A POLITICO article out today reaffirms that the 2012 election is of “Supreme importance” to the future of the nation’s highest court.
The piece takes note of the critical role the court will play in the upcoming elections and reminds readers that the next presidential term will be particularly important in determining the composition of the court for decades to come.
Four Supreme Court justices enter the next term in their 70s, and any changes during the next presidential term could tip the balance of the court on some of the nation’s hottest social issues, including same-sex marriage, civil rights and abortion.
There’s also the often-overlooked aspect that the president nominates judges to fill the nation’s appellate and district courts, which produce some of the country’s most lasting decisions.
POLITICO also notes that due to widespread GOP efforts at voter suppression, there is a possibility that the court may have a hand in determining the outcome of the presidential race.
Mitt Romney’s top judicial adviser, the far-right former judge Robert Bork, weighed in as well:
Few see the Supreme Court actually becoming a prominent attack line when the candidates are speaking to the general public. “It should be, but the economic issues will far outweigh other questions,” Robert Bork, the former Reagan Supreme Court nominee now serving as a top Romney legal adviser, wrote in an email to POLITICO.
As the decision in Citizens United and other cases clearly demonstrates, the current Supreme Court is one of the most conservative in American history. It’s hard to imagine a court even further to the right, and yet that is exactly what a Romney presidency would ensure.
Today, Monday July 16th 2012, the U.S. Senate will vote on whether to end the filibuster of the DISCLOSE Act, and more likely than not, the effort to bring the popular bill to a final floor vote will fail. Yet the DISCLOSE Act is a bill so fundamentally logical and conspicuously necessary for the health of our democracy, it is mind boggling that even one U.S. Senator would dare to not support it - let alone label it so extreme that the Senate should not even be allowed to vote on it.
The bill is about transparency, and the American people’s right to know who’s funding the campaign ads that are flooding our airwaves and influencing our opinions.
Here’s a brief history on how we got here:
On January 21st, 2010, the Supreme Court issued its landmark ruling in Citizens United v. FEC, overturning key provisions of the McCain-Feingold Act, creating a new campaign finance system in which corporations and unions could use treasury funds to influence elections.
Three months later, the D.C. Court of appeals struck down federal law limiting contributions to entities engaged in independent expenditures in the case SpeechNOW v. FEC. To reach their decision, the lower court relied upon the rationale put forth in Citizens United, particularly that “independent expenditures … do not give rise to corruption or the appearance of corruption.” The Roberts Court declined to consider an appeal of the lower court’s ruling in SpeechNOW, and thus ushered in the era of the super PAC.
Yet anonymous spending was not supposed to be the result of these rulings.
In the opinion of Justice Kennedy, writing for eight of the nine justices on the Court, it was assumed that disclosure requirements were constitutionally permissible and would serve as a check in this new I.E. spending reality.
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.
… citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.
… disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
But that transparency has not been codified into law. At present, there is no law or statute that requires entities that make independent expenditures to disclose to the general public the identities of those who gave money to the entity specifically for political ads and other spending.
Following Citizens United in 2010, Congress came close to mandating disclosure when the House passed the DISCLOSE act. The bill had strong majority support in the Senate, so the Republicans filibustered it. Unfortunately, the effort to end the filibuster failed in the Senate by one vote. It died on the Senate floor with a 59 to 39 split on a cloture motion, presciently extending what historian Robert Caro wrote about the Senate of the late 1950’s to the present day, that “For almost a century, [the Senate] had not merely embodied but had empowered, with an immense power, the forces of conservatism and reaction in America.”
Yet disclosure should not be a conservative issue or a liberal issue. This is a democratic issue, with the fundamentals of our democracy at stake. In 2012 America however, Republican political partisanship and hunger for power at all costs have taken precedent over the need for reform; and Republican Senate leadership is holding firm. Issues vital to the health of our democracy - whether they be voting rights or campaign finance rules - are now warped into partisan issues.
Senate Minority Leader Mitch McConnell and opponents of the DISCLOSE act are desperate to find ways to discredit it and justify their unjustifiable opposition.
