Citizens United

Kentucky PFAW Members Protest McConnell in Zombie Fashion

This Friday, PFAW members joined allies at two events in Louisville to hold Sen. Mitch McConnell accountable for his support of big money in politics.
 
On Friday evening, hundreds of PFAW members and other local activists joined the world’s largest annual Zombie Walk dressed as #ZombieMitch to highlight his zombie-like support of big money in politics. Activists marched with McConnell masks and signs including “Mitch McConnell is a zombie for big money in our elections” and “Need… more… brains money!” Some of the zombies attending the main event told PFAW members that the McConnell zombies were the “scariest thing I’ve seen all night.”

Earlier that day, members and allies met in front of the local GOP headquarters for a rally organized by MoveOn.org. Activists gathered in response to the tapes leaked last week that caught McConnell speaking at a secret meeting hosted by the Koch brothers. Check out the recordings here.

Sen. McConnell is a leading voice against efforts to get big money out of politics, fighting against a proposed constitutional amendment that would overturn decisions like Citizens United, despite the fact that three in four voters support the measure. For years he has been fighting hard to protect billionaires’ and millionaires’ influence in our elections. The turnout of supporters at both of these events shows that the people of Kentucky are tired of Sen. McConnell’s love of big money in politics.

PFAW

FRC Claims Citizens United Repeal Would 'Muzzle The Christian Viewpoint'

In a fundraising email today, FRC Action — the Family Research Council’s political arm — announced that it is “working closely with Senator Ted Cruz to take the lead” in opposing a proposed constitutional amendment to roll back Citizens United and related Supreme Court rulings that struck down federal campaign finance rules.

FRC president Tony Perkins has also picked up Cruz’s talking points about the subject, claiming in the email that an amendment restoring the power of Congress to regulate election spending would “scrap” the First Amendment and ultimately allow liberals to “quash our freedom of speech; to silence our calls for liberty and self-government; to muzzle the Christian viewpoint; to make the debate totally one-sided; to brainwash the next generation into believing that this is how it should be.”

In reality, the amendment would return to Congress and state governments the ability to place reasonable regulations on campaign spending, a power they had until very recently.

I thought I'd seen it all.

I thought the First Amendment was settled. I thought freedom of speech -- the fundamental bulwark of liberty at the very heart of our republic -- was so basic to our American way of life, no liberal would have the audacity to suggest scrapping it.

But I was wrong.

It's utterly outrageous to suggest gutting the First Amendment. It is critically important to our national life. Freedom of speech, especially political speech, sets us apart from most other countries in the world. It keeps liberty alive.

It seems Democrats want "free speech" to consist only of government-authorized speech.

They claim they want to cut back on the influence of "special interests" in election campaigns. But of course, the "special interests" they want to silence are organizations like FRC Action. They want to muzzle you and me.

This is not about "election accountability." This is a naked power grab.

This amendment to the Constitution would give the foxes the keys to the henhouse. Those in power -- whom FRC Action is committed to holding accountable -- would now have the ability to silence us, to gag us, to strip us of our right to fully engage in the political process.

Interestingly, if such a far-fetched alteration of our Constitution were to actually take place, there is a particularly strong group that would be protected -- the press! Democrats' liberal allies in the mainstream media would retain their free political speech, while organizations like FRC Action would lose theirs.

Maybe you're thinking: they can't seriously think such a proposal would make it through Congress. And you would be right: they don't.

This is a bald-faced tactic for firing up the Democrats' base -- to get more liberal voters to swarm the polls in the midterm elections this November.

But if we remain silent, if we simply sit and roll our eyes at the absurdity of it all . . . liberals in Congress will be emboldened to keep pushing in this deadly direction.

The Left would love nothing more than to quash our freedom of speech; to silence our calls for liberty and self-government; to muzzle the Christian viewpoint; to make the debate totally one-sided; to brainwash the next generation into believing that this is how it should be.

We're working closely with Senator Ted Cruz to take the lead in exposing this outrage and in challenging any attempt to rewrite our Bill of Rights.

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

Barton: Harry Reid Supports Citizens United Amendment Because He Is An 'Atheist Mormon'

Ever since Sen. Tom Udall, D-N.M., proposed a constitutional amendment designed to restore to Congress and state governments the ability to regulate the raising and spending of money in elections, Republicans and conservatives have absurdly been decrying it as an effort to gut the First Amendment.

On today's "WallBuilders Live" radio program, David Barton attacked Senate Majority Leader Harry Reid for supporting this amendment, saying that his support for it proves that Reid is "an atheist Mormon" who doesn't realize that he will one day have to answer to God for trampling all over our God-given rights:

Barton: He has actually proposed an amendment to the U.S. Constitution that would re-write the First Amendment to take away original protections and limit the protections in the First Amendment.

...

What it also tells me is, and he's apparently a Mormon guy, that's fine. He is probably an atheist Mormon, Mormon in name only and the reason I say that is that so many Mormon folks are so conservative on the Constitution and such great defenders ... And so, when you look at what he's doing, the Bill of Rights is laid out in the Declaration of Independence, you start with the first belief that there's a Creator, the second belief that the Creator gives us certain inalienable rights, the third belief in the Declaration is that government exists to protect those rights inalienable rights.

So eleven years later when the Founding Fathers did the Bill of Rights they said, hey, these are those rights that we were talking about that the government is not allowed to touch because these come from the Creator and government exists to protect rights from the Creator. So that's why we've never messed with the Bill of Rights because they were always off limits to government because they came from God directly to man, they did not go through government to get here.

...

If you don't have the belief that you will answer to God for what you do, you will sell your country, you will sell your kids' future, you will sell everything going on and that's where we're getting.  And so it's not just a belief in God, it's the belief that you answer to God and you believe that, and see that's where Harry Reid is not. You know, he may believe in God, he probably says he does; I don't think he has any cognizance of having to answer to God for what he does.

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.

 

PFAW

"Citizen Koch" Premieres Nationwide (And We Highly Recommend It!)

All around the country, the important film "Citizen Koch" is premiering in cities large and small. Find a screening near you!

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.

