To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview
The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.
As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.
The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.
CASES THAT THE COURT MIGHT HEAR
If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.
Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.
Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?
For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”
Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.
Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.
A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)
But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.
The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.
Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.
Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.
A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.
But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.
The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.
Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.
But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.
Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.
It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.
CASES CURRENTLY BEFORE THE COURT
EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS
The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.
This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.
In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.
The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.
UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.
But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.
The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.
This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.
FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”
Busk and Castro say that any activity required by and beneﬁtting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.
The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.
Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.
The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.
Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.
While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.
The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?
A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:
Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?
All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”
The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.
This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.
Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.
In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.
The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.
The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.
Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.
First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.
This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.
FREE SPEECH AND SIGN REGULATIONS
The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.
This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.
Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:
The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?
A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).
HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE
The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.
This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.
The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.
One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.
The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.
When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.
Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.
According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.
But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.
In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).
Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.
Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.
The past week held both good news and bad news for voting rights, depending on your part of the country. On Friday in Ohio, an appeals court declined to put on hold a ruling that expands early voting in the state, a win for those of us who believe that voting should be fair and accessible for all people. But on the same day, an appeals court gave the okay to Wisconsin’s voter ID law — a law that had been blocked months ago by a federal judge who noted that it disproportionately affects Latino and black communities.
Commentators have noted that instating the new voter ID law in Wisconsin so close to an election could cause real confusion for voters, and advocates are asking for a re-hearing. As election law expert Rick Hasen said, “It is hard enough to administer an election with set rules — much less to change the rules midstream.”
Beyond the practical implications for voters, it’s also important to connect the dots back to how these decisions happened and who was making them. As The Nation’s Ari Berman wrote on Friday night:
[A] panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.
This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them. [emphasis added]
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 15, 2014
Subject: Senate Needs to Confirm Pending Judicial Nominees
There is probably little more than a week before the Senate goes out on recess until after the election. One of the most important – and undoubtedly quickest and easiest – things it can do before then is confirm 16 judicial nominees, most of whom have overwhelming bipartisan support.
One of the most important responsibilities of the United States Senate is to maintain a functioning federal court system. District courts are the backbone of the American judicial system. They are where people turn when they feel their rights have been violated. “Having your day in court” is an essential part of the American ideal. But that ideal cannot be met if we don’t have enough judges to make it happen. Even if every vacancy in the country were filled tomorrow, it wouldn’t be enough: The Judicial Conference of the United States – the entity responsible for assessing the federal courts’ ability to effectively manage their caseloads – has urged Congress to create an additional 85 district court judgeships. So when an existing vacancy can be filled with a qualified nominee, it ought to be done with dispatch.
Right now, nominees for 16 such vacancies can be confirmed within the next few days. Seven of these were fully vetted and approved by the Judiciary Committee and have been waiting for a floor vote since June or July. Of these seven, all but one of them advanced without any opposition. Four alone are from Georgia: nominees who have the unanimous support of the Judiciary Committee’s Democratic and Republican senators. There are no more questions to ask of these nominees, except when they will be allowed to take up their judicial responsibilities and fill empty courtrooms in Georgia, New York, Wisconsin, and the District of Columbia.
The remaining nine were scheduled for a committee vote last week, having had their confirmation hearings back in July. They have been nominated for judgeships in Pennsylvania, Kentucky, Missouri, Connecticut, and New Jersey. Four of them – nearly half – would serve in the Eastern District of Pennsylvania, a state with so many vacancies that it alone accounts for 15% of the nation’s total, but Chairman Leahy was forced by the GOP to delay the vote. Republicans gave no reason for the delay, but they rarely do: Since President Obama took office, Republicans have exercised the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause for nearly all of his judicial nominees, part of their overall mechanism of obstruction. Fortunately, they are expected to get their overdue committee approval later this week.
There remains plenty of time to confirm all 16 nominees before the Senate goes out for its pre-election recess next week.
The fact that we are heading into an election is no reason not to hold these confirmation votes. In fact, in September of 2008, a presidential election year – and the twilight of George W. Bush’s presidency, no less – Democrats rushed several of his nominees through to make sure they got confirmed before recess (and before his presidency ended). Ten of Bush’s district court nominees were confirmed just one day after being approved by the Judiciary Committee. All ten had had their committee hearings earlier that same month – in some cases, during that same week. The confirmation votes took hardly any time at all, since all ten were considered and confirmed as a bloc by unanimous consent.
Interestingly, three of those 2008 nominees were from the Eastern District of Pennsylvania, where four of the current 16 nominees could be serving by next week, if given the chance.
