Brennan Center for Justice

The Curious Campaign Role of Donald Trump’s Foundation

Nonprofit 101 is that a conventional charity cannot give money to a political campaign. But it’s possible the Donald J. Trump Foundation may have broken this cardinal rule not just once, but twice. And the fact that it happened twice could make a significant legal difference. The first time could be a simple clerical mistake. But when it happens again and the person running the charity is the political beneficiary, that’s a horse of a different color.

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Monitoring Kids' Social Media Accounts Won't Prevent the Next School Shooting

The Parkland, Fla., school shooting has reignited the national conversation on what can be done to prevent such tragedies, which seem to occur with frightening regularity. One option, which already is used by many schools and probably will be adopted by more, is to employ companies that monitor students’ social media feeds to flag threats of violence, as well as behavior such as bullying and self-harm.

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It Ain’t Just Mueller Who Could Take Trump Down

As we stumble to the end of the chaotic first calendar year of the Trump administration, the president's critics have fallen into the habit of constantly monitoring American democracy’s vital signs. It's almost as if the nation's political institutions are hospitalized, with nurses bursting in at all hours to announce, "Just checking."

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On Voting Rights Act's 50th Anniversary, Congress Must Restore Key Protections

Today, August 6, marks the 50th anniversary of the signing of the nation’s most effective piece of civil rights legislation. The Voting Rights Act of 1965 was critical to ending the harshest forms of voting discrimination of the Jim Crow era, and resulted in enormous gains in black voter registration and political representation, particularly in the South.  

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Five Terrible U.S. Supreme Court Rulings That Poisoned American Elections With Big Money

The Supreme Court will rule soon in McCutcheon v. FEC, which could further increase the influence of big money in elections. But McCutcheon is just the latest in a long string of cases weakening campaign finance rules. Since Chief Justice John Roberts and Justice Samuel Alito joined the Court in 2005 and 2006 respectively, five decisions have significantly reshaped the legal landscape dictating how much big money can flow into political races. Here is some background on what the Court did, how it affected American elections, and what could happen next.

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Rezko Trial Highlights Need for Campaign Finance Reform

New York lost its governor to scandal; Illinois may not be far behind. The ongoing prosecution of Illinois real estate developer Antoin "Tony" Rezko, as the result of the Justice Department's Operation Board Game investigation, has been a source of much drama. But anyone who is familiar with Illinois's political contributions laws knows there's more to the scandal than meets the eye. The problem is not just what was allegedly illegal; the bigger issue is what is legal in Illinois.

All the hype aside, the Rezko scandal should bring into focus the clear failings of Illinois's campaign finance laws. As I pointed out in testimony submitted to the state legislature last year, Illinois is one of only three states that lacks any type of campaign contribution limits. This gives big donors the potential to buy an election by writing a single hefty check. Illinois also lacks pay-to-play restrictions which would curtail contributions from those seeking contracts with or permits from the state.

Reasonable contribution limits and tailored pay-to-play regulations that keep lobbyists and/or state contractors from giving large sums to state officials and candidates for state office have been found to be perfectly constitutional by our nation's courts because they curb corruption and reduce the public perception of politics as a pay-for-access enterprise. For example, 21 states have laws that regulate contributions from lobbyists, and seven states have laws that regulate contributions from state contractors. Illinois could benefit from offering candidates the option of public financing so that they would not be beholden to private donors -- not unlike Senator Durbin's proposed Fair Elections Now Act which would provide public funding for Congressional candidates. The Illinois General Assembly currently has bills pending which make all three reforms reality.

As U.S. Attorney Patrick Fitzgerald has stated, Mr. Rezko was allegedly the ringleader of a "pay-to-play scheme on steroids." According to the indictment, Rezko conspired to take control of a board that oversees Illinois's $30 billion teachers' pension. He also took control of the state board responsible for handing out the permits for hospital expansion and construction projects. Rezko now stands accused of abusing these boards to extort fees and campaign contributions from companies that wanted investments from the pension fund or permits.

In one case, Rezko is accused of requesting that a $1.5 million dollar political contribution be made to the sitting Governor of Illinois by a company seeking to manage state pension funds. This type of monstrously big contribution would be illegal in most states even without the alleged pay-to-play extortion. By means of comparison, most states and the federal government have individual contribution limits that are below $2,500 per election.

Illinois could learn from the experiences of Connecticut, which saw its previous Governor, John Rowland, sentenced to jail time for a similar pay-to-play scandal. Similar to the situation in Illinois, in Connecticut the state contractors who were convicted for giving illegal gifts to Governor Rowland had for years given him far more in legal campaign contributions. Connecticut responded to this scandal with meaningful reforms.

