McCutcheon v. FEC

Applying McCutcheon's Logic to Voter ID Laws

If only the courts were as solicitous of the right to vote in elections as they are of the right to purchase them.
PFAW Foundation

Postcard from Arizona to John Roberts: Money Corrupts

In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions. 

Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.

This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.

This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.

The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”

PFAW

McCutcheon v. FEC Response Rally Hosted by People For The American Way at the Supreme Court

Within hours of the Supreme Court issuing its decision in McCutcheon v. FEC, People For the American Way organized a rapid response protest, the first of over 140 that are taking place across the country today. 

The protest featured key movement leaders from Congress and a wide range of advocacy organizations, all of whom were outraged about the Roberts Court’s disregard for democratic safeguards, like those gutted in McCutcheon v. FEC.

Emceed by People For the American Way’s Diallo Brooks and concluded by People For’s Drew Courtney, the rally featured Senator Bernie Sanders [VT], Representative Keith Ellison [MN-5], and Representative Ted Deutch [FL-19], as well as Jotaka Eaddy of the NAACP, Michael Russo of US PIRG, Steve Cobble of Free Speech For People, Nick Nyhart of Public Campaign, George Kohl of Communication Workers of America, Miles Rappaport of Common Cause, Erich Pica of Friends of the Earth, and Courtney Hight of the Sierra Club.

Speakers highlighted the problem of “big money” dominating the political process, and discussed the range of solutions--from enacting disclosure and public financing laws to amending the Constitution--that are available to solve it.

 
   
PFAW

How Much Congressional Representation Does Billionaire Shaun McCutcheon Have?

This post originally appeared on the People For blog.

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts waxes eloquent about responsiveness to constituents in an opinion about responsiveness to non-constituents.
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.

Supreme Court's McCutcheon Decision is Great News for Billionaires

The American people should have the power to prevent government of, by, and for the wealthy.
PFAW Foundation

Amend the Constitution to Get Big Money Out of Elections

It's time to amend the Constitution to get big money OUT of elections and restore Government By the People.

PFAW Statement on McCutcheon v. FEC Decision

WASHINGTON – In response to today’s Supreme Court’s decision in McCutcheon v. FEC, a campaign finance case with vast implications for our democracy, People For the American Way’s executive vice president Marge Baker released the following statement:

Our nation’s wealthiest people don’t need even more political influence, but that’s what today’s decision hands them. The Supreme Court has given its stamp of approval to a government unduly influenced by the rich and powerful.

As with the 2010 Citizens United decision, the consequences for our democracy of today’s deeply misguided decision will be grave, opening the door for wealthy donors to give, in aggregate, millions of dollars in direct contributions in a single election cycle. The Roberts Court has once again proven itself to be ideologically-driven, going out of its way to protect the interests of the most powerful among us at the expense of everyday Americans.

But big threats create big opportunities. From efforts to amend the Constitution to overturn Citizens United and related cases to small donor public financing proposals, a range of mutually reinforcing, pro-democracy reforms are coming together in communities across the country. Despite today’s damaging decision, Americans remain committed to restoring a political system of, by, and for the people.

Last year our affiliate People For the American Way Foundation released an in-depth edit memo outlining the particulars of McCutcheon within the context of the Supreme Court’s past rulings on campaign finance. We also filed an amicus brief in the case.

At noon today, PFAW members will join other area activists in front of the Supreme Court at a rally in reaction to the McCutcheon v. FEC ruling. More than 130 other events across the country are also planned for the day of the ruling, including rallies in New York, Los Angeles, Chicago, Philadelphia, Boston, Dallas, Houston, Seattle, and many more.

Today PFAW is also joining partner advocacy organizations in sending a letter to every member of Congress urging them to cosponsor constitutional amendment resolutions that would restore the authority of Congress and the states to effectively regulate election spending.

PFAW executive vice president Marge Baker and PFAW senior fellow Jamie Raskin are both available for interviews with the press about the McCutcheon case. To arrange an interview, please contact Layne Amerikaner at media@pfaw.org / 202-467-4999.

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PFAW and Allies Rally for Democracy at the Supreme Court

As the Supreme Court heard arguments today in McCutcheon v. FEC – a campaign finance case in which the Court will decide whether to strike down overall limits on direct political contributions – a great crowd of PFAW and allies rallied outside the Court in support of getting big money out of politics.  From students and small business owners to members of Congress – including Senator Bernie Sanders and Representatives Ted Deutch, Jim McGovern, and John Sarbanes – people from all backgrounds came together in support of protecting the integrity of our democracy.