Republicans still have a chance to demonstrate that they can prioritize the functioning of the U.S. court system over their own partisan interests. But it seems unlikely. Since last year, the GOP has insisted that no judicial nominee, despite their bipartisan support, advance on the Senate floor without time-consuming cloture votes and roll-call confirmation votes. And it isn’t just the roll-call votes that take time (although each one can take nearly an hour). Without unanimous consent to waive the chamber’s time requirements, cloture votes cannot be held until two days after cloture petitions are filed, and each confirmation vote requires at least an hour of needless “post-cloture debate” even after the filibuster is broken.
If Republicans successfully prevent votes this month, the earliest the courtrooms will see some relief will be in a potential lame duck session. That means another two month wait until clearly qualified nominees are able to take their seats in courtrooms around the country. There is simply no good reason for such delay.
While President Obama announced a delay in taking executive action on immigration reform until after the 2014 elections, conservatives are pushing to expand their footprint in the Latino community. As Ed Morales wrote in this month’s The Progressive magazine, the Libre Initiative — which promotes itself as a nonprofit that provides social services and talks about helping Latinos achieve the American Dream, ensuring economic freedoms, and promoting a “market-based” solution to immigration reform — is making it its mission to build ties between the conservative movement and the Latino community.
“On its website, the Libre Initiative tries to soften its image with a series of gauzy and polished short videos called "Share the Dream." They feature a New Mexico preacher named Pastor Mike Naranjo, who overcame alcoholism with self-reliance and religion. They also feature Libre's national spokesperson Rachel Campos-Duffy and [Daniel] Garza himself.
“With string music playing behind her and a picture of the sun shining on the Washington Monument, Campos-Duffy tells her family's personal story. Then she adds: "I'm worried that government programs that are supposed to help Hispanics are actually doing harm. . . . A sense of entitlement and dependency on government is starting to take over." (Campos-Duffy is married to GOP Representative Sean Duffy of Wisconsin.)
“Garza's three-and-a-half-minute video tells of how he and his family worked in the fields. "My father never took welfare," he says, but got ahead because of self-reliance. Garza warns that folks are "caught in dependency that government offers," which, he says, has "condemned their children to a life of mediocrity and subsistence. This is not the American dream. This is an American nightmare." Garza says: "Advancing economic freedom is the best way to improve human well-being, especially for those at the bottom." Taking an evangelical tone, he concludes: "The Libre Initiative is reaching the Hispanic community before they are lost forever."”
But as Morales also points out, Libre is funded by the Koch brothers, who actively work to prevent the advancement of causes that would greatly help Latinos by fighting against them, like voting rights protections, raising the minimum wage, and expanding access to healthcare.
“And when you look at Libre's funding, you see the tentacles of the Koch brothers, who have spent millions of dollars funding rightwing groups through intermediaries like Freedom Partners and an outfit called the "TC4 Trust." Libre is one of the recipients.
"Libre received $3.8 million from TC4 and Freedom Partners" in 2012, according to the Center for Responsive Politics. And Yahoo News reported that Libre's Arlington, Virginia, headquarters "also shares a floor in the same office building as Freedom Partners."”
“Robert Maguire of the Center for Responsive Politics says this type of funding arrangement is typical of the Koch brothers. "The Koch network is unique because of the concentration of money and the lengths that they go to make the flows of money as complex as possible," he says.
“Two of the main issues on Libre's agenda are denouncing the Affordable Care Act and opposing increases to the minimum wage. Ironically, Latinos stand to benefit more from expanding access to health care and raising the minimum wage than many other groups.”
Despite the challenges, Libre’s access to the bottomless bank accounts of the Koch brothers means it’s a player progressives should take seriously — and a reminder that the votes of Latino citizens are not to be taken for granted.
Gov. Scott Walker released an ad Thursday morning promising that he “won’t stop until everyone who wants a job, can find a job.”
This sounds strangely familiar to the empty promise of his 2010 campaign. Back then, Walker repeatedly promised that he would create 250,000 private-sector jobs during his four-year term beginning in January 2011. He even emphasized that this number was “a minimum, not a maximum.”
It’s 2014, and that goal has not been met.
In fact, during his re-election tours, Walker avoided talking about his failure to create the 250,000 jobs altogether.
Protests outside a Scott Walker fundraiser on Friday prove that Wisconsinites are not falling for his empty promises. It’s time for Walker to be held accountable for his shady practices and to be voted out of office this November.
On Friday morning, PFAW members gathered outside the Nakoma Golf Club in Madison, WI to protest a fundraiser held by Scott Walker. Activists held signs calling on voters to “Ship Walker Overseas, Not Jobs,” and letting Walker know that “Time is Up” and Wisconsinites have had enough.
Recent media reports have exposed how Walker’s alleged efforts to garner support for his extreme political agenda violate Wisconsinites’ basic principles of fairness and honesty in the political system. The protest highlighted how Wisconsinites are sick of Walker’s shady practices while campaigning and while in office.
