US presidential election: Obama still faces major systemic challenges
Post-election government resembles what it was before. What, then, to make of all that money – $6bn at least – spent on the presidential and congressional contests?
The bets placed by George W Bush’s former Deputy Chief of Staff Karl Rove and his Super-PAC, American Crossroads, fizzled: the candidates he backed lost. The Sunlight Foundation, a not-for-profit transparency organisation, suggests only 1.29 per cent of the $103,559,717 Rove spent (involving opposing two losing candidates) ended in his desired result.
Supporters of unlimited spending are quick to say ‘see, democracy survived’. But high rollers wield important influence, kicking an already entrenched fundraising industry into overdrive. CBS News reported that President Obama attended 221 fundraisers across 24 states, while attending 101 campaign rallies in nine states. His day job is running the country.
Former Federal Election Commission Chairman Trevor Potter considers such fundraising demands a disaster for the country, taking a president away from addressing critical needs. Potter believes Romney’s ‘47 per cent’ comment reflects what Romney constantly heard from rich donors he embedded himself with.
‘The Supreme Court has repeatedly gone out of its way to damage consumer protection and increase corporate power’
National Association of Consumer Advocates
Interviewed by Bill Moyers, Potter, a Republican, said that, despite losses, big donors did get a return for their money: a grateful Republican party attentive to the donors’ legislative agenda. Democrats are likewise beholden to their benefactors. The Virginia senate race cost $80m, $50m of it from outside groups. Winners are already focused on raising tens of thousands a day to counter Super-PACs, or on finding handy billionaires.
Consider that billionaire-backing for Newt Gingrich and Rick Santorum extended the Republican primary for months, forcing Romney to burn through his money. Even so, Obama scrambled to counter a three-to-one Republican Super-PAC advantage. Next time, says Potter, Democrats won’t have an incumbent president with a cash-and-carry campaign structure across battleground states, with millions of volunteers on tap. They’ll have a primary.
The high rollers haven’t gone anywhere, says Matt Sanderson, an election finance lawyer with Potter’s firm, Caplin & Drysdale. They’ve learned their lessons about being ham-fisted and off-message. Sanderson predicts bigger donors will consolidate, gobbling up smaller groups. They’ll move their emphasis to grassroots boots-on-the-ground efforts. And the parties, chasing the same dollars as outside groups, will seek an advantage, such as being able to coordinate with candidates. More lawsuits will arrive seeking to further deregulate campaign finance.
Beyond the wreckage wrought by the Supreme Court’s Citizens United decision, other matters coming down the tracks will shape the way America chooses its leadership. The Supreme Court’s upcoming consideration of whether section 5 of the Voting Rights Act is constitutional, for example. The law requires a number of jurisdictions, notably including states of the Confederacy to get Federal permission when changing voting procedures. The law was considered imperilled, with conservative critics labelling it an anachronism. Then came the 2012 election, with naked efforts at voter suppression exposed in a number of states across the country. It’s now tougher to pretend section 5 is an oddity out of its time. One doesn’t need to be supervising elections in developing democracies to roll one’s eyes at obvious ploys like cutbacks in voting hours, or misinformation campaigns on the right day to vote, or signs threatening criminal penalties if anything goes amiss. There’s a long menu of dirty tricks.
In a nice slice of irony, the timely exposure of efforts to damp down minority voter turnout angered people across the country. This made voting all the more precious, strengthening the resolve to be heard, even if it meant standing in line for seven hours. Will the Justices surface sufficiently to take in the ugly scenery of voter suppression and instead suppress future dirty tricks?
Every presidential election, the press spills plenty of ink on changing the balance of the Supreme Court, even if the candidates downplay it. Often, it’s spilled for naught. Consider Justice Kennedy, often the swing vote in important 5–4 decisions. He’s 76, as is Antonin Scalia. But hidden within the Supreme Court building is a magic elixir. According to ‘Smart Politics’, from the Humphrey School of Public Affairs, the 42 deceased justices born after 1850 lived an average of 34.1 years longer than the average American born the same year. Every justice born after 1850 lived at least ten years longer than the average life expectancy of their birth year; all but four lived at least 20 years longer; three lived over 50 years longer. Thurgood Marshall lived to 84, 50 years longer than the average non-white male born in 1908. Of the 11 deceased justices born in the 1900’s, their average is nearly 82.