Take for example, McConnell’s piece in the USA Today, "Disclose Act is un-American," where he writes:
The Supreme Court, in Citizens United v. the FEC, correctly ruled that Congress may not ban political speech based on the identity of the speaker. (sic)
The Disclose Act would make this and any future administration's ability to punish and intimidate its political enemies even easier. It is the Democrats' attempt to get around the court by compelling certain targeted groups to disclose the names of their donors, while excluding others, such as unions, from doing the same.
While Senator McConnell cries out "un-American" and "unions" to scare his base - like Senator McCarthy once cried out "communists" on the Senate floor - the facts are irrefutable. Under the bill’s provisions, unions are treated equally to for-profit corporations. Case closed.
Furthermore, supporting the DISCLOSE Act is not a political power grab; however to reject it is, since the majority of the undisclosed money is benefiting the Republican party. So it goes for the bill’s opponents. Take reality and turn it on its head.
McConnell then declares:
This bill calls for government-compelled disclosure of contributions to all grassroots groups, which is far more dangerous than its proponents admit.
The Supreme Court addressed this issue in 1958 in NAACP v. Alabama, ruling that forced disclosure of the NAACP's member lists by Alabama would discourage people from freely associating with a cause or group.
Once again, McConnell has to obfuscate the truth to hide the fact that he has no real argument.
The bill requires organizations (corporations, unions, super PACs, non-profits) to report within 24 hours of making an election expenditure of $10,000 or more. Donors that give $10,000 or more to the organization would be made public, unless they specify that their contributions to the organization cannot be used for election spending. The idea that every grassroots group will have to turn in their membership lists to the evil federal government is a scare tactic, and unsubstantiated.
The bill is designed to remove the added layer of anonymity ‘speakers’ are currently hiding behind by donating to nondescript (c)(4) and (c)(6) organizations that – unlike for-profit corporations, advocacy groups, and unions – do not operate in the public sphere, and whose purpose generally is unknown to the public.
One would imagine that halting this egregious process would be a quick fix. But one would also imagine the same for voting on judicial nominations, or extending the debt ceiling, or allowing Americans to cast a vote on Election Day. Unfortunately, that’s not how 2012 America functions.
The most unbelievable part of McConnell’s and Republican obstruction is that this DISCLOSE act is a watered-down version of its original. The 2010 provisions that would have required funders to “Stand By Their Ads” has been removed, as have the prohibition on electoral advocacy participation by corporations that received TARP funds. The bill will not be effective until 2013, so would not even affect this election cycle. But in the end, it’s definitely a step in the right direction and should be a no brainer for any elected official committed to the integrity of our elections.
Yet we are bound to hear the absurd cry of “union carve-out” tonight on the Senate floor when the bill is debated, and all the other diversionary arguments. The obstructionists need straw men, since without them, there could only be silence.
People For the American Way staff, members and activists braved the heat today to showcase their support for the Patient Protection and Affordable Care Act, alongside hundreds of others Americans outside the United States Supreme Court. However, PFAW was not merely standing silently while awaiting the court’s decision. We were busy waving signs reading “Don’t Hijack My Healthcare” and “Fear Romney Court,” and chanting “Health Care for All!”
Finally the clock had struck 10 a.m. and the tea party began celebrating due to premature and incorrect reports. Upon finally learning the court’s actual 5-4 decision to uphold the Act, PFAW and so many of the other supporters outside the Supreme Court began celebrating, cheering, and embracing. The Tea Party had found a microphone to continue spreading their propaganda, but the sounds of progress drowned them out. Today was an important win. To partially quote Vice President Biden, this is “a big…deal.”
In a 5 to 4 decision released today, the Supreme Court upheld President Obama’s Affordable Care Act legislation, enacted by Congress in 2010 to address rising healthcare costs and reduce the number of Americans without health insurance.
People For the American Way President Michael Keegan released the following statement:
“Today’s decision is an important win for the American people. The Court recognized that our Constitution gives Congress the authority to address the challenges that face our nation—and that Congress acted appropriately by using its power to address the crisis in our health care system.