One sign read “Dear Governor Walker: You took my job. You took my rights. You took my money. You took my smile. Now I’m taking them back!!!”
The Progressive’s Rebecca Kemble who was at the protest wrote that with “wit and creativity” PFAW members and other activists wanted to “let Walker and his supporters know what they think of the outsized influence of money in politics and of the inhumane and unjust policies that this influence buys.”
Friday’s protest shows Wisconsinites are paying attention and don’t want Walker’s corrupt practices to continue polluting their government.
People For the American Way Action Fund announced today the endorsements of a slate of dynamic young progressive candidates running for public office across the United States. The endorsees are a diverse mix of candidates 35 and under who are marking a new generation of progressive leadership for the future. These candidates and officials represent a vision that will benefit communities all over the country, as they fight for social, economic, and environmental justice, and equality for all.
The endorsements are part of People For the American Way Action Fund’s Young Elected Progressives (YEP) program. YEP evaluates and endorses young progressive candidates ages 35 and under in their bids for elected office around the U.S. at all levels.
People For the American Way Action Fund is proud to endorse these YEP candidates for 2014:
James Albis – CT House District 99
James Albis is running for reelection to the Connecticut House of Representatives 99th District, representing East Haven. Albis has advocated consistently on behalf of the families of East Haven for better jobs, better schools, and better opportunities. In his second term as Representative, Albis worked to protect the environment, serving on the Speaker’s Task Force on Shoreline Preservation. Dedicated to supporting children and families, Albis has sponsored and voted for numerous laws that would expand family and medical leave, as well as healthcare, and to protect East Haven’s share of state education funding. Visit James Albis’s campaign website for more details.
John Paul Alvarez – FL House District 100
John Paul Alvarez is running for Florida House of Representatives District 100, representing Broward and Miami-Dade counties. Alvarez, a true Floridian born and raised in South Florida, knows first-hand about the issues facing his community and is dedicated to making Florida prosper. As a teacher, mentor, and community leader, Alvarez is a fierce advocate for public education. By fighting for the issues that matter most to students, working families, retired citizens, taxpayers, and South Florida’s most vulnerable citizens, Alvarez is determined to improve his community by creating more jobs, lowering the cost of living, and promoting equality for all. Visit John Paul Alvarez’s campaign website for more details.
Nelson Araujo – NV Assembly District 3
Nelson Araujo is a candidate for Nevada’s Assembly District 3, representing Clark County and Las Vegas. He is a native Nevadan that was born to struggling immigrant parents. Araujo, a determined leader, fought to help his family out of poverty and became the first in his family to graduate high school. As a community leader and elected official, Araujo is dedicated to stimulating job growth, providing greater healthcare access, and making higher education more accessible to everyone. We believe that with his leadership, Nevada will thrive. Visit Nelson Araujo’s campaign website for more details.
Mandela Barnes – WI Assembly District 11
Mandela Barnes is running for reelection in Wisconsin’s State Assembly District 11, representing central Milwaukee. Born and raised in Milwaukee, Barnes has done important work for Milwaukee as a community organizer and youth and development specialist. His dedication to creating jobs, reforming public education, and modernizing public transportation will serve the people of Milwaukee and strengthen the community. Visit Mandela Barnes’s campaign website for more details.
Jonathan Brostoff – WI Assembly District 19
Jonathan Brostoff, lifelong resident of Milwaukee’s East Side, is running for Wisconsin State Assembly’s 19th District representing central Milwaukee. Brostroff’s dedication to Milwaukee and experience as a legislative aide will help him lead Wisconsin toward a brighter future. Brostoff is determined to promote equal rights for all, to reinvest in public education, and to improve public transit in Wisconsin. Brostoff is a capable leader, devoted to making Wisconsin thrive for generations to come, whose real-world solutions will create progress in the state. Visit Jonathan Brostoff’s campaign website for more details.
Marina Dimitrijevic – WI Assembly District 19
Marina Dimitrijevic is running for the Wisconsin State Assembly District 19. Born and raised in Milwaukee, Dimitrijevic made history in 2004, when she became the youngest woman to be elected to the Milwaukee County Board. During her 10 year tenure, she has championed legislative victories on equal rights for the LGBT community, environmental sustainability, public transit, and workers’ rights. Dimitrijevic’s experience, leadership, and commitment to winning on progressive issues are exactly what the community of Milwaukee needs. Visit Marina Dimitrijevic’s campaign website for more details.
Justin Chenette – ME House District 134
Justin Chenette is running for reelection to the Maine House of Representatives’ 134th District , representing Saco. Before being elected as state Representative, Chenette served on the Maine State Board of Education, and has carried his passion for education into the state legislature. Chenette sponsored several education-related bills including legislation to promote community service in school and require internship experiences for high school students. Chenette, who was 22 years old upon his election to the House, has already proven himself to be a tireless and dedicated advocate and an important member in the next generation of leaders. Visit Justin Chenette’s campaign website for more details.
