Ich bin ein Tar Heel
by Tom Sullivan
Atlantic‘s Emma Green cites attorneys David Boies and Theodore Olson on the effect Citizens United has had on local races across the country. The two debated the effects at the Aspen Ideas Festival this week. But let’s begin, as she does, quoting Norm Ornstein:
Loads of money—mostly conservative—went into judicial-retention elections in the last cycle in Florida, following a similar experience in 2010 in Iowa and Illinois. We saw similar efforts on a smaller scale in other states, including Wisconsin and Michigan. All had a ton of attack ads. Those efforts have exploded in the 2014 elections. In North Carolina, where repeal of the state’s Judicial Campaign Reform Act by the right-wing legislature opened the door to a further explosion of campaign spending, and where the GOP sees retaining a majority on the court (ostensibly, but risibly, nonpartisan) as a key to their continued hegemony in politics, the Republican State Leadership Committee spent $900,000 on an unsuccessful primary campaign to unseat Justice Robin Hudson, and will target Court of Appeals Judge Sam Ervin IV in his second attempt to move to the Supreme Court (the first one, in 2012, cost $4.5 million or more).
Ervin won that Supreme Court seat (defeating incumbent Robert N. Hunter, Jr.) as did incumbent Democrats Hudson and Cheri Beasley in these officially nonpartisan elections.
In Aspen, Ted Olson, who represented Citizens United lobbying firm, began:
“The more speech we have, the better—that’s what the Framers of the Constitution thought,” he said. One of the key disagreements in Citizens United is whether money counts as speech—the Court accepted Olson’s argument that it does. “It might be nasty speech, it might be unpleasant speech it might make you uncomfortable. The answer to that is the marketplace of ideas.”
But Boies argued that the Supreme Court mischaracterized the effect that money has on politics. In its opinion, he said, the Court argued that there’s a danger of corruption “with respect with contributions to political candidates, but there is less of a danger with regard to independent expenditures. Who knows that? That’s not something that courts are well-designed to determine.” The Court’s argument follows, he said, if you believe that making political donations is the same as making political statements, but “if you believe that speech and money are different … that money enables speech, but is not speech itself, and if you believe that people really are different [from corporations], then the syllogism breaks down.”
The ads run against Robin Hudson were particularly nasty. But having lost those three NC Supreme Court races last November, Republicans (and Olsen) might well argue that speech won and that the money was not as big a danger as Boies believes. But the money failed here only through some smart, effective campaigning and boots on the ground.
Democrats held those two seats on the court and Ervin won his by running as a team, by representing each other at their events as they crisscrossed the state. Plus, the state party (otherwise considered in disarray) instituted a smart “Blue Ballot” campaign that put easily and cheaply reproduced literature in the hands of volunteers in smaller counties across the state. The Blue Ballot featured judges prominently. Sometimes boots on the ground trump money in the bank.
Republicans were not pleased. One who got in our faces outside the Board of Elections here accused us of cheating because we advertised a list of Democratic judges in the officially nonpartisan election. But Democrats supported members of the party openly, and were not shy about it. Republicans mask their list of judicial candidates with a “conservative judges” label.
Having failed in November, North Carolina Republicans next gambit for gaining an edge in the courts was to pass a bill to provide for retention elections. (Ted Cruz, anyone?) You can bet the money will flow freely ahead of those elections as well.
Turnout will be key in 2016, something Howie has something to say about. (And perhaps Gaius here later.) In the meantime, if people don’t think the money has an impact, let them come to North Carolina.