Members of Congress have repeatedly called for the Supreme Court to televise its proceedings, an issue to which Solicitor General Kagan is reportedly receptive. Making the Court's proceedings more accessible to the public is a great idea; television alone isn't enough. The Supreme Court's web presence, even with its recent facelift, woefully fails to provide the basic services the American people expect from their government.

The Supreme Court publishes online opinions going back to its 2006 Term, a mere half-decade. Briefs filed before the Court are only available elsewhere online -- e.g. some merits briefs are available from the ABA -- or are not available at all. And non-profit organizations, like Oyez, must obtain audio recordings of the Court's proceedings from the National Archives at the end of each Term, as the Court doesn't make audio available right after argument takes place, and certainly not on its website.

The Judiciary shouldn't be this backward. Just a few days ago, the Administrative Office of the U.S. Courts unveiled a new website, which includes RSS feeds, enhanced multimedia services, and widgets. Last year, we built a model of what a modern Supreme Court website could look like.

When it comes time for the Senate to question Solicitor General Kagan, she should be asked whether she supports bringing the highest court's online presence into the 21st century.

New website

Last year, we made suggestions about how the U.S. Supreme Court should redesign its website. Today, the Court unveiled a new website. The new website is a small but important step towards increased openness and accessibility, although it needs serious work.

Notable improvements include making recent Court decisions available from the homepage, a somewhat more logical design, and an interactive Court calendar that allows you to see what cases are scheduled for argument. According to the Court, additional enhancements include docket files going back to 2000, a new case citation finder, and enhanced search and navigation abilities.

Sunlight's mock-up

There are several areas where important improvements should be made, all of which focus around providing context to the information it provides.

• The webpage needs to provide more information about what the Court is doing, explaining legal terms of art, and grouping relevant information together (such as information pertaining to a particular case).
• It should incorporate a user-friendly advanced search engine.
• Use machine-readable formats (not just PDFs).

Old Site

We strongly encourage those redesigning the Supreme Court's website to talk to members of the user community to get a better feel for the kinds of improvements that would be helpful. Certainly, we would be willing to engage in that conversation.

Additional Resources:

• Blog of the Legal Times (3/18/2010): Supreme Court Unveils New Web Site Design
• SCOTUSBlog (3/18/2010): Changes for Court’s website
• SCOTUSBlog (10/1/2009): A proposed redesign for the Supreme Court
• Sunlight Foundation (8/27/2009): The Supreme Court Website: An Updated Redesign
• Sunlight Foundation (6/2/2009): Redesigning The Government: The U.S. Supreme Court
• A compendium of resources from Sunlight (wiki page)

The Supreme Court has issued its long-awaited decision in the election law case Citizens United [PDF], to which Ellen has posted her thoughtful response and initial reactions. I'm going to look at the decision's implications for legal challenges to transparency over the long haul. These are first impressions of a 180+ page opinion and dissents, so thinking on this will likely evolve over the upcoming days and weeks.

To briefly recap, the Supreme Court examined whether the long-standing laws prohibiting corporations and unions from spending money on issue advertisements or express advocacy ads (that support a particular presidential or congressional candidate) violate the First Amendment; and also whether laws that require reporting of these expenditures are constitutional.

Justice Kennedy, writing for the narrow 5-4 majority, held that corporations and unions can spend unlimited amounts of money on issue advertisements or express advocacy right up until election day. Justice Stevens, writing for the dissent (joined by 3 other justices), criticized that decision on many grounds, including practical ones: "The unparalleled resources, professional lobbyists, and single minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections." (Many argue, like election-law expert Rick Hasen, that the Court shouldn't have reached these issues in the first place.)

What is clear is that corporations and unions will be able to dump tons more money into an already groaning political system. (We'll shortly see who has more resources to draw upon.) The decision did not address whether unions and corporations may contribute directly to candidates (up until today they could not) , and left a number of other open questions.

Looking to transparency -- disclosure of who funded the ads -- only Justice Thomas (who dissents in part) would strike down measures requiring disclosure of donors. But the majority and minority have very different views on the usefulness of transparency in addressing money-related problems. They also leave open a big loophole to knock down transparency laws in the future.