PFAW Executive Vice President Marge Baker kicked off the speeches by painting a picture of the “people versus money” nature of the case:

Inside the court – right now – one wealthy man is asking for permission to pour even more money directly into political campaigns. But we’re here, too, and we have a different ask.  We’re asking the justices to protect the integrity of our democracy. We’re asking them to protect the voices and the votes of ‘We the People’….We’re here today saying loud and clear: our democracy is not for sale.

Also speaking at today’s rally was Montgomery County Council Vice President Craig L. Rice, Maryland State Director of affiliate PFAW Foundation’s Young Elected Officials Network.  Rice spoke about the effect of campaign finance laws on young political candidates:

As a young minority elected official, let me tell you: this [case] is extremely troubling….Young minority candidates throughout this country are routinely outspent and therefore denied the ability to serve in elected roles….Money should not determine who serves in office.

Howard University student Brendien Mitchell, a fellow in affiliate PFAW Foundation’s Young People For program, talked about the importance of being able to hear the political voices of young people in the midst of voter suppression efforts and massive spending by the wealthy in our democracy:

What about the freedom of young Americans who cannot donate grandiose sums of money to political candidates?....We gather to say that this is our country.  And that in a case of money versus people, the answer should be apparent: the people.

One of the highlights of the day was hearing from Moral Monday demonstration leader Rev. Dr. William Barber, II, president of the North Carolina State Conference of the NAACP and a member of PFAW’s African American Ministers in Action.  Rev. Barber highlighted the millions of dollars Art Pope has poured into conservative projects and campaigns in his home state of North Carolina:

We [in North Carolina] know firsthand that when you undermine laws that guard against voter suppression, and you undo regulations on the ability for corporations and individuals to spend unchecked amounts of money to influence and infiltrate and literally infect the democratic process, it has extreme impacts.

Extreme impacts – and not only on the electoral process itself, but also on a whole host of issues shaping the lives of everyday Americans.  Whether you care most about protecting voting rights, preserving our environment, or workers getting paid a livable wage, a political system where the super-rich can make six-digit direct political contributions harms us all.

And that’s why organizations and activists with focuses ranging from civil rights to environmental protection to good government issues came together today with a common message: our democracy is not for sale.

PFAW

What Universe Is the Roberts Court Living In?

In campaign finance, what is obviously corruption to most of us is just business as usual to the Roberts Court.
PFAW Foundation

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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Watch Out, the Roberts Court is Back in Session

The arch-conservative Roberts Court begins a new term that could affect vast areas of American law.
PFAW Foundation

McCutcheon v. FEC

On October 8, 2013, the Supreme Court heard oral arguments in McCutcheon v. FEC -- an important money-in-politics case many are calling "the next Citizens United." Find out more on our McCutcheon information & resource page.

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.

On Argument of McCutcheon v. FEC, Democracy Groups Call for Constitutional Amendment

Supreme Court hearing case shows need for an amendment to protect integrity of our democracy, eight groups argue

WASHINGTON – As the Supreme Court prepares to hear oral arguments in McCutcheon v. FEC, eight pro-democracy groups are speaking out on the urgent need for amending the Constitution to protect the integrity of our democracy. 

Three years after the Supreme Court’s decision in Citizens United v. FEC, which opened the door to a torrent of corporate and special interest spending to influence our elections, the high court is now considering a case that could bring further harm to our political system.  In McCutcheon, the Court is being asked to strike down aggregate contribution limits and allow multi-million-dollar campaign contributions to flood our electoral process. 

The case is a continuation of the attack on our democracy by wealthy interests.  Plaintiffs challenging aggregate limits should clearly lose this case under current Supreme Court precedent, but the fact that the Court has agreed to hear their arguments at all underscores the need for amending the Constitution to restore the American people’s ability to limit corporate and special interest influence on elections and to promote a democracy of, by and for the people.  To date, sixteen states and more than 500 cities and towns have gone on record in support of amending the constitution.  Fourteen federal amendments have been proposed in the 113th Congress.

The organizational statements are below.