“What’s shocking about this decision is that it isn’t unanimous. By any reasonable standard, the constitutionality of Obamacare is not a close question. Ultra-conservative ideologues have been remarkably successful in pushing the Court far, far to the right and in using the Court to advance their political ideology. If the right-wing Justices on this Court want to write our laws, they should run for Congress; if they’d rather remain on the bench, they should do their own jobs, not someone else’s.
“Today’s close call will make the Supreme Court a major issue for progressives and independents. Mitt Romney’s decision to appoint Robert Bork as his chief advisor on judicial nominations makes it clear that he’s interested in stacking the Court with more of the kind of Justices who wanted to scrap protections for children and people with preexisting conditions. Voters will remember this decision when they go to the polls in November.”
Seems like Biden has an opinion on a Romney Supreme Court, as reported by CNN Political Ticker:
"Close your eyes and picture what the Supreme Court would look like four years from now under Romney," Biden said to groans from a crowd of supporters at a rally in Dubuque. "Tell me what you think would happen to women's rights in this country, civil rights."
Good to note that we’re not the only ones afraid of a Romney Court. Not worried yet? Check out RomneyCourt.com.
Here’s a quick recap of the Supreme Court’s decisions during the past week: Unions are now further disadvantaged and despite some important changes to the state’s immigration law, racial profiling remains a viable option for Arizona law enforcement.
On June 21, the Supreme Court issued its decision on Knox v. Service Employees International Union (SEIU) Local 1000. The case dealt with a labor policy several states have, known as agency shops, in which employees are not required to become members of the union representing their place of employment, but must pay dues since they benefit from the work the union does. At the point in which all employees working at an establishment that has a union presence are receiving higher wages, more vacation days, and overall better working conditions, it is only fair that all employees pay union dues and not free-ride off of just the union members who pay.
However, in the case of public sector unions, the Supreme Court held a generation ago that non-members have the right to opt out of having their dues used for political activity by the union, effectively weakening the union’s ability to operate on its members’ behalf. In Knox, the Court criticized the balance struck in 1986 and ruled that when the union has a mid-year special assessment or dues increase, it cannot collect any money at all from non-union members unless they affirmatively opt-in (rather than opt-out). This ruling addressed an issue that wasn’t raised by the parties and that the union never had a chance to address, furthering the Right Wing’s goal to hamper a union’s ability to collect dues and make it harder for unions to have a voice in a post-Citizens United political environment. To add insult to injury, Justice Alito let his ideological leanings shine through when he essentially claimed right-to-work laws are good policy.
After the Knox v. SEIU decision, the court released its ruling on the highly contentious 2010 Arizona anti-immigration law, known as S.B. 1070. In a 5-3 decision, the court struck down the majority of the southwestern state’s draconian immigration policy. The court ruled that much of the state’s law unconstitutionally affected areas of law preempted by the federal government, acknowledging the impracticality of each state having its own immigration policy. Oppressive anti-immigrant provisions were struck down, such as one criminalizing the failure to carry proof of citizenship at all times, and a provision making it illegal under state law for an undocumented immigrant to apply for or hold a job. The decision also recognized that merely being eligible for removal is not in itself criminal, and thus the suspicion of being eligible for removal is not sufficient cause for arrest.
Although the majority of S.B. 1070 was overturned by the Supreme Court this week, one component remains, at least for the moment. Officers can still check the immigration status of anyone stopped or arrested if they had “reasonable suspicion” that the individual may be undocumented. This keeps the door wide open for racial profiling. Arresting an individual is not the same as being convicted for a crime. Latinos and other minority groups can be stopped for a crime as simple as jaywalking and “appear” suspicious enough to warrant an immigration background check. By leaving this portion of the law, the US Supreme Court has, for the time being, allowed the potential profiling of thousands of Arizona residents, regardless of whether they are immigrants or US citizens, but has left open the ability to challenge the manner in which this provision is put into practice.
