Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.
To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.
Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money influencing who gets elected to office.
In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.
You can listen to the full telebriefing here:
A flood of outside spending, much of it undisclosed “dark money,” helped Republicans make significant gains in yesterday’s elections. The Supreme Court’s 2010 Citizens United decision helped trigger the campaign spending avalanche, and so it come as no surprise that Citizens United’s leader David Bossie took a victory lap today in a press conference of conservative activists reacting to the election results.
“Citizens United, our Supreme Court case, leveled the playing field and we’re very proud of the impact that had in last night’s election,” he said. “A robust conversation, which is what a level playing field allows, really creates an opportunity for the American people to get information and make good decisions.”
Bossie also accused Senate Democrats of trying to “gut the First Amendment” by voting in favor of a constitutional amendment that would overturn the Supreme Court’s decision in the case.
Sen. Ted Cruz has spent the past several months railing against a proposed constitutional amendment to undo the Supreme Court’s decisions in Citizens United and related campaign-finance cases, which would restore to Congress and the states the ability to “set reasonable limits” on election spending.
Cruz has gone into full hyperbole mode over the amendment, claiming that the campaign to narrowly roll back what many legal experts believe is an erroneous interpretation of the First Amendment is in fact an effort to “repeal the First Amendment,” silence pastors and imprison old ladies.
So, of course, it was no surprise at all yesterday to see Cruz himself proposing to amend the Constitution to reverse what he sees as an erroneous interpretation by the courts, this time on the issue of marriage. Roll Call reported on Cruz’s reaction to the Supreme Court’s "tragic" decision yesterday to decline hearing any marriage equality appeals, thus letting same-sex couples in several states get married:
While most Republicans shied away from commenting Monday on the Supreme Court’s historic decision to let stand a slew of lower court rulings legalizing gay marriage, Sen. Ted Cruz torched the court’s decision.
The Texas Republican called the decision “tragic and indefensible” and said he would introduce a constitutional amendment that would ensure states can ban gay marriage.
“By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing,” he said in a statement.
“It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment,” he said.
“Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.”
For the record, here is the section of the 14th Amendment that courts have been relying on to extend marriage rights to same-sex couples:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When Jerry Johnson, president of the National Religious Broadcasters (NRB), told the Values Voter Summit on Friday that the U.S. is witnessing the rise of “self-imposed Sharia law” due to the gay rights movement, it turns out that he was just getting started.
The next day, Johnson — whose group represents evangelical radio and television programs — hosted a panel discussion on how the First Amendment is “under siege” by liberals. Johnson and his fellow panelists Craig Parshall, an NRB official and husband of right-wing talk show host Janet Parshall, and Canadian Religious Right activist Charles McVety, stoked fears about the persecution of Christians in the United States, including warning that Janet Jackson’s decade-old “wardrobe malfunction” could lead to laws criminalizing anti-gay speech.
Johnson suggested that the anti-gay Benham brothers somehow had their constitutional rights violated when HGTV dropped their planned reality show, and repeatedly made misleading claims about a constitutional amendment to overturn the Supreme Court’s Citizens United ruling. He warned that without Citizens United, “private citizens” would be barred from “weighing in on elections,” which of course implies that citizens did not have those rights prior to 2010, when the case was decided.
McVety, the Canadian, claimed that the U.S. is on the verge of doing away with the First Amendment because he has heard “whispers of hate speech” laws on the horizon, alleging that even quoting from the Bible may soon become a criminal offense in America. Outside of the “whispers” he claims to have heard, McVety cited no evidence at all substantiating his claim about the imminent passage of unconstitutional hate speech laws.
McVety explained his theory that U.S. activists will use ISIS propaganda videos of hostage beheadings as an excuse to enact laws banning hate speech. “I can see it coming in America,” he said.
Johnson also tried to find evidence to back up the panel’s dire warnings of constitutional collapse, warning that the Federal Communications Commission (FCC) may cite the fines levied against Janet Jackson for her 2004 Super Bowl “wardrobe malfunction” as a precedent for fining conservative TV personalities under the guise of preserving public order and decency.
The halftime show controversy, of course, occurred a decade ago without any of the horrible results that Johnson predicted, and the NRB actually supported the FCC in the case. Seeing that the NRB filed an amicus curiae brief under Parshall’s name defending the FCC’s fine [PDF], Johnson appears to suggest that his own organization is threatening the First Amendment.
Parshall also grasped at straws in an effort to find evidence of imminent dangers to the First Amendment.
