Thursday, May 31, 2012

Judicial Elections: Bad for Judges, Bad for the Public

It is almost election time again in Los Angeles. Angelenos will have the opportunity to vote on 16 candidates for six open judgeships in the Los Angeles Superior Court. And this is a bad idea.

Most members of the voting public know little to nothing about judicial candidates. This is not surprising. Judicial candidates cannot and do not campaign the way other candidates do. In addition, they are decidedly "down ballot" races, meaning fewer people pay attention to the candidates towards the end of the ballot.

Why is this a problem? Well, when the public has little information then each voter should take it upon herself to research that judicial candidate. That doesn't always happen. But when it does voters are heavily reliant on a few sources -- the Los Angeles County Bar Association, which rates candidates on a scale from exceptionally well qualified to not qualified, and the relatively few news outlets, which endorse candidates.

The more frightening (and all-too-likely) scenario occurs when voters do not look at the candidate ratings or newspaper endorsements. In that case voters are left to go only by what is on the ballot, which includes the candidate's name and a short description such as "gang prosecutor" or "environmental lawyer."

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Money in Politics: Good Government Reforms Cost Money

When people ask me about the one government reform I would put into place if I had a magic wand, I often say "real campaign finance reform." I believe there is simply too much money in politics. The current situation gives rise to special access and undue influence by those who can and do spend substantial sums. And at least as worrisome is the appearance of such access and influence. The majority of members of the electorate increasingly feel that politics and elections are games open to the few and the cost of admission is a large donation or independent expenditure.

Why, then, do so many so-called good government reforms lead to more expensive races? Well, to start, let's take my least favorite government reform: term limits. As a result of them many elected officials are not just running for re-election every few years, they are endlessly eyeing and running for (and raising money for) the next post.

But what about something I would consider to be a positive government reform? Well, let's take redistricting. Now in California an independent redistricting commission draws the state and federal legislative lines.

Previously legislators drew their own district lines, not surprisingly in ways that best assured their re-election. By contrast, the independent redistricting commission was charged with drawing lines that, among other things, keep communities of interest together. So this seems like a good reform, but one of the consequences is that there will now be much more competitive races in some districts. The phrase "more competitive races" is often code for more expensive races.

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Wednesday, May 30, 2012

Richard Alarcon: Good Riddance and Hello

Quoted in this article in LA Weekly.

Jessica Levinson, a professor at Loyola Law School, views the legacy of term limits in California as a game of "musical chairs" played by politicians whose desire is to hold long-running and powerful jobs.

Alarcon's ability to repeatedly jump around, while fresh-faced candidates who run against him are repeatedly rejected by voters, "sounds schizophrenic," Levinson says. "But it also makes sense. In the abstract, voters want new blood and think one way to do it is to legally mandate that politicians can only stay so long.

"But by the same token, incumbents wield so much power in name recognition, and they typically out-raise challengers in campaign fundraising, that, as anti-incumbent as we [Californians] are, we often vote for the person we know."

Citizens United: Answering Unasked Questions

I have an OpEd discussing this topic today in the Los Angeles Daily Journal. In it, I explain that in Citizens United the Court asked itself a question -- whether the portion of McCain Feingold at issue in the case could constitutionally be applied to anyone -- and then answered that question in the affirmative.

Tuesday, May 29, 2012

"Judging Candidates for the Los Angeles Superior Court"

I'll be on "Which Way, L.A.?" tonight at 7pm PST discussing the topic of judicial elections. You can listen anytime by clicking here.

Thursday, May 24, 2012

Special-interest spending floods Cailfornia races in new political landscape

Quoted in this article in the Sac Bee.

Spending by independent expenditure committees has skyrocketed since voter-approved contribution limits for candidate-controlled committees took effect in 2001.

While the independent committees cannot be coordinated with the campaigns, some observers say the influence they wield is problematic. The possibility of independent committee support – or threat of an opposition campaign – could weigh heavily on the minds of legislators once they get to the Capitol.

"I think this kind of idea of independence doesn't play out in reality," said Loyola Law School professor Jessica Levinson.

Read more here:

Wednesday, May 23, 2012

With more court cutbacks, has the system reached its breaking point?

