Government By the People

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.

C. Boyden Gray Comes Up With Most Ridiculous Argument Yet for Filibustering DC Circuit

The former George W. Bush administration official who founded a group to push for the confirmation of Bush’s judicial nominees has come up with the most ridiculous justification yet for a possible Republican filibuster of President Obama’s three nominees to vacancies on the Court of Appeals for the District of Columbia Circuit. In a Washington Times column today, C. Boyden Gray argues that Obama’s filling all the seats on the court is in fact a "drive to pack" the court and would “risk politicizing an institution that is – and should be – above politics” and lead to a loss of “collegiality” among the judges on the court.

Gray’s concern for the independence of the judiciary is admirable, but it’s interesting that he seems to have developed this concern only when a Democratic president started nominating judges.

In fact, Gray seems to have held the opposite view of what to do with the D.C. Circuit during the George W. Bush administration, when he founded and led an organization dedicated to getting President Bush’s most conservative nominees confirmed to the federal courts. Among the nominees Gray worked to confirm were current D.C. Circuit judges Thomas Griffith, Brett Kavanaugh and Janice Rogers Brown, who have given the court a serious right-wing ideological bent, and now- Supreme Court Chief Justice John Roberts. In total, thanks in part to Gray, Bush had four nominees confirmed to the D.C. Circuit, filling all eleven of the twelve seats then available.

In contrast, President Obama has had just one nominee confirmed to the D.C. Circuit in his five years in office, bringing the total number of judges on the court up to eight out of eleven designated seats. This puts him far behind all of his recent predecessors in placing judges on the court. In fact, every president since Jimmy Carter, going through the process laid out in the Constitution, has had at least three nominees confirmed to the D.C. Circuit.

So, why does Gray think President Obama’s nominees would so unbalance the careful social order of the court? He cites the effort that Judge Harry Edwards, a Carter nominee, made in the mid-1990s to get judges on the court to work together across ideological lines, and Judge Edwards’ observation that “smaller courts tend to be more collegial.”  Which is a great argument for confirming judges who are skilled at working across ideological lines (for instance, Nina Pillard) but makes no sense as an argument simply not to let a given president fill seats on the court.

In the column, Gray also backs Chuck Grassley’s effort to eliminate the three D.C. Circuit seats to prevent President Obama from filling them and transfer two to other, less influential, circuits – a plan that has no backing in actual caseload data

If these are the logic-jumping lengths that conservatives have to go to justify their all-out obstruction of President Obama’s judicial nominees, maybe it’s time they just gave up and admitted that they just don’t want to let President Obama do his job.

 

Support for Amending the Constitution to Overturn Citizens United is Now One-Third of the Way There

Support Growing in U.S. Senate, House of Representatives and State Legislatures

WASHINGTON – Advocates are celebrating a significant milestone in the campaign for a constitutional amendment to overturn the U.S. Supreme Court’s 2010 ruling in Citizens United that opened the floodgates of money from corporations and the ultra wealthy into our political system. Support for the campaign now stands at one-third of what is needed for victory.

The Constitution can be amended by votes of a supermajority of each chamber of Congress, followed by ratification by three-quarters of the states. Support for an amendment now stands at one third of each of those thresholds:

Share required Number needed Number today %
2/3 Senators 67 27 sponsors and co-sponsors 40%
2/3 Representatives 290 99 sponsors and co-sponsors 34%
3/4 States 38 16 official resolutions, ballot measures or official calls for an amendment 42%

“This milestone represents important progress toward a goal that’s critical to preserving the integrity of our democracy,” said Marge Baker, executive vice president of People For the American Way. “Amending our country’s constitution should be difficult.  But this isn’t the first time Americans have encountered a serious problem that needs a serious solution. Citizens United and other cases that paved the way for big money to flood our elections have given us one of those moments. As more states and elected officials go on record in support of an amendment, the clearer it becomes that the American people will not stand to have their voices overpowered by wealthy special interests.”

“In just three years since the Supreme Court’s Citizens United ruling, we have come one third of the way to amending the US Constitution to reclaim our democracy and to ensure that people, not corporations, shall govern in America,” said John Bonifaz, co-founder and executive director of Free Speech For People.  “Americans across the political spectrum are standing up to defend that fundamental promise of government of, by, and for the people.”

“Sixteen states representing tens of millions of Americans and hundreds of cities and towns, from Los Angeles to Boston, have passed resolutions and ballot measures in support of a constitutional amendment to reverse Citizens United," said Karen Hobert Flynn, senior vice president for strategy and programs at Common Cause. “Voters and legislators are justifiably outraged at the way Citizens United has created a system of legalized bribery around our elections, and are building the momentum we need to make a change.”

