI), which bans racial and gender preferences in Michigan’s public employment, education and contracting.

In today’s 2-1 decision, two Clinton appointees came to the startling conclusion that MCRI violates the U.S. Constitution’s Equal Protection Clause because it “reordered the political process to place special burdens on racial minorities.” Their reasoning: “a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution.”

This reasoning is completely disingenuous because the purpose of all constitutional amendments is to reorder the political process in a way that can’t easily be reversed.

Even the very liberal Ninth Circuit rejected this reasoning in its 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based. Noting that the Fourteenth Amendment’s Constitution’s Equal Protection Clause barely permits racial preferences, the Ninth Circuit reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

In other words, the Constitution’s equal protection guarantee cannot possibly mean that states are prohibited from amending their Constitutions to ensure equal protection of all races. The argument to the contrary was widely considered to be a legal stretch when first made by Proposition 209’s opponents, and it lost any plausibility once rejected by the liberal Ninth Circuit. Its resurrection in the Michigan case was not taken seriously before today’s “gift” of judicial activism from the Sixth Circuit.

In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin. That shouldn’t be too surprising given that opinion polls over the last decade have repeatedly shown that Americans overwhelmingly oppose racial preferences.

Today’s decision is a classic example of legal elites trying to impose their values – in this case, a belief in achieving racial diversity at any cost – on the “less enlightened” public after those values are rejected at the ballot box. This use of the courts to do an end-run around the democratic process is a hallmark of liberal judicial activism.

It is no wonder that the Sixth Circuit decided to release this decision on the Friday before a long holiday weekend.

The only good news is that the state of Michigan will surely appeal today’s decision to the U.S. Supreme Court and/or the full Sixth Circuit. If the Supreme Court reviews this decision, it will almost surely reverse it. In fact, I expect that some if not all of the Court’s liberal Justices would vote to reverse.