The forum was entitled, “The 2010 Judicial Retention Results: What Happened and Where Do We Go From Here?” Its panel included Drake University Law School Assistant Professor Ian Bartrum, One Iowa’s political director Troy Price, American Civil Liberties Union’s Iowa executive director R. Ben Stone, and Iowa Supreme Court Justice David Wiggins.
Justice Wiggins is the Iowa Supreme Court’s most liberal member. He is also the next justice who will face a retention vote in the next election. Wiggins praised Chief Justice Marsha Ternus and Justices David Baker and Michael Streit, the three out-going members of the Court, by saying that they were “extremely intelligent and persons of exceptional integrity.”
While Wiggins praised his soon-to-be former colleagues, he also made it clear that he had accepted the results of the retention election. “Although I am disappointed with the results of the last retention election, I am not going to second-guess its results,” Justice Wiggins said. “It is what it is. It’s now time for the court move on,” he added.
The other panelists, however, were not ready to accept the results of the retention election. At one point during the question and answer segment of the forum, both Price and Stone showed their support of making changes to Iowa’s merit based judicial selection system. While some conservatives would like to adopt a system that would allow the governor to appoint and with senate confirmation, others simply want there to be political balance on the nominating commission.
The change that Price and Stone contemplated would require a 60 percent super-majority of voters to oust a judge instead of the current requirement where only a simple 50 percent majority is needed. They based their support for this change on the fact that Iowa’s constitution is very difficult to amend, so by analogy, the same standard should apply to ousting a Supreme Court Judge.
In addition to ideas like requiring a super majority to remove a judge, it was interesting to listen to the panelists speculate as to why their side suffered such a defeat in the last election. When you boil it all down, the pro-retention side believes they lost because of three things.
1. The Citizens United ruling by the U.S. Supreme Court.
2. Rouge Pastors who had the audacity to weigh in on the ballot question.
3. A political environment that favored anti-retention campaign.
Stone spent a considerable amount of time talking about the amount of money that the anti-retention campaign spent during the elections. According to him, $950,000 was spent on behalf of the anti-retention campaign. He noted that, in the 15 states that had retention questions on the ballot, a total of $2.1 million was spent in total, which means that Iowa made up a significant percentage of the total money spent.
After listening to Stone, you would think that the anti-retention campaign wouldn’t have received any support had it not been for the U.S. Supreme Court’s decision in favor of Citizens United. That simply is not true. Organizations have been making independent expenditures on behalf of candidates and ballot initiatives long before Citizens United.
The National Organization of Marriage ran ads advocating for the election to Stephen Burgmeier in advance of a special election in Iowa House District 90 in the fall of 2009, well before the Citizens United ruling was made on January 21, 2010. The NRA has used independent expenditures frequently in support of its preferred candidates in Iowa, as has Planned Parenthood and the Service Employees International Union.
While Stone’s comments played into the fears of his audience, his remarks about the impact of the Citizens United case do nothing but continue the ineffective talking points that the pro-retention campaign used throughout the campaign.
Even more troubling than Stone’s ignorance was the fact that attorneys who attended this forum were given Continuing Legal Educational (CLE) credits for attending the forum. If CLE hours are going to be awarded, one would think that the information presented should at least be accurate.
Another bone of contention for the pro-retention folks was the pastors like Cary Gordon of Cornerstone World Outreach in Sioux City. Gordon didn’t back down when Americans United for Separation of Church and State filed a complaint against him in October.
Price and Stone vented their frustration about the behavior of pastors like Gordon. They were upset that the IRS didn’t step in and prosecute the pastors who encouraged their congregations to vote no on the retention question. They basically said it is not fair that some pastors didn’t play by the rules.
Again, the panelists miss the mark. While the Internal Revenue Code absolutely prohibits churches from engaging in campaign activity that supports or opposes a candidate for office, it does not preclude them from all political activity. Churches can participate in voter registration drives and voter education projects. What seems to be lost here is that Ternus, Streit, and Baker were not candidates. They were simply the subjects of non-partisan retention questions.
What the panelists got right was that the political environment was perfect for the anti-retention campaign. It is not just that there was an anti-incumbent and anti-establishment sentiment sweeping the country, but there were also environmental factors that only existed in Iowa which aided the anti-retention campaign.
With Terry Branstad and U.S. Senator Chuck Grassley well ahead of their Democrat opponents for the entire election cycle, the news media, thirsty for a controversial campaign to cover, found plenty of material to work with from the retention campaigns. Had Branstad and Grassley had close contests, the news media wouldn’t have spent so much time talking about the Iowa Supreme Court.
Another environmental factor was that Attorney General Tom Miller was scared out of his pants over the campaign that Brenna Findley was running against him. While Findley lost by a substantial margin, the outside money about which Stone and Price are so disturbed flowed in to help save Miller.
The Committee for Justice and Fairness made independent expenditures totaling over $383,000 to run television ads on behalf of Miller. Had that not happened, and had Democrats across the nation not be in such trouble, the pro-retention campaign would have probably benefitted from some outside funding itself.
The panel also never touched on the overarching problem with its entire campaign – arrogance. Time after time, the anti-retention effort went out of its way to tell Iowans that they were stupid if they voted no on retention.
Just days before the election, former Iowa Governor Tom Vilsack told reporters, “I think that people may be thinking that by removing these judges that in some way, shape or form that’s going to result in a reversal of court decision and that’s certainly not the case.” This was a common theme as another former Governor, Bob Ray, said similar things in advertisements in support of the justices.
Iowans knew very well what they were doing. There was never a notion that the retention election would fix anything. Still, Iowans had seen their elected representatives blocked from even taking a vote on the issue of gay marriage. It is obvious that a majority of them decided to send a very loud and clear message about marriage through the retention question.
While Price and Stone continue to explore ways to prevent a similar result from happening in future retention campaigns, its highly likely that they have overlooked a strategy that has seen all but four Iowa judges be retained for almost a half a century – don’t engage in a campaign at all.
Had the Iowa Bar Association, One Iowa, and the Iowa ACLU not over-reacted to the movement to remove Ternus, Streit, and Baker, the media wouldn’t have had much of a story to cover. Instead, they attacked those who wanted to use the retention elections to send a message on gay marriage, confused the issue by making their campaign to defend the justices about protecting Iowa’s court system, and spent too much time worrying what the opposing campaign was doing.
In short, the pro-retention camp was their own worse enemy. What is amazing is that they are even more clueless after suffering the defeat at the ballot box than they were before people began to cast their votes on the matter. If they really want to figure out what happened, they need to look in the mirror.
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