Child Righits & Remedites

By Robert Fellmeth and Jessica Heldman

Child Rights and Remedies provides a comprehensive examination of how United States law and policy affects the lives and futures of children. This law school text covers a broad spectrum of major cases, statutes, and relevant empirical evidence that illustrate how children are faring in light of how our legal and political systems function.

“Professor Robert C. Fellmeth, the master of child rights and remedies and the long-time maestro of child advocacy, presents his Magnum Opus to inform our intellects, challenge our consciences and galvanize our motivation on behalf of children who will either inherit our derelictions or our beneficent foresight. This book works as a very comprehensive recruiter for students and other citizens who wish to help build a society and culture that nurtures the young into fulfilling their life’s possibilities.” — Ralph Nader

“Professor Jessica Heldman is a distinguished expert in children’s law and policy with years of experience working with advocacy organizations and state child welfare and juvenile justice systems to improve the treatment of children. Alongside Robert Fellmeth, Jessica Heldman provides a comprehensive treatise on children’s rights, including children as individuals, as a class, and as a political voice for reform. Professor Heldman’s scholarship and leadership will help advance children’s rights for years to come. This book is an essential read for all children’s advocates.”

—Kim Dvorchak, JD, Executive Director, National Association of Counsel for Children

• Language: English
• Publisher: Clarity Press
• Release date: Jul 20, 2019
• ISBN: 9781949762150

Robert Fellmeth

ROBERT C. FELLMETH is Executive Director of the Children’s Advocacy Institute, and holds the Price Chair in Public Interest Law at the University of San Diego. He has authored or contributed to fourteen books. His appellate advocacy includes 30 reported cases. He has served on the Board of Voices for America’s Children and currently serves on the Boards of the Maternal and Child Health Access Foundation in Los Angeles, and of First Star Foundation. He is a graduate of Stanford University (AB) and Harvard University (JD).

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(Joel)

Preface

Scholarship on children and the law reflects a movement from a view of children as property, to children as a protected underclass, to children as rights-based citizens. The first English book on children and the law, Law, Both Ancient and Modern Relating to Infants, published in 1697, described children as paternal chattel. Subsequent scholarship from Elizabethan England to 20th Century America reflected changes in the status of children as they gradually came to be viewed as worthy of society’s protection. This publication, Child Rights & Remedies, represents the next step in our evolving understanding of the place of children in society.

The evolutionary component of this work is found in its treatment of rights-based versus welfare-based thinking, and how that distinction dictates law and public policy. While it may be agreed that society as a whole probably cares about children, it can be more important to ask how we care about them. Whether we provide for children out of a benevolent sense of care-taking (a welfare-based approach) or because we believe children are entitled to certain treatment (a rights-based approach), these motives serve as ideological principles that guide our law and policy.

In the context of the legal representation of children, where we are situated on that ideological continuum determines in large part which type of legal representation we provide. If we take a welfare-based view, we are inclined to protect children by providing advocate-directed representation where the representative determines the best interests of a child (as is currently the norm in child abuse and neglect proceedings) and then advocates for it. If we take a rights-based approach, we are inclined toward client-directed representation where the child client is given an independent voice (as is the case in juvenile justice / delinquency proceedings).

It can be argued that as we review the history of juvenile law, we see progress toward better outcomes for children through the movement from welfare-based systems toward rights-based systems. At one time, the only protection children could receive from parental abuse was to see their parents prosecuted in criminal court. Children were not entitled to care or services; as one 19th century court wrote, "[t]he state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand. At the turn of the 20th century, however, with the advent of juvenile courts, society began to provide special care for children as part of the child saving" movement. Ultimately, that child saving welfare-based movement was struck down (for delinquent children) by a Supreme Court which, having reviewed the history of the care-taking experiment, created a rights-based juvenile court in which youth would be entitled to the protections of due process of law. The Court wrote, [j]uvenile court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.

But just how evolved was the new juvenile court? Did a rights-based due process court produce better outcomes for children? In many instances yes, but at the same time it can be argued that in actuality it tipped the balance too far away from beneficence and toward autonomy; resulting in a juvenile court that is essentially an adult criminal court which fails to treat children as children, and by so doing, actually infringes upon their rights.

So should we follow this evolutionary trend in the abuse and neglect court or other areas of law affecting children? Do we truly serve children by empowering them or does empowerment ultimately lead to the diminution of children’s protected status? That is the question that serves as context for this book and gives us an analytical structure for responding.

It is also a theme that enables Professors Fellmeth and Heldman to unite so many areas of law and policy affecting children. Children have historically been treated by legal scholars as either delinquent or dependent, but the all-important picture of the whole child—as determined not only by personal and familial circumstances, but also by the gamut of social policies through which governments seek to regulate or affect the socio-economic environment—has eluded them. By including not only delinquency and dependency, but also health care, education and property rights, poverty, mental health, civil liberties and reproductive law, Child Rights & Remedies provides a uniquely holistic analysis of children’s law and policy.

With this comprehensive systemic analysis, Professors Fellmeth and Heldman have made an important contribution to the growth of the field of children and the law.

Marvin Ventrell

Founder and Director, Juvenile Law Society (JLS)

Executive Director, National Association of Counsel for Children, 1994–2009

ENDNOTES

¹ Juvenile Court historian Sanford J. Fox believed this to be the first English book on law relating to children.

² Hewlett v. George , 68 Miss. 703, 711, 9 So. 885, 887 (1891) (emphasis added).

³ In re Gault , 387 U.S. 1 (1967).

⁴ Id ., at 18.

Introduction

This text is intended for use in law school, political science, social science, and social work/public health graduate courses. The book focuses on the leading court cases interpreting and defining American law pertaining to children. It is supplemented with important data, brief commentaries, and questions to stimulate discussion.

