In Green Party of Connecticut v. Garfield, decided last month, the Second Circuit considered a First Amendment challenge to Connecticut’s Campaign Finance Reform Act, a law that prohibited campaign contributions and fundraising solicitations by (1) state contractors and prospective contractors and (2) lobbyists. The law also covered certain individuals, such as family members, associated with contractors and lobbyists. There are two aspects of this decision that I find of interest. The first, which I will discuss today, involves the court’s application of the “appearance of corruption” standard to the ban on campaign contributions. The court begins its analysis by finding that limitations on campaign contributions are not subject to the most exacting standard of review, strict scrutiny, but only the more relaxed “closely drawn” standard (under which a law will be upheld if it is closely drawn to match a sufficiently important governmental interest). This is based on the theory that campaign contributions, while they implicate a First Amendment interest, are “closer to the edges than to the core of political expression.” Finding that CFRA was passed in response to several corruption scandals in Connecticut involving bribes paid to public officials by contractors and prospective contractors, the court had little difficulty in finding a sufficiently important public interest in limiting contractor campaign contributions. The court had more trouble, however, justifying Connecticut’s total ban on such contributions. The panel noted that a complete ban was a “drastic measure” and expressed skepticism that allowing small contributions by contractors would lead to actual corruption. Nevertheless, it concluded that the state had a strong interest in preventing even the appearance of corruption. Noting that “Connecticut’s recent corruption scandals were widely publicized, and corruption involving contractors became a political issue,” it found the ban on contractor contributions “an appropriate response to a specific series of incidents that have created a strong appearance of corruption with respect to all contractor contributions.” Moreover, the Second Circuit upheld the contribution ban as applied to contactor “principals,” defined to include a wide range of officers, directors, shareholders and managerial employees, and family members, despite the absence of evidence that such individuals had been involved in the corruption scandals. Although the court expressed reservations as to whether the bans on these individuals were in fact “closely drawn,” it decided that it should give the legislature leeway to define broadly the category of individuals who might be used as a conduit or means of circumventing the ban on contractor contributions. It justified this decision on the grounds that “the recent corruption scandals in Connecticuthave shown that contractors are willing to resort to varied forms of misconduct to secure contracts with the state.” Turning to the ban on lobbyist contributions, the court observed that this prohibition was “markedly different” because “the recent corruption scandals in Connecticut in no way involved lobbyists.” It therefore concluded that “there is insufficient evidence to infer that allcontributions made by state lobbyists give rise to an appearance of corruption.” It acknowledged that the public may distrust the lobbyists because of the perception that they wield undue influence over public officials. However, the court rejected the proposition that such influence amounts to corruption: Influence and access, moreover, are not sinister in nature. Some influence, such as wise counsel from a trusted advisor—even if that advisor is a lobbyist—can enhance the effectiveness of our representative government. Accordingly, the court held that the ban on lobbyist contributions was not “closely drawn” and therefore violated the First Amendment. The court’s differing treatment of contractors and lobbyists illustrates the vagaries of an “appearance of corruption standard.” The court allows the public to jump to the erroneous conclusion that small contributions by contractors or prospective contractors are corrupting because some such entities have actually corrupted state officials in the past (albeit not through small contributions). The court will also allow the public to jump to the erroneous conclusion that small contributions by principals or family members of contractors are indirect means of corruption, even though there is little or no evidence of such indirect means being used in the past. But the court will not allow the public to jump to the erroneous conclusion that small contributions by lobbyists (or lobbyists’ families) are corrupting because, unbeknownst to the public, what it perceives as corruption is merely influence-peddling. It is worth noting that the Second Circuit’s ruling with respect to lobbyist contributions is in considerable tension with the Fourth Circuit’s 1999 opinion in North Carolina Right to Life v. Bartlett, where the court upheld a North Carolina statute prohibiting lobbyists from contributing to state legislators while the legislature was in session. Although the cases are distinguishable on the grounds that the North Carolina ban was much narrower than the one in Connecticut, the Fourth Circuit recognized a compelling state interest in preventing corruption and the appearance of corruption in restricting lobbyist contributions. In doing so it explicitly rejected the notion that it needed to wait for a specific North Carolinascandal: While lobbyists do much to inform the legislative process, and their participation is in the main both constructive and honest, there remain powerful hydraulic pressures at play which can cause both legislators and lobbyists to cross the line. State governments need not await the onset of scandal before taking action. Thus, the court rejected the First Amendment challenge to North Carolina’s (more limited) ban on lobbyist contributions.
