I didn’t want to write anything about the controversy surrounding the recent Judiciary Council decision. I thought it was unprofessional. When the chair of the JC asked me and the other two members of the majority decision if we wanted to add anything to the all-campus email about the decision or write a majority opinion I said no, of course not. In the last major election scandal that the JC ruled on in 2012, one member who dissented from the majority opinion did not write a dissenting opinion because to do so was unprecedented. No one has ever written an opinion of the court as far as I am aware before this complaint.
But now, given the misinformation and extended dissenting opinions written by two of the members of the judiciary council, I feel like I have some obligation both to provide the alternative viewpoint and some of the reasoning behind our decision and to give voice to some issues with the way that this case has been mishandled by dissenters.
Judiciary Committee Hearing Mishandled
I am embarrassed by the way many students are treating this situation. While the people trying to overturn the JC ruling may see themselves as coming for a Constitutional place or acting in pursuit of justice, they are bullying Amani ’15 in completely unacceptable ways. The Student published a cartoon of her stealing money. That is not acceptable. That is cruel and the editor who allowed that to be printed should be ashamed of themself. I expect more from my fellow students than outright bullying and public shaming. We are not acting like a Supreme Court – we are acting like a bunch of bullying kids on a playground.
The same holds for the JC members who dissented from the ruling. Part of the reason that only seniors were chosen as alternatives for this committee (in addition to two regular JC members who are both underclasspeople) was because we are well on our way and it wasn’t expected that we would get wrapped up in the gossip and drama that happens every time there’s an election complaint. People get really hurt by these complaints, no matter the verdict, and lose sight of the fact that in addition to being the ‘student Supreme Court’ we are all also students. The dissenters seem so wrapped up in this case that they fail to see the very serious emotional and social harm they’re doing to people involved. Instead of merely pursuing justice they are socially ostracizing their fellow students, candidates who in good faith put their energies towards trying to make student life better.
Two members of the JC that opposed the majority opinion also wanted to cross-examine the evidence brought to the committee by the four (two vice presidential and the two presidential) candidates. JC is charged with upholding the Constitution and ruling on violations, but under current AAS law there is no real mechanism that allows for cross-examining the evidence provided to us by candidates. Two JC members proposed that we ask candidates to waive their rights protected under the Family Education Rights and Privacy Act, a federal law that safeguards students (and their families when they are under 18) from having to publically display their school records. FERPA also covers all materials that students check out from the library and print at the school. The two JC members saw asking candidates to waive their FERPA rights as the only way to fully cross-examine evidence. If a student did not want to waive their FERPA rights, a minority of the JC argued that a candidate’s refusal would present reasonable suspicious about the validity of that candidate’s spending record. In short, not allowing the JC to view information protected by federal privacy rights would be considered a disqualifying factor.
The Judiciary Council functions as a student Supreme Court. However, it does not have the power to demand that students waive federal rights, even though it is akin to a Supreme Court in relation to the executive and legislative branches of Amherst’s student government. Unlike a Supreme Court, none of us has a degree in law. Some of us may be LJST majors, but that just isn’t quite the same thing as having an actual degree in law, passing the bar, or being appointed a justice of the peace. To act is if we have more power than we do is presumptuous and misguided. To force candidates to waive their FERPA rights so that we, as the Amherst College student judiciary committee, could see their entire printing history seems like a gross overstep of the power afforded us by our nomination.
Reasons for the Majority Decision
The actual decision of the court has also come under fire based on certain misinformation perpetuated by members of the JC who opposed the decision. I think many people have been unclear on the exact circumstances in which Amani made clear to the JC that there was additional money to be considered as a potential campaign expenditure. Amani did not lie in the hearing, as many have insinuated, nor did she steal money from the AAS or purposefully obfuscate her spending. After the formal JC hearing several members of the committee called Amani back into the JC discussion room once all the other candidates had left. The decision was made quickly and without consulting JC procedural rules. No one voted on the question, we simply called her informally and asked her alone additional questions, without considering that some of the same questions might apply to other candidates. One of the JC members who later dissented thought that perhaps Amani had not reported a poster that she had posted and that there was a whole other, larger poster that had not been reported. When asked about this Amani said that there was no other poster posted but that there were posters in a different design that she had scrapped and never used.
The JC conversation then hinged on whether or not these posters that a candidate had printed but not posted counted in the campaign expenditures or not. If they did, they would exceed the campaign expenditure limit. If they did not count, of course they would not. When we began to debate this, the majority of the JC understood the Constitution to speak very directly to anxieties around visibility and posters in public spaces influencing voters. Under campaign rules, section 8 subsection 3 of the Constitution it reads: “candidates or other representatives… shall not deface any other candidate’s poster, nor shall they cover any portion of another candidate’s poster with their own.” So clearly one of the issues that the Constitution is trying to deal with in this section is making sure that posters are visible, and understanding that only visible posters have the potential to influence an election. If posters not posted or table tents not put on tables had the potential still to effect voter decisions, than this section would not make sense.
Further, the Constitution continues to see visibility of campaign materials as the essential and operative element of those materials when it states in section 8 campaign rules subsection 4: “No signs, posters, or printed material regarding a referendum or election shall be allowed within reasonable view of a public Amherst College computer.” The Constitution cares about visibility so much that it is able to imagine that a poster simply in the same space as a computer could directly influence a vote. The visibility of campaign materials or their general introduction into the public sphere is what makes them campaign materials.
As I understand it, the JC made a ruling that in this particular case, and according to the current rules of the Constitution, the definition of campaign expenditures would hinge on materials that could actually influence the election, i.e. anything that was visible. The decision was not intended to create a precedent. The initial JC complaint included a recommendation for altering the Constitution and the entire JC agreed that the campaign expenditure rules needed some serious tweaking so that in the future this would not be an issue.
One of the ways this issue could be circumnavigated going forward is through a campaign expenditure limit, enforced by providing each candidate with a ticket for a limited amount of money (30$ for executive campaigns, 15$ for senate campaigns, and $15 for run-off elections) that could only be redeemed through OAS. All campaign materials would also include a small tag at the bottom (similar to union labor tags) marking it as an OAS-approved purchase. In order to make this completely enforceable, the things that a candidate could spend on influencing a campaign would be limited to posters and printed materials. If a candidate was found to spend money on some other expense to help their campaign like a paid campaign manager or beer for a party, they would be disqualified.
As we look forward to the discussion in senate tomorrow about the JC ruling, lets take a moment to remember what the purview of student government actually is, what it could be, and how we are acting towards each other in the context of this election. No serious campaign reform regulation suggestion has been introduced yet in the senate, but I hope that the guests coming into senate, the JC members, and senators can engage in a productive and respectful conversation about how to ensure that going forward we don’t find ourselves in this kind of situation again.
*I chose to omit the names of students in this article not to obfuscate the case but as a sign of respect and professionalism towards my fellow students.