The subject matter is deliberately broad, covering the political/legal context of rights and remedies available to children, and thirteen substantive areas. Three themes tie together all of the issues and discussion of this work. First is a pervasive dichotomy underlying child-related public policies. On the one hand, children are all persons entitled to the rights and privileges of any citizen. Indeed, our affection for them gives them special status. In a sense, the status of adults is believed by many to be a floor above which children are properly elevated. On the other hand, however, children are immature. They are not merely little adults and cannot be relied upon to always judge their own self-interest. Rather, they require protection and guidance. This dualism underlies much public policy affecting children and has often worked to their disadvantage, as the materials to follow indicate. Sometimes children are not granted the minimum floor of rights reserved for adults. Their inferior status does not always relate to their immaturity or to their protection.

Second, children represent the politically weakest grouping of persons. Adults have organized across a wide spectrum of characteristics, from disabled status to sexual preference. To offend any grouping is to risk quick approbation. This status is reflected in many ways; for example, the media coverage of school shootings failed to report the marked diminution of youth crime and the fact that violence against children occurs hundreds of times more often than the reverse. Would similar reporting have occurred based on shootings by an Hispanic, a Lutheran, a gay man, or a senior citizen? A more critical reflection of this lack of status can be found in our attitude toward adult reproductive rights (which are expansively defended) as opposed to a posited right of a child simply to be intended by two adults. The statistical correlation between this rather simple stated right and child welfare is remarkable. But it brooks virtually no weight against the prerogatives of adult groupings. This political power deficit is exacerbated by their lack of organization, lobbying presence, ability to vote, lack of campaign finance resources, and limited access to court redress. How would the rights and remedies of children differ were they to have the organization and resources of energy corporations, trade associations, or senior citizens?

The final feature binding all of the chapters of this work is a cliché. But like many clichés, it covers a seminal truth. Children are our future, what we shall leave behind. One of the marks of civilization is the recognition of the sacrifices of our parents and of their parents—for us, and the ethical imperative to pass that legacy onto our own legatees. These sentiments cut across many cultures, from the People of Israel (I have drunk from wells I did not dig, and warmed by fires I did not build) to the Native American (I did not inherit this earth from my parents, I have borrowed it from my grandchildren).

CHAPTER ONE

The Underlying Context: Access to Political/Legal Remedies

INTRODUCTION: REPRESENTATION OF THE LONG-TERM PUBLIC INTEREST

Rights and remedies inevitably depend upon the political system that enacts laws, and then interprets and enforces them. Elected and appointed public officials decide federal, state, and local budgets, and prohibit or reward private acts affecting children. Given the complexity of modern society, the public officials who make decisions necessarily depend upon outside advocacy to bring matters to their attention, frame issues, present alternatives, and provide information. Even the legislature, designedly the most proactive of the three branches, largely responds to advocacy before it. Who provides that advocacy? Is the result likely to reflect the ethical aspirations of the citizenry?

Child advocates argue that if decisions were made on their merits by those applying the underlying ethical mandate of the body politic, children would fare well. However, such a crucible for decisions may be distorted where public institutions are dominated by advocacy from those organized around a short-term profit stake in public policy.

An examination of the rights and remedies available to children properly begins with a review of the underlying process creating them. Such creation and subsequent change depend upon the political process within the three branches at the local, state, and federal levels, respectively. To what extent can children—or those who advocate on their behalf—participate in the process and achieve an appropriate impact on resulting policy?

Child advocates have undertaken two approaches to current advocacy imbalance. The first is to alter the rules to give interests without a proprietary profit stake (such as children) greater access and weight vis-à-vis public decision-making. One theory holds that reforms to lessen the influence of organized special interests necessarily enhance the prospects of those currently excluded, as the tinkling of a glass at a dinner may quiet the crowd so a soft voice can be heard. Political reformers argue that children and other diffuse interests will achieve a seat at the table only if decisions are driven more on the merits and less based on influence from the organized and those with a financial stake in the outcome. Accordingly, lessening dependence on private campaign contributors, on those able to provide employment to public officials, or on the information provided by organized interests may stimulate decisions that are more responsive to accepted public values which are otherwise overridden or entirely absent.

Such reform efforts vary from public financing of campaigns, providing incentives for more balanced advocacy before legislatures, increasing the independence of agencies, enhancing access to courts, and exposing governmental decisions to public examination. Such measures are intended to counterbalance the advantage of organization and money by raising considerations important to those interests—children’s first among them—which otherwise are muffled and unheard.

The second approach is to work within whatever system exists to maximize the influence of children by using available resources—however disadvantageous the structural setting. Hence, child advocates have increased their political involvement (e.g., formulating report cards on legislator votes, organizing to pose questions to candidates, etc.). Other child advocates devote resources to lobbying to the limited extent now feasible, and attempt to enlist powerful lobbyists with a tangential interest in policy benefiting children. Some child advocates use class action and mandamus tools in the courts. Others propose rules before federal and state agencies.

This Chapter explores the major political/structural impediments to child-sensitive public policies within the three branches, paying attention to the distorted rules of the game impeding balanced decision making, and identifying some of the successful tactics employed by child advocates to overcome existing barriers.

A. CHILDREN AND CAMPAIGN CONTRIBUTIONS

All three branches of government are necessarily affected by political elections. All legislators and many major executive branch officials are elected. Judges are often appointed and confirmed by elected officials, and many must run for subsequent election in most states. Campaigns have become increasingly expensive and most candidates depend upon private contributions to provide that funding. Such contributions often come from those with a vested profit stake in the decisions of the contested office. The extent to which such contributions influence later official acts varies, but few dispute that it provides an advantage, particularly in terms of access to elected officials. Such access can be a critical determinant of the decisions made. Understandably, large contributors tend to have a financial interest in those decisions. Large contributions are made or organized by corporations, unions, or trade associations across a spectrum of economic actors. However, three features often predominate: the defense of existing capital investment or occupational prerogatives, an advantage to those organized around their financial stake, and a focus on immediate economic consequences as opposed to longer range consequences. In contrast, children, who may benefit from new and different investment (capital) decisions, are inherently unorganized and incapable of direct political organization, and have an interest in longer term future impacts.

Children lack the policy leverage and access that often attends financial campaign support. On occasion, those who provide services to children may be organized and may contribute. But such organized support is insubstantial compared to vested profit stake interests which dominate campaign giving. Such surrogate giving on behalf of the interests of children is hampered by three factors: (1) many who serve children are relatively unorganized and are paid close to minimum wage (e.g., child care providers); (2) political giving by charitable interests (e.g., foundations, churches, charities) organized around the interests of children is legally barred; and (3) such providers may not always place the interests of children above their own economic stake when the two conflict.