Here is a link to my appearance on Patt Morrison today.

In response to Governor Jerry Brown’s announced cuts of $544 million in state court funding in the next fiscal year, California Chief Justice Tani Cantil-Sakauye said such austerities “are both devastating and disheartening” and explained that they will seriously compromise the state’s “ability to provide equal access to justice.”
The judicial branch cuts are among $4.1 billion in new budget reductions revealed last week to balance the $91 billion state budget for the coming fiscal year beginning July 1. The budget changes will require trial courts to use $300 million of reserve funds and delay $240 million worth of courthouse construction and renovation, according to Brown.
The state will also require court employees to contribute more to pension funds, which will reportedly save the state $4 million. Both officials and attorneys are concerned about how much the cutbacks will impinge upon the judicial system’s ability to function properly.


How badly funded are courts in California now? How well will the judicial infrastructure be able to sustain more funding cuts? Is the state of California in a financial crisis that it cannot recover from?


Jessica Levinson, professor, Loyola Law School
Judge Margaret Henry, supervising judge, dependency, Los Angeles Juvenile Court;
Justice Douglas Miller, associate justice, California State Court of Appeal; member of the state judicial council (the policy making body of the state court)

California's 'Jungle Primary'

I'll be in "Which Way, L.A.?" talking about the following... 

The June 5 election will be like nothing California has seen before, with some office holders hiding their party affiliation — and even their incumbency. Republicans have given up some legislative and Congressional races altogether, and the general election will feature run-offs between candidates of the same party. A lawyer deemed "unqualified" by the County Bar has challenged a highly regarded judge with a foreign-sounding name. It's all pretty weird.

More court cutbacks, has the system reached its breaking point?

I'll be on Patt Morrison today to discuss.

Tuesday, May 22, 2012

What is in a Ballot Designation?

California law provides that candidates for political office can list a ballot designation that tells voters something about themselves. Often -- perhaps too often -- that is all, or almost all, voters know about a candidate. The designation is sometimes the first and last impression voters get from candidates.

Ballot designations cannot be false or misleading. While this may sound straightforward, there could be a great deal of gray area here.

Assemblywoman Beth Gaines (R) is running for re-election -- she joined the Assembly last year when she won a special election to fill a vacant seat -- and identifies herself as a "small business owner" on the ballot. Assemblyman Bill Berryhill (R) has identified himself as a "farmer." These two are not alone. In fact, there are at least 10 legislators who are not listing their current positions on the ballot.

These examples are important not so much for what they say about these particular candidates, but what they indicate about legislators' views of how unpopular state representatives are. We now have sitting legislators figuratively running from their current positions as elected representatives. They must think we really dislike our representatives. In fact, they're right. Public approval ratings linger around historic lows.

Let's take a step back. We now live in a state where winning an election and obtaining a position that allows an individual to represent their fellow citizens are things to hide (or at least not highlight) from the voters.

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Monday, May 21, 2012

We the Corporations?

My latest law review article, We the Corporations?: The Constitutionality of Limitations on Corporate Electoral Speech After Citizens United, was cited in an amicus brief filed with the Supreme Court in American Tradition Partnership v. Bullock.

The issue in that case is whether Montana must follow the Court's holding in Citizens United, which struck down a federal ban on corporate electioneering communications.

Friday, May 18, 2012

Was Occupy Los Angeles Worth the Money?

Unfortunately the following statement is hardly a newsflash: the city of Los Angeles is strapped for cash. It faces a budget shortfall of about $200 million and a little pocket change will not help dig the city out from its current budget deficit.
Currently city officials are discussing whether, when, and how many city employees to layoff. Even police and fire employees are at risk.
It may be euphemistic to call the city's current fiscal situation precarious. Perhaps "precarious at best" is more apt. The point is that Los Angeles is in a financially bad state (both literally and figuratively).
recent report released last week states that last year's Occupy Los Angeles protest will cost the City almost double the original estimate. Taxpayers will apparently be on the hook for almost $5 million in costs associated with the lengthy protest and encampment.
How, you may ask, do we get to this price tag? The price tag includes paying 1,400 LAPD officers to remove demonstrators who camped out on the lawn outside City Hall for two months and costs associated with cleaning up that encampment, which, according to some estimates, was home to about 500 protestors. One way to look at the cost of the protest is therefore $10,000 per protestor.