Now Connecticut lobbyists and state contractors can no long give or solicit contributions for legislative and statewide candidates. In addition Connecticut has public financing so that future candidates won't have to rely on private money to run for office. In recent estimates, some 80 percent of state legislators say they plan to use the public funding system in Connecticut to run for office in November. Illinois would benefit immeasurably from adopting similar reforms.

While a dishonest man will try to game any system, Illinois's legal structure for high ticket political campaigns is particularly easy to corrupt. It would be far harder for a single donor to buy influence if all donors were subject to reasonable contribution limits. And it would be far harder to extort campaign contributions from companies applying for state permits if reasonable pay-to-play restrictions were in place to protect the companies from this type of pressure. Most importantly, candidates would not feel compelled to be in arms race for private money if public financing were an option in the state.

Illinois already has a black eye from the corruption scandal that landed former Governor George Ryan in jail. Let's hope that the citizens and lawmakers of Illinois will seize on this debacle as the impetus to change their campaign finance laws so that the state will no longer be synonymous with corruption and graft.

Defending Our Living Constitution

One wonders whether Justice Scalia appreciated the geographic and historic context in which he delivered his recent speech in Missouri criticizing the idea of a "living constitution." The Justice, a self-described "originalist," believes judges should interpret the Constitution by discerning the founders' intentions when they wrote it. Scalia rejects the notion of a "living constitution," in which the text and values inherent in the founders' words are interpreted in the context of modern challenges and conditions. "The Constitution does not change," Scalia said in Missouri. "It means today what it meant when it first was written. … It does not morph." The Justice has delivered remarks like these many times. Google "living constitution" and "Scalia" and you'll see what I mean. Still, this line of argument suggests the Justice either misunderstands or mischaracterizes the whole notion of the "living constitution."

Acknowledging a "living constitution" does not condone usurpation of the legislative function by judges who substitute their desired outcomes for those achieved through the political process. Where the Constitution's text is unambiguous, that text controls. But where provisions are unclear, it is entirely proper for courts to consider the broader values underlying the Constitution, like democracy, equality or privacy, in deciding what's constitutional and what's not.

The "Show Me State," where Scalia delivered his address, brought us the Missouri Compromise of 1820, a political deal that expanded our nation's geography by maintaining the balance between free states and slave states, and prohibiting slavery in the territories. The Compromise also allowed the nation to avoid, as our founders had, answering an important question -- When will our new democratic nation eliminate slavery? A few decades later, Missouri also brought us Dred Scott v. Sanford, the U.S. Supreme Court case invalidating the Missouri Compromise and concluding that blacks could never have the freedoms and protections of the Constitution without legislative authorization. Chief Justice Roger Taney penned the opinion, now universally recognized as "legally (as well as morally) indefensible." Wrapping his decision in the originalist cloak, Taney concluded the framers viewed blacks as "a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them." Chief Justice Taney's ruling came down in March 1857 -- precisely 151 years before Scalia took the podium last week.

But what if the nation were forced to wait for the political process to reflect constitutional values lost as we face new challenges and conditions? The University of Central Missouri is a prime example. Founded 1817, the university was originally segregated by law. Battles over segregated education in that state led to Missouri ex rel Gaines v. Missouri, one of the cases brought as part of the legal strategy leading to the 1954 school desegregation ruling in Brown v. Board of Education. Mr. Gaines was a black student seeking admission to the whites-only University of Missouri law school because Missouri did not have a "separate but equal" law program for blacks. In 1935 the Supreme Court ruled the state must either admit him to the white law school, or build a law school for blacks. The state legislature opted for the building. And without the Court's Brown v. Board ruling, Missouri might still be building more law schools.

Despite its segregated start, the University of Central Missouri that Scalia visited now strives to attract minority students and provide programs and services that promote understanding of cultural, racial and ethnic diversity. According to its website, currently nine percent of its undergraduate students are "ethnic minorities." Our "living constitution" made this possible.

Bipartisan Legislation Would Restore Voting Rights to Ex-Prisoners

Senator Russ Feingold and Secretary Jack Kemp joined together last week to propose the Democracy Restoration Act -- a federal law that seeks to restore voting rights to U.S. citizens on probation and parole. The proposal is noteworthy for several reasons, not the least of which is that it is made by two prominent political figures: a Democrat and a Republican. The bipartisan proposal makes it clear that restoring voting rights is about democracy, not about politics.

More than 5.3 million American citizens are denied the vote in our country because of a criminal conviction in their past. Nearly four million are people who have been released from prison but continue to be disenfranchised for years, often for decades, and sometimes for life.

As Senator Feingold and Secretary Kemp note, there has been significant momentum in the states to end these draconian disenfranchisement laws. In the last decade, 16 states have eased voting restrictions on people with conviction histories. In 2007 alone, Florida, Maryland, and Rhode Island all took steps to restore voting rights. But disenfranchisement is a national problem. Thirty-five states continue to deny the vote to people who have been released from prison and rejoined society.