New Role For Election Lawyers in Litigation: Supreme Court Disqualifies Judge Based On Campaign Support

The Supreme Court ruled on June 8 that an elected judge was constitutionally barred from taking part in a case where one of the parties spent a large sum to get the judge elected. (Caperton v. A.T. Massey Coal Co.). The ruling will bring new scrutiny to cases heard by elected judges and may spawn a wave of efforts to keep elected judges from hearing cases tied to their supporters.

An interesting aspect of the case is that it involved only a small amount in direct campaign contributions. Don Blankenship, president of a coal company, contributed $1,000, the statutory limit, to Brent Benjamin, a candidate for a West Virginia appeals court. That court would soon hear the appeal of a $50 million jury verdict against Blankenship’s company. Blankenship also donated almost $2.5 million to a 527 organization that supported Benjamin and spent another $500,000 on independent expenditures – direct mail, television, and newspaper ads. Benjamin was elected, and later cast the decisive vote in a 3-2 ruling that reversed the verdict against Blankenship's company.

While the five-member majority called the facts of this case "extreme by any measure," Justice Scalia, in dissent, warned, "Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means." Scalia predicts that the Court's opinion will add "to the vast arsenal of lawyerly gambits what will become known as the Caperton claim."

Justice Roberts, also writing in dissent, listed 40 questions that he said the majority left unanswered. For instance:

• "How much money is too much money? What level of contribution or expenditure gives rise to a 'probability of bias'?"
• "Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate's campaign?"
• "What if the "disproportionately" large expenditure is made by an industry association, trade union, physicians' group, or the plaintiffs' bar? Must the judge recuse in all cases that affect the association's interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?"
• "What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received "disproportionate" support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are "tough on crime," must the judge recuse in all criminal cases?"

This case may affect a broader and intensifying debate over the wisdom of electing judges. Nearly 40 states elect at least some of their judges. As for predictions that this case will trigger a wave of recusal motions, that may depend on how lower court judges respond to the first round of such claims.

NEW LOBBYING DISCLOSURE ACT GUIDANCE ISSUED

On June 9, the Secretary of the Senate and the Clerk of the House issued important new Lobbying Disclosure Act guidance.

Some changes affect the semi-annual report (LD-203), which must be filed separately by individual federal lobbyists and their employers (LDA registrants) each January and July. The new guidance clarifies when a filer must report campaign contributions and other disbursements relating to events and organizations associated with covered officials:

• Registrants and lobbyists need not report contributions to state and local candidates and political committees that are not registered with the FEC, nor do they need to report payments for "non-preferential" sponsorship of multi-candidate debates.
• The costs of a reportable event include only direct costs, such as hotel and food expenses, but not indirect costs, such as host staff salaries.
• Payments to vendors for reportable events can be aggregated and a lump sum amount reported as "various vendors."

The Secretary and the Clerk have also provided much-needed guidance on the reporting of payments to entities "established, financed, maintained or controlled" by a covered official. Under the new guidance, a covered official who is a non-voting board member does not "control" that organization. Also, a charitable organization established by a person before he or she becomes a covered official is not considered to be "established" by the official, if he or she has no relationship to the organization after becoming a covered official. And a covered official's de minimis contribution to a charity is not, standing alone, indicative of that person's financing, maintaining, or controlling the organization. Additional facts may, however, require reporting of such charitable contributions.

While these benchmarks are welcome, they may raise as many questions as they answer. For instance, if a non-voting board member does not control the organization, why does the guidance view a non-voting PAC board member as controlling that entity? What does it mean to have "no relationship" with an organization? What other facts in addition to a de minimis contribution would be indicative of financing, maintenance or control? We'll have to wait for those answers.

Finally, the Congressional guidance clarifies that lobbyists can only be terminated by the registrant by completing Line 23 of LD-2. Amending the LD-1 or LD-2 to delete a lobbyist listed on lines 10 or 18 is not a proper method of termination.

OBAMA ADMINISTRATION MAY WITHHOLD HIGHWAY MONEY IF STATES ATTEMPT TO APPLY PAY-TO-PLAY LAWS

The Obama Administration says that federal law prohibits state or local restrictions on competition for federally-funded contracts, including pay-to-play laws that restrict campaign contributions by contractors and their principals. According to story in The Hill, Jeffrey Paniati, acting deputy administrator of the Federal Highway Administration, wrote: "However laudable the goals of such State laws, they have the effect of limiting competition in the awarding of Federal-aid highway contracts."

The Administration's position sets up a conflict with up to 20 states that have pay-to-play laws at either the state or local level. For instance, Ohio's Legislative Inspector General recently issued a statement, reminding prospective contractors that once the state receives federal funds under the American Recovery and Reinvestment Act of 2009, the distribution of those funds through state channels means that Ohio's lobbying laws apply. Under Ohio law, lobbying includes efforts to influence executive agency decisions regarding the expenditure of funds, award of contracts, and regulatory decisions. New Jersey officials are also seeking legislation that would expressly apply the state's strict pay-to-play laws to the state’s distribution of federal stimulus funds.

NEW FEC NOMINATION APPEARS TO BE ON FAST-TRACK; DEADLOCKS CONTINUE ON ENFORCEMENT MATTERS

John J. Sullivan, President Obama's nominee for the Federal Election Commission, encountered light questioning during a confirmation hearing this week before the Senate Rules and Administration Committee and was approved by the Committee by voice vote on Thursday night. Sullivan is an attorney with the Service Employees International Union (SEIU), and has been involved in election administration issues. The nomination now goes to the full Senate, and Rules Committee Chairman Charles Schumer says that he expects a quick confirmation. Sullivan would replace Commissioner Ellen L. Weintraub. Both are Democrats.

In the meantime, the FEC has deadlocked yet again, this time on a matter involving a committee's failure to provide names and employer information for nearly 90% of individual contributors. A written statement issued by Commissioners Weintraub and Cynthia L. Bauerly says that the errors consisted largely of reporting "self" as both employer and occupation.

It is unclear why the FEC dropped the case, even after the respondents agreed to pay a civil penalty. The three Republican Commissioners, who voted against approving the settlement, have yet to issue their own statement. Commissioners Weintraub and Bauerly say of the dismissal, "This may be the most inexplicable resolution of [an enforcement matter] that we have seen during our combined tenures on the Commission." Weintraub joined the FEC in December 2002. Bauerly joined the FEC in June 2008.