“Fast gaining momentum, the movement for a constitutional amendment aims to reassert popular sovereignty and return America to the founding constitutional principle embodied in the phrase, We, the People,” said Robert Weissman, president of Public Citizen. “We, the People of the United States are fast on our way to winning a constitutional amendment to ensure our government works for us, not JP Morgan, Pfizer and Walmart.”

Citizens United set a dangerous precedent by opening the floodgates for special interest money in our elections,” said Emma Boorboor, Democracy Associate, U.S. PIRG. “Yet, as a nation we overwhelmingly value the idea that the size of your wallet should not determine the volume of your voice in our democracy. The fact that we are already a third of the way to passing a constitutional amendment to get big money out of politics clearly demonstrates the building momentum and the desire of Americans to stand up for our democratic values.”

Sixteen states have formally called for an amendment by ballot measure, resolutions passed by the legislature, or official letters signed by a majority of state legislators:

California
Colorado
Connecticut
Delaware
Hawaii
Illinois
Maine
Maryland
Massachusetts
Montana
New Jersey
New Mexico
Oregon
Rhode Island
Vermont
West Virginia

In addition, nearly 500 cities, towns, and counties, including New York, Los Angeles, Chicago, and Philadelphia have called for an amendment, and more than 2,000 elected officials nationwide are on record supporting one.

A 2010 Peter Hart poll found that 82% of Americans support congressional action to limit corporate spending on elections (which Citizens United unleashed), and that 79% support a constitutional amendment to accomplish this. This past September, an Associated Press poll found that 83% of Americans favor limits on the amount of money corporations, unions, and other organizations can spend on our elections.

Public support is also bipartisan. The 2010 Peter Hart poll revealed that 68% of Republicans, 82% of independents, and 87% of Democrats support an amendment.  The 2012 AP poll showed that 81% of Republicans, 78% of independents, and 85% of Democrats want to limit corporate, union, and other outside spending.

Free Speech For People works to challenge the misuse of corporate power and restore republican democracy to the people. The group advances the movement to amend the U.S. Constitution to overturn Citizens United v. FEC, an earlier case called Buckley v. Valeo, and the fabricated doctrine of corporate constitutional rights. For more on Free Speech For People, visit: www.FreeSpeechForPeople.org.

Common Cause is a nonpartisan, grassroots organization dedicated to restoring the core values of American democracy, reinventing an open, honest, and accountable government that works for the public interest, and empowering ordinary people to make their voices heard.

People For the American Way engages in lobbying and activist mobilization to support local, state and federal initiatives to ameliorate the impact of, and eventually overturn via constitutional amendment, the effects of Citizens United and other court cases that have opened the floodgates of unlimited corporate and special interest spending to influence elections.  PFAW activates its membership, its youth leadership networks (the Young Elected Officials Action and Young People For Action programs) and its African American Ministers in Action network for money-in-politics work. PFAW co-leads coalition efforts to confirm judges and justices who respect the progressive ethic of the Constitution and has a dynamic political arm engaged in electoral strategies to hold money-in-politics obstructionists accountable.

Public Citizen is national non-profit membership organization. Since 1971, we have fought for corporate and government accountability to guarantee the individual’s right to safe products, a healthy environment and workplace, fair trade, and clean and safe energy sources. Public Citizen is deeply invested in limiting the damaging effect of money in politics and passing an amendment to overturn the Citizens United ruling and related cases. www.DemocracyIsForPeople.org

U.S. PIRG is a citizen's group that stands up to powerful interests whenever they threaten our health and safety, our financial security, or our right to fully participate in our democratic society. For decades, we’ve stood up for consumers, countering the influence of big banks, insurers, chemical manufacturers and other powerful special interests. www.uspirg.org

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PFAW Releases New Toolkit on Getting Money Out and Voters In to Our Democracy

We believe in a democratic system where all Americans have equal access to the voting booth and can express their views on a level playing field.
PFAW

Money Out, Voters In: A Guide to Democratic Reform

Americans today face twin threats to the integrity of our democracy: unlimited spending to influence elections and voter suppression. Find out what you can do.

To Understand GOP Government Shutdown Threats, Follow the Money

If you’re curious why many House Republicans are on board with an unhinged plan to threaten a government shutdown or default over demands to “defund” Obamacare, you should follow the money.  That’s what the New York Times editorial board argued in a compelling op-ed Tuesday. 