Luke Diaz –WI Verona Alder District 3
Luke Diaz is seeking reelection to the Verona City Council’s 3rd District, representing central Verona. Diaz has made it his mission to celebrate the city’s culture by cultivating a thriving downtown in Verona, working to expand jobs, improve transit, and provide important services to the community. An experienced city councilman, Diaz is an accessible leader that is dedicated to listening to the needs of his community. Visit Luke Diaz’s campaign page on Facebook for more details.
Zachary Dorholt – MN House District 14B
Zach Dorholt is running for reelection the Minnesota House of Representatives’ District 14B, representing St. Cloud City, and Haven and Minden Townships. Previously elected in 2011, Dorholt has been a champion for progressive values during his time in the House. He is an advocate for women’s rights and has sponsored bills to equalize pay in Minnesota and lengthen paid maternity leave. Dorholt has also fought for public education funding and is dedicated to creating a pathway to higher education for young Minnesotans. A proven leader, Dorholt will continue to make Minnesota a better and more prosperous place for the entire community. Visit Zach Dorholt’s campaign website for more details.
Crisanta Duran is running for reelection in the Colorado House of Representatives’ 5th District, representing Denver. As chairwoman of the joint budget committee, Crisanta guided the passage of a state budget that helped protect the environment, boost investments in education and job training, provide better women’s health services, help survivors of abuse, and create a better state economy for all Coloradoans. In her position as an elected official, she will continue to build a strong progressive foundation for the state’s future. Visit Crisanta Duran’s campaign website for more details.
Daneya Esgar – CO House District 46
Daneya Esgar is a candidate for Colorado State House of Representatives’ District 46, representing Pueblo. A dedicated public servant and product of Pueblo’s public education system, Esgar has dedicated her career as a television news producer and a community organizer to improving this community. Esgar has a clear vision for the future of Pueblo, and will continue to work toward job growth and improved public education as an elected official. Visit Daneya Esgar’s campaign website for more details.
Ryan Fecteau – ME House District 11
Ryan Fecteau is a Biddeford native running for Maine House of Representatives’ District 11, representing his hometown. Fecteau has a fresh and progressive perspective on the issues affecting Maine today. As representative, Fecteau will bring strong support of public education, women’s rights, and equal opportunity for all Americans by championing for middle-class workers, seniors, and college graduates of his district. Visit Ryan Fecteau’s campaign website for more details.
Joe Fitzgibbon – WA House District 34
Joe Fitzgibbon is running for reelection to the Washington House of Representatives’ District 34, representing Burien, West Seattle, White Center, and Vashon and Maury Islands. Fitzgibbon has been a fierce advocate for undocumented students, voting for both the DREAM Act and for in-state tuition for undocumented students. A champion for equality in Washington, Fitzgibbon has le d efforts to legalize gay marriage and expand healthcare and Medicaid to help ensure safe abortion procedures. Fitzgibbon is a true progressive and will continue to work toward equality for all Washingtonians. Visit Joe Fitzgibbon’s campaign website for more details.
Chris Larson – WI Senate District 7
Chris Larson is running for reelection to the Wisconsin State Senate’s 7th District, representing Milwaukee County. In Larson’s first term as senator, he served as the Minority Leader and worked tirelessly to end marriage discrimination in Wisconsin, to promote public education, and to protect the environment. Larson has worked to stimulate job growth and to increase access to health care, proving that he is truly in-tune with the needs of his community. “Larson is a true progressive leader,” PFAW’s Political Director Randy Borntrager said. “He is clearly dedicated to his community and determined to help each person and his community as a whole.” Visit Chris Larson’s campaign website for more details.
Eric Luedtke – MD House District 14
Eric Luedtke is running for reelection to the Maryland House of Delegates’ District 14, representing Montgomery County. Luedtke, who was first elected in 2010, has already made his mark as a progressive representative for Maryland. Luedtke, a teacher by profession, has advocated for public education reform, especially advocating for equality for students with special needs. Committed to families and children, Luedtke has worked on a variety of issues, from promoting easier access to healthcare to sponsoring bills that provide greater aid and support for survivors of sexual assault. Visit Eric Luedtke’s campaign website for more details.
Stefanie Mach – AZ House District 10
Stefanie Mach is running for reelection to the Arizona House of Representatives’ 10th Distric , representing Tucson. Since she was elected in 2012, Mach has proven herself to be a fighter, both professionally and personally. In her time as representative, Mach has worked to improve public education, to make higher education more affordable, to encourage job growth and the expansion of local businesses. An advocate for women and minorities, Mach has demonstrated she is dedicated to making Arizona a prosperous community for everyone. Visit Stefanie Mach’s campaign website for more details.