Any hope that the Supreme Court would reconsider the disastrous Citizens United decision was dashed this morning, when the Court in a 5-4 decision summarily reversed a Montana Supreme Court decision on campaign finance without even hearing oral arguments. Rather than acknowledge the obvious damage done to our democracy in the 2½ years since Citizens United was decided, the five arch-conservatives solidified the distorted electoral playing field they created that lets the powerful few overwhelm the rest of America in deciding our elections.
Citizens United struck down federal restrictions on corporate independent expenditures to support or defeat a candidate based on two premises: (1) the First Amendment gives corporations the same First Amendment right as people to make independent expenditures to influence elections; and (2) independent expenditures do not give rise to corruption or the appearance of corruption. But late last year, the Montana Supreme Court upheld that state’s restrictions on corporate independent expenditures, citing its unique history of political corruption and the many factors that distinguish state and local races from the federal races at issue in Citizens United.
Although the U.S. Supreme Court quickly granted a request to stay that decision as likely at odds with Citizens United, two Justices pointed out the opportunity the Montana case raised to re-examine Citizens United’s faulty factual assumptions:
Montana's experience, and experience elsewhere since [Citizens United] make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption." A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway.
Today, due to Citizens United and its progeny, political candidates’ top staffers go off to form purportedly independent “super PACs” to accept the multi-million dollar checks that the formal campaign cannot legally accept. Karl Rove and his allies are planning to raise $1 billion, much of it anonymously given, to impose Republican control over all levers of the federal government. Organizations like the Chamber of Commerce funnel millions upon millions of dollars from corporate coffers to buy up the airwaves, refusing to disclose to the American people who is paying for the political advertising they are bombarded with.
Even when wealthy donors hide their identity from the American people, they make themselves known to the candidates who benefit from their largesse. No one doubts their influence over the officials who they put into office – and who they could turn their millions of dollars against if crossed.
No one who has seen the transformation in our democracy in the past 29 months could possibly believe that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” This basic factual assumption underlying Citizens United has been shown to be incorrect.
As Justice Breyer said in his dissent from the Court’s decision:
“[M]ontana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
The Montana case was the Court’s chance to right a terrible wrong and take our country off a dangerously anti-democratic path. History will remember this as a great opportunity lost to the American people.
The U.S. Supreme Court this morning refused to reconsider its flawed Citizens United decision and summarily reversed a Montana Supreme Court decision by a 5-4 majority. The ruling struck down the state’s century-old Corrupt Practices Act, which prohibited corporate spending in elections. The Montana court had defended the constitutionality of its longstanding law, citing the state’s unique history of political corruption, the many factors that distinguish state and local races from the federal races, and the overwhelming power of corporate election spending to corrupt or create the appearance of corruption.
“In the two years since the Citizens United decision, the damage our democracy has suffered has been obvious,” said Marge Baker, Executive Vice President of People For the American Way. “The decision has profoundly distorted our electoral system and handed unprecedented power to corporate interests. The Court’s insistence that unlimited corporate spending doesn’t create the appearance of corruption flies in the face of common sense, the opinion of the American people and the facts. Aside from the five people who wrote the original decision two years ago, it’s difficult to find anyone who thinks that candidates can benefit from million dollar checks written to their SuperPACs without the ‘appearance of corruption.’ When faced with facts that clearly disprove a central premise of Citizens United, it’s unfortunate that the Supreme Court chose to double down on its error.
“Today’s decision affirms the need to reverse Citizens United by amending the Constitution. I’m proud of the hundreds of thousands of Americans who have joined our movement to do just that.”
Americans overwhelmingly support constitutional remedies to overturn Citizens United. Under the banner of United For the People, more than 100 organizations, over 250 states and localities, and nearly 1700 public officials have officially endorsed amending the Constitution to overturn Citizens United.
The Supreme Court invalidated most provisions of Arizona’s draconian anti-immigration law, known as S.B. 1070, including Section 6 which granted state police greater authority than federal officers to make warrantless arrests of anyone they suspected of being undocumented. The decision upholds, however, the clearly discriminatory Section 2b – the “show me your papers” provision – which allows police to demand proof of immigration status from individuals they stop, detain or arrest. The Court did not rule on challenges to that provision which question its discriminatory effects. It will likely hear additional challenges on those grounds at a later time.
