The controversial Arizona immigration law that President Obama's administration challenged came before the U.S. Supreme Court Wednesday was written by the American Legislative Exchange Council, better known as ALEC, the conservative group that has been in hot water recently for its role in drafting the law that has figured in the headline-making shooting of Trayvon Martin, the teenager gunned down by a Florida homeowner earlier this year.

ALEC  writes model legislation and with the intent of having state legislators pass that legislation into law. According to the Center for American Progress, at least 14 other states have considered, and in some cases passed, legislation similar to Arizona's SB 1070—a bill that gives state lawmakers the right to demand identification of persons they suspect of being illegal immigrants. The Justice Department is challenging the law's constitutionality.

Using automated textual analysis to identify matches in text among the 14 bills, Sunlight was able to identify similarities between the Arizona bill and a few of the other bills identified by CAP. The Alabama bill that became law in June of 2011 stands out as very similar to the law being considered by the Supreme Court today, and our analysis shows that it  is a closer match to ALEC's model bill than the Arizona bill is.

ALEC has lost some members because of its association with the controversy surrounding the shooting of Martin, a 17-year-old, in Sanford, Fla. by George Zimmerman. Zimmerman, who has since been charged with second-degree murder (he has pleaded not guilty) wasn't arrested immediately because of Florida's "Stand Your Ground" law. That law, which was adopted by ALEC after the National Rifle Association lobbied Florida state legislators to have it passed in 2005, made it hard for police to arrest Zimmerman because he claimed he acted out of self-defense.

Sunlight's work relies on software called SuperFastMatch. Created by the Media Standards Trust and supported by a grant from Sunlight, SFM allows for the identification of overlap between text documents at large scales and high speeds. You can examine the connections between SB 1070, the ALEC model bill and the other measures we have collected for yourself by visiting our research instance of SFM. Click the "Documents" tab to begin exploring the different immigrant-related measures we examined and their degree of overlap with those of other states.

On Thursday, the Senate Judiciary Committee voted to favorably report a bill that would require the Supreme Court to allow television coverage of its arguments (S. 1945). Currently, only a limited number of citizens are able to see the court's sessions in person. Audio files of proceedings are released after the fact, but are not available in real time.

The vote, split mostly along party lines, was 11-7. Senator Dianne Feinstein (D-CA) broke from her Democratic colleagues to vote against the bill, arguing that Supreme Court justices are opposed to the measure and the Senate should not be imposing its will on them. She also warned that televising the court's arguments could lead to showboating. Two Republicans, Ranking Member Chuck Grassley (IA), an original cosponsor of the bill, and Senator John Cornyn (TX), voted in favor of passage.

Speaking in favor of the bill, Committee Chair Patrick Leahy (D-VT) argued that democracy works best when Americans have access to and knowledge of government proceedings. Several Senators echoed his comments.

The bill has been reported to the full Senate and will await a vote. A companion bill, the Cameras in the Courtroom Act of 2011 (H.R. 3572), has been referred to the House Judiciary Committee for review.

The Sunlight Foundation has previously suggested some improvements that the Supreme Court could make to its website to increase the usability and accessibility of its information.

Policy Fellow Matt Rumsey wrote this post. 

Tomorrow, a Senate Judiciary Committee subcommittee will hold a hearing  on televising Supreme Court proceedings. This is an important issue, but I  believe it is at least as important that the Court make publicly available its official documents: its opinions, merits briefs, amici briefs, and the like. Unfortunately, they generally do not do so. Opinions are available only from the 2006-07 Term format; merits and amici briefs are generally available from the ABA's website -- not the Court -- and only sporadically for the last few years. Millions of Americans look to the Court for information about what it is doing, and that information is lacking.

Here is a mock-up of what we at the Sunlight Foundation think a much improved Supreme Court website could look like, and an interview I had with SCOTUSblog on the proposed redesign. While the Court has made some minor strides since our redesign, the website still does not accomplish its basic purpose of informing the public. I am looking forward to tomorrow's "Subcommittee on Administrative Oversight and the Courts" hearing, which will feature, among others, former Senator Arlen Specter and SCOTUSBlog founder Thomas Goldstein.

Today the Supreme Court handed down a decision in FCC v. AT&T (decision here [PDF]) in which the Court decided that corporations do not have “personal privacy” for the purposes of FOIA exemption 7(C). Our former law clerk wrote about this case earlier this year.

Under FOIA, federal agencies generally must release their records to a requester, unless one of nine exemptions is met. At issue in Federal Communications Commission v. AT&T, Inc. is whether a personal privacy exemption to FOIA that covers information compiled for law enforcement purposes applies to corporations in addition to individuals.