Marcus Madison – OH Senate District 13
Marcus Madison is a candidate for the Ohio State Senate’s 13th District, representing Huron and Lorain counties. Madison, currently serving as a city councilman in Elyria, has already proven that he is a dedicated public servant. He is the former student body president of Lorain County Community College, and previously served as deputy field officer for Obama for America, as well as Communications Director for Big Brothers Big Sisters of Lorain County. A determined advocate, Madison is committed to improving public education, protecting workers, and providing sustainable jobs that will strengthen the middle class. Visit Marcus Madison’s campaign website for more details.
Aaron Marquez – AZ Senate District 27
Aaron Marquez is running for Arizona State Senate District 27, representing Maricopa County. Marquez, a captain with the U.S. Army Reserve, has been a courageous public servant both overseas and at home. Marquez is a fearless advocate for women’s rights, strong supporter of veterans, and a fighter for public education. A dedicated leader, Marquez will be a force for good in the Arizona legislature. Visit Aaron Marquez’s campaign website for more details.
Andrew McLean – ME House District 129
Andrew McLean is running for reelection to the 129th District in the Maine House of Representatives, representing North Gorham, White Rock, Little Falls, the Village and South Gorham. McLean was previously elected in 2012 and has worked tirelessly to support legislation that would protect the environment, expand healthcare, and reform gun laws in Maine. A resilient advocate, as representative McLean will continue to work on behalf of children and families in his next term and for years to come. Visit Andrew McLean’s campaign page on Facebook for more details.
Matt Moonen – ME House District 118
Matt Moonen is running for reelection in the 118th District in the Maine House of Representatives, representing part of Portland. Moonen has been dedicated to improving healthcare in Maine by sponsoring bills that would prohibit smoking in public places and that would expand Medicaid coverage and eligibility. Additionally, Moonen has been a fierce advocate for raising the minimum wage, passing comprehensive immigration reform, and reforming campaign finance. A true progressive candidate, Moonen will continue to make Maine an accepting and thriving place for all. Visit Matt Moonen’s campaign page on Facebook for more details.
Joe Neguse – CO Secretary of State
Joe Neguse, who is running for Colorado Secretary of State is the right choice for Colorado. Neguse brings with him knowledge and experience as a business attorney, member of the University Of Colorado Board Of Regents, and as a public servant. As secretary of state, Neguse will perform his duties with integrity and transparency, and will work to ensure that all eligible voters have the opportunity to vote in Colorado. Neguse will advocate for everyone, regardless of wealth, age, or social standing. Visit Joe Neguse’s campaign website for more details.
Kesha Ram – VT House District 6-4
Kesha Ram is running for reelection to the Vermont House of Representatives’ District 6-4, representing Chittenden. Ram has worked to promote green job creation, affordable housing, and expanded access to healthcare. Both personally and in her capacity as a representative, Ram has worked to support survivors of domestic violence and is an active advocate for women’s rights. Ram is forward-thinking and dedicated, and her service will help Vermont flourish. Visit Kesha Ram’s campaign website for more details.
Laurie Anne Sayles – MD House District 17
Laurie Anne Sayles is running for Maryland’s House of Delegates District 17, representing Montgomery County. Sayles is a committed parent who has overcome obstacles to become a dedicated public servant in Maryland. A smart and capable leader, Sayles is a determined advocate for affordable healthcare, stronger public education, and accessible public transportation. As an elected official, Sayles will be a truly progressive leader for years to come. Visit Laurie Anne Sayles’s campaign website for more details.
Katrina Shankland – WI Assembly District 71
Katrina Shankland is running for reelection to the Wisconsin State Assembly, representing Stevens Point and its neighboring counties. In her one term as representative, Shankland has become a dedicated advocate for women’s rights and workers’ rights in Wisconsin. Shankland has worked to improve public education opportunities, and has been a fighter for environmental preservation and clean and sustainable energy practices. Visit Katrina Shankland’s campaign website for more details.
Alonzo Washington – MD House District 22
Alonzo Washington is running for reelection to the Maryland House of Delegates’ District 22, representing Prince George’s County. Washington, who has served in the House since 2012, already made a name for himself as a fighter for progressive values. He has sponsored and voted for bills that will increase the minimum wage, expand access to higher education, and strengthen public schools. As an important leader for Maryland’s future, Washington has and will continue to support progress in Maryland. Visit Alonzo Washington’s campaign website for more details.
Faith Winter – CO House District 35
Faith Winter, running for the Colorado House of Representatives’ 35th District to represent Westminster, is the right choice for Colorado. Winter has dedicated her life to public service, previously serving as a city councilwoman, mayor pro tem, and as the Emerge Colorado’s Executive Director, supporting women running for public office. In these capacities, Winter worked to create long-term jobs, expand affordable housing, and increase usage of sustainable energy in Colorado. Visit Faith Winter’s campaign website for more details.