1. Facts: How Much, From Whom, To Whom

Current campaign regulation generally takes two forms: amount limitations per election on contributions to candidates (including an outright prohibition on corporate contributions for federal elections), and widespread required public identification of contributors. However, stated regulatory goals have been partially thwarted by the increased use of political action committees (PACs) by organized interests, U.S. Supreme Court cases, and the rise of the Super PACs, political action committees allegedly operating independent from a particular candidate.

The purpose of a PAC is to raise and spend money to elect candidates aligned with particular business, labor, or ideological interests. PACs can give up to $5,000 to an individual candidate’s committee per election, or up to $15,000 to any national party committee per year.¹

Direct contributions to candidates themselves (controlled by his or her campaign committee) are still subject to limitations and disclosures—to some extent. The races for non-federal offices are governed by state and local law. Over half the states allow some level of corporate and union contributions. Some states have limits on contributions from individuals that are lower than the national limits, while eleven states have no limits at all.²

In terms of federal law applicable to Congressional and Presidential private campaign contributions, an individual may contribute as much as $2,800 to a candidate (once for the primary and then again for the general election), $5,000 to a multicandidate PAC, $10,000 to a state or local party committee, and $35,500 to a national party committee per election.³ Corporations and unions are still banned from making direct contributions in federal elections.

However, substantial money is routed through PACs and political party systems for local, state, and federal elections. These operate to cloak the identity of actual donors by candidates who benefit. The top ten spending PACs in 2017–18 were as follows:⁴

These entities are not notably focused on children or our future.

The Center for Responsive Politics reported in 2018 that The candidate who spends the most usually wins. The most recent 2018 data reveal that in 88% of House races, the top spending candidate won; the same was true in 85.7% of Senate races.⁵

The same Center for Responsive Politics collected total campaign spending in 2017–18 from the Federal Elections Commission as follows:⁶

House: Financial total for all House candidates, 2017–18:

Senate: Financial total for all Senate candidates, 2017–18:

In terms of the identities of the PAC grouping, the 2018 data reveal the following sectors by highest amount.⁷

Separate and apart from the spending through the candidate’s own campaign committees and as outlined above, is even darker money expended through the Super PACs. These Super PACs are allegedly separate from a candidate-controlled campaign, and avoid the above limitations entirely. These entities effectively make up almost half of all current campaign spending—and tend to dominate races where there is a particular economic interest for the underlying contributor. Given the Super PAC dispensation, individual, union, or corporate contributions have no practical contribution or spending limits, nor do they effectively identify the sources of monies so collected and spent.

Super PACs tend to be more ideological, or based on the extreme wealth of super-funders. The Center for Responsive Politics’ 2018 data reveals that 2,395 Super PACS were in operation, with $1.5 billion raised and $817.6 million expended. Conservative Super PACs spent $428.2 million in 2018, with liberal Super PACs spending $342.4 million. More than $23 million of Super PAC spending was done without disclosing donors, with another $365.8 million spent with only partial disclosure of donors.

2. Applicable Precedents

The leading case casting a long shadow over all post-1976 regulatory efforts is Buckley v. Valeo, 424 U.S. 1 (1976), where the Supreme Court distinguished between campaign contributions (which may be regulated in amount) and campaign expenditures. The Court reasoned that unlike contribution limits, spending limits do not have the same compelling state interest in corruption diminution. Limiting campaign spending, including the amount a candidate could spend from her own assets, became problematical. Accordingly, campaign finance reformers developed a quid pro quo strategy: give the candidates something in return for a promise to limit spending. Different arrangements have allowed a public declaration that a candidate has abided by a limitation (sometimes placed on the ballot itself), or have allowed public financing (usually public funds to match small private contributions on a 1–to–1 or higher ratio), or have allowed a larger contribution limitation to candidates who agree to an expenditure ceiling.

The most prominent example of such a strategy is the Presidential election, financed through Form 1040 IRS tax check-off monies to political parties receiving more than 5% of the vote in the previous election, and whose candidates agree to abide by specified spending limitations. At the state level, fourteen states utilize some method of partial public financing to allow candidates to run without complete reliance on private funding from self-interested groups. One method, known as clean election programs, gives each candidate who chooses to participate a fixed amount of money. To qualify for this subsidy, the candidates must collect a specified number of signatures and small (usually $5) contributions. The candidates are not allowed to accept outside donations or to use their own personal money if they receive this public funding. Candidates who choose to raise money privately rather than accept the government subsidy are subject to some restrictions involving disclosures.⁸ This procedure has been in place in races for all statewide and legislative offices in Arizona and Maine since 2000, where a majority of officials were elected without spending any private contributions on their campaigns. Connecticut passed a Clean Elections law in 2005, along with the cities of Portland, Oregon and Albuquerque, New Mexico. In 2006, in Randall v. Sorrell, 548 U.S. 230, the Supreme Court held that large parts of Vermont’s Clean Elections law were unconstitutional. As discussed below, in 2008, the Supreme Court’s decision in Davis v. Federal Election Commission, 554 U.S. 724, suggested that a key part of most Clean Election laws—a provision granting extra money (or rescue funds) to participating candidates who are being outspent by non-participating candidates—is unconstitutional. In 2011, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, the Supreme Court struck down the matching funds provision of Arizona’s law on First Amendment grounds.

Massachusetts has had a hybrid public funding system for statewide offices since 1978. Taxpayers are allowed to contribute $1 to the statewide election fund by checking a box on their annual income tax returns. Candidates who agree to spending limits are eligible for money from this fund. Non-participating candidates are required to estimate spending, and this will raise the limit for participating opponents if higher than the agreed-to limit.⁹ This Massachusetts option is analogous to the Presidential Tax Return check off for presidential candidate partial financing, which has also been upheld, but which has been substantially overshadowed by the scale and scope of internet-driven and private Super PAC financing.