California State Foundation bonuses pose conflict of interest

Following public outcry over six-figure pay raises handed out to top executives, the California State University Board of Trustees approved a plan last week to shift future pay hikes from taxpayer funds to nonprofit auxiliary foundations. The decision effectively freezes the amount of tax dollars spent on the college’s executive compensation, and Cal State officials hoped that would be enough to bring closure to the issue. ... “The CSU Board of Trustees’ decision to use funds from college foundations to pay for raises for campus presidents does raise some questions,” said Loyola Law School Professor Jessica Levinson. “If college presidents are in control of these college foundations, then it raises at least a question of the appearance of a conflict of interest.” Finish reading the article here.

Tuesday, May 15, 2012

Is California's Deficit Good for Governor Jerry Brown?

Back in January the estimate was that California was in debt -- to the tune of $9.2 billion. In our new normal, that was seemingly palatable news. Now comes less agreeable news, the budget deficit is actually much larger than that. Today Governor Jerry Brown officially announced that the Golden State is facing a nearly $16 billion deficit.

At the risk of making the understatement of the week, this is bad news. California does not have enough money to keep functioning -- better said, it is dysfunctioning at this level. Depending on your perspective, too little money is coming in or too much money is going out.

What is a Governor to do? Well, there will be more budget cuts. Cuts that were likely inconceivable five years ago are now very much on the table.

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Thursday, May 10, 2012

Another Obamajam? The President Heads to the Valley

Last night, I had the following conversation with my friend:

"Can you leave work early tomorrow?"

"I'm not sure," replied my best friend, who, for her own privacy, we'll name Jane.

"Did you tell your parents?" I asked.

"Yes, I told them not to leave the house tomorrow night."

Jane and I decided that we might be suffering from a minor case of post-traumatic stress syndrome since President Barack Obama is coming back to town tonight. Jane's 2.5 hour car ride home (for what is typically a 15-minute commute) during one of his past fundraising visits is still seared into our memory. As is my family member's unplanned two-hour ride home for a trip that normally takes around 10 - 20 minutes.

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America Doesn’t Need Another CREEP

Here is another piece by Ciara Torres-Spelliscy. Go Ciara! 

Here is the beginning of the article, which appears in Guernica:

There is a fresh Super PAC on the scene called CREEP. This is an homage to the original Committee for the Re-Election of the President or (CREEP ‘72), which broke campaign finance laws in the reelection of Richard Nixon. As revealed by the Watergate investigations, sins CREEP ‘72 committed included accepting illegal, laundered corporate contributions $10,000 at a time—often in cash. The last thing this country needs is another CREEP or another Watergate.

Unfortunately, the risk of a modern, Watergate-scale money-in-politics scandal is magnified by the Supreme Court’s Citizens United decision, which invites unlimited corporate and union expenditures into elections.
June 17, 2012 marks the 40th anniversary of Watergate. Of course, saying the word “Watergate” is an instant Rorschach test. The word could mean anything from an edifice, to an illegal entry, to an Executive exit. What was actually at the heart of the scandal was not a botched burglary, but rather good old-fashioned corruption and graft.

Monday, May 7, 2012

Prop 29: Should I Vote for a Good Proposal or Against a Bad Process?

As readers of my commentaries know, I am no fan of the initiative process. I believe that the process that was designed to protect against the influence of special interests has now been hijacked by those same interests. What one needs to qualify a proposal for the ballot is not a good idea, but money. Money also doesn't hurt much in getting initiatives passed (meaning money is one of the key factors to success). When and if an initiative is successful, dollars to donuts that measure will end up in the courts. We often spend time and resources litigating the meaning and constitutionality of initiatives. And a good percentage of the time at least a portion of an initiative is tossed. In addition to all of these problems, initiatives bypass the (hopefully) deliberative process that occurs when laws are passed by the legislature.