 

PFAW

America's History of Amending the Constitution to Expand Democracy (And Overturn the Supreme Court)

The 28th Amendment would overturn cases like Citizens United and enhance political democracy and the First Amendment.
PFAW Foundation

45 Senators Support Amendment Strategy to Get Money Out of Elections

45 US Senators now support a constititutional amendment to undo the harm of decisions like Citizens United and McCutcheon. Do yours?


State Senator

Alaska

Sen. Mark Begich

California

Sen. Barbara Boxer

California Sen. Diane Feinstein
Colorado Sen. Michael F. Bennet
Colorado

Sen. Mark Udall

Connecticut Sen. Richard Blumenthal
Connecticut Sen. Christopher Murphy
Delaware

Sen. Thomas R. Carper

Delaware Sen. Christopher A. Coons
Hawaii Sen. Mazie K. Hirono
Hawaii Sen. Brian Schatz
Illinois Sen. Richard Durbin
Iowa Sen. Tom Harkin
Maine Sen. Angus S. King, Jr.
Maryland Sen. Benjamin L. Cardin
Maryland Sen. Barbara A. Mikulski
Massachusetts

Sen. Edward J. Markey

Massachusetts Sen. Elizabeth Warren
Michigan

Sen. Debbie Stabenow

Minnesota Sen. Al Franken
Minnesota Sen. Amy Klobuchar
Montana Sen. Jon Tester
Montana Sen. John E. Walsh
Nevada Sen. Harry Reid
New Hampshire Sen. Jeanne Shaheen
New Jersey Sen. Cory A. Booker
New Jersey Sen. Robert Menendez
New Mexico Sen. Tom Udall
New Mexico Sen. Martin Heinrich
New York Sen. Charles E. Schumer
New York Sen. Kirsten Gillibrand
North Carolina Sen. Kay Hagan
North Dakota Sen. Heidi Heitkamp
Ohio Sen. Sherrod Brown
Oregon Sen. Ron Wyden
Oregon Sen. Jeff Merkley
Rhode Island Sen. Jack Reed
Rhode Island Sen. Sheldon Whitehouse
South Dakota Sen. Tim Johnson
Vermont Sen. Patrick Leahy
Vermont Sen. Bernard Sanders
Washington Sen. Patty Murray
Wisconsin Sen. Tammy Baldwin
West Virginia Sen. Joe Manchin
West Virginia Sen. John D. Rockefeller, IV

For more elected officials who support an amendment, visit United4thePeople.org.

PFAW

The 10 Most Absurd Arguments Against The Udall Citizens United Amendment

While good-government groups have been calling for a constitutional amendment to reverse the Supreme Court’s dismantling of campaign finance laws since the day the Court handed down Citizens United in 2010, the issue has been largely off the radar of conservative activists – and has actually enjoyed broad bipartisan support in an array of polls and in state and municipal ballot measures.

It was largely off their radar, that is, until this week. This morning, the Senate Judiciary Committee held a hearing on a proposal by Sen. Tom Udall, D-N.M., to send a constitutional amendment to the states restoring to Congress and state governments the ability to regulate the raising and spending of money in elections. In response, Republican politicians and conservative activists have kicked into gear and are starting to try out new talking points to get their movement to oppose efforts to lessen the influence of big money in politics.

Sen. Ted Cruz, R-Texas, launched the misleading campaign two weeks ago when he warned a group of pastors that the Udall proposal would “repeal the First Amendment” and allow Congress to “muzzle” the free speech of clergy. In advance of the hearing today, conservative groups including the Family Research Council, Eagle Forum, Tea Party Patriots and the Home School Legal Defense Association started to mobilize against the amendment. Yesterday, the Heritage Foundation held a panel discussion to test out arguments against the amendment, featuring Bobby Burchfield, the attorney who argued the McCutcheon case before the Supreme Court, controversial former FEC chairman Don McGahn, and infamous voter-fraud conspiracy theorist Hans van Spakovsky .

Here, we’ve collected some of the most deceptive arguments that have been launched so far against the Udall amendment.

1. Democrats want to repeal the First Amendment!

When we first heard Ted Cruz  tell a stunned group of pastors that Democrats in the Senate were planning to “repeal the First Amendment,” we knew that we would be hearing that line again and again.

And we were right. Tea Party Patriots adopted the line in mobilizing its activists, as did the Eagle Forum. The Family Research Council claimed the Udall amendment would “strip political speech out of the First Amendment,” and von Spakovsky told the Heritage panel that the amendment would “roll back” the Bill of Rights.

Burchfield and McGahn both argued that the introduction of the constitutional amendment means, in the words of McGahn, that campaign finance law advocates are “admitting” that campaign finance regulations are “unconstitutional.”

On the surface, this is the opposition’s strongest argument, because it sounds so scary. But it’s just not true. Whether you support the Udall amendment or not, it’s dishonest to suggest that it would amount to a “repeal of the First Amendment.” Instead, proponents argue that it strengthens the First Amendment by undoing the Supreme Court’s jurisprudence declaring that spending on elections, including from corporate treasuries, cannot be limited. Proponents of the Udall amendment hold that this jurisprudence, including recent decisions in the Citizens United and McCutcheon cases, represented a radical reinterpretation of the First Amendment; undoing them would simply re-establish the ability of Congress and the states to set reasonable regulations on the raising and spending of money to influence elections.

2. Amendment supporters want to ‘silence critics’ and ‘cling to power’!

The Heritage panelists repeatedly claimed that the Udall amendment is an attempt to protect incumbency by preventing challengers from raising enough money to win elections. McGahn insisted that it was an effort by Democratic incumbents “desperately clinging to power.”

“They want to change the rules of the game and prevent people from criticizing them, not unlike England did before our revolution, and which led to our revolution,” he added.

The American Family Association’s Sandy Rios also invoked the American Revolution in an interview with von Spakovsky yesterday, saying, “The First Amendment, the rights to free speech – particularly the right to political speech – were the right to criticize the king, criticize the authorities over you.”

In a later interview with Rios, Tea Party Patriots spokesman Scott Hogenson even managed to connect the Udall amendment with immigration reform, claiming that both are part of a “larger, concerted effort to maintain the Democratic Party’s control of American politics and eventually move to one-party rule.”