Lederman leaving Office of Legal Counsel
From Election Law Blog, news that Marty Lederman is leaving OLC to return to teaching at Georgetown Hmmm.
Still More on the Byrd Vacancy
State officials in
In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies. Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months. If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date. If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy. In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election.
In the meantime, the Governor has named a temporary appointee for the vacant office. (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate).
These machinations raise a couple of interesting questions. First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election? The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.”
Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur? Extremely alert readers will recall that this issue arose in connection with the Obama vacancy. After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law. Burris argued that such a change would be unconstitutional and threatened to fight it in court. As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.
If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November. This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count). Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.
West Virginia Attorney General Disagrees with Secretary of State on Byrd Vacancy
The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012. The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible. The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.
Recess Games
The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services. The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday.
Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination. The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.”
The Recess Appointments Clause (
A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year. The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods. In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess. A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment. Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).
If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional. I will leave consideration of the merits of these arguments for another day. For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center. Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted. Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals.
In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function. For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent. Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.”
Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel. Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?
The Governor Weighs in on the Byrd Vacancy
The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place. The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.”
I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions. If that is what he means, I agree with the Governor.
The West Virginia Secretary of State Refuses to Hold a Special Election in 2010
The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012. She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy.
Robb does provide support for the Secretary’s statutory interpretation, but there are questions whether the court’s reasoning should be extended to the current situation. In Robb, a circuit judge resigned on April 20, 1994, leaving an unexpired term that would last until December 31, 2000. The question was whether the vacancy should be filled by election in November 1994 or in November 1996.
The court began its analysis with the West Virginia Constitution. It found the general vacancy provision of Section 7, Article IV, which was “keyed to ‘the next general election,’” inapplicable to judicial vacancies because the latter were governed by the more specific and detailed provision of Section 7, Article VIII. Under Article VIII, the Governor is directed to fill a judicial vacancy without any election if the unexpired term is less than two years or, if so provided by law, no more than three years. For vacancies of more than three years, the Governor is directed to issue a directive of election to fill the vacancy “in the manner prescribed by law,” and, in the meantime, to fill the vacancy by appointment.
The court found the phrase “in the manner prescribed by law” critical to the analysis of when an election to fill a judicial vacancy should take place. The court held that “[i]t is clear under W.Va. Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has ‘timely filed a certificate of candidacy, [and] has been nominated at the primary next following such timely filing[.]’” Since the date for filing a certificate of candidacy had passed in early February, the court concluded that the election to fill the vacancy could not be held until November 1996.
The statutory language construed by the court is the same language that applies to filling vacancies for other offices, including that of U.S. Senator. Given that the court thought this language was “too plain” to be interpreted as requiring an election in November 1994, the Secretary would seem to be on solid ground in reaching a similar conclusion with regard to the Byrd vacancy. Nevertheless, the Robb court’s conclusion was fundamentally premised on the language of Section 7, Article VIII of the West Virginia Constitution, which applies only to judicial vacancies. Moreover, the court appeared to assume that vacancies in non-judicial offices were required to be filled, under the provisions of Section 7, Article IV, at the next general election, notwithstanding the fact that such offices were governed by the same statutory language. It is therefore uncertain whether the reasoning of the Robb case should apply here.
If the statutory language is construed as the Secretary of State suggests, the results are perplexing, if not absurd. It is hard to see why the legislature would have chosen a two year and six month cutoff for holding elections, if the intent had not been to have a special election to fill the last two years of the term in question. When asked about this at her press conference, the Secretary of State was unable to offer an explanation of a legislative policy that might be advanced by this result.