Justice Kennedy could be a publicist for Sunlight. He writes "With the advent of the Internet, prompt disclosure of expenditures can provide ... citizens with the information needed to hold ... elected officials accountability for their positions and supporters." It could; the law needs to be updated to require the prompt disclosure online in useful formats. We'll be working on that.

Justice Kennedy dismisses the legal arguments against disclosure requirements one-by-one.

• Disclosure is less restrictive than comprehensive regulations of speech (and thus doesn't need to be struck down here)

• Disclosure requirements don't need to be limited to (essentially) express advocacy. (For example, they can apply to issue ads)

• Disclosure requirements don't need to be uniform -- broadcast media, the Internet, and print can all be treated differently. (But you can't treat corporations and unions differently from people.)

• An "informational interest" -- the public has an interest in knowing who is speaking about a candidate shortly before an election -- is sufficient to upheld current disclosure requirements

So what's the catch? There are likely several, but here's the main one. Even though the Court won't consider challenges to these disclosure requirements as they are written, it will consider challenges to them (known as "as-applied challenges") if -- are you ready -- a group could show a reasonable probability that disclosure of its contributors names will subject the contributors to threats, harassment, or reprisals from either Government officials or private parties. How much harassment? What kind of reprisals? What is "reasonable probability"? No one knows.

This is catnip for lawsuits that would seek to hollow out disclosure requirements to their most innocuous -- and least effective -- forms. Justice Thomas, in his dissent, argues that harassment exists now, that it impermissibly chills free speech, and thus these disclosure rules should have been struck down in this decision.

The as-applied challenge escape clause isn't stupid. It stems from attempts by the KKK to get membership lists of NAACP contributors during the civil rights era so that the Klan could attack the organization's supporters. With firebombs. But that's a far cry from disclosing corporate donors. It doesn't weigh the importance of disclosing contributor names. Also, unlike in the civil rights era, criminal behavior such as that engaged in by the Klan will be prosecuted by the state, and likely can be deterred. This squishy legal test may allow malefactors to uproot the best remaining bulwark against a see-no-evil money-drenched political system. We may save the individual from hypothetical harm at the cost of the state.

Justice Stevens notes in his dissent that "The difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf." Down we slide the slippery slope. Where may we end up? "Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests."

The Justice does nod towards disclosure. "Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem."

So, that's where we're left. Eight members of the Court agree that disclosure is useful to, in the words of Justice Kennedy, see whether elected officials are ‘in the pocket’ of so-called moneyed interests. Election-related expenditure limits are eliminated for unions and corporations, and perhaps people one day will be treated on par with corporations in terms of their expenditures. Finally, a case brought in federal district court today challenging these rules may have a Supreme Court with differently inclined members to hear it in a few years.

The ramifications of today’s Supreme Court decision in Citizens United v. FEC are breathtaking – opening the floodgates of political money such as we have never seen before.  If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.

But one thing becomes immediately clear: Transparency about the flow of campaign cash – online and in real time – became more important. While we do not think that transparency is a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt.

Today’s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending – across the board -- from when and how often candidates, individuals and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads or direct election advocacy.

Others will opine about what the Court wrote about lifting the limits and other related matters that were at the heart of this case, but we want to focus on the disclosure aspects of this case.

The Majority wrote:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

The Court goes on to note the Internet’s importance when it comes to meaningful disclosure, saying that “modern technology makes disclosures rapid and informative…A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.”

True enough, but the disclosure system they describe doesn’t yet exist. The current disclosure system is insufficiently “rapid and informative” and does not make effective use of modern technology.

As a result of this decision, there will be tidal wave of corporate campaign expenditures. The systems for disclosure will have to come into the 21st century. Everything has to be reported online. All related campaign expenditures, including the new wave of issue ads, and independent expenditures and direct electioneering must be disclosed within 24 hours, with the names and addresses of anyone who has given more than $200 in support of the ad disclosed online. In fact, there should be 24-hour online reporting of all contributions of more than $200. The quarterly reporting system now in place is outdated and ineffective—ridiculous, in a word.

There is more to this case that deserves analysis, and more will come from Sunlight. We could go on and on about how wrong-headed Justice Thomas’ no-disclosure dissent is. We need to watch out that the court doesn’t use the guise of “protecting donors from harassment” as an excuse to limit disclosure.