In reality, it’s unlimited campaign spending that tends to be a boon for incumbents, who on average are able to raise far more than challengers. For instance, in Texas, a state with few campaign finance limits, incumbents who win on average raise more than twelve times the average amount raised by challengers. By contrast, in Colorado, which has relatively low individual contribution limits, incumbents on average raise less than three times what challengers are able to raise [pdf].

3. Liberals just want to protect the lame-stream media!

In his speech to the pastors' group, Ted Cruz seized on the Udall proposal’s stipulation that “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press” to claim that the amendment carved out an exemption to protect the New York Times.

Von Spakovsky also played up conservative conspiracy theories about the “liberal media,” telling Rios, “No surprise, there’s a glaring exception in this proposed amendment for the press. And that means that MSNBC or the New York Times Company, which are big corporations, they could spend as much newsprint or airtime as they wanted going after and criticizing candidates or talking about political issues.”

These arguments fail to recognize one key distinction, which is that there is a difference between the New York Times publishing an editorial (which would be protected under the proposed amendment, as it is now) and the corporate managers of the New York Times taking $50 million out of their corporate treasury to buy ads to influence an election (which would not be protected).

4. They’ll go after pastors!

Opponents of the constitutional amendment have also been trying to tie the proposal to the right-wing paranoia about the impending persecution of America’s Christian majority .

It’s no coincidence that Cruz rolled out his criticism of the Udall proposal at a pastors’ event organized by the Family Research Council, a main theme of which was the supposed assault on the religious liberty of Christians in America. Cruz told the pastors that the Udall measure would “muzzle” clergy and was being proposed because “they don’t like it when pastors in their community stand up and speak the truth.”

Likewise, McGahn said at the Heritage event that the amendment would endanger the religious liberty of clergy: “What about pastors and churches? This is an issue that comes up once in a while. Can the government get in there and tell a priest he can’t talk to his congregation because it may somehow have something to do with politics?”

This might be true if the proposal would, in fact, “repeal the First Amendment.” In fact, the First Amendment’s protection of religious liberty would remain in place.

Of course, that didn’t stop the FRC’s Tony Perkins from somehow linking the Udall amendment to the imprisonment of a Christian woman in Sudan:

5. It’s like the Alien & Sedition Acts!

Along with comparisons to British control before the American Revolution, amendment opponents are trying to link the Udall proposal to the 18th century Alien & Sedition Acts.

In his interview with Rios yesterday, van Spakovsky claimed that “the last time Congress tried to do something like this was when they passed the Alien & Sedition Act in 1798 that criminalized criticism of the government.” Multiple GOP senators at today’s hearing, including Judiciary Committeee Ranking Member Chuck Grassley, repeated the talking point.

Of course, the amendment does nothing to reduce the right of individuals to criticize the government or politicians.

6. The polls are skewed!

When an audience member at yesterday’s Heritage Foundation panel asked about polls showing overwhelming opposition to the Citizens United decision, McGahn replied that the questions in the polls were “skewed.”

You can judge for yourself whether this question from a recent Greenberg Quinlan Rosner poll  – which found 80 percent opposition to the Citizens United decision  – is “skewed” on behalf of campaign finance law proponents:

(image via Buzzfeed)

7. What about disclosure?

In one of the least self-aware moments we’ve witnessed in the last few days, McGahn told the Heritage audience that campaign finance reform proponents could have just worked for tougher disclosure requirements, which the Supreme Court’s majority has consistently endorsed as a way to prevent corruption:

What’s interesting is the courts have upheld some disclosure of independent speech, which six months ago was supposed to be the answer, a year ago was supposed to be the answer – remember the DISCLOSE Act, Part 1 and Part 2? Well, that was supposed to cure all the ills in our democracy, but unfortunately I guess they’ve given up on that and they’ve moved to the more radical change, which is the constitutional amendment.

Of course, the DISCLOSE Act – which would have exposed the source of some of the “dark money” behind large campaign expenditures – was blocked by Senate Republicans. And McGahn, when he was at the FEC, fought hard against disclosure requirements proposed in the wake of the Citizens United decision, even though the decision explicitly sanctioned such requirements.

8. The poor don’t participate anyway!

Speaking to the Heritage audience, Burchfield  presented the curious argument that the Udall amendment would demand to "equalize debate among the haves and have-nots,” and since “the portion is small” of “those with limited means” who participate in electoral debates, this would require “severe restrictions.”

The rich do not advocate a single viewpoint. Think of Sheldon Adelson and George Soros, they don’t agree on anything. There are strong voices on the left and on the right, not just in privately funded campaign advertisements, but also in the broadcast and print media. Only a small portion of those with significant resources even bother to participate in the debate. And among those with limited means, the portion is small indeed. In order to equalize debate among the haves and the have-nots, severe restrictions would be necessary. The quantity and quality of discourse would certainly suffer.

The amendment under consideration doesn’t require that everybody be heard an equal amount; instead, it gives Congress and the states the ability to create a more even platform for those who wish to be heard, regardless of their financial means.  

Burchfield's reasoning echoes the arguments of voter-suppression proponents who claim that their laws only inconvenience people who don’t really care about voting anyway.

9. It’s voter suppression!

Although many of the advocates of unlimited, undisclosed money in politics are the same people pushing harmful voter suppression laws, Sen. Pat Roberts of Kansas yesterday insisted that it’s actually amendment proponents who are advocating “voter suppression” and want to “silence” critics.

10. Blame Saul Alinsky!

Inevitably, anti-amendment activists have begun invoking the right-wing bogey-man Saul Alinsky.

Hogenson told Rios that the Udall amendment is “just taken right out of Saul Alinksy’s book, ‘Rules for Radicals,’ it just makes up a gigantic lie and perpetuates it, that somehow democracy needs to be restored.”

Von Spakovsky also invoked Alinsky in his interview with Rios, claiming that criticism of the enormous political spending of the Koch brothers is an Alinskyite plot: “What’s really going on here is, look, if you look at Alinsky’s ‘Rules for Radicals,’ one of the rules that he sets out is you pick a villain and you basically blame those villains for all of the problems. It’s a way of distracting the public, it’s a way of diverting attention, and that’s exactly what Harry Reid and the Democrats are doing here.”