Far-right groups such as the Club for Growth are striking out at Republicans who refuse to take this reckless stance, wielding their considerable funds to “inflict political pain” on those who do not share their extremist position. And they are titillating their Tea Party supporters with political fantasies in order to get them to send in even more money, so they can ramp up their attack on Republicans who don’t toe the line. In “The Money Behind the Shutdown Crisis,” the editorial board wrote:

These groups, all financed with secret and unlimited money, feed on chaos and would like nothing better than to claim credit for pushing Washington into another crisis. Winning an ideological victory is far more important to them than the severe economic effects of a shutdown or, worse, a default, which could shatter the credit markets.

[…] Brian Walsh, a longtime Republican operative, recently noted in U.S. News and World Report that the right is now spending more money attacking Republicans than the Democrats are. “Money begets TV ads, which begets even more money for these groups’ personal coffers,” he wrote. “Pointing fingers and attacking Republicans is apparently a very profitable fund-raising business.”

And as more money pours into these shadowy groups, their influence – and thus their potential for inflicting further damage on our democracy – grows.  With fewer effective campaign finance regulations left standing in the post-Citizens United landscape, there is little that can stop these groups from using their money to bully elected officials.

But the functioning of our government is not a game.  And though for these fringe groups making an ideological point may seem more important than keeping our government from shutting down or defaulting, Americans are tired of having our basic economic security called into question over political posturing.

As the Times editorial board put it:

It may be good for their bank accounts, but the combination of unlimited money and rigid ideology is proving toxic for the most basic functioning of government.

PFAW

The Most Important Conservative Funder You’ve Never Heard Of

It was a big week for lifting the veil – at least a little – on the secretive world of conservative groups funding political campaigns. On Wednesday we wrote about new reports on two of the Right’s shadowy front groups which have been able to disguise the transfer of large sums of money to organizations supporting Republican causes and candidates. 

Then Politico brought us a look inside what they call “the Koch brothers’ secret bank,” a previously unknown group called Freedom Partners which gave a quarter billion dollars in 2012 to sway public debate further to the right. Mike Allen and Jim VandeHei report:

The group, Freedom Partners, and its president, Marc Short, serve as an outlet for the ideas and funds of the mysterious Koch brothers, cutting checks as large as $63 million to groups promoting conservative causes, according to an IRS document to be filed shortly…

The group has about 200 donors, each paying at least $100,000 in annual dues. It raised $256 million in the year after its creation in November 2011, the document shows. And it made grants of $236 million — meaning a totally unknown group was the largest sugar daddy for conservative groups in the last election, second in total spending only to Karl Rove’s American Crossroads and Crossroads GPS, which together spent about $300 million. [emphasis added]

Though you likely have not heard of Freedom Partners before, you’ve heard of the groups it funds – including the NRA, Americans for Prosperity, Heritage Action for America, and Tea Party Patriots. According to their newly-launched website, Freedom Partners is “promoting the principles of a free market and free society” by advocating against scourges like “cronyism in America.” 

This, from one of the biggest spenders in the last election.

Other than the Koch brothers, who are the donors behind this massively influential group?  At this point, it’s hard to know. Despite the group’s president’s insistence that “our members are proud to be part of [the organization],” Freedom Partner’s membership page does not list a single one.  It’s yet another example of the need for legislation like the DISCLOSE Act, which would shed light on the major donors behind the secretive outside groups attempting to shape our elections – and our country.
 

PFAW

How Big Money Bought North Carolina for Extremists

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

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

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

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

PFAW

New Insights Into the Right’s Big Money Shell Game Highlight Need for the DISCLOSE Act

In today’s legal landscape, “following the money” is tricky – but a new report released yesterday shows why this work is critical to anyone who cares about progressive change. The latest digging from the Center for Responsive Politics’ Open Secrets blog has uncovered new information about a multi-tiered money laundering operation through which tax-exempt groups funnel millions to groups supporting right-wing causes and candidates. 

Operating behind a thick veil of secrecy, groups like TC4 Trust and the Center to Protect Patient Rights – which Open Secrets describes as “‘shadow money mailboxes’ – groups that do virtually nothing but pass grants through to other politically active 501(c)(4) organizations” – are able to hide both their donors and their recipients.  By funneling grants through “sub-units,” which are owned by the larger groups but have different names, groups like TC4 Trust put millions into the pockets of 501(c)4 organizations supporting Republican causes in the 2012 elections, such as the advocacy arm of Focus on the Family.

