January 21, 2010
Host: Ted Simons
High Court Campaign Finance Rule
- ASU law professor Paul Bender discusses the U.S. Supreme Court ruling that supports a corporation’s First Amendment right to spend unlimited amounts of money to help elect or defeat candidates for public office.
- Paul Bender - ASU law professor
Ted Simons: The United States Supreme Court ruled today that corporations and unions can freely spend their own money to defeat or elect political candidates. Here to talk about the ruling is Arizona State University law professor Paul Bender. Paul, good to have you on the show. Was this -- we've talked about this in the past.
Paul Bender: Yeah.
Ted Simons: This ruling a surprise at all?
Paul Bender: A surprise? No. This case was argued last year before the court on a narrow issue. And the parties just argued that narrow issue. At the argument, the court seemed to express interest in a broad issue. On the last day the term, they set it down for reargument and asked the parties to address whether they ought to overrule the court’s cases in the area of corporate spending in election campaigns and a law that's been there over a hundred years. And the parties argued it. The argument which was in September before the term started because they wanted to get the decision out well in advance of the 2010 elections, it was pretty clear that the court was going to overrule those cases and that they would hold the federal legislation unconstitutional so it doesn't come as a surprise. It's extraordinary behavior for this the Supreme Court, for any Supreme Court, but especially for a Supreme Court that says it is conservative and only moving step by step and doesn't reach out to decide issues. Justice Kennedy's opinion says we're asked to decide whether these -- whether the limits on corporate speech and constitution -- nobody asked them. They asked themselves. They raised this issue in a case that didn't raise the issue and decided to strike down a law that's been in effect for over a hundred years because they think it’s unconstitutional. That's a remarkable thing for a Supreme Court to do.
Ted Simons: What was permitted yesterday and what's permitted today?
Paul Bender: Well, yesterday, there were limits on what corporations could spend of their own money on election campaigns. And election airing advertisements for and against. For example, 30 days before a primary, six days before a general election. Maybe the other way around. I forget. They couldn't issue those kinds of ads. Now the principle of this opinion is you cannot limit corporate speech in election campaigns any more than you can limit individual speech. So just as you, as an individual can spend as much money of your own to support any candidate you want at any time you want, now general motors can do that. Now Goldman Sachs can do that. Now CitiBank can do that. They can take as much money as they like from their corporate treasury and support whatever candidate they want as long as they're independent expenditures.
Ted Simons: With the idea that corporate speech, political speech is the same as individual speech.
Paul Bender: That's what they say.
Ted Simons: What if I'm a shareholder in a corporation and I like candidate X but they want to vote for Y.
Paul Bender: Vote against the board of directors. Sell your stock, that’s their answer. They reject that and say the government has no legitimate interest in trying to protect shareholders from the corporate executives using the money the way they want. They run the corporation, why can't they use it?
Ted Simons: Multicorporations with lots of leadership in other countries.
Paul Bender: That they don't decide. There's been rules against foreign spending in elections and they don't address that issue. So it's still possible that although the theory -- the theory of this is the more speech the better. It doesn't matter who it comes from. So if they really mean that, they would permit foreign corporations and indeed foreign governments to spend money on elections. It's remarkable. Changes everything and has the potentiality of revolutionizing the American political system.
Ted Simons: Explain that, talk more about that because a lot of critics now are saying democracy is going to be flooded now with corporate money.
Paul Bender: It's up to corporations. If General Motors has any money left over -- maybe we should use Ford, because I think they're making money. They are now constitutionally free to spend whatever money is in their treasury that they want in electioneering for any congressional candidate, any senate candidate, any candidate for president, it’s just federal elections we’re talking about but I suppose the same thing applies to state elections. They can do that now. Will they? They haven't in the past because it's been illegal so we don't know whether they will but if they decide to and one would think they would, because currently they spent an enormous amount on lobbying, so why not electioneering? It could revolutionize American politics so money could be even more influential in politics than it does now.
Ted Simons: Does this have in any way a play into Arizona’s clean election fight which we had this week as well?
Paul Bender: Absolutely. Technically, it's a different issue but if the theory of the case -- one of the theories of the case is that you cannot -- not only don't care where the speech comes from, but it's impermissible for government to try and equalize the spending in elections. If they mean that, then that would strike down clean elections as well. And I'm sure this will be argued by the parties in the clean elections case. The side that’s against clean elections will say that this confirms their opposition and the ninth circuit is going to have to deal with that when the case gets up there. But yeah, the theory of this case would say that clean elections was unconstitutional.
