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.

Had the decision gone the other way, a huge new loophole would have been shoehorned into FOIA.

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.

A little more light will shine on petitions for referenda because of Thursday’s U.S. Supreme Court ruling. The Court held 8-1 in Doe v. Reed [PDF] that the First Amendment does not categorically ban public access to the names and addresses of supporters of state-wide initiatives and referenda. However, in doing so, it also left a ticking time bomb for future advocates of disclosure.

Doe’s Origins

The question arose from a state-wide vote in Washington on banning same-sex marriages, where supporters of the ban who signed a petition calling for the vote did not want their names released to the public. They were afraid the information would find its way online, and result in harassment and intimidation. Justice Roberts, writing for the majority, categorically upheld laws requiring the disclosure of names and addresses in petitions as constitutional, but deferred deciding whether disclosure of that information in this particular instance would violate the First Amendment.

Although not entirely unusual, nine justices managed to produce seven opinions, with members of the majority scrambling over one another to make distinctions at various levels of granularity. Only Justice Thomas dissented. (Full disclosure: Sunlight filed an amicus brief on behalf of neither party, arguing that whatever decision came down should not apply in the campaign finance context.)

The Opinion of the Court

Justice Roberts, writing the court's opinion, spends little time deciding that the First Amendment is implicated by the disclosure law. He sidesteps the question of whether the challenge to the law is on its face or as-applied – “the label is not what matters” – but treats the challenge as directed at the constitutionality of these kinds of disclosure laws, not how they’re applied in this instance.

He rapidly concludes that the law implicates the right of free expression, adding that governments should get significant latitude in how they wish to give legal effect to enforce electoral regulations. He adds another weight on the side of the constitutionality of the public records law by noting that the law does not prohibit speech, but rather requires disclosure.

Justice Roberts concludes that the state has a “sufficiently important” interest in “preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability” to justify the burden on First Amendment rights. Moreover, he dismisses the concerns about mashing the names of petitioners with other information on the internet, potentially resulting in harassment, because “there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.”

The majority leaves in a ticking time bomb: “upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrower one.” I’ll get back to this ticking bomb a bit later.

Concurring Opinions

Justice Scalia offers a distinction of rather large granularity and salinity to the opinion of the Court, which he joined, by expressing doubts on “whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all.” No other justice doubted this case had constitutional dimensions.

The Court's most articulate author donned a historian's cap and concluded (after a lengthy and engaging survey) that “the many-centuries-old practices of public legislating and voting” shows that the First Amendment, were it to apply here, has never (and thus does not now) prohibit public disclosure. Disclosure requirements are up to the states.

Justice Alito, who apparently grudgingly signed on to the majority opinion, spends his eleven pages laying out a roadmap to undercut the opinion in future decisions. Because many referenda regard non-controversial matters, the Court cannot categorically hold disclosure requirements for all referenda to be unconstitutional, he argues. However, there are times where applying the law in a particular case will chill protected speech.

He writes, “anyone with access to a computer could compile a wealth of information” about signatories of a petition with the result that “the potential that such information could be used for harassment is vast.” Thus, “to give speech the breathing room it needs to flourish, prompt judicial remedies must be available well before the relevant speech occurs and the burden of proof [to get an injunction] must be low.” Tipping his hand, he writes “plaintiffs have a strong case that they are entitled to applied relief, and they will be able to pursue such relief before the District Court.”

It is perhaps no surprise that Justice Sotomayor, joined by Justices Stevens and Ginsburg, reach the opposite conclusion, but still join the majority. She writes that “even when a referendum involves a particularly controversial subject and some petition signers fear harassment from nonstate actors, a State's important interests in protecting the integrity and reliability of the initiative process remains undiminished, and the State retains significant discretion in advancing those interests.”

For Justice Sotomayor, “openness in the democratic process” is her touchstone. She also advises the District Court, which will hear the as-applied challenge, saying “courts ... should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Justice Stevens, with Justice Breyer joining, explains that everyone has missed the boat (but not the majority opinion). The law in question, he writes, is not about restricting voting (contra Justice Thomas) or speech (contra Justices Alito and Roberts) or classic disclosure requirements (contra Justices Scalia and Sotomayor), but rather a “neutral, nondiscriminatory policy of disclosing information already in the State's possession that, it has been alleged, might one day indirectly burden petition signatories.” You can see where this is going.