“Today’s decision is a partial but important victory against S.B. 1070,” said Michael Keegan, President of People For the American Way, “and yet another reminder of how important it is that Congress move quickly to pass comprehensive immigration reform. The Court’s decision to uphold, for now, one of the most oppressive provisions of S.B. 1070 makes it painfully obvious how damaging the Republican obstruction on comprehensive immigration reform has been. No one should be forced to prove their right to be in this country simply because of the way they look, dress, or speak. These are not the American values we treasure, and we will continue to fight against these provisions in the courts, the Congress, and the halls of state legislatures.
“It’s deeply concerning that Section 2b is still in effect—especially given the reckless and dangerous rhetoric of Governor Brewer and Sheriff Arpaio. Today’s decision is important, but it is certainly not the end of this fight.
“The President recently took a courageous step to help young people – brought to the United States through no fault of their own – stay in this country and continue to contribute to their communities. Republicans in Congress should follow this example and suspend their obstruction of meaningful comprehensive reform to address the immigration crisis. Continuing to shirk that responsibility encourages dangerous state laws that threaten our civil liberties and harms hardworking individuals who have worked hard to live up to American ideals.”
This morning, the Supreme Court heard the oral arguments of Arizona v. United States, a case that will examine key provisions of Arizona’s infamous and draconian immigration law, SB 1070. If implemented, the law, colloquially known as the ‘show me your papers bill,’ would lead to the unjust targeting of Arizonans through racial profiling and increased jail sentencing.
Because of SB 1070’s blatant assault on civil liberties, much of the nation was shocked by its passage. The United States challenged it in court, arguing that the state was unconstitutionally encroaching on the federal government’s responsibility for immigration law. Four sections of the bill were blocked by U.S. District Judge Susan Bolton of Phoenix on July 28, 2010. The 9th Circuit Court of Appeals in San Francisco upheld Bolton’s ruling, and after Arizona appealed that decision, the case arrived at the Supreme Court, which has chosen to address yet another politically polarizing issue in this critical election year. Although the threat to the basic rights of people – both citizens and immigrants – is the subject of significant concern, the legal issue before the Supreme Court today addresses whether Arizona’s effort to make life so miserable for immigrants that they leave the state is preempted by federal law.
Below is an analysis of the legislation that People For the American Way published when participating in a statewide boycott of Arizona following the passage of the legislation nearly two years ago.
Question: How does the Arizona law, S.B. 1070, expand racial profiling? Isn't it focused only on migrant workers?
Answer: Under current law, state-local police are authorized to enforce federal immigration laws only in limited circumstances. Even so, law enforcement in Arizona and across the country already is challenged by substantial evidence of wrongful arrests, racial profiling, and discrimination. The new law would dramatically expand the problem. Specifically, the new law:
• Increases the scope of those enforcing immigration laws from a few police departments, or units within departments, to every single law enforcement officer in the entire state.
• Expands the population at risk of being stopped, arrested, and detained from a limited number – those targeted by bona fide immigration enforcement operations, or those already in police custody – to everyone who comes into contact with a law enforcement officer who has a "reasonable suspicion" someone may be undocumented.
• Virtually guarantees that Latinos and other minorities will be asked to provide proof of legal residency, and be subject to arrest and detention if they cannot do so, at far higher rates than non-minorities. Research on racial profiling shows that, not only do minority drivers experience more traffic stops than non-minority drivers, once stopped, minorities are subject to higher rates of searches, arrests, and formal charges than similarly-situated non-minority drivers.
• Provides powerful incentives for wrongful arrests, racial profiling, and other abuse by creating a private right of action against any agency that fails to uphold the new law's provisions, while at the same time indemnifying police officers from litigation brought by those who are wrongfully detained or racially profiled.
Demonstrations in support of the U.S. Justice Department took place this morning, and PFAW staff were able to attend in solidarity.