Ted Simons: I know some folks say don't forget unions. This opens up for unions to spend as well. But others would argue that unions don't have the same kind of money.
Paul Bender: They don't have the same kind of money but they're entitled to as well. Everybody is, except maybe foreigners. The theory is the more speech the better. How can more speech be bad, says the court. The people are intelligent enough to figure out what they want to do. So the more speech you give them the better off they are.
Ted Simons: But does this open up the idea of a corporation as a -- I mean, you know, I don't want to get absurd here, but corporations can't -- you know, you can't send them to prison. They're not people who can individually do things.
Paul Bender: They can't vote.
Ted Simons: They can't run for office.
Paul Bender: Right.
Ted Simons: So where do we go from here?
Paul Bender: Well, I don't know there's any more place to go except to let foreigners do this. But they -- money is -- if you have money and even if you're not a person, even if you're a corporation, and remember, the money Ford has in its treasury was earned selling cars. Now, Ford's corporate charter said you can't do electioneering, then they can't. So you have money made my selling cars which are going to take by the managers of the corporation, not by a vote of the shareholders, they say this candidate is good for Ford and they'll take $100 million and stick it into ads for their favorite candidate, that's constitutionally protected.
Ted Simons: Will this be considered one of the major decisions by a court in any some odd years?
Paul Bender: This is potentially one of the most important decisions that the court has made in decades. Now, as I say, we don't know how much advantage the corporations are going to take of this. But as I read it and it's 150 pages long and I had a class that ended at three so I didn't have a lot of time to do this, as I read it, I'm looking for ways in which congress could possibly limit it and they don't jump out at me. It may be there's no way. The only way this can be changed. This is maybe the first case where it's clear that -- what difference it made that justice O'Connor was not on the bench.
Ted Simons: Interesting. Thanks for being here.
Paul Bender: Nice to be here, Ted.
- A look at best practices in juvenile justice with Beth Rosenburg of Children’s Action Alliance and Elisabeth Donahue, Executive Director of “The Future of the Children”, a joint project of the Woodrow Wilson Schoolf for Public and International Affairs at Princeton University and the Brookings Institution.
- Beth Rosenburg - Children’s Action Alliance
- Elisabeth Donahue - Executive Director, “The Future of the Children
Ted Simons: In the mid 1990s, there was a strong reaction to juvenile crime. The result in Arizona was an adult sentencing law for under-aged felony offenders. But are such laws the best way to deal with juvenile crime? Here to talk about juvenile justice and three bills introduced in the legislature regarding the issue are Beth Rosenburg of children's action alliance, and Elisabeth Donahue, executive director of "the future of the children," a joint project of the Woodrow Wilson School for Public and International Affairs at Princeton University and the Brookings Institution. Thank you both for joining us.
Beth Rosenburg: Thank you.
Ted Simons: Let's get to the bills first. One clarifies the age of a kid who could be prosecuted as an adult.
Beth Rosenburg: That's right.
Ted Simons: How does this change?
Beth Rosenburg: In the 1996 ballot initiative that passed it says kids aged 15 or older who commit murder, rape, armed robbery, should be automatically tried as adults, no questions asked and gave the legislature some authority to define what the violence offense. And then in 1997, the legislature did implementing legislation and they added a whole range of other crimes that -- that kids could be prosecuted as adults on the sole discretion of the county attorney. And for that, that was age 14 and above. So went down from 15 to 14. But the law is not clear. The law is clear as to whether that's the age when the child is charged with an offense or the age at the time the child is actually allegedly commits the offense. So some youth, like we have the St. Johns case in northern Arizona, the eight-year-old, there was talk to waiting until that child was 15 to charge them as an adult. We want to clarify the law and say it’s the age of the time of the offense and we believe that was the intent of the legislation to begin with.
Ted Simons: Another law wants a judge and not a prosecutor to be the one who decides whether or not a case goes back to juvenile court. Is that the idea with that one?
Beth Rosenburg: That one, what we call in jargon reverse remand and right now what happens now is that the county attorney in the discretionary cases which cases could be charged in adult court and nobody else reviews it. Just the county attorney. In Maricopa County, they decide that within 24 to 48 hours. They're not looking at the whole child, the community circumstances, the family or the history. For that offense, what we can't do is have -- and we're allowing that -- three years ago we passed a law saying if you're a youthful sex offender around charged in adult court, you can ask the court to review your case to see whether it should return to the criminal court. We want that to be expanded to all discretionary cases that go to adult court.
Ted Simons: What I'm hearing here as an overriding element to this, kids should not necessarily be in adult court for certain instances?