The consequences of campaign contributions include radically enhanced access to the elected public official receiving funds or benefitting from an allied campaign. Lobbyist access to members of Congress or other officials is critical to influence. Lobbying does not occur in a public setting of argument and rebuttal. Private conversations with unchecked claims and contentions are their hallmark. The Supreme Court decision in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), upheld a contribution limit of $1,075 imposed by Missouri on statewide races, noting that money is not directly equivalent to speech, and recognizing the legitimate public interest not only to prevent bribery, but extending to the broader threat from politicians too compliant with the wishes of large contributors. Heartened by the judgment that money is not necessarily speech, reform efforts were initiated, including the following:

1) Clean Money Campaign Reform where candidates qualify for public campaign funds through signatures or a minimum number of $5 contributions from registered voters in their jurisdiction, with private contributions limited to $100 per person.

2) Matching funds allowing candidates to receive anywhere from a 1–to–1 match to 4–to–1 in public funds for every $250 in private contributions from a registered voter in the jurisdiction.

3) Refundable tax credits for contributions to candidates who have agreed to spending limits.

4) A system called patriot dollars where citizens are each given $200 in vouchers to commit to candidates for public office.

5) Subsidized or free required time from the media for campaign messages by candidates, debates, and other means to lessen the increasing costs of candidate communications.

6) A local charter provision enacted by citizen initiative in three California cities (San Francisco, Santa Monica, and Pasadena) which provides that where a local official has conferred a public benefit beyond a specified level to a corporation or person, that beneficiary may not give anything of value to the official for five years after the decision is made, or two years after leaving office, whichever is longer. Campaign contributions (as well as gifts and employment) may not be received by such an official during that period from such a beneficiary.

Note on 2002 Bipartisan Campaign Reform Act and Subsequent Cases on Campaign Contributions

On March 27, 2002, the President signed the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act),¹⁰ addressing the rapid soft money growth in campaign finance through the 1990s. As noted above, that soft money consisted of large contributions from corporations, unions, and wealthy individuals to the respective political parties. The monies were then channeled into the Presidential and Congressional campaigns, facilitating disproportionate influence by a small group of givers. Those givers also were able to effectively avoid disclosure of their identities as financiers of particular candidates as required by law due to the middleman role of the party. However, critics charged that party leaders knew well who the big givers were and would facilitate their influence on those public officials their funds helped to elect. In addition, the nation’s political action committees began to use independent expenditure campaigns to influence elections—alleged public mailing and media advertising for and against candidates for office run by special interests independent of the candidates’ political campaigns. These campaigns avoided the contribution limitations and contributor identification provisions of law applicable to the candidates.

As noted above, the law imposed some limitations on soft money contributions to political parties, prohibiting unions and corporations (already limited in federal candidate campaign giving) from making contributions for candidates through party giving. In addition, corporations and unions cannot fund ads for or against candidates for federal office within sixty days of a general election or thirty days of a primary election from their general treasury. Although addressing some important abuses, five factors limit its ability to redress campaign finance imbalance working to the disadvantage of children: (1) Independent expenditures immediately prior to an election remain lawful where funded by a political action committee. The law simply prohibits funding from the membership treasury where contributions presumably are not given voluntarily for that particular political purpose. Such PAC funding may still be substantial. (2) Corporations and unions may be able to tap their general treasuries for campaign spending outside the thirty and sixty-day prohibitory period, including substantial spending for ads attacking public officials with whom they disagree and who shortly face election. (3) The law may not apply fully to Internal Revenue Code § 527 organizations.¹¹ (4) The law does not apply at all to state and local office. Moreover, it does not prevent unlimited corporate or union soft money giving to state political parties, who can then funnel it into expenditure campaigns to assist state candidates allied with their federal counterparts. Most states do not have the federal limitation on corporate or union campaign funding, and the decried abuses leading to this legislation all remain largely unaddressed at the state level. (5) The law raised the limit on so-called hard money contributions (made by individuals to candidates directly) from $1,000 per person per election to $2,000, to be adjusted in the future by inflation.¹² Hence, a married couple can together give $8,000 to a candidate, $4,000 to the primary campaign, and $4,000 to the general. These limits are subject to increase where a candidate spends substantial personal funds for his or her own election; such spending above two times the law’s specified threshold will raise the $8,000 limit for the couple in the example above to $24,000. At a very high level of personal spending by a candidate on his or her own campaign, the individual limits are waived entirely for the opponents in that election. (6) As noted above, none of these limitations, such as they are, apply to Super PACs.

In McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Court upheld most of this 2002 Reform Act. The Court applied a heightened scrutiny test (less than strict scrutiny but more rigorous than rational relation) to limitations on contributions. As discussed above, the Court distinguished between expenditures where one is spending one’s own money on one’s speech (and subject to strict scrutiny) and contributions that involve giving money to another to finance his/ her electoral speech. The test enunciated by the Court for contribution control is whether there is a sufficiently important interest at stake and whether the restriction is closely drawn to avoid unnecessary abridgement of First Amendment interests. Applying this test, the Court upheld the new statute’s restrictions on soft money contributions via political parties, political advertising rate ceilings at the lowest unit charge for that class of advertising normally charged, and record keeping requirements imposed on broadcasters.

One aspect of the new statute suffered reversal—its prohibition on contributions by minor children. The government’s justification that the restriction was necessary to prevent circumvention of limits based on family size was rejected as too attenuated given the lack of evidence presented of such abuse and the existing and still applicable general prohibition on giving or receiving contributions in the name of another person.

The soft money restriction on the pre-2003 common use of contributions to state and local parties—who then give to federal candidates free from otherwise applicable limitations on amount limitations, allowing avoidance of source disclosure—was upheld by a 5–4 margin, with Justice O’Connor providing the swing vote. The statute as upheld does not address the five tactics discussed above.

Since McConnell, political spending by the so-called Section 527 groups has increased dramatically—undermining the limitation and disclosure purposes of campaign regulation. Indeed, unlimited spending that is not controlled by or coordinated by a candidate (or his/her party under the expanded terms of the new statute) cannot be easily circumscribed given the Court’s view of the First Amendment speech and association rights connection.