Glenn Grothman, the Wisconsin state senator and U.S. House candidate who is bravely fighting against the “war on men,” this weekend earned the endorsement of a man he calls his “soul mate”: former senator Rick Santorum.
The Wisconsin State Journal reports that Santorum announced his Patriot Voices PAC’s endorsement of Grothman on a joint conference call late last week, where the two “praised each other for their devotion to conservative principles.”
State Sen. Glenn Grothman snagged a high-profile endorsement this week when he won the backing of previous GOP presidential hopeful and former U.S. Sen. Rick Santorum, from Pennsylvania, and his Patriot Voices PAC.
During a Thursday conference call with reporters, Grothman and Santorum praised each other for their devotion to conservative principles. Grothman talked about how Santorum won him over when they first met during Santorum’s unsuccessful bid to become the 2012 presidential nominee.
“When I met him, I felt we were almost soul mates,” Grothman said. “It’s kind of an odd thing.”
Along with exposing the “war on men” being waged by “gals” in the workplace, Grothman has defended Uganda’s harsh anti-gay law, tried to make abortion a crime even if it would save the life of the pregnant women, claimed that women earn less because "money is more important for men," wanted to officially classify single parenthood as a factor in child abuse, goes out of his way to bash Kwanzaa, and is a leader in pushing for blatantly political voter suppression laws.
In other words, exactly the sort of politician who would find an ally and soul mate in Rick Santorum.
The movie tracks the effects of the Supreme Court’s Citizens United ruling that lifted a century-long ban on corporate election spending by looking at the standoff in Wisconsin between state employees and GOP Governor Scott Walker. During his election and recall campaigns, Walker was bankrolled by billionaire brothers David and Charles Koch, demonstrating the torrent of unlimited, anonymous political spending by corporations and billionaires that was unleashed through this Supreme Court decision. As the film follows this story, it also shows the fracturing of the Republican Party and proves how Citizens United fundamentally changed how our democracy works.
After a successful Kickstarter campaign to raise funding, and even losing its public television distributor, the movie finally comes to theatres this summer. The process that led to it being pulled from public television airwaves illustrates exactly what “Citizen Koch” depicts—that money buys not only action, but also silence. As Buddy Roemer, whose presidential run is chronicled in the film, stated, “Sometimes it's a check. Sometimes it's the threat of a check. It's like having a weapon. You can shoot the gun or just show it. It works both ways.”
People For the American Way hosted the DC premiere of the documentary film “Citizen Koch” at the Washington’s West End Cinema Friday night to a sell out crowd. Friday’s premiere was followed by a panel discussion with one of the documentary’s Academy Award-nominated filmmakers Tia Lessin, along with PFAW’s director of outreach and partner engagement Diallo Brooks and PFAW president Michael Keegan. After the screening, the audience participated in a question and answer session on the effects of big money in politics and what different organizations and mobilized citizens are doing to reverse the effects of Supreme Court decisions like Citizens United and McCutcheon.
Since last Friday’s ruling by Federal Judge Barbara Crabb that Wisconsin’s ban on same-sex marriages is unconstitutional, hundreds of same-sex couples have lined up to get marriage licenses across the Badger State. Immediately after receiving the ruling, clerks in Dane and Milwaukee counties began issuing marriage licenses, and in both areas, facilities stayed open late on Friday and continued issuing licenses on Saturday. Officiants, including judges, ministers, and commissioners, married couples on-site at their respective county courthouses.
Similar to actions in other states where courts have struck down same-sex marriage bans, Wisconsin’s right-leaning GOP Attorney General J.B. Van Hollen filed multiple motions to “preserve the status quo” attempting to stop same-sex marriages from happening.
As of Tuesday afternoon, 48 of the state’s 72 counties were issuing marriage licenses to same-sex couples, despite the ongoing legal battle. Wisconsin’s Vital Records Office is accepting the licenses, but holding them until they receive further guidance from Van Hollen.
For its part, the ACLU filed a proposal of how to implement same-sex marriage in the state. If approved, the plan would force Governor Scott Walker, Attorney General Van Hollen, and county clerks across the state to treat all same-sex and opposite-sex couples equally under the law.
Judge Crabb is set to have another hearing on June 19th.
A District Court judge ruled today that Wisconsin’s ban on marriage for same-sex couples is unconstitutional. Judge Barbara Crabb relied on equal protection law to strike down the ban:
"My task under federal law is to decide the claims presented by the plaintiffs in this case now, applying the provisions of the Fourteenth Amendment as interpreted by the Supreme Court," she said. "Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional."