Elisabeth Donahue: Correct, a lot of the research we found in the future of children is based on newly emerging brain science on a developmental model of adolescence. Everyone knows they're quite different from adults and heavily influenced by peers and spontaneous and don't think ahead and terrible at risk-benefit analysis and so oftentimes what we hope to deter crime with a punitive model -- you're going to go to jail if you commit this crime -- doesn't work with an adolescent offender because they're in the moment. That's not to say they shouldn't be held accountable for those crimes. But the research is showing that putting these kids into the adult system not only doesn't rehabilitate them. In fact, kids come out of the adult system, they're much more likely to reoffend. And it's much more expensive to house a kid in an adult prison than treat them in a community situation and keep them in the juvenile justice system. A lot of the kids going to the adult systems are not murderers. They're not violent offenders. And they're being sent in a much bigger way than prior to '90s when this was enacted.
Ted Simons: I know research has been done on adolescents and how they're a different person.
Elisabeth Donahue: Right.
Ted Simons: Is that showing different ways in which -- obviously, deterrence is one thing, but once the act is committed you have a whole lifetime to worry about. Is the research showing anything in which things can be reformed or changed?
Elisabeth Donahue: I think we should send far fewer kids to the adult system. What the research shows is really in terms of rehabilitation models programs that work with the family, that work with the youth in the family and really try to get the youth to understand what they've done, have repercussions and turn their lives around is much more effective than putting them in an adult system where their education is interrupted and they’re basically going to school to learn how to be a criminal. They're learning things in this adult jail, that if they weren’t going to be a chronic offender beforehand, chances are they will be coming out cause they’re learning a lot of things we wish they didn’t know about.
Ted Simons: And you mentioned chronic offender and the third bill we didn't get to before. That redefines what a chronic offender is.
Beth Rosenburg: Basically we have a law that says three strikes you’re out. Two adjudications in juvenile court and the third alleged felony, you're automatically sent to the adult court and we believe that the public understood in the 1996 -- we're talking about a serious juvenile offender. Murderers and rapists. You can have three non-violent, non-person kind of felony offenses -- you stole a car, shoplifted -- and you could be sent to adult court. We're not saying these kids should not be sent to adult court. We're saying it should be a judicial decision. The county attorney can still file, ask the juvenile court to take a look at that. All of these cases, the juvenile court can make the decision. We want it to be a broader decision making in terms of who looks at the child, who looks at the history, looks at what happened, the juvenile system versus the criminal justice system. Because we care very much about community safety. That's number one for us. We believe that some youth should be in the adult system but we believe there's a broader number of kids going. We have over 600 kid who go to the adult system a year and we think some of those kids don't belong there.
Ted Simons: Are there tangible results in assessing future behavior? As you alluded to, that's key theory, is it not? And is research saying we've got a good idea that kid A is going this direction but kid B is not.
Elisabeth Donahue: There are assessment methods which are highlighted in the volume which sets up a model for using both actuarial and clinical approaches to try to figure out in a certain case where you think the child is going to go. In terms of their future, the chance that they'll reoffend, the chance they'll become a lifetime offender and whatnot. They're not perfect models but valuable tools. The other things that I think is important to know, the models that have been proven successful, that are more community-oriented, that keep the kid in the juvenile justice system costs a lot less than putting the kid in the adult system. Where really, a lot of rehabilitative services don't exist. In terms of looking at a lifetime youth offender, most grow out of their spontaneous, not thinking, peer-related, influenced behavior. But to put them into an adult prison, the chances that they will grow out of that are decreased.
Ted Simons: Is this the kind of thing it's going to be difficult to convince lawmakers that little Johnny is just going through a phase and when little Johnny steals your car it's a different story than when he steals a car.
Beth Rosenburg: I think it is going to be difficult to convince lawmakers but we did have a success three years ago on youthful sex offenders which you would think would be the most scariest to the community and parents and families, and we were finding that they were going into programs with adults and getting therapy with people who were very much sexually predators and learning things they shouldn't be learning. And that's when we got reverse remand for sex offenders and now we have age-approach treatment that's required and we want community safety and want programs both in the juvenile justice system and in the adult system, that are age and developmentally appropriate for those kids.
Ted Simons: If you could be king of the world and reform juvenile justice, what would the number one thing you do be?
Elisabeth Donahue: I would put more money into community-based programs and I would certainly transfer far fewer kids up to the system and I would really look at right now, when you look at the disparate treatment of minority kids compared to white kids, it's rampant in the juvenile justice system at every stage of contact. I would put a lot more resources into prevention and not just prevention services for juvenile justice -- juveniles, I would start when they're little. So many of these problems come out of the families that are dysfunctional from the beginning and so really, to start with a youth who is 16 and try to enact reform then, doesn't make sense. We should be targeting at-risk families from day one.