“After the most expensive election cycle in our country’s history, the ultra-conservative bloc of the Supreme Court continues to threaten our democracy,” said Marge Baker, Executive Vice President of People For the American Way. “Our constitution’s authors did not envision a government of corporations and the wealthy – they envisioned a government of the people. This case threatens the very foundations of that system. A democracy where the voices of everyday Americans are overpowered by the amplified voices of the rich and powerful is not the kind of democracy Americans want or expect. That’s why it’s so important that we help nurture the growing movement to take back our democracy and pass a constitutional amendment putting the power of our political system back where it belongs – in the hands of the people.”

“The Supreme Court may be poised in the McCutcheon case to follow its disastrous Citizens United decision and issue a new ruling which further allows big money interests to dominate our political process and drown out the voices of ordinary citizens,” said John Bonifaz, the Co-Founder and Executive Director of Free Speech For People. “If it does that, it will only provide added proof that we the people must overrule the Court with a constitutional amendment to reclaim our democracy.”

“For nearly forty years, the Supreme Court has been driving us down a road that continues to take us further from our democratic values,” said Emma Boorboor, Democracy Associate for U.S. PIRG. “Americans believe that in a democracy the size of your wallet should not determine the volume of your voice. McCutcheon v. FEC could give a megaphone to small set of ultra wealthy donors, drowning out the voices of average Americans. Those challenging limits should clearly lose this case under current law. But, ultimately, we can only turn this car around by amending the U.S. Constitution to clarify to the Supreme Court that the first amendment was never meant as a tool for special interests to co-opt our democratic process.”

“The Supreme Court should not repeat the grave mistakes of its disastrous Citizens United ruling in the McCutcheon case by giving the richest few even more disproportionate influence over our democracy,” said Lisa Graves, Executive Director of the Center for Media and Democracy. “The notion that anyone’s ‘speech’ rights are burdened because he can’t give more than $123,200 in campaign contributions is an absolute perversion of the First Amendment, and the fact that the high court would even consider such a claim demonstrates that we need to amend our Constitution to stop the distortions of big money in our elections and restore the primacy of the people in our democracy.”

“In McCutcheon, the Supreme Court will decide whether to double down on Citizens United to transform further our democracy – rule by the people – into a wealthocracy,” said Robert Weissman, President of Public Citizen. “We can only hope that this is one step too far for the Supreme Court. But we shouldn’t have to hope, and we shouldn’t have to live with a campaign finance system already corroded by Citizens United and other harmful court decisions. That McCutcheon is even being considered by the Court highlights the imperative of a constitutional amendment to protect our democracy.”

“McCutcheon is not about free speech, it’s about the buying and selling of political power,” said Karen Hobert Flynn, Senior Vice President for Strategy and Programs at Common Cause.  “The case invites the court to give wealthy Americans permission to purchase political favors and influence like they purchase stocks or real estate. With apologies to Mark Twain, it would give us the best government money can buy.”

“Many in this country already question the Legitimacy of our supposedly ‘democratic’ republic and the Supreme Court itself,” said Bill Moyer, Executive Director of the Backbone Campaign. “Even the pretext of representation of the citizenry has be replaced with a blatant and shameless auction. Corporations and the aristocratic super-rich who hide behind their corporate shelters of liability are ‘coming out.’ McCutcheon v. FEC represents a shameless flaunting of oligarchic power and reflects disdain for even the illusion of a system that strives toward egalitarian system of, by and for the People.”
 
“The issue in the McCutcheon case is one of political bribery, which is outlawed in the US Criminal code.  Yet, in the wake of Citizens United, we fear that the court’s attack on democracy in favor of corporate rule will continue when it rules in this case involving aggregate limits on individual contributions to candidates,” said David Delk, Co-Chair of the Alliance for Democracy.  “Will it even limit itself to just that question? To end this series of court decisions favoring the corporatocracy, we must amend the US Constitution to make clear that corporations are not people and therefore have no constitutional rights, and that money is not speech.”

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Edit Memo: Blockbuster Case Kicks Off New Supreme Court Term: The McCutcheon Steamroller

In the wake of landmark rulings in the Supreme Court’s last term, this coming Court term is shaping up to be at least as consequential.

McCutcheon v. FEC Activist Toolkit

McCutcheon v. FEC is a money in politics case with huge implications for our democracy.
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