But in the meantime, this decision should trigger momentum toward ensuring that all election-related information is available online in real-time. Disclosure remains a crucial antiseptic to the corrupting influence of money in politics. We should ensure our system is as transparent as possible.

We’ll have more to say, later today.

This morning, the Supreme Court issued an opinion in the major campaign finance and transparency case Citizens United. We are still reviewing the opinion (available here as a PDF) for its transparency implications.

We explained what's at stake, and our amicus brief, here. While you're waiting for our analysis, here are three excellent sources of insights:

• SCOTUSBlog: will likely have the opinion online first with instant analysis.
• ElectionLawBlog: will have the best web coverage.
• The Brennan Center for Justice: a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice.

SCOTUSblog, a blog about the U.S. Supreme Court, published an interview with me on Sunlight's proposed website redesign for the Supreme Court. Here are links to our preliminary redesign and final draft.

Judicial appropriations legislation (S. 1432 and H.R. 3170)  to “provide new information technology specialist positions and for new hardware and software to support the Court's website” has passed the House and is pending in the Senate.

Justices Breyer and Thomas testified before the House Appropriations Financial Services and General Government Subcommittee on April 23, 2009, and explained the $1 million in costs for staff, hardware, and software.

In an uncommon move, the U.S. Supreme Court will release audio from today's argument in Citizens United v. FEC shortly after arguments have concluded. There is no live broadcast. Citizens United is a major campaign finance case; Sunlight filed an amicus brief, available here.

Based upon the Supreme Court's September 4, 2009 press release, available from SCOTUSBlog but not yet and on the Supreme Court's website, the audio recording will not be directly made publicly available by the Court on its website. (Audio recordings thus far have never been made available on the Court's website.) Instead, the recording will be offered to broadcasters via the network pool and made available to press at the House and Senate Radio and Television Galleries. The audio recording will also be made available to the public through the National Archives. I have a phone call in to the National Archives to find out when and in what formats the recording will be made available. Under usual circumstances, it takes several weeks for the Archives to have a copy available for public inspection.

Audio recordings are usually made publicly accessible only after the end of the Term when the Court transfers its recording to the National Archives. The Oyez Project, a multimedia project dedicated to the Supreme Court and unaffiliated with the National Archives, publishes  recordings of arguments before the Court online.

Update: Oyez expects to have audio available online later today, 9/9/09.

Update 2: Here's a transcript [PDF] of the argument, available from the Supreme Court.

Below the fold is the text of the release.

FOR IMMEDIATE RELEASE September 4, 2009

For Further Information Contact: Kathy Arberg xxx-xxx-xxxx

The Supreme Court will release the audio recording of oral argument in the following case on an expedited basis: Citizens United v. Federal Election Commission, scheduled at 10 a.m. on Wednesday, September 9, 2009. A total of 80 minutes is allocated for oral argument. The audio recording will be released shortly after the conclusion of the argument.

Sources for the oral argument audio recording will be as follows:

• The audio recording will be provided to the network pool, which will in turn provide an offsite, simultaneous feed to member news organizations.
• The audio recording will be made available in the House and Senate Radio and Television Galleries at the U. S. Capitol on Capitol Hill DA #9. Only press holding proper Congressional credentials will be allowed in the Galleries.

Playback of the audio will be provided as soon as possible following the conclusion of the oral argument. The recording of the argument will be played in its entirety one time only. The feed of this recording is intended for broadcasters only. Contact ABC News at (xxx) xxx-xxxx for more information. The recording will be made available to the public through the National Archives. Please contact Mark Meader of the National Archives at (xxx) xxx-xxxx.

In June, the Sunlight Foundation released a mock-up redesign of the Supreme Court's website. Our intent was to provoke discussion about the kinds of information the Court should publish on its site, and how that information should be organized. We succeeded beyond our expectations, hearing from professional court watchers, legal practitioners, programmers, and the general public.

Today, we are releasing an updated redesign, narrowing its focus to steps the Court can take right now. The timing could not be better, because the Court is currently considering how to redesign its website. Hopefully the suggestions below can serve as a guide. (Our June blogpost set forth the key ideas we followed when building the redesign.)