After discussing “Spanish inquisition-type investigations” taking place in America and a “tsunami” of threats to the freedom of speech, Parshall could only cite the Supreme Court’s decision in Lawrence v. Texas, the 2003 case that struck down anti-sodomy laws. He said the ruling paved the way for hate speech laws because of the majority opinion’s use of international law in its decision.
Parshall then railed against hate speech policies on social media outlets like Twitter and Facebook, which of course have their own policies that users agree to uphold and do not represent the government.
Parshall also pointed to the Amish beard shaving case — in which a group of people from an Amish sect were charged with breaking federal hate crime laws, among other counts, for forcibly and violently shaving the beards and cutting the hair of former sect members — to claim that the Justice Department used the hate crime charges against the Amish beard-cutters in order to give them more leeway for future prosecutions over hate speech.
An appeals court recently overturned the religious-based hate crime conviction, finding that prosecutors couldn’t prove that the attacks were motivated for religious reasons, rather than familial, political or personal disputes (two of the victims were the parents of their assailants).
Essentially, the NRB panel’s extreme claims about the imminent annihilation of the bedrock of the U.S. Constitution came down to a string of possibly-maybe-this-could-happen incidents that wed together Janet Jackson, ISIS and Amish beard-cutters.
Johnson concluded his remarks by saying that the “NRB will be for the First Amendment what the NRA is for the Second Amendment.”
If that means making completely outlandish statements and developing doomsday conspiracy theories to spur political outrage and raise money, then his comparison is right on.
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.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel
Re: Striking Progress on Judicial Nominations
Date: September 22, 2014
So far, 2014 has been a banner year for effectively pushing back against the Republican obstruction of judicial nominees that we have seen since the moment Barack Obama took office. The past few months have shown just how much progress America can make in ending the deliberate sabotage of the third branch of government so that our nation’s federal court system can do what the Founders intended it to do: Protect every person’s rights and ensure that everyone can have their day in court.
Since the day that George W. Bush left office, Republicans have sought to leave as many judgeships as possible vacant for as long as possible, apparently in the hopes of maximizing the next (Republican) president’s opportunities to nominate his or her own judges and impose a right-wing ideology on America’s federal courts. With that goal they have simply blocked confirmation votes, regardless of the nominee. The result has been long backlogs in courts across the country and serious delay in providing justice for many Americans.
Under Senate rules, unanimous consent is needed to schedule a confirmation vote for a judicial nominee – something that used to be regularly granted to nominees with strong bipartisan support, as most lower court judges have had. But for the first time, Republicans under President Obama have routinely refused to allow timely votes on nearly every nominee – even the vast majority who have little or no Republican opposition – effectively but invisibly filibustering just about every one of them. Only after months of delay would Republicans finally consent to a vote. In all other cases, the only way to break the logjam has been for Democrats to file a cloture motion to end the filibuster, a burdensome and time-consuming practice, and (until recently) one requiring a supermajority of 60 votes. So for the first five years of the Obama presidency, confirmations were regularly delayed for no reason, usually out of public view, for months longer than necessary. For instance, Richard Taranto was confirmed to the Federal Circuit unanimously, but the Senate was not allowed to hold a vote until 347 days after his committee approval; Republicans never publicly explained why they would not allow him a vote earlier.
Overcoming Obstruction in 2014
This year, things have changed. By late 2013, five years of unprecedented obstruction had climaxed in a declaration by GOP senators that they would filibuster any nominee for the critically important and understaffed District of Columbia Circuit Court of Appeals, no matter who the nominee might be, Senate Democrats concluded that the Senate and the nation would be significantly damaged if this were allowed to continue. The chamber responded to the exceptional obstruction by reforming its procedural rules. Going forward, cloture votes to end filibusters of executive and judicial nominees (with the exception of those to the Supreme Court) would require a majority of senators voting, rather than 60 votes.
Now, when Republicans refuse to consent to a vote, Majority Leader Reid files a cloture petition and sets a vote. Taking advantage of the change in Senate rules, Democrats have been able to defeat the GOP filibusters with a simple majority vote. While Republicans have not consented to even one judicial confirmation vote in 2014, they also have not been able to stop the Senate from voting on any of them. And despite the significant time that Republicans force the Senate to spend on each confirmation – drawn-out roll-call cloture votes, post-cloture time for debate of 30 hours for circuit court nominees and two hours for district court nominees (a debate that usually does not occur despite the time set aside for it), then time-consuming roll-call confirmation votes – Reid and the Democrats have persevered. Rather than wait for months longer than needed after committee approval before having a floor vote, the Senate has been able to act in a more timely – and appropriate – manner.
One of the basic and most important responsibilities of the U.S. Senate under the Constitution is to vote whether to confirm judges and keep the federal judiciary functioning. As of 2014, the Senate has no longer been blocked from doing that.