So why am I considering voting for one of these dreaded initiatives? One of the measures on the June 5, 2012 ballot in California is Proposition 29, which is called the "Tobacco Tax for Cancer Research Act." Prop 29 would increase the sales tax on each pack of cigarettes from 87 cents to $1.87. The additional revenue, which the Legislative Analyst's Office estimates to be about $735 million per year, would go to funding cancer research and programs aimed at reducing smoking.

You can likely see my problem as that proposal sounds good to me. Here are two fairly uncontroversial things that I believe: First, fewer people should smoke since smoking can cause serious health risks; second, more money should go to cancer research. But here is a third, more controversial belief: The initiative process is deeply flawed (see above).

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As super PAC money flows, an effort to divert cash to charity

With the American political system deluged with super-sized donations, a few innovative proposals are trying to harness small donors and, in one case, divert campaign cash to charity.
Campaign finance scholar Jessica Levinson noted that a $100 donation to one campaign might not exactly cancel out $100 to another campaign if one side uses the money more effectively. But she likes the idea.

"If it's legal it could be a win-win, in terms of candidates saying, 'I’m helping to raise money for charity,' and people still being able to voice their support in a way," said Levinson, who teaches at Loyola Law School in Los Angeles.

Finish reading the article here

Saturday, May 5, 2012

Judge dismisses L.A. Councilman Richard Alarcon case; DA Steve Cooley considers appeal

A Superior Court judge dismissed felony voter fraud charges against City Councilman Richard Alarcon and his wife Thursday morning, saying the District Attorney failed to provide the grand jury with evidence that might have exonerated the couple.


Loyola law professor Jessica Levinson, who teaches election law, said the judge was holding the prosecution to the letter of the law in its presentation of the case of the grand jury.

"I do think this decision shows the frustration the judge felt with the prosecution case," Levinson said. "It also shows how easy it is to get an indictment from a grand jury."

Finish reading the article here.

DA Steve Cooley refiles perjury, voter fraud charges against Richard Alarcon and his wife

I am quoted in this article about perjury and voter fraud charges filed against Councilman Richard Alarcon and his wife.

But the aggressive response by Cooley's office shows that they believe they can win, said Loyola law professor Jessica Levinson.

"They also know this is a high-profile case, that the media is watching," she added. "They don't think these are frivolous charges."

Thursday, May 3, 2012

L.A. Coliseum panel drops free-tickets provision from USC deal

I am quoted in this piece in the LAT.

In the heat of a broader financial scandal, the public officials who run the Los Angeles Memorial Coliseum have agreed to give up decades' worth of free Trojan football tickets they negotiated for themselves in a proposed lease that would surrender control of the stadium to USC.
Jessica Levinson, a Loyola Law School professor who studies public corruption, said the decision to forgo the tickets was "a good PR move." The provision would have required USC to try to get the commissioners free tickets to pro games if a new L.A. franchise played at the Coliseum while an NFL stadium was built here.

"To get rid of the benefits and perks that come along with the position is good," Levinson said. "But it's different from getting rid of the corruption that happened."

Congressman Brad Sherman Could be a Savvy Financial Advisor

If Congressman Brad Sherman fails to gain another term in the U.S. House of Representatives he may want to consider another career as a full-time financial analyst.

In 2010, voters approved a ballot measure that took the power to draw congressional lines out of the hands of incumbents and gave that task to an independent redistricting commission. The commission was charged with drawing district lines that, among other things, did not take into account where incumbents resided. That means the commission's purpose was to draw lines that fairly represented communities of interest, rather than lines that gave incumbents a chance at winning.

As a result of the independent redistricting commission's work, districts are not as safe as they used to be. Perhaps the poster-child for this phenomenon is the much-discussed match-up between two Democratic Congressman: Brad Sherman and Howard Berman.

Sherman and Berman have both raised enormous sums for their re-election bids. They are both running for a seat in the San Fernando Valley. Disclosure reports reveal that Sherman has more than $4 million in his campaign war chest (including personal loans), and Berman has approximately $2.4 million in the bank.

Sherman, for his part, is showing his business acumen. Recent disclosure reports show that Sherman earned over $650,000 just based on investing his campaign contributions. Luckily for Sherman, the tax rates on campaign investments are lower than the tax rates on other investors. Interesting: were it not for high returns on investments, Berman would have outraised Sherman in the first quarter of 2012.

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