In Speechnow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), the court held that contributions made to independent political committees, including Section 527 entities, could not be limited as to donation amount. The decision hence departed from the Buckley criterion distinguishing expenditures—that involved one’s own First Amendment expression and could not be limited in amount, from donations to another entity that could be subject to maximums. The decision did not preclude disclosure requirements on such expenditures, but such disclosures are not effectively required at present, as discussed below.

The Speechnow decision followed three Supreme Court opinions substantially altering political campaign law. In Randall v. Sorrell, 548 U.S. 230 (2006), the Supreme Court struck the Vermont Act 64 limitations on individual contributions to state political office. The Court concluded that the limits burden protected interests in a manner disproportionate to the public purpose they were enacted to advance. The Vermont statute limited individual contributions to $200 to $400 for individuals and political parties to candidates. The decision does not preclude contribution limits, but holds that these maximums (in combination with other factors such as counting the expenses incurred by volunteers as a contribution and lack of a CPI inflator on the maximum) invalidated the limitations. Although the Vermont limits are below most federal and state maximums, which still may survive, many local elections historically have imposed contribution limits in the range of the Vermont maximums.

Then the Court decided Davis v. FEC, 554 U.S. 724 (2008), striking the so-called Millionaire’s Amendment of the federal McCain-Feingold Act. This provision was intended to limit the advantage of a wealthy candidate who spends more than $350,000 of his/her own money on a campaign. Such a threshold triggered an increase in maximum donations to challengers from $2,300 to $6,900. The law was consistent with the adjustment approach to high expenditures of one’s own—recognizing that they could not be limited given their direct manifestation of First Amendment exercise by Buckley. The wealthy candidate is not limited in the financing of his/her speech, but it may trigger revised maximums or other consequences (e.g., disclosure on voter ballots that a candidate exceeded a specified advisory maximum). However, the Court struck that consequence as an asymmetrical regulatory consequence to such a spending decision, and rejected the argument of leveling or diversity of information in political campaigns as a sufficient state interest. This decision calls into some question the longstanding strategy of public finance political reformers to allow a higher allocation of public monies for candidates where opponents self-finance at high levels.

The most serious Supreme Court decision altering political finance law is Citizens United v. FEC, 130 S.Ct. 876 (2010). Corporations have been viewed as entities that may collectively associate into combinations. Although such combinations are limited by federal and state antitrust law, the First Amendment and its freedom of association allow coalescence for the purpose of petitioning government under the so-called "Noerr-Pennington" doctrine. The Citizens United decision extended First Amendment rights more directly to individual corporate entities as they may seek to influence elections. First, the decision reverses Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)—that had allowed requiring for-profit corporations to use political action committees funded only by individuals (not from corporate funds) when engaging in express electoral advocacy. These expenditures have historically taken the form federally of either contributions to a party then distributed to candidates, or contributions of individuals to PACs. Although such monies may derive indirectly from corporate assets, they previously were funded through individuals to such PACs—2,000 of which already exist to promulgate corporate political messages.

Second, the decision revises McConnell, above, that allowed the McCain-Feingold restrictions on electioneering communications by corporations—e.g., election eve broadcasts that have clear election-influence intent and effect. Citizens United imbues corporations with the previously granted privileges of sentient persons. They now have the First Amendment right to expend funds for political purposes without limitation in any and all elections—where theoretically separate and apart from a candidate’s campaign. That is, the Court first ties First Amendment rights to political free speech, entitled to strict scrutiny protection. Corporations previously enjoyed clearly a less expansive commercial free speech right subject to heightened scrutiny. Then it confers on corporations the right to fund their own political speech (not the giving of it to a candidate but for its own political purposes). Such spending is, in this new formulation, an expenditure and not a contribution to another, and is therefore an unlimited First Amendment expenditure for speech right of the corporation.

The Court writes: [the] prohibition on corporate independent expenditures is thus a ban on speech. As a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached’ (at 898). The majority opinion rests on the premise that although every person has political First Amendment rights as individuals (including all corporate officers and stockholders), the corporate persons created by statute are also so imbued, separate and apart from individuals.

The Stevens dissent argues that the Citizens United case, involving a corporation funding an anti-Hillary Clinton video just before the primary presidential election of 2008, merely required that the company used its multimillion dollar PAC rather than corporate monies to fund an electorally intended publication within 60 days of an election. Justice Stevens writes: In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907… (at 930).

The U.S. Supreme Court then created another huge loophole beyond Citizens United and the rise of Super PAC limit and disclosure abnegation. In McCutcheon v. FEC, 572 U.S. 185 (2014), it held that the two-year limits on amounts that can be contributed to national party and federal candidate committees were unconstitutional.

The concern of child advocates involves democratic decision-making along three spectra: (a) organized versus diffuse interests, (b) defense of prior investment versus new options, and (c) short-term horizon versus long-run consequence. The interests of children are often aligned with the diffuse, new, and long-range end of these spectra. And individuals have sentiments that allow these latter factors much weight—concern over impacts in general and on others, and the legacy left for our children and grandchildren. In contrast, a corporation is a created entity with a legitimate interest in defending its assets. A corporation collects investment from stockholders and loans from bondholders to purchase a capital asset for production. That production yields a return to repay bondholders and provide a return on investment to the shareholders who own the corporation. The officers of the corporation have a fiduciary duty to those owners to advance that corporate interest. Such a description is not pejorative; it is the legitimate and expected function of corporate capital. But it necessarily involves a commitment to maximum profit from the capital investment that is the essence of a corporation. Hence, for example, an energy company purchases oil assets, creates pipelines, constructs refineries. It has a commitment to provide a return to those who funded those assets—that is its prime directive. In contrast, energy policy in the interests of children may involve consideration of nonrenewable oil exhaustion, pollution from the refinery, and oil consumption. The corporation properly looks at relatively short-term and narrow consequences, and to the extent it is politically influential will rationally oppose the assessment of external costs (e.g., pollution) it may be able to pass onto others, or long-term impacts on future generations (e.g., resource exhaustion or global warming).

