Judge Richard Posner admits he was wrong about voter I.D. – implications for McCutcheon v. FEC

Posted by AzBlueMeanie:

Judge Richard Posner of the Seventh Circuit Court of Appeals is one of the leading intellectual leaders of the conservative movement. He is a sought after speaker at conservative events.

Judge Posmer wrote the majority opinion for the Seventh Circuit Court of Appeals in the Indiana voter I.D. case, and his majority opinion was the foundation for the U.S. Supreme Court decision in Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008).

Rick Hasen at electionlawblog.com reports Breaking: Judge Posner Admits He Was Wrong in Crawford Voter ID Case:

Wow.

My transcription from HuffPostLive:

In response to Mike Sacks’s questions about whether Judge Posner and
the 7th circuit got it wrong in Crawford case, the one upholding
Indiana’s tough voter id law against constitutional challenge:

Yes. Absolutely. And the problem is that there hadn’t been that much
activity with voter identification. And … maybe we should have been
more imaginative… we…. weren’t really given strong indications that
requiring additional voter identification would actually disfranchise
people entitled to vote. There was a dissenting judge, Judge Evans,
since deceased, and I think he is right
. But at the time I thought what
we were doing was right. It is interesting that the majority opinion was
written by Justice Stevens, who is very liberal, more liberal than I
was or am….  But I think we did not have enough information. And of
course it illustrates the basic problem that I emphasize in book.  We
judges and lawyers, we don’t know enough about the subject matters that
we regulate, right?
And that if the lawyers had provided us with a lot
of information about the abuse of voter identification laws, this case
would have been decided differently.”

Here’s the quote from Posner’s book, which Mike Sacks flashed on the
screen:  “I plead guilty to having written the majority opinion
(affirmed by the Supreme Court} upholding Indiana’s requirement that
prospective voters prove their identity with a photo id—a law now widely
regarded as a means of voter suppression rather than fraud prevention.”

Hasen links to the Indiana Law Blog and one of the attorneys in that case who takes issue with Judge Posner's assertion that "if the lawyers had provided us with a lot
of information about the abuse of voter identification laws, this case
would have been decided differently.” Ind. Decisions – Judge Posner has second thoughts on his voter ID decision; says he didn't know enough:

[T]he ILB asked an attorney familiar with the case for a reaction:

For
Judge Posner now to admit he was wrong but then blame the lawyers for
not giving him enough information by which he could evaluate the
suppression claims takes real chutzpah. He was well aware of the history
of race and class-based voter suppression in this country. He also had
no record of voter fraud in front of him, yet placed no burden of proof
on the State while holding Crawford's attorneys to an impossible
standard
.

And if they presented him with such an anemic record, why did Judge
Evans, and later Judges Wood, Williams and Rovner en banc, who looked at
the same evidence, get it right while Posner got it wrong?

The consequences of this mistake were immense. Had Posner switched
his vote, Judge Sykes may have as well, and the odds of SCOTUS hearing
this case decline exponentially
. Indiana's law would thus not have
become a model for other voter suppression laws across the nation
, and Crawford's
majority opinion may have been written by Judge Evans, striking down
Indiana's law. That would have dramatically altered the course of
election law and set a completely different tone and direction,
particularly in light of Posner's prodigious reputation.

Judge Posner's point, however, that "We
judges and lawyers, we don’t know enough about the subject matters that
we regulate" is relevant to the current election law case before the U.S. Supreme Court, McCutcheon v. FEC. If you listen to the oral arguments in this case, it is clear that the Supreme Court Justices do not understand how campaign financing works, nor do some of them care. The Court is about to err again as it did in Crawford and Citizens United.

This is a concern to Trevor Potter, a former commissioner and chairman of the FEC. We need politically savvy justices:

At one point during the oral argument Tuesday in the case of McCutcheon v. Federal Election Commission, Justice Antonin Scalia remarked that he didn’t understand the legislation in question.

“This campaign finance law is so intricate that I can’t figure it out,” he said. “It might have been nice to have the, you know, the lower court tell me what the law is.”

Scalia meant to be playful. But as the argument progressed, it became
clear that the justices really don’t know enough about money in
politics
. They expressed skepticism about “wild hypotheticals that are
not obviously plausible” — when in fact we’ve already seen those
scenarios play out
. They talked a lot about the FEC’s “earmarking” and
“coordination” rules, but they didn’t seem to recognize that those rules
are impossible to police and that a dysfunctional FEC isn’t doing much
policing anyway. And the conservatives on the court seemed to fail to
understand what leads to corruption or the appearance of corruption

with Justice Samuel Alito going so far as to suggest that giving a very
large check to a political fundraising committee isn’t inherently a
problem, because the committee could take the money and burn it. “Well,
they’re not,” replied Solicitor General Donald Verrilli. “They are not
going to burn it.”