End Note: Another controversial aspect of SB 1070 is the role that ALEC, the American Legislative Exchange Council, played in adopting the bill as model legislation and pushing it in states across the country. For an analysis of the ALEC connection and SB 1070, please read our report on ALEC in Arizona released in November 2011, “ALEC IN ARIZONA: The Voice of Corporate Special Interests in the Halls of Arizona's Legislature” and the Center for Media and Democracy’s blog post on the issue.
PFAW staff and supporters joined the throngs of supporters of the Affordable Care Act outside the Supreme Court today, while the Justices were hearing the second day of arguments on the constitutionality of the law.
Hundreds of activists chanted and carried signs supporting ObamaCare. For so many Americans, the ACA is the difference between receiving potentially lifesaving healthcare services and being denied for a preexisting condition or being financially devastated by an unexpected illness.
The ACA is a practical and constitutional approach to a solving a pressing national problem, and the Supreme Court should uphold the law.
As the 2012 presidential campaign gears up, PFAW Senior Fellow Jamie Raskin has collected an extensive glossary of the Right Wing’s favorite rhetoric about the Supreme Court and the Constitution. Sen. Raskin's Daily Kos piece explains the coded phrases and euphemisms, such as “federalism,” “legislating from the bench” and “original intent,” that the Right Wing uses to project their political agenda onto the Founding Fathers’ vision for America.
Here’s an excerpt :
“Follow the Law, Not Make the Law” – Right -Wing Usage: What Republican judges and justices do and what Republican judicial nominees will do, e.g., “It’s only a matter of time before our five justices who follow the law and don’t make the law strike down the Affordable Care Act (Obamacare) and Section 5 of the Voting Rights Act and step up the campaign to invalidate jury verdicts and punitive damages in the states.” Preferred Usage: Essentially meaningless campaign rhetoric used to describe judges who toe the right-wing corporate line, e.g., “I hope they follow the law, instead of making it, and cut our jury verdict down to a price that won’t cost us so much freedom of speech.”
You can read the whole glossary here.
Ten states are holding primaries and caucuses today, earning March 6th the title of “Super Tuesday.” Participants will show up, cast their vote, and hopefully feel good for participating in the democratic process and fulfilling their civic duty.
But thanks to Citizens United, and the Super PACs that flawed decision gave rise to, the voters are not the stars of this show. An outpouring of cash from a few extremely wealthy donors has dramatically altered the campaign landscape, altering the balance of influence from individual donors and grassroots donors to rich special interests and corporations.
As illustrated above by Dave Granlund, tonight’s contests should really be called Super-PAC Tuesday. NPR reports that in the ten states up for grabs, Super PACs have spent a whopping $12 million for ads:
Leading the way is Restore Our Future, the superPAC that backs former Massachusetts Gov. Mitt Romney. According to Federal Election Commission numbers, Restore Our Future has spent $6.9 million on the Super Tuesday states.
"The groups have clearly taken the lead in advertising for the whole Republican primary. They're very much taking the lead in advertising for Super Tuesday. It's mostly the 'Restore Our Future show,' followed by Winning Our Future, which is the Gingrich group, and Red, White and Blue, which is the Santorum group," says Ken Goldstein, who tracks political ad spending for Kantar Media CMAG.
Red, White and Blue has spent some $1.3 million on Super Tuesday, and has been running an ad in Ohio that goes after Romney for his alleged similarities to the man all Republicans want to defeat in November: President Obama.
These ads supposedly (and unconvincingly) act independently from a candidate’s official campaign, meaning that candidates are unaccountable for their content. But as Katrina vanden Huevel points out in today’s Washington Post, these superPACs reach “barely a legal fiction,” populated as they are with former staff and fundraisers for the candidates they “independently” support. And this is in addition to the spending by 501 c-4 organizations the sources for which do not even have to be disclosed.
This is not what democracy looks like. We have to end unfettered political spending in our elections system – and solutions like the DISCLOSE Act and a constitutional amendment to overturn Citizens United are gaining steam. $12 million worth of ads on Super-PAC Tuesday alone should convince everyone that enough is enough.