Tony Perkins Links Effort To Overturn Citizens United To Imprisonment Of Christian Sudanese Woman

On Friday, Family Research Council president Tony Perkins — who earlier last week managed to connect the Isla Vista shooting to the Affordable Care Act — tied the imprisonment of a Sudanese Christian woman to a Senate hearing on a constitutional amendment to overturn the Supreme Court’s decision in Citizens United, a ruling which allowed for unrestricted, undisclosed corporate political donations.

Speaking on his radio program, “Washington Watch,” Perkins chastised Democratic leaders like Chuck Schumer — who Perkins said “thinks he understands freedom better than America’s Bill of Rights” — and Mark Udall for opposing the Supreme Court’s 2010 decision.

“The National Archives will need more than bombproofing to protect America’s founding documents,” he warned. Perkins then invited Sen. Pat Roberts onto the show to discuss the proposed amendment.

The Kansas Republican thanked Perkins for not only defending Citizens United but also bringing attention to the imprisonment of Meriam Yehya Ibrahim, a Sudanese woman married to an American who is in jail in Sudan for converting to Christianity. Perkins replied that the two cases are actually related: “The two of them are very connected. In our First Amendment we have our freedom of religion and freedom of speech and we keep our freedom of religion by working to keep our freedom of speech, and political speech is actually what’s under attack here.”

Roberts accused Senate Democrats of trying to “restrict the free speech of those who simply disagree with them.”

Later, Roberts said supporters of a constitutional amendment like Senate Majority Leader Harry Reid seek to “regulate free speech so they can silence their critics and retain their hold on power.”

“This is voter suppression, this is to silence his critics,” he said.

Edit Memo: Senator Udall’s Constitutional Amendment Proposal Would Restore the First Amendment and Strengthen Our Democracy

On June 3, 2014, the Judiciary Committee of the United States Senate held a hearing on the need to amend the Constitution to overturn the Supreme Court’s decisions in Citizens United v. FEC, and related cases. In particular, the Committee examined Senator Tom Udall’s amendment proposal SJRES 19, which seeks to restore the constitutional authority to regulate the raising and spending of money to influence elections, so that the American people, and not corporations, billionaires and special interests, hold the power in our elections.

PFAW Action Fund Endorses Derek Cressman for California Secretary of State

People For the American Way Action Fund has announced an endorsement of Derek Cressman’s candidacy for California Secretary of State.

“Derek Cressman has been a consistent progressive leader, standing up against big money in politics and for fairness and the people’s voice,” said PFAW Political Director Randy Borntrager. “He will serve the people of California well as Secretary of State.”

Cressman is one of five primary candidates for Secretary of State.  He served as director of the Democracy Program for the U.S. Public Interest Research Group (U.S. PIRG) and the state PIRG organizations, fighting for the environment, open government, and fair elections.  He subsequently founded Earth Tones, an environmentally friendly communications company that donates 100 percent of its profits to environmental groups.

In 2006 Cressman began working with Common Cause on its groundbreaking voting rights and elections programs, eventually directing the organization’s Citizens United information campaign. While at Common Cause, Cressman led 35 state chapters as vice president for states. During his tenure, Common Cause expanded its coordination of grassroots organizing and advocacy on money in politics across all of its local chapters, pursuing local ordinances and referenda as a strategy to draw more attention to the issue.

Derek Cressman’s positions on women’s health, comprehensive immigration reform, public education funding, equality for all Americans, and money in politics – among other issues – distinguish him as quality progressive candidate for California Secretary of State.  His campaign website is http://www.derekcressman.com.

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Thanks to the Roberts Court, “Big Money” in Our Elections Is Only Getting Bigger

2014 is looking to be a bumper year for election spending. After the Citizens United ruling in 2010, that year’s midterms became a test case for how the newly-minted Super PACs and newly-empowered “dark money” groups would use their strength. They must have liked what their spending bought them, because this year they are back with a vengeance.

According to Open Secrets, spending by outside groups as of May 6th in this election cycle has approximately tripled from the amount outside groups spent in the same time period leading up to the 2010 midterms (leaping from $16.6 million in 2010 to $72.7 million in 2014). In 2006, this number was $2.5 million – that’s a twenty-nine-fold increase in just two midterm cycles.  At this rate, outside spending on this year’s midterms is set to far outpace even outside spending in the 2008 presidential election cycle.

The influence of outside spending groups has increased so much that in some races they are spending far more than the candidates themselves. Forty-nine percent of all election spending on this year’s midterms so far has come from outside spending groups. In hotly contested races, the proportion is even higher. In the North Carolina U.S. Senate race – which is the most expensive so far this cycle – 90 percent of all spending has come from outside groups, 58 percent of which are “dark money” groups not required to disclose their donors like Super PACs do.

The new era of “big money” election spending disproportionately benefits conservative candidates. Seventy-two percent of donors who had maxed out their aggregate contribution limits before the Supreme Court struck down those limits in April had contributed only to Republicans. Forty-five percent of these donors were in the finance industry.  In addition, Americans for Prosperity, the Koch brothers-linked “dark money” group, accounts for nearly one third of all independent expenditures on television advertising so far in this election cycle. 

In the wake of the Supreme Court’s McCutcheon decision, just as reformers predicted, the Republican Party is forming “super joint fundraising committees” that pool large checks from big donors and – now unrestrained by aggregate contribution limits – redirect that money to long lists of candidate campaigns.

The consequences of the influx of “big money” into our elections are clear for the vast majority of Americans who can’t afford to write large check to candidates: they’re being squeezed out of the process. According to the Brennan Center, in current “high-dollar” federal races, only nine percent of funds have come from donations of $200 or less.

Simply put, these trends are disturbing. Even before Citizens United, it was becoming clear that money played an outsized role in our politics. The continued ability of corporations, special interests and wealthy individuals to spend limitlessly on elections calls into question the health of our democracy. The concentration of power away from the voters and towards the donor class creates the specter – and very real threat – of a Congress wholly populated by those elected by dollars, not votes. 

PFAW Foundation

Supreme Court's McCutcheon Decision Is Great News For Billionaires

This post originally appeared on the People For blog.