Those groups opposing Citizens United and McCutcheon, including Common Cause and Public Citizen, have proposed a constitutional amendment to reverse it. They also support one or more of the six options to lessen the private money influence discussed above. And they have proposed four more limited avenues of statutory change to ameliorate its effects that may withstand constitutional challenge before the existing Supreme Court:

1) a shareholders protection provision would require approval prior to corporate spending for political purposes. Reformers argue that monies given to a corporation for investment are not properly diverted to political purposes that may contravene the views of the investor providing it. In theory, shareholders invest in a corporation for limited purposes, and long-term collateral effects on children may lead many stockholders to oppose the maximum, short-term return on an investment where offending deeply held values.

2) a limitation on contributions from or through corporate lobbyists (which tend to allow more explicit quid pro quo tie of public votes with money receipt) and from major government contractors.

3) a prohibition on independent expenditures by foreign corporations or their subsidiaries.

4) new transparency rules requiring public disclosure of corporate campaign expenditures, whether made directly or through election committees, nonprofits, or trade associations.

The current system of election financing confers substantial influence on three types of actors. First, seniors are by far the largest source of individual campaign contributions. The median age of large contributors to campaigns is typically over 65. Such persons are often able to contribute substantial sums, particularly in the funding of PACs and political parties or candidate committees. Second, the continuation of individual campaign contributions at the $1,000 to $5,000 range in many states gives substantial power to horizontally-organized trade and professional associations able to gather a large number of such contributions for extraordinary political influence. Third, the corporation has now arisen as a direct and substantially anonymous funder of political mass messaging.

Of some additional concern beyond these sources dominating executive and legislative elections is growing private funding influence on judicial elections. From 2000 to the present, groups with some interest in judicial decisions have contributed hundreds of millions to state supreme court candidates. Former Justice Sandra Day O’Connor has devoted much of her post-retirement advocacy to opposing this growing threat to court independence and integrity. The Citizens United decision may open the door to a dramatic increase in independent expenditures by corporations with an interest in judicial decisions with child impact—particularly in areas such as environmental protection and product liability.

Also exacerbating the possible imbalance from profit-stake domination of elections is the lack of media attention achievable by children. Such transparency is one of the few politically potent assets available to child advocates. That attention is undermined by legally-required confidentiality—including the understandable privacy needs in medical treatment and education, and the excessive secrecy surrounding the fate of foster children being directly raised by the state (see discussion in Chapter 8). The decline of newspapers and investigative reporting and the rise of the anonymous and eye bite format of the internet contribute to less attention paid by the general public to the long-range education, health, and protection status of children.

Child advocates argue that achieving decisions based on the merits, such as giving proper weight to the interests of children (and other diffuse, long-term interests), requires more substantial reduction of reliance on private giving, probably via some system of public financing as suggested by the six options listed above.

Questions for Discussion

1. Is a financial stake in public policy a surrogate measure of legitimate intensity of interest? At what point does influence based on a relatively short-term economic interest improperly compromise broader, long-range interests, such as the environment and children?

2. Does the disclosure of many campaign contributors counterbalance the alleged disproportionate influence of profit stake interests? Will the banning of soft money significantly lessen reliance on those organized around a proprietary profit stake?

3. As noted above, those making large individual campaign contributions are disproportionately seniors. Does such dependence influence public policies in the direction of senior citizen benefits as opposed to investment in children (e.g., private pension subsidies, property tax relief, Medicare, prescription drug coverage, Social Security)? How much public discourse occurs on the extreme deferral of trillions of dollars paid for the benefit of current seniors—the cost of which must be borne by our grandchildren?

4. Some groups that provide services to children may be organized enough to provide campaign assistance, votes, and even independent expenditures on their behalf. Do the interests of such groups always correspond to the long-range interests of children in their respective economic territories?

5. Even if public financing of campaigns removed substantial private dependence and enhanced competitive elections, would the interests of children secure adequate attention? Do lobbying resources—which frame public policy debates, employment of public officials, and other sources of influence based on proprietary stake—also contribute to public policies focusing on short-term profit and the protection of highly organized interests?

6. Does the rise of the internet and the chance to organize massive campaign funds from small contributions provide some counterbalance to existing trade associations, corporate, and wealthy individual influence? Obama’s campaigns gathered substantial resources from this more diffuse mechanism, but he was also the first to decline the IRS check-off public financing of presidential campaigns, thus removing the campaign finance limitations in that law and shifting away from public finance. If the major plausible reform is not small voluntary contributions but increased public financing of campaigns, does this decision have long-term benefits for political elections? Is it feasible for many federal, state, and local campaigns? What role does the decline in child coverage by the media play in the efficacy of such a widely-solicited source? Does the fact that internet communications allow the concealment of the sender not facilitate special interest domination of even this diffuse source of citizen contribution?

B. CHILDREN, LEGISLATURES, AND LOBBYING

In addition to a lack of campaign contribution assets, children lack substantial lobbying presence in Washington, D.C., and especially in state capitols. Lobbying maximizes the impact of campaign contributions or independent expenditures by providing advocacy tied to givers. Children are not represented in terms of direct campaign givers, and are minimally represented through surrogate givers. Similarly, they are under-represented in the lobbying of public officials in the executive and legislative branches.

The most prevalent lobbying presence on behalf of children comes from horizontally-organized interests that provide services for them, such as social workers, child care providers, and teachers. However, except in limited degree for teachers, such lobbying is not often supported by campaign finance assets. In addition, such advocacy by child service providers may serve the interests of members as a priority. Political scientists have noted that political advocacy (PAC lobbying) for a group tends to focus on the defense or expansion of the client’s territory. Less attention may be given to prevention, competition, or alternatives that may benefit children. For example, a child care providers’ association may oppose increased inspections or remedies for safety violations by its licensed members. Or a teachers’ association may focus more on member employee benefits than on class size reduction, or may want dismissals and rehiring to be based solely on seniority without regard to teaching efficacy or subject area need. To cite another real example, it may advocate that public funding for schools be taken away from high priority pre-school preparation or special education where not taught by its membership.¹³

However, differences between child service providers and the interests of children may be less problematical than the domination of lobbying advocacy by commercial and organized interests. The imbalance mirrors the power of high campaign contributing industries nationally (e.g., oil and gas, manufacturing, pharmaceuticals, Wall Street, telecommunications, powerful unions, the elderly). These interests are joined at the state level by effectively organized counterparts, including the alcohol and insurance industries, organized physicians, trial lawyers, and others much affected by state law. While not consciously hostile to the interests of children, the preoccupation of these groups with their own immediate self-interests often influences public policy adversely to those not so represented.