A possible retiree is Justice Ruth Bader Ginsburg, 79, who’s had health challenges – but she’s from the liberal wing. Conservatives include spring chickens Chief Justice Roberts, 59, Samuel Alito, 62, and Clarence Thomas, 64. Their elder conservative brethren are still well below the average retirement age of about 79, and may well hold fast for four more years. When he retired two years ago, John Paul Stevens was 90.
But there are other courts. Judicial selection for them is also important. Getting Federal judges confirmed has been difficult as Republicans held to their version of hope and change. Now Republican Senator Susan Collins of Maine is urging Senate confirmation votes during the post-election season on 19 appeals and trial court nominees blocked by Republicans since September. Utah Senator Orin Hatch said confirmation won’t take place during the lame-duck session, and the nominees will have to be re-nominated next year, this despite several Republican senators backing several of the nominees.
‘President Obama attended 221 fundraisers across 24 states, while attending 101 campaign rallies in nine states. His day job is running the country’
Obama’s nominees to the three vacant seats on the second most significant court, the US Court of Appeals for the District of Columbia Circuit, have hit a filibuster wall. Court turf includes challenges to rules by regulatory agencies. The court’s conservative activist judges have weakened regulatory efforts from environmental protection to financial reform. Here, big business does its best to hamstring government.
Washington Post economics columnist Steven Pearlstein points to recent decisions. One struck down an FDA requirement of graphic warnings on cigarette packets – the judge claimed they’d have no impact. Another downed an SEC regulation allowing shareholders to nominate company directors, part of the Congressional response to the financial crisis. EPA rules established decades ago that made states accountable for coughing polluted air onto other states were just upended. This court is often the Supreme Court’s proving ground.
Matters before this court will probably include an SEC regulation, mandated by Congress, requiring public companies to disclose payments to foreign governments for oil, gas and mineral resource rights. It’s a long-sought rule for transparency that curbs corruption. The oil industry and the Chamber of Commerce argue that it violates free speech – as in their right to keep quiet.
Among the hazards in lower courts is the use of dubious cost-benefit grounds to vacate Dodd-Frank rules. Amit Narang, an advocate with the non-profit Congress Watch/Public Citizen, believes ‘the Supreme Court could step in to clarify that courts should afford agencies more deference when conducting analyses to support their rules, as the Court has done in previous instances. That said, it’s a long shot that one of these cases would make it to the Supreme Court.’
But some reform advocates, like Ira Rheingold, Executive Director of the National Association of Consumer Advocates, get nervous whenever issues go before the Supreme Court. ‘The Court has repeatedly gone out of its way to damage consumer protection and increase corporate power,’ says Rheingold.
A related tool of obstruction is the Senate filibuster, a delaying tactic that requires 60 votes and a good deal of time to overcome. It may be reined in, if Senate Majority Leader Reid retains his epiphany and gets about the business of modifying rules, with the additional clout of newly elected colleagues seeking a less dysfunctional Senate. Meanwhile, as fundraisers consider how to lure the big money, Potter has a novel idea: give a hundred dollar voucher to voters, to give to candidates of their choice. Give citizens the voice they deserve.
Skip Kaltenheuser is a freelance journalist and writer. He can be contacted at firstname.lastname@example.org
IBA Annual Conference, Dublin, 30 September – 5 October 2012
Dublin 2012 was another remarkable Annual Conference, from the opening remarks and speeches of the IBA leadership, the Taoiseach, and keynote speaker, Nobel Prize-winning economist Joseph Stiglitz, through to the closing party. The IBA’s coverage features films of the opening ceremony, interviews with delegates and speakers, including Nobel Peace Prize-winner Muhammad Yunus, the UN Under-Secretary for Legal Affairs Patricia O’Brien, and former Irish President Mary Robinson. You can also find various sessions, addresses, photographs and the daily conference newspaper on the IBA website, see tinyurl.com/DublinCoverage
IBA and OECD sign Memorandum of Understanding to extend collaboration
On 9 October 2012 at the OECD headquarters in Paris, The International Bar Association and the Organisation for Economic Co-operation and Development (OECD) signed a memorandum of understanding to formalise their commitment to extend collaboration on improving legal frameworks, expertise, and development across a number of sectors. Sectors highlighted included employment, energy, environment and natural resources, financial services, migration, trade and investment, and the rule of law and democratic values.