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

The Spirit Of Selma: Moral March In Raleigh, NC

The Supreme Court’s Citizens United decision and related rulings undermining the nation’s campaign finance laws opened the doors to massive corporate and right-wing spending. Nowhere have the results been more catastrophic than in North Carolina, where a right-wing takeover subjected state residents to an avalanche of far-right legislation targeting children, teachers, voting rights, and more.

Last year PFAW’s Miranda Blue and Calvin Sloan documented the far-right takeover of state politics that was funded by billionaire Art Pope with the help of GOP strategist and current U.S. Senate candidate from Virginia, Ed Gillespie.  In 2012, Pope and his allies poured millions of dollars into elections for the state legislature and millions more to elect Gov. Pat McCrory. 

Once they got into power, with Pope himself installed as McCrory’s budget director, North Carolina citizens were subjected to the full fury of a far-right, Tea Party-on-steroids legislative agenda. Education spending was slashed and thousands of teachers fired while tax dollars were diverted to school vouchers.

Hundreds of thousands of citizens were denied Medicaid and unemployment benefits while taxes were cut for the state’s richest residents. And in order to perpetuate the power of Pope’s puppets, one of the nation’s worst, most restrictive voting laws was put into place to disenfranchise voters, with an assist from the Supreme Court’s gutting of a key section of the Voting Rights Act.

But North Carolina has not given Americans only a terrifying look at what a Tea Party-run country would look like. It has also given us an inspiring example of grassroots organizing on behalf of a very different set of values.  Led by Rev. William Barber, head of the state’s NAACP chapter, North Carolinans began “Moral Mondays” protests at the state capitol. They were dismissed as “morons” and outside agitators by right-wing legislators. One of Pope’s right-wing groups published personal information of protestors online.

But those efforts did nothing to squelch the Moral Mondays movement, which drew thousands of people to the weekly protests.  Hundreds were arrested for nonviolent civil disobedience.

Now Barber and the diverse coalition he leads have put out a call to people across North Carolina and the rest of the country to come to Raleigh on February 8 for what they hope will become the largest civil rights gathering in the south since an interfaith, interracial group of people responded to Dr. King’s call to join civil rights marchers in Selma.

On Tuesday, Rev. Barber spoke to bloggers about Moral Mondays, the February 8 march, and the values-based “fusion” organizing that is sustaining the pro-justice movement in North Carolina. If you’re going to change America, he said, you have to change the south – with broad-based, locally led movements in every state. 

Barber emphasized that his movement was not partisan – that many independents and Republicans have joined in the Moral Mondays protests against the extremist and unjust laws passed by the far-right faction that now runs the state government. What motivates the new coalition, Barber said, is a combination of the constitutional principle of the common good and the biblical principle of caring for the vulnerable. A few days before the march, a policy briefing will examine the moral, economic, political and social costs of the state’s regressive legislation.

One goal of turning February 8 into a national event, Barber said, is to discourage right-wing strategists who hope to duplicate Pope’s takeover and subsequent imposition of extreme policies that Barber describes as “constitutionally inconsistent, morally indefensible, and economically insane.”

You can find out more about the February 8 march at the event website.

PFAW Statement on Argument of McCutcheon v. FEC: 'Our Democracy is Not for Sale'

WASHINGTON – As the Supreme Court hears oral arguments today in McCutcheon v. FEC, a campaign finance case in which the Court is determining whether to strike down aggregate limits on contributions to political candidates and committees, People For the American Way’s executive vice president Marge Baker released the following statement:

In 2010, we saw the Supreme Court take aim at our democracy with its decision in Citizens United v. FEC, which paved the way for unlimited corporate political spending in elections. With today’s case, things could get even worse. In McCutcheon v. FEC, the Court is considering removing another critical safeguard of our democracy – the caps on how much money an individual can contribute directly to candidates and parties, in total, in each two-year campaign cycle. 

This would be devastating. Millions of dollars being passed from billionaires straight to politicians’ coffers is the opposite of what our democracy needs. At the end of the day, this case comes down to ‘people versus money.’ Allowing the wealthiest donors to pour more money into our system would make it even harder to hear the voices of everyday Americans.  That’s not the kind of democracy our constitution’s authors had in mind; it’s certainly not the kind of democracy Americans want today.

That’s why Americans across the country are speaking out in support of reclaiming our democracy. Sixteen states and more than 500 cities and towns have gone on record in support of amending the constitution to put the power of  our political system back where it belongs – in the hands of the people. Their voices are coming through loud and clear: Our democracy is not for sale.

People For the American Way has been heavily involved in the McCutcheon case. Our affiliate People For the American Way Foundation filed an amicus brief in the case earlier this year and last month released an in-depth edit memo outlining the particulars of this case within the context of the Supreme Court’s past rulings on campaign finance. Today, PFAW is co-hosting a rally outside the Supreme Court, working with activists and organizations representing a wide spectrum of constituencies to speak out in support of protecting the integrity of our democracy.

More information on McCutcheon v. FEC and on PFAW’s involvement in the case is available here: http://www.pfaw.org/issues/government-people/mccutcheon-v-fec

People For the American Way executive vice president Marge Baker is available for interviews with the press.  To arrange an interview, please contact Layne Amerikaner or Miranda Blue at media@pfaw.org / 202-467-4999.

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PFAW Foundation Memo: Key Cases In The Supreme Court's New Term

To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way Foundation
Date: October 3, 2013

Re: Key Cases in the Supreme Court's New Term

The Supreme Court under Chief Justice John Roberts has not shied away from taking on cases with enormous impact on American laws and American lives, and the term that starts on Monday will be no exception.

In just the last term, the Court’s conservative majority dismantled a key portion of the landmark Voting Rights Act, removed important anti-discrimination protections for workers, and made it harder for consumers to sue corporations that have hurt them. One exception to the Court’s sweeping conservative activism justifiably attracted plenty of attention – the decision in which conservative Justice Anthony Kennedy sided with the Court’s four more moderate Justices to strike down the discriminatory Defense of Marriage Act. But that remarkable victory for individual freedom, which was powered by the Court’s moderates, should not obscure the Roberts Court’s larger, well-documented goal of shifting American law to benefit corporations over individuals and the privileged over the struggling.