The figure below shows the dramatic drop in how long the average nominee has had to wait for a confirmation vote after approval by the Judiciary Committee as a result of the rules change:
With the Senate freed to do its job, the number of confirmation votes has grown significantly.
This has ameliorated the intentionally generated vacancy crisis that has hobbled our courts since President Obama took office. There were 54 vacancies when Obama was inaugurated in 2009. With the Senate blocked from holding timely confirmation votes, that number went to historic highs, skyrocketing to 100 by the end of the year. When the 111th Congress ended in December of 2010, Republicans blocked confirmation votes for 19 qualified nominees who had been approved by the Judiciary Committee, the overwhelming majority of whom had been approved unanimously or with almost unanimous support. As a result, 2011 opened with 95 vacancies – and with a needless bottleneck of nominations that delayed confirmation votes for all nominees down the line. With Republicans preventing the Senate from confirming even consensus nominees, it counted as a major accomplishment if the number of vacancies dipped into the low 80s, or even the 70s, as it sometimes did.
As a result, at the beginning of this year, our federal court system was suffering from 92 vacancies. And now? As of September 21, we’re down to 57 circuit and district court vacancies, just a few more than when Obama took office. This is a dramatic and long overdue drop.
Supreme Court and Circuit Courts:
Undoing the Damage of the Bush Years
Our Constitution and our laws protect our right to vote, to have a workplace free of discrimination, to get married, to make our own reproductive decisions, to hold corporations accountable when they unlawfully injure or cheat us, and to have a voice in our democracy. But those rights don’t mean anything if we don’t have effective courts – and judges – to vindicate them when they are impinged.
Knowing the important role federal courts play in shaping our laws and guaranteeing – or frustrating – our basic rights, President Bush and his supporters set out to put as many far right ideologues on the federal appellate courts as possible. The most controversial of his court nominees are busy re-making law across the land.
Most notoriously, John Roberts and Samuel Alito have joined with Reagan and Bush-41 nominees Antonin Scalia, Clarence Thomas, and Anthony Kennedy to give hard-right ideologues a frequent 5-4 majority on the Supreme Court. They have regularly bent the law and confounded logic in order to rule in favor of the powerful in case after the case, rewriting our Constitution and federal laws. Citizens United, Shelby County, and Hobby Lobby are just a few of the growing number of cases where they have used the federal bench as a platform to transform the country to fit their personal political ideologies, notwithstanding what the Constitution and our laws actually say.
While the Supreme Court is extremely important and well known, it only hears around 75 cases a year. Most Americans in federal courts have their cases decided at the district or circuit level. Circuit court rulings have an enormous impact on the law, and only a tiny portion of them are reconsidered at the Supreme Court. That is why George W. Bush and his partisans spent so much effort to confirm ideologues like Janice Rogers Brown, who now holds a lifetime position on the D.C. Circuit. She wrote a 2012 opinion holding that graphic warnings on cigarette packages violate the tobacco companies’ free speech rights. She joined a 2013 opinion striking down a National Labor Relations Board rule requiring employers to post workers’ legal rights, framing it as “compelled speech” indistinguishable from forcing schoolchildren to say the Pledge of Allegiance or requiring drivers to display a political message (Live Free or Die) on their license plates. She even defended the ideology of the discredited Lochner era in a 2012 concurrence, writing that courts’ deference to everyday economic and business regulations “means property is at the mercy of the pillagers.”
In contrast to ideologues like Brown, President Obama has named judges characterized by their fidelity to the Constitution and our laws, and the impact on ordinary Americans has been enormous. For instance, the full D.C. Circuit, which now has four Obama nominees among its eleven active judges, this month vacated a widely criticized panel ruling by two conservative judges striking down a key subsidies provision of the Affordable Care Act. The legal argument against the subsidies has been widely recognized as weak, with a transparently political motive. On the same day of the DC Circuit’s panel ruling, a unanimous panel of the Fourth Circuit had upheld the law. Obama nominee Andre Davis accurately described what the far right plaintiffs are seeking judicial allies to do:
[They want] our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
As that one example illustrates, the D.C. Circuit is hardly the only one of our nation’s 13 federal circuit courts that looks very different today from when Bush left office. Where there was then only one circuit with a majority of its active judges nominated by Democratic presidents, today there are nine.
Especially this year, supported by the Senate rules change, progress has been remarkable. The 113th Congress has confirmed 23 circuit court judges. One would have to go back to the 99th Congress in 1985-1986 to see that many circuit court judges confirmed during a single Congress.