Finally, the Secretary of State’s interpretation of the statute is, at best, in considerable tension with the fundamental policy of the Seventeenth Amendment, namely that Senators be elected by the people. There would seem to be ample grounds for mounting a legal challenge.
When Should West Virginia Hold a Special Election to Replace Senator Byrd?
As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death. But when is such an election to take place? The West Virginia statute does not directly address when the special election is to take place. Instead, it states that for certain offices, including U.S. Senator, a temporary appointment “shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.”
It is apparently inferred from this language that the special election is to take place on the date of a general election. This, at least, seems to be the position of the West Virginia Secretary of State, whose website states that in the event of a Senate vacancy: “[T]he Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification. The winner of that General Election fills the balance of the unexpired term.”
It is not exactly clear what this means in the current context. In West Virginia, the deadline for filing to compete in this year’s congressional primary was January 30, and the congressional primaries were held on May 11. It may be argued, therefore, that it is too late for anyone to run for the vacant Senate seat in this year’s general election. Under this interpretation, the special election would not be held until November 2012, in which case the winner would serve only the remaining two months of Byrd’s term.
On the other hand, it is hard to see how this interpretation could be squared with any sensible legislative policy. Presumably the reason why the
To make matters more confusing, the Secretary of State’s website also contains the following: “Vacancies in the offices of Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of Agriculture are filled by appointment until the next election that is more than two years and six months following the vacancy.” Vacancies in these offices are covered by the exact same language as governs Senate vacancies, so it hard to see how these offices could be treated differently than a Senate seat. It is also hard to see how the Secretary’s statement can be squared either with the statutory language or with the principle, also stated on the website, that “[t]he West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.”
In any event, if the Governor and/or Secretary of State refuse to hold a special election for Byrd’s seat prior to November 2012, it seems very likely that there will be a legal challenge.
Is a Special Election Required to Fill the Byrd Vacancy?
Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in
The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code. This statute provides that if the unexpired term of certain vacant offices, including that of U.S. Senator, is less than two years and six months, the appointment will be for the remainder of the unexpired term. It should be noted that this provision raises some serious constitutional questions under the Seventeenth Amendment, particularly in light of the Seventh Circuit’s recent decision regarding the Senate vacancy in
This issue may not directly arise in the present situation. As of today, there are two years, six months and five days of Byrd’s unexpired term remaining. Thus, it would seem that under
It is possible, however, that the Governor could take a contrary position. First, the Governor might take the position that the vacancy does not “occur” until he receives formal notice from the Senate. Were the Senate to fail to give notice of the vacancy this week, the Governor might argue that the unexpired term is less than that required to trigger a special election. Second, the Governor might argue that the vacancy continues to occur so long as the office remains vacant, so that the length of the unexpired term is measured by whenever the temporary appointment is made. Third, (closely related to but somewhat stronger than the second), the Governor could argue that the “unexpired term” referred to in the statute is measured by the temporary appointment, not by the vacancy. Under either the second or third points, no special election would be required if the Governor fails to fill the vacancy until after July 3 (this Saturday).
I don’t know what
Second, and more importantly, any interpretation that prevents a special election from occurring at all would raise the serious constitutional questions previously mentioned. Such an interpretation would fly in the face of “the Seventeenth Amendment’s primary objective of guaranteeing that senators are selected by the people of the states in popular elections,” as the Seventh Circuit put it. Thus, the doctrine of constitutional avoidance strongly counsels in favor of an interpretation allowing a special election to take place.
For these reasons I conclude that a special election to fill Byrd’s seat is likely required. I will turn to the question of when such a special election should occur in another post.
The Tillmans on Shall and May
Nora and Seth Tillman have published this fragment on the constitutional meaning of “shall” and “may.” They contend that in 18th Century
For example, the Appointments Clause provides that the President “shall” nominate and appoint Ambassadors, Ministers and Consuls, Supreme Court Justices, and all other officers of the