As Open Secrets reports,

[T]heir financial ties run far deeper than previously known.  The groups, TC4 Trust and the Center to Protect Patient Rights – both of which have connections to the billionaire industrialist Koch brothers – have been playing a high-stakes game of hide-the-ball, disguising transfers of millions of dollars from one to the other behind a veil of Delaware limited liability corporations.

The source of political advocacy matters.  This latest example of dark money donor groups obscuring the links of their money trail underscores the urgent need for legislation like the DISCLOSE Act.  This act would bring some basic transparency to the electoral system and require outside groups spending money in elections to disclose their donors – including the original source of donations.  The measure, which was blocked by Senate Republicans in both 2010 and 2012, is a common-sense solution that would help the American people understand who is trying to influence their political opinions and their votes.

PFAW

Pat Robertson Marks 9/11 By Blaming Separation Of Church And State For Inviting Radical Muslim 'Fifth Column' Into America

Two days following 9/11 terrorist attacks, televangelists Pat Robertson and Jerry Falwell blamed the attacks on “the pagans, the abortions, the feminists and the gays and lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way.”

Today, Robertson remembered 9/11 by attacking former president George W. Bush for calling Islam a “religion of peace.”

“They believe that anybody who doesn’t submit is at war with them and they are prime targets, and for the Western nations to welcome this fifth column into their midst is just committing suicide,” Robertson claimed.

“The reason is they have lost their faith in God, they have lost their faith in Jesus Christ, they don’t believe in what the Bible says and the core values of our society have gone away,” Robertson continued. “We’ve done it here in America, we’ve abolished prayer in the schools, we’ve taken out Bible-reading in the schools and little by little by little we’ve eroded the rights—we keep talking about separation and this that and the other.”

Watch:

Robertson made the remarks following a report by Dale Hurd which linked radical Islamic groups to liberals. “Muslims and the European left continue their strange political partnership; while they’re polar opposites when it comes to women’s rights, abortions and homosexuality, Muslims vote for the left while the left grows its constituency by encouraging Muslim immigration and the spread of Islamic values,” Hurd claimed. “America too has been knowingly trying to advance the cause of Muslim radicals in Syria and Egypt.”

Warren Warns of ‘Corporate Capture of Federal Courts’

At an AFL-CIO convention this weekend, Massachusetts Sen. Elizabeth Warren called out the increasingly pro-corporate lean of the U.S. Supreme Court. Politico reports:

On the opening day of the AFL-CIO’s convention, Warren — the highest-profile national Democrat to address the gathering here — warned attendees of a “corporate capture of the federal courts.”

In a speech that voiced a range of widely held frustrations on the left, Warren assailed the court as an instrument of the wealthy that regularly sides with the U.S. Chamber of Commerce. She cited an academic study that called the current Supreme Court’s five conservative-leaning justices among the “top 10 most pro-corporate justices in half a century.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of Big Business,” Warren said, drawing murmurs from the crowd.

The study that Warren was referring to is a Minnesota Law Review study that found that the five conservative justices currently on the Supreme Court have sided with corporate interests at a greater rate than most justices since World War II. All five were among the ten most corporate-friendly justices in over 50 years. Justice Samuel Alito and Chief Justice John Roberts were the top two.

The Supreme Court majority’s consistent twisting of the law to put the interests of corporations over those of individuals is one of the main characteristics of the Roberts Court, but it is not the only extremely influential court with such a pro-corporate bent. In fact, the Court of Appeals for the District of Columbia Circuit, to which President Obama has nominated three highly qualified candidates, has been following the same trend, also because of the influence of judges named by George W. Bush.  This is the court whose ultra-conservative justices declared that cigarette label warning requirements violate the free speech rights of tobacco companies and that requiring that employers inform employees of their right to unionize violates the free speech rights of the corporations.

While there is not currently a vacancy at the Supreme Court that could affect its balance, there are three at the DC Circuit.  That is why Senate Republicans are working so hard to keep them empty.

PFAW

McCutcheon v. FEC Activist Toolkit

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

PFAW’s Money Out/Voters In Work Highlighted in CNN Article

Yesterday Ben Cohen (co-founder of Ben & Jerry’s) and Edward Erikson had a great op-ed at CNN.com connecting the student debt crisis with the broader issue of big money’s influence in our political system:

But the education system isn't broken -- it's “fixed.” If we're serious about tackling the issue of affordable education and student debt, we need to strike at the root of the problem -- the influence of money in politics.

Private corporations like Sallie Mae -- which own 15% or $162.5 billion dollars of total student debt -- rake in private-island-purchasing profits while students suffer.