The past year has seen the confirmation of nominees like Michelle Friedland (9th Circuit), Pam Harris (4th Circuit), and Nina Pillard (D.C. Circuit), jurists who understand the impact of the law on everyday Americans, who cherish our constitutional principles of equality and liberty, and who don’t see the federal courts as just another part of government that can be used to enhance corporate power.
If the past few months have shown us anything, it is this: Standing up to bullies works. The White House has made judicial nominations that it can be proud of, and Senate Democrats have overcome years of Republican obstruction to get these nominees confirmed. Despite the GOP’s herculean efforts to prevent President Obama from exercising the powers he was elected – and re-elected – to use, he is successfully restoring balance to the nation’s courts. For the first time, the number of courtroom vacancies is close to where it was when Obama took office, and highly qualified jurists are taking their places on our federal circuit and district courts.
And the progress isn’t over. An additional 16 judicial nominees have been fully vetted and approved by the Judiciary Committee and are currently eligible for a floor vote – a floor vote that could have been held before the Senate left town for the elections. Several more have had hearings and should be ready for consideration by the Committee and the full Senate during the lame duck session that is scheduled to begin on November 12. And the White House just sent additional nominees to the Senate that could easily have hearings and a Committee vote during the lame duck session as well. There is absolutely no excuse for not holding confirmation votes on any of these committee-approved nominees by the end of this Congress.
During the last two years of the Obama Administration and the years that follow, we can be sure of certain things: The courts will remain critically important, and progressives will have to fight hard to protect those courts and keep them functioning effectively, with judges who won’t seek to use their positions to short-circuit our most important rights.
On Friday, PFAW members and local activists came out to Sen. Mitch McConnell’s West Louisville campaign office to hold him accountable for his support of big money in politics and for voting against the Democracy For All Amendment during this week’s Senate vote.
The rally included PFAW Regional Political Coordinator Scott Foval, along with MoveOn Council’s Ann Hardman, University of Louisville’s College Democrats President Connor Allen, and local activist Bonifacio “Flaco” Aleman. Activists had a giant “King Mitch” holding fake money and signs saying “Money Is Not Speech” and “Mitch: Go Filibuster Yourself!” and more.
McConnell led the fight to block the Democracy for All Amendment during Senate debates this week. As a leading voice against efforts to get big money out of elections, McConnell has fought hard for years to protect billionaires’ and millionaires’ influence in our elections instead of protecting the average Kentuckian’s interests.
This rally along with over 15,000 signatures on a petition delivered to McConnell last week should make it clear to “King Mitch” that Kentuckians support an amendment to overturn decisions like Citizens United and #GetMoneyOut. Polling also shows that three in four voters support the measure nationally.
There were not sufficient votes to pass the proposed amendment this week, but a majority of the Senate did vote on Thursday in support of the Democracy for All Amendment despite “King Mitch’s” best efforts.
LOUISVILLE, KY — This afternoon, People For the American Way members and other activists rallied outside of Sen. Mitch McConnell’s West Louisville campaign office to protest “King Mitch’s” role in supporting big money in politics. The rally was held in response to McConnell’s vote against the Democracy for All Amendment during yesterday’s Senate session. This proposed constitutional amendment would overturn decisions like Citizens United and allow Congress and the states to set reasonable limits on money in elections.
During the Senate debates this week, Sen. McConnell led the charge against the Democracy for All Amendment despite receiving petitions from PFAW activists last week signed by over 15,000 Kentuckians urging him to support an amendment.
PFAW Regional Political Coordinator Scott Foval was featured during the rally, along with MoveOn Council’s Ann Hardman, University of Louisville’s College Democrats President Connor Allen, and local activist Bonifacio “Flaco” Aleman.
“‘King Mitch’ only pays attention to the millionaires and billionaires that fund his campaigns and ignores the average Kentucky constituent,” said PFAW Regional Political Coordinator Scott Foval. “He supports big money in politics and fights against policies that don’t benefit his ‘court’ of lobbyists, donors, and friends like the Koch brothers. But Kentuckians are standing up against his brand of crony politics that gives a voice only to the most privileged.”
For more information on People For the American Way’s work to get big money out of politics, please see our Government By the People webpage.
LOUISVILLE, KY — People For the American Way (PFAW) members and other activists rallied outside of Sen. Mitch McConnell’s state office on Tuesday afternoon to protest “King Mitch’s” role in supporting big money in politics. Activists held a giant “King Mitch” and signs that highlighted how Sen. McConnell supports millionaires over ordinary Kentuckians.
Last week PFAW delivered petitions from more than 15,000 Kentuckians urging Sen. McConnell to support an amendment overturning decisions like Citizens United. This week, McConnell led the effort to block the Democracy For All Amendment, which would have limited the influence of billionaires and corporations in our elections.