The cases on the Supreme Court’s docket for the coming term are no less consequential. The Court will consider whether to continue its project of dismantling campaign finance regulations; it will take on yet more cases on the rights of individuals to hold corporations accountable for their actions; it will weigh laws protecting workers against abusive and discriminatory employers; it will decide whether to uphold the far-right DC Circuit’s decision striking down clean air protections; and it may limit or reverse precedents protecting women's reproductive choice.

Below is a preview of some of the most wide-reaching cases the Supreme Court will consider this year, and how the Roberts Court may choose to approach them.

MONEY OUT / VOTERS IN

McCutcheon v. FEC: The Court is being asked to eliminate aggregate federal campaign contribution limits.

You’ll be hearing a lot about this case in the coming weeks, months, and perhaps years. While Citizens United involved independent expenditures to affect elections, this case involves the aggregate caps on contributions made to candidates, political parties, and PACs. Currently, a donor’s individual contributions to a party’s candidates and affiliated committees during the 2013-2014 election cycle, are capped at $123,200 (on an inflation-adjusted basis). Without the cap, that number would skyrocket to $3.6 million, vastly increasing the influence of wealthy donors on our democracy and correspondingly limiting the influence of the people, who are supposed to be sovereign in our democracy. That is the goal of high-pocketed donor Shaun McCutcheon and the Republican National Committee, who are asking the Court to strike down the aggregate caps as violating their First Amendment free speech rights.

Beginning in the 1970’s and in a number of cases since, the Court has upheld the constitutionality of regulating campaign contributions, recognizing how important such regulations are in preventing both real and perceived corruption. That Court has also recognized the value of aggregate caps on contributions as a means of preventing wealthy donors from indirectly bypassing the individual limits. That’s why the decision was a no-brainer for the lower court judges – even the far-right Janice Rogers Brown. The fact that the Supreme Court even took the case is disturbing, suggesting that the conservative Justices’ hunger for enhancing the power of the powerful and shutting the rest of us out of our own electoral democracy has not yet been sated.

RECESS APPOINTMENTS

NLRB v. Noel Canning: The Court is being asked to severely limit the president’s power to make recess appointments.

This case challenges President Obama’s recess appointments of National Labor Relations Board members in January of 2012 on the day after the 112th Congress’s second session officially began. He acted because Republicans had been blocking the Senate from voting on his nominees, leaving the NLRB without enough members to constitute a quorum. The president bypassed this cynical GOP effort to sabotage an agency dedicated to the rights of workers by making recess appointments. The NLRB was therefore able to act, including in a case involving Noel Canning, which disputes the legitimacy of the recess appointments.

The appointments occurred at a time when the Senate was meeting for pro forma sessions for a few minutes, once every few days, to maintain the fiction that it wasn’t on recess (i.e., to prevent recess appointments). Most debate in the public and on Capitol Hill centered on the narrow question of whether the holding of the pro forma sessions meant the Senate was not in recess. Indeed, the fact that congressional Republicans insisted on the pro forma sessions indicated their recognition of the president’s broad authority to make recess appointments when the Senate is on break. Noel Canning itself noted that the DC Circuit could decide the case based on the narrow question of the relevance of the pro forma sessions, thereby bypassing even larger constitutional questions. But the DC Circuit issued a sweeping opinion overturning the understanding of presidents and senators from the country’s earliest years: The court ruled not only that recess appointments can only be made during the annual break between sessions of Congress, but also that they can only be made during the recess in which the vacancy first occurred. These restrictions would invalidate recess appointments going back to the time of President George Washington. Affirming the DC Circuit would empower Senate minorities to prevent the president from filling vital executive branch positions. Some agencies that require certain Senate-confirmed officials to be present in order to exercise their full powers (like the NLRB or the Consumer Financial Protection Bureau) would be crippled.

ACCESS TO ABORTION

McCullen v. Coakley: The Court may overrule a 2000 precedent upholding buffer zones around reproductive health clinics.

This involves a Massachusetts law that creates a 35-foot buffer zone around reproductive health clinics (with exceptions for employees, patients, and others with business there). Within this area, only those with business at the clinic (essentially, clients and employees) could stand within a certain radius of the clinic. Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint. The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach people at clinics for the purpose of counseling, education, or protesting. That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. However, two of the conservatives Justices in the 6-3 majority have been replaced by far more conservative Bush nominees:  Rehnquist (by Roberts) and O’Connor (by Alito). Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there are five likely votes to strike down the Massachusetts buffer zone and possibly overrule Hill completely.

Cline v. Oklahoma Coalition for Reproductive Justice: The Court may uphold a state “drug safety” law that restricts women’s access to medical abortions and perhaps overrule the 1992 Planned Parenthood v. Casey decision protecting a woman’s constitutional right to abortion.

An Oklahoma law pushed by anti-choice groups requires misoprostol and methotrexate, medications used to terminate early pregnancies, to be prescribed only as directed by the FDA; any variation from that (called “off label” use) is made illegal. But in the years since these drugs were approved by the FDA, doctors through experience have determined that such “off label” uses are more effective, safe, and convenient for women. Such “off label” uses also allow for abortion later in a pregnancy than FDA-approved use does.

The general right of a state to regulate off-label uses of FDA-approved drugs is not being contested in this case. Oklahoma’s stated goal is to protect women from unsafe and unapproved use of medications, but this is clearly a pretense for limiting women’s access to medical abortions. Under the 1992 Casey decision, states cannot place an undue burden on a woman’s right to abortion, and the Oklahoma Supreme Court struck the law down as obviously unconstitutional. Ominously, the Supreme Court accepted the appeal.

Because of a procedural hurdle, it is possible the case might not be heard. The Supreme Court has asked the Oklahoma Supreme Court to clarify exactly which medications and under what circumstances the statute applies. Only after the Oklahoma Supreme Court responds will the Supreme Court decide whether to schedule oral arguments. If it proceeds, the case provides a dangerous opportunity for the Roberts Court to overrule Casey or, as in the more recent “partial birth abortion” case (2007’s Gonzales v. Carhart), to simply ignore Casey and open the floodgates to more restrictive legislation.

LIMITING CONGRESSIONAL AUTHORITY

Bond v. United States: The Court is being asked to overrule a 1920 precedent recognizing Congress’ broad authority to enact legislation implementing a treaty, and to sharply restrict congressional authority under the “Necessary and Proper” Clause.