Among the projects detailed, the IBA will assist in training initiatives and drafting guidelines for the G20 High-level Principles on Financial Consumer Protection, contribute to the OECD policy-making process, and promote the standard-setting role of the OECD with legal practitioners worldwide, while the OECD will participate in the IBA Human Rights Institute Task Force on Illicit Financial Flows, Poverty and Human Rights, in IBA conferences and other briefings and consultations with the legal profession, and in joint fact-finding missions and reports.
These commitments build on the successful partnership already established, above all in anti-corruption work, where the two organisations have combined to drive awareness and standards, and to heighten the legal profession’s focus on the contribution it can make to identifying and removing corruption from transactions in both domestic and international contexts.
IBA Law Firm Mentoring Programme
The Law Firm Mentoring Programme, relaunched at the IBA Annual Conference 2012, links managing and senior partners experienced in law firm management with lawyers from around the world to help them start or increase the size of their practice. The Programme was first set up in 2009 by the Law Firm Management Committee.
After the successful launch three years ago (the initiative attracted up to 80 managing partners/senior partners as mentors), the programme has been redesigned, forming a structured and coordinated mentoring programme on a much larger scale. The programme is expected to welcome a couple of hundred participants in the first year of the relaunch.
The aim of the programme is to facilitate the exchange of knowledge, experience and expertise of law firm management between senior members of the profession and younger partners in various parts of the world.
This initiative constitutes a unique opportunity for senior partners within the IBA to share their insight and experience with lawyers in other jurisdictions who, for financial, cultural or other reasons, do not have access to law firm management advice. Mentors under this programme are able to actively contribute to the expansion of law firm management best practices.
This programme is an illustration of the new approach to mentoring. Unlike the traditional mentoring many lawyers are familiar with – by which mentors are expected to guide, protect and promote their protégés – the modern approach is for mentees to be responsible for the mentoring relationship. Mentees are now the ones who initiate and drive the mentoring relationships to achieve their mentoring objectives.
Another innovative aspect of the programme is the fact that it is a distance mentoring programme. Some mentors and mentees never actually meet and all mentoring is done by way of email exchanges, telephone conversations and Skype face-to-face sessions.
Far from being a barrier to having a good mentoring relationship, distance mentoring proves to be very effective and sometimes takes away some of the ‘burden’ that mentors can feel of having formal mentoring meetings.
Under this programme, participants have access to mentoring resources via the IBA mentoring website which includes:
checklists about the skills and descriptions of what makes good mentors and mentees;
guidelines to prepare for mentoring sessions;
tips to review a mentoring relationship;
podcast video interviews with mentoring experts;
news and updates on mentoring best practices; and
news and case studies about the programme.
Participants will receive quarterly mentoring newsletters with news about the programme, interviews, case studies and mentoring tips.
Starting at the IBA Annual Conference in Boston in 2013, there will also be an annual mentoring event for participants including a mentoring master class, a group discussion and a social event.
To join, register as either a mentor or mentee online at www.ibanet.org/lawfirmmentors/home.aspx.
On joining the programme, participants receive an email providing detailed information about the process and guidance about the next step. The programme coordinator contacts participants and monitors the programme on a regular basis.
As a guideline, mentors are required to spend around two hours a month working with their mentee for an average of 12 months (but in this programme, it is up to each mentoring pair to determine the time that they need to achieve the mentoring objectives and to inform the coordinator).
Lifetime Achievement Award for Klaus Böhlhoff
During the IBA Annual Conference in Dublin, former IBA President Dr Klaus Böhlhoff was presented with a Lifetime Achievement Award recognising his lasting contribution to the IBA and to the advancement of the rule of law worldwide.
Böhlhoff was admitted to the Bar in 1965. In 1966 he was made a partner in the German law firm, Hengeler Mueller Weitzel Wirtz in Dusseldorf, now called Hengeler Mueller. Among his many accolades, he was awarded in 2001 the Walter Oppenhoff Medal from the German Bar Association.
Böhlhoff joined the IBA as a young lawyer and has now been a member for 40 years and is one of our Honorary Life Members. He was Chair of the Section on Business Law from 1991–1992 and went on to become President from 1998–2000. He was very actively involved in setting up the IBA’s Human Rights Institute (IBAHRI) with Ross Harper from 1995 and on receiving his award said it had given him ‘tremendous satisfaction’ to see the institution it has become today. In a letter to the IBA Executive Director after Dublin, he said ‘Receiving this award was a moving experience for me, and I was very touched to have been chosen for this special honour.’