Citizen's United opened the door for corporate spending and when Target decided to flex their new political muscle, it blew up in their face due to a disclosure law Minnesota passed in response to the Supreme Court ruling. Target, Best Buy and a growing number of corporations are now looking at voluntarily enacting policies to disclose their political spending in hopes of avoiding fallout that threatens their bottom line. Target has set up a policy page about their 'Civic Activity' that is the product of months of criticism and boycotts following the exposure of contributions through state filings.

It's nice to see corporations moving in the direction towards disclosure, but self-imposed regulations are a far cry from sweeping disclosure laws needed to provide accountability on how the money flows in our political system. The lesson that companies should learn from this episode is that people care about how money is spent in elections.

If pressure from citizens can change corporate policies than we hope that same pressure can inspire Congress to improve disclosure laws.

Friday marks the one year anniversary of the Supreme Court's Citizens United decision giving corporations the right to make unlimited campaign ads—often without disclosing the donors who funded the ads. As a result of that decision, dark money spending to elect or defeat candidates in the 2010 midterms topped $450 million dollars, or about 15 percent of total spending on elections. But the spending is not over. An ironic result of the decision is that it requires the same groups that engaged in “electioneering communications” before Election Day to spend wildly on “issue ads” during the rest of the year.

Here’s how it works: Under IRS rules, a corporation that wants to hide the donors to its election activities and still maintain its tax-exempt status cannot have the election of candidates as its “primary purpose.” So it must spend more on “education” or issue ads than it spends on electioneering communications. That means, for example, that in order to keep its tax-exempt status, Karl Rove brainchild Crossroads GPS, which spent $17 million on campaign ads on the November elections, must now spend at least twice that on issue ads.

It has already begun. As my colleague Paul Blumenthal wrote here, Crossroads GPS recently spent $400,000 in twelve congressional districts, urging support for the extension of the Bush-era tax cuts. While ostensibly “educating” the public about the tax cut issue, the ads happened to be placed in districts held by Democrats who won their recent elections by the closest of margins. Is the group’s primary purpose “education” or “electioneering”? The line gets very blurry.

Make no mistake. Efforts to require groups to disclose who paid for their electioneering activities would not have required the disclosure of donors to issue advocacy campaigns. The Sunlight Foundation adamantly supports protecting the first amendment rights of groups to engage in true issue advocacy. But as a result of the Citizens United decision, special interests that directly impact elections with electioneering ads can augment their efforts by using issue ads to target vulnerable seats after the elections are over, all while disclosing nothing. Karl Rove and others taking advantage of the Citizens United case are most certainly celebrating the anniversary of the decision, probably by having cake. And eating it too.

by AC Ranasinghe – Law Clerk

On Wednesday, the Supreme Court will hear argument on whether corporations have a right to “personal privacy” that the government must respect when answering Freedom of Information Act requests.

Under FOIA, federal agencies generally must release their records to a requester, unless one of nine exemptions is met. At issue in Federal Communications Commission v. AT&T, Inc. is whether a personal privacy exemption to FOIA that covers information compiled for law enforcement purposes applies to corporations in addition to individuals.

The case originated when AT&T overcharged the government and informed the FCC of its error. The FCC promptly investigated and, ultimately, the parties settled. CompTel, a trade association representing some of AT&T's competitors, filed a FOIA request with the FCC seeking documents produced during the AT&T investigation.

When answering the request, the FCC withheld identifying information about AT&T's employees and customers as well as privileged financial information. However, the FCC was willing to produce other information, having concluded that AT&T is not covered by the “personal privacy” exemption for information compiled for law enforcement purposes. It reasoned that only persons, and not corporations, can have a right to “personal privacy” under that exemption.

AT&T appealed to the Third Circuit Court of Appeals, which disagreed with the FCC and held that a corporation may have a personal privacy interest within the meaning of the law enforcement FOIA exemption. The court held that FOIA defines a “person” as including corporations. It reasoned that a law enforcement personal privacy exemption could be appropriately applied to AT&T because “corporations, like human beings, are routinely faced with...investigations and face public embarrassment, harassment and stigma.” The FCC appealed to the U.S. Supreme Court.

The case boils down to a question of statutory interpretation: did Congress intend to have the FOIA “personal privacy” exemption extend to corporations?

As a practical matter, federal agencies already have difficulty complying with FOIA requests in a timely fashion whenever business entities object to disclosure. Extending the privacy exemption to corporations may make businesses more able to resist or significantly delay public disclosure.

Although this appears to be a corporate squabble between AT&T and CompTel, the ones left bloodied here are not necessarily the combatants. Should AT&T win, the public would lose access to these types of documents. The only remedy would then be for Congress to enact legislation that clarifies that the “personal privacy” exemption to FOIA only applies to natural persons.

FOIA, and the documents produced in response to public requests, are necessary for government accountability. An extension of the personal privacy exemption may close a window into how the government – and the corporations it regulates – behaves.