“‘King Mitch’ only pays attention to the millionaires and billionaires that fund his campaigns, and ignores the average Kentucky constituent,” said PFAW Regional Political Coordinator Scott Foval. “He not only supports big money in politics, ‘King Mitch’ fights against policies that don’t benefit his ‘court’ of lobbyists, donors, and friends like the Koch brothers. He wants a government where only the most privileged have a voice.”
For more information on People For the American Way’s work to get big money out of politics, please see our Government By the People webpage.
Tony Perkins of the Family Research Council thinks the Founding Fathers would be upset by the push to overturn the Supreme Court’s 2010 Citizens United ruling, warning on “Washington Watch” yesterday that a constitutional amendment would be “dangerous” to the country.
Perkins said amendment supporters “think they know better than the Founding Fathers” and seek to “rewrite the First Amendment to essentially silence political speech and strip it out of the First Amendment.”
He said he can’t believe anyone would support an amendment to allow voters to pass campaign finance regulations, even though a majority of voters, including Republicans, support an amendment [PDF].
Perkins previously claimed that overturning Citizens United is a sign of anti-Christian persecution, even going so far as to link the effort to the imprisonment of a Christian Sudanese woman.
On Monday afternoon People For the American Way joined partner organizations, Senators, and Representatives in a rally outside the U.S. Capitol in support of the Democracy For All Amendment to overturn decisions like Citizens United and get big money out of politics. As the Senate begins debating the measure, PFAW and ally organizations teamed up to deliver more than three million petitions in support of an amendment.
The rally was kicked off by People For the American Way Executive Vice President Marge Baker (pictured speaking above) and Public Citizen President Robert Weissman. Speakers included Sen. Tom Udall (N.M.), Sen. Bernie Sanders (Vt.), Sen. Sheldon Whitehouse (R.I.), Sen. Amy Klobuchar (Minn.), Sen. Al Franken (Minn.), Rep. Ted Deutch (Fla.), and Rep. Jim McGovern (Mass.) Rally footage was featured on The Last Word with Lawrence O’Donnell and in the Huffington Post.
Sen. Tom Udall (N.M.)
Sen. Bernie Sanders (Vt.)
Sen. Sheldon Whitehouse (R.I.)
Sen. Amy Klobuchar (Minn.)
Sen. Al Franken (Minn.)
Rep. Ted Deutch (Fla.)
Rep. Jim McGovern (Mass.)
At the rally, PFAW Executive Vice President Marge Baker said, “Today, more money than ever is flooding our democracy. But something else is also happening: everyday Americans are fighting back. Americans are no longer willing to settle for elections auctioned to the highest bidders.” You can watch her speech here.
The massive number of petitions delivered is just one of many indicators of the broad support for an amendment to get big money out of politics. Sixteen states, more than 550 cities and towns, and public figures including former Supreme Court Justice John Paul Stevens and President Barack Obama have already voiced support for an amendment. Recent polling found that nearly three in four voters (73 percent) favor it.
Organizations contributing petitions included People For the American Way, MoveOn.org, CREDO, Daily Kos, Public Citizen, Public Change Campaign Committee, USAction, Common Cause, Democrats.com, Free Speech For People, Coffee Party, Center for Media and Democracy, Brave New Films, Progressive Democrats of America, Sierra Club, US PIRG, Communications Workers of America, Wolf PAC, Move to Amend, Food and Water Watch, Corporate Accountability International, Greenpeace, Public Campaign, the American Association of University Women (AAUW), the League of Conservation Voters, and the Story of Stuff Project.
Get more information on PFAW’s Government By the People work here.
On Wednesday, PFAW activists in Kentucky joined other activists representing ally organizations in delivering petition signatures to Sen. Mitch McConnell’s state office calling for amending the Constitution to overturn cases like Citizens United and get big money out of politics. Nationally, more than three million Americans have signed such a petition.
The delivery comes days before the Senate is set to vote on the Democracy for All Amendment (S.J. Res 19), a joint resolution that would amend the Constitution to overturn Citizens United and related cases. An overwhelming majority of Americans oppose the Supreme Court’s rulings opening the floodgates to unlimited money in our elections, with sixteen states and over 550 cities formally demanding that Congress vote to pass a constitutional amendment to allow common sense campaign finance rules to be enacted.
The event in Louisville is part of a nationwide push to make the Democracy for All Amendment our Constitution’s 28th Amendment. Rallies and petition deliveries also occurred in the state offices of nine other senators throughout the country.
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.
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.
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).
…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.
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.
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.
Listen to the full audio of the telebriefing for more information.
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.