Many court-watchers have described McCutcheon as the next Citizens United,
to the extent that it could continue dismantling campaign finance laws
that have sought to protect our political system from corruption for
decades. Whereas Citizens United v. FEC
jettisoned the ban on corporate election spending, the petitioners in McCutcheon
seek to eliminate the $123,200 cap on an individual’s total donations
to candidates, parties and political committees in a two-year election
cycle.

Tuesday’s exchanges suggested a further parallel to Citizens United:
Despite being out of their depth, the justices seem perfectly
comfortable being the ones to decide whether to transform the landscape
of campaign finance
. They don’t want to defer to Congress on a subject
it is obviously more familiar with. Instead, they are forging ahead
without understanding the consequences
.

* * *

The comment about “wild hypotheticals” came from Alito in response to
the solicitor general’s calculation that if the aggregate donation
limit were eliminated, but the limits on how much an individual can give
to each candidate, party or political committee remained, then a joint
fundraising effort could bring in as much as $3.6 million from a single
donor. Alito dismissed that idea as lacking “any empirical support.”

In fact, in the 2012 election, President Obama and Republican
presidential nominee Mitt Romney each established a joint fundraising
committee consisting of his campaign committee, his party’s national
committee and several state party committees. As I laid out in the amicus brief
I filed with the court on behalf of the Campaign Legal Center, those
joint committees raised hundreds of millions of dollars by collecting
the maximum amount from donors that the aggregate limit allows. That’s
pretty strong evidence that, Alito’s skepticism notwithstanding,
candidates and parties will push the law as far as it will go.

At several points during the court’s argument, there was discussion
about how the FEC’s earmarking and coordination rules protect against
corruption. In one instance, after Justice Stephen Breyer proposed a
hypothetical ad calling for donations “to help Smith PAC support
Republican candidates,” Scalia countered: “I would think if you named
the PAC after a particular candidate as the hypothetical assumes, I
would be surprised if the Federal Election Commission wouldn’t come
after you for earmarking.”

In practice, earmarking violations are
almost impossible to discover and prove because they take place behind
closed doors.
Moreover, the FEC almost never investigates such issues,
and it has been deadlocked
and unable to act on most matters for the past five years
.

One of
the most out-of-touch moments Tuesday, though, was when Scalia declared
that “I don’t think $3.5 [sic] million is a heck of a lot of money” in
the context of how much candidates, parties and committees spend in an
election cycle
. The solicitor general rightly replied that at $3.6
million a pop, a party would have to round up just 450 donors to reach
the $1.5 billion spent by the parties and candidates on each side in the
2010 election. “Less than 500 people can fund the whole shooting
match,” Verrilli noted.

But the chutzpah award goes to Scalia and
Justice Anthony Kennedy, who argued that the contribution limit being
challenged doesn’t really prevent corruption because it encourages
wealthy donors to instead funnel limitless sums into super PACs and
other groups making “independent expenditures.”
It was Kennedy who wrote
in Citizens United that independent expenditures could never
be corrupting, and Scalia agreed. Now they want us to believe that the
corrupting influence of super PACs helps make the case for striking down
still more limits.

In short, Tuesday’s oral argument revealed that the justices could stand
to know much more about the realities of campaign finance law and
political fundraising
. Part of the problem is that the Roberts court
has less political experience than any group of justices in Supreme
Court history.
For the first time, none of the justices has ever run for
elected public office or served in a legislature. Justice Sandra Day
O’Connor, a former Arizona state senator, was the last to have done so,
and it’s no accident that she was a key vote in upholding the
anti-corruption measures the court has been striking down since her
retirement.

Judicial hubris is also a concern. The Roberts court shows a surprising
lack of respect for Congress’s expertise on political matters
. Since
Roberts’s confirmation as chief justice in 2005, the court has issued 23
opinions involving voting rights, redistricting or campaign finance.
And in each of the five campaign finance cases the court has heard, it
has struck down or drastically narrowed the law under challenge
.

This contempt for legislative authority was on full display in Citizens United.
The court’s conservatives went out of their way to decide the case as
broadly as possible, striking down the 60-year-old federal law
prohibiting corporate electoral spending and throwing out similar
prohibitions in 24 states.

Kennedy’s majority opinion stated that eliminating those limits
wouldn’t adversely affect our democratic system because the money spent
in elections would be fully disclosed, and that the spending would not
be corrupting because it would be completely independent of candidates
and parties. What we got was a tsunami of money in the 2012 elections
from tax-exempt groups that did not disclose their donors and from
supposedly independent super PACs run by candidates’ former top aides,
close friends and family members. This was easy to predict. But the five
justices who signed the majority opinion didn’t see it.

Now, the court appears to be on the verge of repeating its mistakes. At least some of the justices in the McCutcheon
argument appeared willing to assume the role of legislators, eager to
substitute their own policy judgments and conceptions of political
corruption for those of Congress.

* * *

The Roberts court should get more politically savvy — and at the same time stay out of politics. … It should leave politics to the politicians, who have a better sense of
when the intersection of fundraising and lawmaking leads to corruption.

Unfortunately, we are likely to end up with the "Scalia doctrine."

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