The case involves a woman who repeatedly tried to poison her husband’s mistress and was convicted of violating a federal criminal law prohibiting the possession and use of chemical weapons, a law passed to implement a treaty on chemical weapons. Carol Bond argues that the administration of criminal justice is a purely state responsibility except for where Congress, exercising one of the powers enumerated by the Constitution (like the Commerce Clause), creates an offense against the United States. Therefore, she says, the law violates the Tenth Amendment and constitutional principles of federalism.

But a 1920 precedent says exactly the opposite. Missouri v. Holland recognized that if you have a properly signed and ratified treaty, the Necessary and Proper Clause authorizes Congress to pass laws implementing the treaty. The enactment does not have to also be based on one of the specific powers enumerated in Article I Section 8.

If the Supreme Court rules for Bond, it might do so narrowly, holding that her use of chemicals was not part of the purpose of the chemical weapons treaty. But the Roberts Court may also see this as an opportunity to issue a broad ruling that overrules the 1920 precedent and limits longstanding congressional authority under the “Necessary and Proper” Clause.

RACIAL DISCRIMINATION AND FAIRNESS

Mount Holly v. Mt. Holly Gardens Citizens in Action: The Court is being asked to significantly weaken federal laws prohibiting housing discrimination.

In this case, a town government wants to redevelop a housing development occupied primarily by low- and moderate-income minority families and replace it with more expensive housing. Residents sued under the Fair Housing Act, alleging that the plan had a disproportionate impact on minorities.

For 40 years, the Fair Housing Act has been a key tool to address unfair mortgage lending practices, insurance redlining, discriminatory zoning ordinances, and other obstacles to equal housing. Under the FHA, a practice that has a discriminatory effect – even if it does not have a discriminatory purpose – can be judged to violate the law. This is called “disparate impact.”  All 11 circuits to have considered the question have agreed that disparate impact cases are covered under the Fair Housing Act. These cases go back to the 1970s and 1980s, and Congress has never amended the law to say otherwise. Although different circuits vary in the details, most follow a process in which, once a plaintiff shows that an action will have a racially disparate impact, the burden shifts to the defendant to show a legitimate, non-discriminatory reason for its actions. In some cases, the defendant must also show that it can’t accomplish the same thing with less discriminatory results. The “burden shifting” disparate approach makes it much easier to fulfill the FHA’s goal of protecting Americans from housing discrimination. HUD regulations also interpret the FHA to include claims of disparate impact. A contrary interpretation by the Roberts Court could lead to the reversal of decades of progress in eliminating housing discrimination, the goal of the Fair Housing Act.

Schuette v. Coalition to Defend Affirmative Action: The Court will decide if states can adopt constitutional amendments prohibiting Affirmative Action in public colleges and universities.

The constitutionality of Affirmative Action is not an issue in this case. Instead, the question is whether the Constitution allows states to amend their own constitutions to prohibit Affirmative Action.

In 2006, Ward Connerly succeeded in getting an anti-Affirmative Action measure on the ballot in Michigan, and it was passed by the voters. It prohibits the consideration of race, sex, ethnicity, and national origin in individualized admissions decisions by public colleges and universities. The Sixth Circuit struck down the measure, noting that no other factors (like legacy, geographic diversity, or athletic skill) were similarly made unconstitutional. As a result, an applicant who wants her alumni connections to be considered can ask the university to adopt a legacy-conscious admission program, but an African American applicant who wants a race-conscious admissions policy must persuade the entire electorate to adopt a constitutional amendment. The circuit court characterized this as a structural burden that violates the Equal Protection Clause.

Justice Kagan is recused from this case, which may affect how the Court rules.

RELIGIOUS LIBERTY

Town of Greece v. Galloway: Legislative Prayer – The Court will decide if a town’s consistent use of sectarian prayer at town meetings violates the Establishment Clause, even if it shows that the town endorses a particular religion.

Over the course of many years, the town of Greece, NY, officially opened monthly public Town Board meetings with prayers. For years, the local members of the clergy who delivered the prayer were always specifically invited by the town supervisor to do so. Only Christian clergy were invited and mostly sectarian prayers were delivered. When two citizens complained that it appeared the town was officially aligning itself with Christianity, officials told them that anyone who wanted to could ask to deliver the prayer and do so regardless of content. Yet the town never publicized this alleged policy, and only four times subsequently did non-Christians deliver the prayer.

The Supreme Court held in 1983’s Marsh v. Chambers that legislative prayers do not automatically violate the Establishment Clause, but that they should not be exploited to proselytize or advance any one religion, faith or belief, or to disparage any such belief. And in other contexts (like public crèche displays), the Court has ruled that under the Establishment Clause, the government may not appear to endorse any one specific faith.

With Justice O’Connor having been replaced by Justice Alito, the Court’s Establishment Clause cases may take a sharp turn to the right. There may now be a majority that would vastly expand government’s ability to endorse not only religion in general but also specific sectarian beliefs.

WORKERS’ RIGHTS

Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores: The Court is being asked to rule that the statute of limitations to challenge an employer’s denial of disability benefits begins to run before the claim has finally been resolved.

Julie Heimeshoff had been working for Wal-Mart for nearly 20 years when she developed pain and fatigue due to fibromyalgia and other conditions. Within a few months, she was unable to work and she filed for long-term disability benefits, which Hartford Life & Accident Insurance Company administers for Wal-Mart. Heimeshoff’s disability claim was denied.

Courts interpreting the federal Employee Retirement Income Security Act (ERISA) have ruled that under the law, you cannot challenge the denial of benefits until you exhaust your remedies under your company’s benefits plan. Wal-Mart and Hartford’s plan sets a three-year statute of limitations for those who are denied benefits to sue, beginning as soon as Hartford requires the employee to provide proof of their disability. So the clock was ticking while the mandatory internal resolution process continued. In 2007, Heimeshoff was informed that Hartford was still denying her claim, and that this was its final decision. She sued in 2010, within three years of this final determination but more than three years after she was first required to prove the extent of her disability.

The Court will decide if a benefits plan can require the clock to start ticking before the plan has resolved the claims, or whether the clock can start ticking only when the worker has exhausted her plan remedies and can actually sue. In other words, does ERISA let employers and insurers impose a plan that makes it harder for employees to vindicate their ERISA rights in the courts?