There's not much, if any burden imposed by the public record law, Justice Stevens argues. Even though there is the possibility that some situation may occur where the law is a burden, there must be “strong evidence” of a “significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures” before the Court should act. Justice Stevens also needles Justice Alito, arguing that you can't know which referenda are noncontroversial.

Justice Breyer can't help but add a one-paragraph opinion where he agrees with his other concurring opinion (which was written by Justice Stevens), explaining the reasonable approach is to ask “whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon others.” His answer? Not in this case.

Justice Thomas’ Dissent

Justice Thomas argues that this case is not about the First Amendment's freedom of expression, but its freedom of association. This shift in emphasis allows Justice Thomas to draw on different precedents. He applies the most stringent legal standard, known as “strict scrutiny,” as compared with the majority's "exacting scrutiny," which inexorably leading him to conclude that the law is unconstitutional on its face.

Justice Thomas derides as quixotic his colleagues' reasoning that would permit “as-applied” challenges. He argues such challenges will require substantial litigation, be based upon an “interpretive process that itself would create an inevitably, pervasive, and serious risk of chilling protected speech,” and which would provide “no more than a hollow assurance that referendum signers' First Amendment rights will be protected.”

Where he hits the nail on the head is what keeps us at the Sunlight Foundation up at night: “It is still unclear what sort of evidence of threats, harassment, or reprisals directed towards [a signature gatherer's] referendum would satisfy the Court's standard.” Put into the campaign finance context in the post-Citizens United world, we are very concerned about how much proof is required of harassment that would shut off disclosure laws.

The Ticking Time Bomb

Justice Thomas raises a very good question. How do you weigh the risk of chill (if there is a chill) on speech against the importance of disclosure because such laws are invalidated? How do the justifications behind ballot signature disclosure laws compare with those in the campaign finance context?

The opinions in this case give us some clues. Justice Sotomayor, writing for three justices, posits that “while campaign finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public.” How will that play out? We  have to wait and see. Tick. Tick. Tick.

When you apply for a job, you always need a resume. Usually, you also need to furnish some examples of prior work.

When you apply for the United States Supreme Court, well, they want everything.

Tom Lee of Sunlight Labs has made the Supreme Court confirmation hearings for Elena Kagan starting this Monday more accessible for citizens and journalists (and Senators!) by putting the emails sent by Kagan during her time in the Clinton administration in "a more familiar interface" - a good old email inbox!

You can find it at: http://ElenasInbox.com

It's a great way to become Kagan for a day and see what issues and policy decisions she was involved in while serving as Associate White House Counsel (among other positions) from 1995 - 1999. There are almost 5000 emails (in about 2800 threads) and we're still digging through them.

Help us research

But don't wait for us! Just like the GMail interface, you can star the emails you think are important. Not only does that create a personal list of important emails for yourself, it creates a list of curated important emails for the community.

If you do some additional research on the people, places or events mentioned in the emails and think one of our investigative reporters should take a closer look, email tips@elenasinbox.com or tweet out the information using the hashtag #elenasinbox.

Be sure to read site creator Tom Lee's excellent post on this project - it focuses on the flaws in how this data was originally released. Below you can find some of the emails that I've been reading.

Preview the emails

Apparently, mousepads were in short supply the month Kagan started with the White House, back in July, 1995:

We all know that all White House administrations leak information to the press all the time. But sometimes it takes a village to get it done! Note the 8 people that needed to coordinate on a leaked letter regarding school class sizes to the Washington Post:

Other stories were planned leaks. Here's a leak in 1999 designed to give a New York Times reporter background on a Federal Bureau of Alcohol, Tobacco and Firearms report on gun violence in order to get the Times to run an article on the report in the Sunday edition.

Leak successful! The Times ran an article called "Study Exposes Illegal Traffic In New Guns" that Sunday.

When the AP reported a story regarding President Clinton's intent to keep harsher penalties for selling crack cocaine vs powdered cocaine, Kagan responded with a dim view on how the story would be spread:

Bruce Reed was the White House domestic policy director at the time. Note this is only one of two instances I could find of the f-bomb being dropped in emails sent from Kagan. Many of us probably beat that statistic in our own inboxes. :)

This is only scratching the surface: remember to send us email tips (tips@elenasinbox.com) and tweet the hashtag (#elenasinbox).

If you want to keep seeing innovative tools from us we always appreciate tax-deductible donations!

Note: right now we only have email sent by Elena Kagan. We've begun to look at the emails she received - it's a very messy source so stay tuned to our Twitter account for updates.