Indeed, from student debt bills to workers’ rights legislation to environmental protections, policies that protect everyday Americans will continue to face uphill battles until we can limit the influence of wealthy special interests in our democracy.

Cohen and Erikson point out:

It's time to dam the deluge of cash and corporate influence in Washington once and for all….Thanks to the leadership by groups like People for the American Way, Move to Amend, Common Cause, Free Speech for People and Public Citizen, 16 states have passed referendums calling on Congress to take action and over 150 members of Congress support the amendment strategy.  (emphasis added)

And with so much amendment momentum at the state and local level, PFAW and allies are shifting our focus to Congress. As part of our “160 Summer” campaign, money in politics groups are working toward a goal of getting 160 members of Congress to sponsor an amendment resolution limiting the deluge of big money pouring into our elections by overturning Citizens United.  Has your representative already voiced their support?

As Cohen and Erikson put it, “This is our future and our fight to win.”

PFAW

Justice Ginsburg Speaks Out Against Citizens United

With little over a month before the Supreme Court hears oral arguments in McCutcheon v. FEC, a money in politics case that some are calling the next Citizens United, Justice Ruth Bader Ginsburg spoke out this week on the damage that Citizens United v. FEC continues to cause to our democracy. 

Discussing the infamous 2010 Supreme Court decision that paved the way for unlimited corporate spending to influence our elections, Ginsburg told Greg Stohr of Bloomberg News:

“You take the limits off and say, ‘You can spend as much as you want,’ and people will spend and spend,” she said. “People are appalled abroad. It’s a question I get asked all the time: Why should elections be determined by how much a candidate can spend and why should candidates spend most of their time these days raising the funds so that they will prevail in the next election?”

It’s a great question, and one with a clear answer – they shouldn’t.

Justice Ginsburg is not alone in her concerns about the damage done to our democratic system.  A 2012 Brennan Center national poll found that nearly seven in ten respondents agree that “new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.” 

And this is not the first time Justice Ginsburg has publicly commented on the Citizens United decision. Early last year, Justices Ginsburg and Breyer released a statement in conjunction with a Court order in a campaign finance case out of Montana stating that:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

It is also not the first time she has commented on the Roberts Court more generally.  In an interview with the New York Times this weekend, Ginsburg called the current court “one of the most activist courts in history.”

In October, the high court will hear arguments in a case considering similar issues, McCutcheon v. FEC, for which People For the American Way Foundation submitted an amicus brief.  In this case, the Supreme Court could take the damage of Citizens United one step further by eliminating the caps on how much money an individual can contribute – in total – in each two-year campaign cycle.  It other words, the court would be striking down another protection against wealthy special interests overpowering our political system, allowing even more big money to flow into our elections.

Just what our democracy needs.  PFAW Foundation Executive Vice President Marge Baker noted last month:

Protecting the legitimacy of our political system, and restoring the faith of the American people in that system, is vital to a working democracy.

And as Justice Ginsburg highlighted this week, elections shouldn’t be determined by who has the biggest wallet.
 

PFAW Foundation

Keeping ALEC In The Spotlight

When the right-wing American Legislative Exchange Council recently held its 40th annual meeting in Chicago, thousands -- including PFAW activists -- crashed the party.
PFAW

Durbin Questions Potential ALEC Backers on Stand Your Ground Laws


As the American Legislative Exchange Council (ALEC) meets in a swanky Chicago hotel for its 40th annual summit this week, Sen. Richard Durbin (D-IL) has raised some important questions for the corporations that may be funding the group.

Roll Call reports that Sen. Durbin, who chairs the Senate Judiciary Committee’s civil rights subcommittee, has reached out to more than 300 corporations that are possible ALEC funders to ask for their positions on “Stand Your Ground” laws.  Durbin announced last month that he will hold a hearing on these laws in the fall.

Because ALEC operates behind closed doors, it can be a challenge to expose the corporations, corporate trade associations, and corporate foundations backing its damaging work.  Durbin’s letter notes:

Although ALEC does not maintain a public list of corporate members or donors, other public documents indicate that your company funded ALEC at some point during the period between ALEC’s adoption of model “stand your ground” legislation in 2005 and the present day.

Despite the potential roadblocks, Durbin’s letter shines a spotlight on the clear link between ALEC, an organization that connects corporate lobbyists with state legislators, and the “Stand Your Ground” laws it helped to get on the books in over two dozen states.   And this is a critical connection to highlight, because as PFAW President Michael Keegan wrote last month, these are laws which “help create a climate like the one that encouraged George Zimmerman to use lethal force against an unarmed teenager.”

PFAW
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