Starting next week, the Supreme Court will release audio recordings of oral arguments on Fridays. Since 1955, the Supreme Court has released audio recordings of oral arguments to the National Archives at the end of each term. Those recordings are theoretically available to the public, although as a practical matter the best way to listen to Court proceedings is via the website The Oyez Project.  This new policy will make the recordings available to the public much more quickly, but still delayed several days after arguments take place.

Last year, the Sunlight Foundation called upon the Supreme Court to revisit how it makes available online, including adding contemporaneous releases of audio recordings, publishing all amicus and merits briefs, and much more. The Court redesigned its website this past March, but still has much more to do in terms of content and design before it meets the needs of the public. We welcome this small step forward.

(H/T CQ and BLT)

What’s the price of justice? Over the last decade, state supreme court candidates raised over $200 million for their elections, two-and-a-half times the $83 million they raised during 1990-1999, according to newly released report. The need to raise ever-increasing amounts of money prompted former U.S. Supreme Court Justice Sandra Day O’Connor to warn of a real and growing “crisis of confidence in the impartiality of the judiciary” in her foreword to “The New Politics of Judicial Elections: 2000-2009.”

With big contributors appearing before the judges they helped elect -- the top 5 “super spenders” in 29 elections spent an average of $473,000 each -- it is no surprise that nearly half of state judges polled in 2001 agree that campaign donations influence judicial decisions. Three-quarters of American share their concerns.

We only know part of the money story. Millions of dollars have flowed into judicial elections “in ways crafted to avoid financial disclosure even as they seek to sway judicial contests,” according to the report. Challenges to campaign disclosure laws, the use of shell entities to funnel funds, and the recent decision in Citizens United to allow unlimited corporate expenditures all work to obscure the full picture.

The report’s authors -- Adam Skaggs and Jonathan Blitzer at the Brennan Center for Justice at NYU School of Law, James Sample of Hofstra University School of Law, Charlie Hall at Justice at Stake Campaign, and Linda Casey at National Institute on Money in State Politics -- have constructed an an incredible reference document that does a superior job of putting spending on state judicial elections in context. Don't miss their index of state supreme court TV advertisements and state-by-state contribution and expenditure profiles.

Although not part of the report, more on state-by-state and candidate-by-candidate contributions is available for download at TransparencyData.com, a joint project of the Sunlight Foundation, the National Institute on Money in State Politics, and the Center for Responsive Politics. On the site you can search by contributor, recipient, year, and many other factors to learn about the state of judicial elections in your state. Sample search results are available on the left.

Full disclosure: the Sunlight Foundation works with the three organizations that sponsored this report.

Having described the ticking time bomb in the Supreme Court’s decision last week in Doe v. Reed, which concerns disclosure of signatories on a ballot initiative, this blogpost takes a closer look at two misapprehensions the justices have about technology’s effects on disclosure laws.

Online Disclosure Transforms Government Functions

Firstly, the justices overlook how making information available online in machine-readable formats has a transformative effect on government. In our era of perpetual budget crises, states do not have the resources to invest in 100% reliable signature verification measures, or in many other worthy efforts. Even in a perfect world, this likely wouldn’t be a priority. Justice Alito, who believes that states can “easily and cheaply employ alternative mechanisms for protecting against fraud and mistake,” conflates the technologically possible for the financially feasible.

But members of the public have demonstrated their willingness to build tools that provide these kinds of services without burdening the public purse. Contests like Apps for America, websites like Open Congress and Open Secrets, and communities of public-interested technologists like the 2000-member list assembled by Sunlight Labs all demonstrate the power of this new era of collaborative government. Online machine-readable government information improves oversight capability in a geometric, not linear, fashion. But it can only work with public access to raw data.

Misunderstanding Technology Leads to Confused Decisions

Secondly, the Court’s possible misunderstanding of the way the State of Washington discloses information to the public may have lead to faulty reasoning. In Justice Roberts’ opinion for the Court, he recounts that two Washington state-based organizations had publicly declared their intention to post the names of petition signers “online, in a searchable format.” Justice Alito’s concurring opinion adds that Washington’s Secretary of State takes the petitions and has them “digitized.”

The apparent implication for Justice Alito is that this would allow for electronic comparison of the names on that list to those held by the Secretary of State. He may be conflating “digitized” with meaning “online, in a searchable format” – or more precisely -- in a machine-readable format. The oral argument transcript is ambiguous on this point. I cannot tell if the files are "digitized" by being scanned in as pictures, or PDFs, neither of which allow for easy automatic comparison.

If I am right about the conflation error, Justice Alito is mistaken in his assessment of how feasible it would be for the Washington Secretary of State to run a signature verification program. This increased difficulty may change his analysis.

As an aside, it is ironic that the amicus and merits briefs filed in this case, whose subject is online disclosure of government information, are unavailable on the Supreme Courts website and must be obtained through third parties like ScotusWiki. Maybe they should update their website to look like this.

For questions surrounding technology matters, the Court may wish to consider bringing in outside experts, rather than relying on amici and the parties alone.