In terms of lobbying in D.C., the Center for Responsive Politics collects applicable data, finding $1.45 billion expended for 10,419 lobbyists in 1998. Those totals increased in 2018 to $3.42 billion and 11,586 lobbyists.¹⁴ That amounts to 21 lobbyists for each member of Congress. One scholar has calculated the total monies expended on Congressional lobbying by all advocates representing just the interests of children, including the Children’s Defense Fund, Voices for America’s Children, The Partnership for America’s Children, First Focus, Every Child Matters, Fight Crime–Invest in Kids and others total approximately $1 million.¹⁵ That sum amounts to 3/100th of 1% of total lobbying expenditures. To be sure, some lobbying by professional associations and other groups will take positions in the interests of present and future children—but conflicts and priorities limit the scope of that contribution. Nor does the disparity in direct lobbying fully account for the substantial monies spent on legislative and executive branch influence not considered a lobbying expense. These include publications, press releases, media influence, litigation and other advocacy not counted as part of the relatively narrow lobbying category.

Nor is the disparity confined to commercial interests. The American Association of Retired Persons alone spends from $6 million to $20 million per year on lobbying.¹⁶ The spending of other groups representing the elderly and those receiving funds from Medicare and Social Security spending overwhelm expenditures on behalf of children—who, as noted above, and discussed below, will add two other sources to the obligations to be transferred to our children: 1) high public employee pensions and retirement medical coverage, and 2) a rising federal budget spending deficit generally. While these expenditures may have merit, the issue of who should pay is a seminal ethical concern central to any discussion of child rights and remedies. The major lobbying interests ranked in order of expenditures and including those spending over $45 million in 2018 include the following:¹⁷

High on the list of specific trade associations are the American Medical Association, the Pharmaceutical Research and Manufacturers, and the American Hospital Association—each spending over $20 million per year. This is not a new or temporary dynamic. The Center for Responsive Politics analyzed federal lobbying disclosure forms in the area of health care and found 4,525 paid lobbyists—eight for each member of Congress—to influence the health reform bill in 2009.¹⁸ Public Citizen released an earlier report counting 673 lobbyists from the drug industry spending $91 million in reported expenses, plus over $50 million in direct mail and telemarketing. Among those lobbyists were 26 former members of Congress. About one-half of the lobbyists (342) have revolving door connections to the federal government (e.g., Congressional or agency staffs).¹⁹

The financial industry lobbying reports reveal that 1,447 of their individual lobbyists in 2009 were previous government employees, including 73 former members of Congress. The 43 House and Senate members negotiating the financial industry reform legislation in 2010 were lobbied by 56 of their former staffers. Another 59 industry lobbyists previously worked for the House or Senate Banking Committees²⁰ (see Chapter 14 discussion of the implications of dangers such as the 2008–10 international financial meltdown on child-related future interests).

Current law requires a one-year waiting period before contacting Congress and personally lobbying after hire. But those members serve as consultants during that period and are well able to wend influence even then.²¹ The combination of private communications without balanced presentation of all sides, the absence of advocacy on behalf of non-profit future interests, and the prospect of discussions of future employment while still in public office or on Congressional staffs, all coalesce in a manner inimical to balanced decision-making in the interests of current and future children.

1. Legislative Passivity

State legislatures and Congress became more professional during the 20th century. Such advancement implies an independent, proactive entity able to exercise its own prerogatives on behalf of its constituents and their values. However, the size and sophistication of private lobbies have also grown, while substantial legislative resources focus on constituent services. The drafting of bills, amendments, supporting documentation, and public advocacy is dominated by the private side. In many states, legislators serve on a part-time basis while maintaining relatively full-time employment elsewhere, are in session only several months a year, and have minimal staff to help with policy decisions. The term limits movement has further increased the power of private lobbies in states where short terms are imposed. Campaign money becomes more important as new offices must be won, more power is delegated to private lobbies, and higher legislative staff turnover means more former legislative staff are hired by profit interests to influence their previous legislative committees.

Washington, D.C. is home to approximately 12,000 registered lobbyists as well as thousands of unregistered attorneys and other advocates. The percentage of full-time, professional lobbyists representing the interests of children—and only children—is estimated to be approximately one-tenth of one percent of that number. The states are similarly balanced. For example, California has more than 1,800 registered lobbyists (15 for every legislator). Two of those lobbyists represent the interests of children exclusively. The formal nomenclature of the state assigns the term sponsor not to the legislator carrying a bill, but to the private group proposing and supporting it.

2. Structural Problems

To be clear, the issue of decisions on the merits is not an issue that need turn on Democrat vs. Republican, or liberal vs. conservative factors. The size and degree of governmental activity is a variable separate and apart from the substantive neutrality of state actors. But that is a separate issue from the proper bona fides of state actors. However large and involved the state is, those who govern are properly not compromised by self-interest, adult group allegiances, or other extraneous factors. Ideally, they combine two necessary features—expertise sufficient to know the likely consequences of their decision, and a focus not on immediate financial impact on themselves or their friends, but long-term impact on the People they represent in a democracy.

As noted above, child advocates argue that children benefit where public decisions are made on the merits. Such decisions are more likely to be made in the long-range public interest where other considerations do not unduly interfere with such a bona fide attempt. One such variable is the domination of information and advocacy by those with a vested economic stake in the policy to be decided, buttressed by campaign finance influence. Another variable may be direct economic benefit to the decision maker arranged by similar interests, including direct conflicts of interest (e.g., where legislators continue law practice or other occupations that allow for financial gain from those affected by decisions made), honoraria, or job interchange (where lobbyists, legislators, and legislative staff interchange hiring and make implied or explicit job offers while public officials are still in office). These avenues of influence potentially distort decisions away from the merits.