Ted Simons: If you could rule the world, would that be along the same lines?
Beth Rosenburg: I certainly agree, and I think our problems today is economic and the state budget and all of the things being cut, some of the prevention services and diversion services and things that will help these children and families are being cut. It's not just juvenile justice services. It's mental health services, health services and all of those things that will impact these kids.
Ted Simons: Thank you for joining us.
Beth Rosenburg: Thank you very much.
- Randy Cerveny, Professor of Geographical Sciences at ASU, talks about the huge storm system blowing across Arizona.
- Randy Cerveny - Professor of Geographical Sciences, ASU
Ted Simons: We could see up to five inches of rain out of the latest storm to hit the state. Here to talk more about the apparent arrival of El Nino is Randy Cerveny, a professor of geographical sciences at Arizona State University. Thank you for being here.
Randy Cerveny: My pleasure.
Ted Simons: We should mention the county has declared a state of emergency and at the time of this taping, we're actually under a tornado watch. Is this the arrival the El Nino?
Randy Cerveny: This is definitely a strong winter storm and that’s typical of a good El Nino year. We have rain that comes from here, stretching all the way back to L.A. It's still raining in Los Angeles right now.
Ted Simons: Let's describe what exactly El Nino is.
Randy Cerveny: El Nino is involving the water temperatures out in the Pacific Ocean. That normally the water temperatures out there are very cold. On a map that we have that shows temperatures, it would appear blue. When we monitor the temperatures during El Nino, which happens about once every five to seven years, the temperatures warm up so there's a giant red band --
Ted Simons: And we're seeing it right now. The warm water in the Pacific. Does that go away and the rain still comes? What's the timing of this now?
Randy Cerveny: There now. And it forces changes in where the storm track is. During most years, the storm track takes these winter storms and dumps them in Portland or Seattle. But during El Nino, they come down through southern California and into Arizona.
Ted Simons: Does this arrival of El Nino happen later than expected?
Randy Cerveny: Yeah, El Nino refers to Christmastime. Normally we see the first effects in and around December. It's been a pretty quiet December but looks like January will start with a bang and the forecast is that this is going to progress into March and April.
Ted Simons: I know we have another graphic that shows how much rain we're expecting. Looks like this is the start of something big.
Randy Cerveny: Right, the long-term prediction put out by the group called the climate prediction center, which is the group that makes long-term forecasts for the United States says there's an above normal chance for above-normal precipitation in the area from Southern California all the way to Arizona.
Ted Simons: And that's a whole lot of green in Arizona. Now, does this mean -- obviously, we talked last summer and you mentioned it looked like an El Nino kind of thing. Couldn't be sure then. With it here now, can we look at to next summer, next winter -- will there be a bigger monsoon?
Randy Cerveny: Not really. The El Nino circulation changes really impact more of the winter time precipitation which is more important to us anyway. The snow cover we get over the front range is what drives our water supply here. We can't tell whether this is going to mean a wet or dry monsoon this summer.
Ted Simons: When was the last time we had rainfall like this, a series of storms passing through to this extent?
Randy Cerveny: The last time in my memory would be back to '97. L.A. got 400% of their normal winter time precipitation. We ended up with 200% of ours. And if this is the forerunner, we're looking for another wet winter.
Ted Simons: When you say wet winter, can we expect storms of this magnitude of stopping by of systems?
Randy Cerveny: It depends on how long lasting this weather pattern is. This has got a lot of energy with it. In fact, the rain we're getting today will likely continue on all the way into Saturday and then we're going to get a little bit of a rest. And then on Tuesday, we've got another system coming through. The thing about an El Nino year, there's usually a lot of sequences of storms coming through.
Ted Simons: and it's because of the warming of the water in the Pacific moving the jet stream down. Now if we’re getting all this business is Portland and Seattle bathing in sunshine?
Randy Cerveny: Actually that’s the case. The northwest part of the United States is going to have dryer than normal conditions, a flip flop. If you get the wet area down here, it can't be up there, so they get dryer.
Ted Simons: How unusual for us to have a tornado watch in January?
Randy Cerveny: Well, this is actually the normal time we would have a tornado. Arizona, we don't get many and the ones we get are weak. We average one to two tornados a year and those one to two tornados usually occur in January with the result of the jet stream coming this far south. They tend to be really weak we tend to call them cold air funnels but this is the time we can have them.
Ted Simons: Thanks for joining us.
Randy Cerveny: My pleasure.