Unite Here Local 355 v. Mulhall: The Court is being asked to limit the ability of workers and management to make agreements that facilitate the formation of unions.

In this case, a company and union agreed that management would remain neutral on efforts to organize workers to form a union, let the union have limited access to non-work areas to talk to employees, and give the union the employees’ names and home addresses for the same purpose. In return, the union promised that it would not picket, boycott, or act to economically harm the business. Such recognition-process agreements are fair and orderly ways to facilitate union organizing that benefit both workers and employers.

The question is whether this violates Section 302 of the Taft-Hartley Act, which makes it a criminal act for an employer to “pay, lend, or deliver … any money or other thing of value” to a labor union seeking to represent employees. The law was adopted in the 1940s to prevent corruption from distorting the process of forming a labor union. The employer and the union assert that their agreement is legal, because the employer’s agreement is not a “thing of value” as contemplated by Taft-Hartley. To the contrary, they claim that it furthers the statute’s goal of encouraging peaceful and honest labor organizing. But Mulhall claims the agreement falls within Taft-Hartley’s criminal provisions.

ENVIRONMENTAL PROTECTION

EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation: The Court is being asked to strike down EPA rules on cross-state air pollution.

The Clean Air Act requires states to adopt plans that not only bring their own states into compliance with federal safety standards, but also prevent pollution that “contributes significantly” to air pollution in downwind states. Under the law, states that fail to implement a sufficient (or any) plan must then implement a plan designed by the EPA.

In this case, the EPA designed such plans, which reflected the extreme technical complexity of the issue. Based on the administrative record and its expertise on environmental health, the agency concluded that the new rules would prevent 13,000-34,000 premature deaths, 15,000 nonfatal heart attacks, and 400,000 cases of asthma. They would also save $280 billion a year in healthcare costs.

Utility companies appealed, and a divided D.C. Circuit panel struck down the rule. The dissent accused the court’s majority of “disregard[ing] limits Congress placed on its jurisdiction, the plain text of the Clean Air Act (‘CAA’), and this court’s settled precedent interpreting the same statutory provisions at issue today.”  The majority’s decision has been cited by some as an example of judges imposing their own ideologies over the technical expertise of a federal agency.

HOLDING CORPORATE WRONGDOERS ACCOUNTABLE

Daimler Chrysler v. Bauman: The Court may make it harder to sue foreign corporations doing business in a state over events that happened elsewhere.

DaimlerChrysler is a German corporation being sued in a federal court in California for human rights violations by a wholly-owned subsidiary in Argentina. The subsidiary (Mercedes-Benz Argentina) allegedly identified “subversives” at the plant for the country’s military dictators, knowing that they would then be kidnapped, detained, tortured, or murdered as a result. Former plant employees or their surviving family members sued the parent company in California.

Under the Due Process Clause, a state cannot bring a defendant into its courts unless that party has sufficient “minimum contacts” with the state. That is called “personal jurisdiction.”  In this case, DaimlerChrysler has a wholly-owned subsidiary that regularly does business in California: Mercedes-Benz USA. The 9th Circuit said the court had personal jurisdiction over the parent company because it had engaged in substantial and continuous corporate activity in the state for years via the subsidiary.

The Supreme Court is being asked to reverse that ruling. In a world where people’s lives are affected by the actions of enormous multinational corporations operating around the world through a seemingly endless number of subsidiaries, many will be interested in how the Court decides this case.

Lawson v. FMR:  The Court may limit which whistleblowers are protected from retaliation under a post-Enron reform law.

The 2002 Sarbanes-Oxley Act, a securities reform law passed by Congress after the Enron collapse, protects “employees” of publicly traded companies who expose fraud by publicly traded companies. The term “employees” is at issue in this case.

At issue in this case is whether individuals working as contractors to publicly traded companies are considered employees for the purpose of protecting them from retaliation as whistleblowers. In this case, individuals who exposed alleged fraud involving Fidelity mutual funds were retaliated against. The mutual funds are owned by their shareholders and registered with the SEC. However, the whistleblowers were not employees of Fidelity’s funds, because those funds have no employees of their own. Instead, all the funds’ day-to-day work is done by privately owned “investment advisers” with names like Fidelity Management and Research Co. and Fidelity Brokerage Services. This is not an uncommon setup for mutual funds. So the whistleblowers were employees of Fidelity’s contractors, not of Fidelity itself, and those contractors are not publicly traded.

The district court ruled that interpreting “employees” so narrowly as to exclude contractors like the ones in this case would defeat the purpose of the law. However, the First Circuit reversed that decision. Now, the Supreme Court will decide.

How Big Money Bought North Carolina for Extremists

In the years since Citizens United, North Carolina has provided a clear example of what happens when a small number of corporate interests, allied with a far-right base, are allowed unbridled influence over elections.

McConnell's Defense of Money in Politics Is Hurting Him With Voters

Mitch McConnell sure can pick the issues he takes a stand on. Despite being a true master of gridlock and inaction, he’s been very willing to take steps to erode campaign finance regulations: in May, he continued his long-standing opposition to sound campaign finance regulation by filing an amicus brief with the Supreme Court arguing for fewer federal limits on campaign donations, and last month the court granted him permission to participate in the upcoming oral argument of the case, McCutcheon v. FEC. Given that 90% of voters think there’s already too much money in politics, one might ask why McConnell’s advocating such an unpopular position so strongly.

Perhaps it’s unsurprising, then, that McConnell’s views are catching up with him. A poll released Tuesday by the Public Campaign Action Fund highlights what a terrible strategy this is for a candidate already facing a tough path to reelection: 53% of Kentucky voters had “very serious doubts” about his support for unlimited contributions, with 46% supporting his opponent Alison Lundegran Grimes to McConnell’s 40%. It was already clear that spending by wealthy special interests in politics is extremely unpopular, but it’s very encouraging to see indications that those who support unlimited spending might pay an electoral price for it. McConnell might think it’s worth it to continue taking these unpopular positions if corporations will keep spending on elections like his, but maybe he’s miscalculated here. It’s up to Kentucky voters to prove him wrong. 

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