Website Tour

We focused our efforts on designing four webpages, but the site's navigation includes eight different kinds of pages. Those eight pages are: the Homepage, About the Court, Cases, Rules, Calendar, Visiting the Court, News, and Contact. We mocked-up the Homepage, About the Court page, Cases age, and a page containing details about an individual case docket.

Homepage

This page has changed slightly from our original design. It contains the Court's argument calendar, recent opinions, upcoming arguments, and recent news. On this page, as on all of them, there's also basic information on how to contact the Court. Our vision of the Court's homepage contrasts significantly with the Court's current static homepage.

Since our earlier draft, we have added additional explanatory language. However, the most significant update is the adoption of the Court's exact phrasing for the issue before the Court, and removing the “box score” for the Court's opinions. The purpose of the change was to simplify the Court's task regarding making this information available. Perhaps in the future, however, information adapted from the Court's syllabus (i.e., the summary of the case) or by the Public Information Office could be used here.

About the Court

The About the Court page provides a good overview of the Supreme Court. It identifies the Justices and links to their biographies – including information about all former Justices. It also provides a snapshot of the Term's statistics (cases granted, etc.), and contains information about the building, how the Court hears cases, and other general information about the Court. This page hasn't changed much from our earlier draft, with the exception of cleaning up the text around the term statistics. By contrast, the Supreme Court's website provides only a small percentage of this information, and it's locked away in difficult-to-browse PDF files.

Cases

The Cases page has changed significantly from our earlier draft. The page's name itself has been changed from “Court Proceedings” to “Cases” so that it is more intuitive. Users are able to view all the proceedings during any period of the Court's history. We've upgraded the search function to allow users to refine their search by “filing stage.” In addition, we've made it easy for users to download multiple opinions at once, in PDF or XML format. (The advanced search feature should allow bulk downloads of court filings as well.) The current Supreme Court website only goes back 5 years, doesn't allow searching by case stage, doesn't permit bulk downloads, and doesn't make opinions available in XML format.

Individual Case Docket

Our Individual Case Docket page, which contains all of the information about a particular case, has been somewhat reorganized. Just as before, it contains the question presented and case status at the top of the page. Just as before, it contains proceedings and orders of the Court, in chronological order, with links to each of the filings. We've kept the lower court opinions at the bottom of the page, and moved the list of counsel who are filing before the Court to the bottom of the page as well.

This contrasts significantly with what the Supreme Court currently makes available. Although its most recent opinions are available online, its website doesn't contain any of the merit or certiorari briefs by the parties. It also does not include opinions by lower courts. The information that it does make available is hard to read and navigate.

Remaining Pages

We did not build mock-ups for the following pages, but their descriptions can be found in the June blogpost. Here's a quick summary, with explanation for when we have made changes.

• Rules. We renamed our “Court Procedure” page “Rules” because we thought it would be more easily grasped by users. This page focuses on how the parties before the Court interact with the Court.
• Calendar. Provides detailed information about when Court proceedings and other relevant events will take place.
• Visiting the Court. Contains basic information about visiting the court.
• News. This would be where the Court aggregates all of its internally-generated information so that it is easily accessible to readers in one place. The page should include syllabi and links to decisions, speeches given by the Justices, press releases and media advisories, and other Court events.
• Contact: Basic information on how to contact the Court

A Few Closing Points

We've heard from you on a wide range of issues that we haven't discussed above. They include how the Court should write and publish its syllabi, making contemporaneous video available from its proceedings, and how the opinions themselves should appear (including using hyperlinks). Those issues were not addressed in this mock-up, but we want to acknowledge them here.

We also were pleasantly surprised that a number of technologists expressed a willingness to assist the Court in redesigning its site. The Court has said it will develop its new website in house, but hopefully technologists can take the information that the Court will hopefully be making available online and put it to interesting new uses.

We hope that the Supreme Court will consider our mock-up as it redesigns its website. We also welcome the opportunity to discuss our redesign, and all of your feedback, with them.

As always, if you have any questions or comments, please post them online or contact us directly.

Daniel Schuman, Policy Counsel

Ali Felski, Senior Labs Designer