Although published 20 years ago, the disturbing revelations of Charles Lewis remain not only applicable today, but his examples understate the degree of dubious transactions that appear to compromise decisions on the merits.

Everything I’m Telling You is Entirely Legal

by Charles Lewis²²

The Center for Public Integrity

In 1991, the Center issued a report called Saving for a Rainy Day. We found that 112 former members of Congress had pocketed $10 million in leftover campaign funds. Some of them bought themselves Cadillacs or Lincoln Continentals. Others used the money to pay their legal bills after being prosecuted for various ethical transgressions. But my personal favorite is that one fellow [Gene Taylor] actually opened up a museum about himself [in Sarcoxie, Mo.]

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In 1994, 17 researchers, writers and editors at the Center put out an investigative report (Well-Healed) about the lobbying for and against the Clinton health care plan, in which we tracked the Washington activities of 660 interest groups trying to influence the legislative process. We found that 80 former U.S. officials had tripled, quadrupled, quintupled their salaries by going to work for health care-related interests. Health care companies had contributed $30 million to congressional campaigns in the two years leading up to the Clinton health care legislation. They took members of Congress on 181 all-expenses-paid trips to nice locales such as Honolulu, the Caribbean and, well, Tampa, to educate them about health care, of course.

Forty members of Congress sitting on the five key committees with jurisdiction over health care reform legislation owned stock in various companies that would be affected by any new laws–some members actually were buying and selling pharmaceutical and other health care-related stocks during the mark-up sessions. One interest group, the people that brought America the Harry and Louise commercials, the Health Insurance Association of America, made a deal with then-House Ways and Means Committee Chairman Dan Rostenkowski. HIAA would pull the highly effective TV ads critical of the proposed reform legislation from the airwaves if the committee would make substantive policy concessions to the insurance industry. It was a done deal. The only reason it fell apart is that Rostenkowski was indicted on unrelated federal charges.

Remember, everything that I am telling you is entirely legal. The Buying of the Congress

Some politicians and their patrons would have you believe that all of this money and fund raising does not affect public policies that are enacted. Well, in 1998, 36 researchers, writers and editors at the Center for Public Integrity produced a book, The Buying of the Congress. It showed in stunning example after example that, on important health, safety, environmental and financial issues that affect every American’s daily life, Congress frequently sides with powerful special interests, to our detriment. This book, unfortunately, was released in Washington the same day that Kenneth Starr released his report about Monica Lewinsky. I hate when that happens.

But we looked at the cost of groceries and how certain items cost more because of various deals with donors in Congress. Cable TV rates are higher because of legislation pushed by the cable industry….

Pay attention to state capitols

For example, Americans need to pay more attention to what’s happening in their state capitols. Last year, state governments enacted 25,000 bills and collected $470 billion in taxes….

We called and wrote to every state legislator in the U.S., asking about his or her personal financial interests. One state lawmaker was so angry that we were asking these basic, public interest questions that he actually had his mother call us: Why are you calling my son? And then he had the state Senate majority leader call us, and he asked, Why are you harassing one of my members? We were just asking simple, clarifying-type questions about his disclosure form.

Roughly 10 people at the Center for Public Integrity worked on this project for more than two years. What did we find? That literally hundreds of state lawmakers are engaged in unabashed self-dealing, all legal, of course, because they write the laws. That more than one in five state legislators today sits on a legislative committee that regulates his or her professional or business interest. At least 18 percent of state lawmakers have financial ties to businesses or organizations that lobby state government. Nearly one in four state legislators receives income from a government agency other than the state legislature.

* * *

Questions for Discussion

1. Courts have ex parte contact restrictions to prohibit one party in a proceeding from privately communicating with a judge. The concept is to allow open examination of a matter where all parties hear what others say, with the right to cross-examine and rebut. Should some of these elements be introduced into the legislative branch, at least as to bills currently before a committee? Would such a change elevate the importance of open hearings and lessen the disproportionate influence of special interests meeting privately with legislators?

2. Should Congress and state legislators be restricted from working for industries with business before their bodies for at least one or two years after they leave office? Should the moratorium be longer? Should they be limited in the direct lobbying of their former colleagues?

3. Currently, we allow profit stake interests to deduct lobbying expenses as a normal business expense. We also exempt industry and trade groups of competitors organized to influence government from antitrust laws. Such groups have formed political action committees, institutes, and joint lobbying enterprises under first amendment dispensation and as an exception to federal and state antitrust laws (the "Noerr-Pennington" doctrine). Accordingly, many such associations assess themselves sums for lobbying and those costs are passed on to consumers as a de facto industry-wide assessment. At the same time, we prohibit or limit charities with a lesser profit stake in public policy from lobbying legislatures or agencies. What are the arguments for and against the reversal of those two social policies: tax profit stake lobbying expenses, but permit charities or others without a profit stake in public policy to participate free from tax status penalty or other sanction? What would be the long-range effect of such a change on the influence of children and other future interests before legislatures and agencies?

C. CHILD ADVOCACY AND THE COURTS

1. Children and Standing to Litigate

Contrary to common belief, children theoretically have standing to sue and to be sued in court–-that is, their property, liberty, and interests may be adjudicated. However, for the same reason immaturity limits the enforcement of a contract against child signators, their ability to gain access to courts is limited. Children are grouped with incompetent adults in their presumed incapacity to understand legal procedures. Accordingly, they require adult assistance to initiate or defend lawsuits. Historically, a plaintiff child sued through a "prochein ami or next friend, while a child defendant was guided by the guardian ad litem"—the term now most commonly used for all child court representation. Most states model child rules of representation after Federal Rule of Civil Procedure 17(c). Typically, parents perform this function, although a court may appoint another representative for a child—usually where parents have a conflict of interest. The usual rule is that where a court appoints such a person, compensatory fees may be awarded as well.²³

A court-appointed guardian ad litem may or may not be an attorney. Courts have discretion to make or not to make such appointments. Usually, a court must be shown that prejudice to a child will result from the failure to make such an appointment. Precedents vest with the court the responsibility of monitoring a case to assure the welfare of child litigants, with the charge of representing the child’s best interests.

Much controversy has surrounded the role of such a guardian ad litem (who may decline to represent a child’s expressed