Congratulate Wisconsinites by sharing our graphic below:
Decision Could Balloon Spending In State Elections
WASHINGTON – Campaign spending in states with aggregate contribution limits will likely soon balloon in the wake of the Supreme Court’s McCutcheon v. FEC decision, according to a new report by People For the American Way Foundation.
The report analyzes the anticipated state impacts of the high court striking down limits on the total amount a donor can give directly to candidates, parties, and committees at the federal level in the McCutcheon ruling. It forecasts a spending explosion in states whose aggregate limits on contributions to state candidates will soon be challenged or nullified in light of the decision. Among other data, the report finds:
• In New York, the current limit is $300,000 per two years. We estimate big donors will now be able to contribute $2,531,600 per election cycle, more than eight times the previous limit.
• In Maryland, the current limit is $10,000 per four-year election cycle. We estimate big donors will now be able to contribute $768,000 per four-year election cycle. This is a greater than 76-fold increase.
The states analyzed in the report are Connecticut, Maine, Maryland, Massachusetts, New York, Rhode Island, Wisconsin, and Wyoming.
“The McCutcheon decision didn’t only undercut our federal campaign finance laws, it has ramifications for states across the country,” said Marge Baker, Executive Vice President of People For the American Way Foundation. “Allowing wealthy donors to put exponentially more money into state elections tilts the playing field even more starkly in their favor and strikes at the very foundation of our democracy.”
The report is available here: http://www.pfaw.org/media-center/publications/how-supreme-courts-mccutcheon-decision-could-balloon-spending-state-electi
A new analysis by a campaign finance watchdog group has revealed that wealthy donors could have flooded Wisconsin with $6 million each to candidates in 2010 and 2012 elections if the state’s $10,000 aggregate annual limit had not existed.
The Money Out/Voters In Wisconsin Coalition, of which PFAW is a member organization, highlighted the Wisconsin Democracy Campaign’s findings at a press conference last week reacting to the United States Supreme Court’s recent decision in McCutcheon v. FEC, which was announced early last month. In McCutcheon, the court struck down aggregate federal limits on the amount wealthy donors can give to candidates, political parties, and political action committees per election cycle.
Wisconsin Democracy Campaign’s analysis found that without Wisconsin’s state limit of $10,000, in 2012 millionaire and billionaire donors could have given an estimated 680 times more, at least $6.8 million each to candidates in about 4,700 state and local elections, 386 PACs and 157 political committees. In 2010, the comparable number is as high as $6.1 million.
Most notably, Money Out/Voters In Wisconsin and Wisconsin Democracy Campaign noted that only about 299 individuals gave $10,000 or more to state candidates in 2010 and 2012—about .005 of 1% of Wisconsin’s 2012 population. That number included 173 people who don’t even live in Wisconsin.
Check out the video of the press conference here:
Glenn Grothman, a Republican Wisconsin state senator who is currently running for the US House seat being vacated by Rep. Tom Petri, says he opposes equal pay measures because he thinks “money is more important for men,” believes women’s equality amounts to a “war on men,” and once tried to classify single parenting as child abuse.
It comes as no surprise, then, to learn that Grothman has some Todd-Akin-style anti-choice politics in his past. While serving as a state assemblyman in 1997, Grothman tried – and failed – to remove language from a “partial birth” abortion ban that would have granted an exception for abortions that would save the life of a pregnant woman. That is, Grothman wanted to make it a felony punishable by life in prison for a doctor to save a woman's life by performing a certain kind of abortion.
Grothman sponsored another, successful bill in 1996 that forced women seeking abortions to undergo a 24-hour waiting period, at the time among the longest in the country, and to require doctors to read an anti-choice script to women seeking abortions. When the state senate added a rape and incest exemption to the bill, Grothman arranged to limit the exemption to cases of what he called “forcible rape” and added language that forced the rape survivor to file a police report before being allowed to skip the waiting period.
David Callender of The Capital Times reported on April 25, 1997 that Wisconsin anti-choice groups were split over whether a bill making it a felony to perform a “partial birth” abortion should exempt procedures that would save a woman’s life. One anti-choice group claimed that the exception left “things wide open for the abortionists.” Grothman, then a state assemblyman, stepped in and said he would offer an amendment to remove the life-saving exception:
A bill to ban partial-birth abortions in Wisconsin is causing a major rift among many of the state's most active anti-abortion groups.
The bill would charge doctors with a Class A felony for performing the procedure, which could mean life in prison for offenders.
That's OK with both groups, but they are bitterly divided over an exemption in the bill that would allow doctors to perform the procedure in order to save the mother's life.
Groups such as Wisconsin Right to Life and the Wisconsin Catholic Conference support the exemption. They contend the exception is needed for the bill to pass constitutional muster as well as to insure political support among lawmakers who generally support abortion rights.
On Thursday, the Assembly Criminal Justice and Corrections Committee approved the bill -- with the exemption -- by a 12-2 vote, with the opposition coming from Madison Democratic Reps. Tammy Baldwin and David Travis. The bill will likely come before the Assembly during the May floor period.
But a leading anti-abortion lawmaker, Rep. Glenn Grothman, R-West Bend, said he will probably introduce an amendment that would delete the mother's life exception.
That deletion is being sought by Pro-Life Wisconsin, the Pro-Life Coalition, Collegians Activated to Liberate Life, and other conservative anti-abortion groups that identify themselves as ``100 percent pro-life.''
Without the change, "this bill leaves things wide open for the abortionists,'' said Dave Ostendorf, a spokesman for the Pro-Life Coalition.
True to his word, Grothman did offer an amendment that would remove the exemption that allowed a doctor to perform a “partial birth” abortion if it would save the life of the pregnant woman. Grothman’s amendment was eventually withdrawn without being put to a vote, but not before the extremism of his anti-choice positions was put on display.
In the other case, Grothman was the primary sponsor of a bill imposing a waiting period for women seeking an abortion and requiring abortion providers to read an anti-choice script to women seeking care, which at the time was one of the toughest in the nation. Grothman justified the bill by saying, “In many cases, women are looking for someone to talk them out of it,” and claiming that many women “have been badgered into [abortions] by their husbands and boyfriends,” according to the Wisconsin State Journal.
“The purpose of this bill is to be sensitive to women,'' he said, according to the St. Paul Pioneer Press.
John Nichols of The Capital Times summarized the bill in July, 1995:
The so-called "Woman's Right to Know'' bill would, if passed, require a physician to meet in person twice with a woman seeking an abortion before performing the procedure. During those meetings, the doctor would be required to offer the woman an ultrasound reading, a fetal heartbeat report and photographs showing the development of a fetus.
The doctor would also be required to describe the abortion procedure in graphic detail and detail possible risks -- even though there is no requirement that the doctor inform the woman of the risks of carrying a pregnancy to term. The doctor would even have to provide information about risks not proven to exist.
The doctor would also have to conclude not only that the woman has been fully informed, but also that her decision to have the abortion is completely voluntary -- even though a physician would have no way of knowing whether this is so. Doctors could be punished legally for failing to do so.
The state assembly passed Grothman’s bill without excemptions for rape and incest survivors. Grothman claimed that in cases of incest, “These women above all, need this extra protection.” He added, “We're victimizing women not to provide them with information at this time," according to the La Crosse Tribune.
After the state senate added a rape and incest exemption to the bill, Grothman introduced an amendment limiting the exemption to cases of what he called “forcible rape” – excluding statutory rape of minors – and allowing rape survivors to skip the 24-hour waiting period only if they could confirm to the doctor that they had first filed a police report. The amendment added the same reporting requirement for pregnancy in the case of incest involving a minor, but added a two-hour waiting period.
The assembly approved the bill with Grothman’s changes and Gov. Tommy Thompson signed it.
The Milwaukee Journal Sentinel noted that an earlier Grothman amendment, which was initially passed, but then replaced once legislators realized what it contained, “would have required doctors to wait until a formal criminal complaint was filed before granting an abortion in cases of rape and incest” meaning that survivors would have to “wait weeks, instead of one day, to get an abortion.”
MADISON – Wisconsin Senate President State Senator Mike Ellis’ announcement Friday that he will not seek re-election, which arrived after Ellis was caught on camera claiming he might set up his own political action committee to attack his Democratic opponent, is evidence of the big money assault on the Wisconsin Legislature, said People For the American Way Regional Political Coordinator Scott Foval.
“Mike Ellis apparently felt he had no choice but to raise big cash just to compete, and allegedly was willing to compromise his ethics in the process,” Foval said. “The fact that the Senate President got caught planning to form a super PAC to attack Penny Bernard Schaber is just evidence of a larger problem – too much political money driving who gets elected in Wisconsin.”
People For the American Way and its allies have repeatedly highlighted how Wisconsin Republicans have enacted policies that benefit the wealthy and powerful corporate interests. Since 2010, Wisconsin’s GOP legislators have enacted restrictions on women’s health, restrictions on voting rights, and restrictions on collective bargaining for public employees, as well as a budget that favors wealthy tax payers rather than the middle class. PFAW’s Foval called on citizens to fight back against big money in politics and strike back at the voting booth.
“The time has come for Wisconsin’s voters to take back our state by registering to vote, hitting the streets to knock doors, and voting for progressive candidates who represent the people instead of big money donors,” Foval said. “This isn’t cause for celebration. It’s a call to put our heads down, and get to work to elect new leadership to the Wisconsin Legislature and Governor’s office.”