PEOPLE FOR BLOG

Ending Anonymous Holds

Last weekend, Senator Claire McCaskill put pressure on obstructionist Republicans, announcing that she had enough votes to end the Senate practice of placing anonymous holds on executive nominees. As McCaskill explained in her recent Huffington Post piece, “someone, it seems, secretly has a problem with these nominations but they don't want to be open and transparent about it.”

Apparently, the pressure worked: on Tuesday, 60 backlogged Obama choices were finally cleared by the Senate after months of Republican stonewalling. The confirmations represented a small victory over Senate Republicans’ unprecedented obstructionism, which has plagued the last year and a half of crucial legislative work. The GOP has not only placed an absurd number of anonymous holds on executive nominees; they’ve also set an all-time record on misusing the filibuster to waste the Senate’s time and slow down important government business. Even after Tuesdays slew of confirmations, dozens of nominees remain unconfirmed – as compared to only thirteen at this time in George W. Bush’s presidency.

It’s clear that the Republicans in question don’t have substantive problems with the President’s nominees. Instead, they’re abusing Senate procedure to intentionally disrupt government functions. It’s time for a change in the way the Senate operates, and thanks to Senator McCaskill and her colleagues, we may soon have one.

PFAW

Supreme Court Denies Access to Justice in Rent-A-Center v. Jackson

In yet another decision highlighting the Roberts Court's tendency to favor corporations over individual citizens, the Supreme Court on Monday made it more difficult for employees and consumers challenging their contracts to seek justice in court.

In Rent-A-Center v. Jackson, Antonio Jackson filed suit in a Nevada federal district court against his employer, Rent-A-Center, claiming that he had suffered racial discrimination and retaliation. Rent-A-Center tried to dismiss the lawsuit and force Jackson to move the dispute to arbitration, as was required by Jackson’s employment contract. The district court agreed with the company, but the Ninth Circuit court reversed, holding that when a person opposing arbitration claims that he or she could not have meaningfully consented to the agreement, the question of whether the original contract was fair must be decided by a court.

In a 5-4 opinion written by Justice Scalia, the Supreme Court overturned the Ninth Circuit's ruling, saying that Mr. Jackson failed to specifically challenge the arbitration provision in the agreement that requires challenges to the validity of the entire agreement to also be decided by an arbitrator. Previously, if an employee challenged certain aspects of a contract that included a binding arbitration clause but not necessarily the arbitration clause itself, the dispute would go to the arbitrators. However, the Court's decision expanded upon that to hold that even if an employee argues that the entire contract – including the arbitration clause – was unconscionable and therefore unenforceable, that person is still denied access to the courts unless he specifically and separately challenged the arbitration clause. In other words, arguing that the entire contract is illegitimate is not enough.

Treated as contracts, arbitration clauses waive one’s rights to go to court, meaning that any disputes must instead be settled through private arbitration. Often built into the fine print of a contract, these clauses are very common in the consumer context and usually there is little choice but to sign or not sign the contract. Most people at some point or another will become bound to an agreement with an arbitration clause, perhaps as part of a cell phone contract, a health insurance plan, or an employment contract. Although they are ostensibly for the benefit of both parties, they are primarily drafted to protect companies from litigation, as it is often too expensive for a claimant to even initiate the arbitration proceedings, much less pay the arbitrator’s hourly fees. In a telling signal of what a majority of the Court today thinks about these practical obstacles for ordinary Americans, Justice Scalia, in oral arguments, dismissed people who sign arbitration agreements as “stupid.”

Forced arbitration is an increasing problem as these clauses become standard parts of everyday contracts, but they are particularly troubling in civil rights cases such as this one. Mr. Jackson’s claim that his employer discriminated against him based on his race was brought under section 1981 of the Civil Rights Acts – legislation that was passed specifically to ensure that victims of such discrimination would have access to the federal courts. Instead, because Mr. Jackson signed an employment agreement - an agreement that he had little choice but to sign if he wanted the job - he is now precluded from asserting a violation of those rights and seeking justice in court.

As confirmed in Justice Stevens’ dissent, neither party even asked the Court for such a heightened standard of pleading, showing how once again, the Roberts Court is going out of its way to protect corporations and prevent real citizens - workers and consumers - from being able to access the federal courts.
 

PFAW

Federal Judge Ends Drilling Moratorium

This afternoon, we have another illustration that when the pull of profits goes up against protecting public safety, the personal leanings of our federal judges really do matter. The Associated Press reports:

A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers "at a danger that the president does not believe we can afford."

Judge Martin Feldman, a Reagan appointee, said, “What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."

To be clear, in reaction to the worst oil spill ever in US waters—one that was caused by reckless decisions made by a company that had to answer to very little government regulation—the president is halting similar drilling projects until investigators can ensure that they are safe. That doesn’t exactly seem overly rash.

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy said that he’d be sure that Elena Kagan is asked a lot about the role of the courts in cases involving the accountability of oil companies in her upcoming Supreme Court confirmation hearings. Today’s decision is a reminder of why that’s so important.
 

PFAW

New People For Poll Shows Broad Support for Correcting Citizens United

People For released a new poll today that contains some pretty stunning numbers showing the extent to which Americans are fed up with corporate money and politics… and ready to amend the Constitution to fix it.

Here are some of the findings:

    • 85% of voters say that corporations have too much influence over the political system today while 93% say that average citizens have too little influence.

    • 95% agree that “Corporations spend money on politics mainly to buy influence in government and elect people who are favorable to their financial interests.” (74% strongly agree)

    • 85% disagree that “Corporations should be able to spend as much as they want to influence the outcome of elections because the Constitution protects freedom of speech.” (63% strongly disagree)

    • 93% agree that “There should be clear limits on how much money corporations can spend to influence the outcome of an election.” (74% strongly agree)

    • 77% think Congress should support an amendment to limit the amount U.S. corporations can spend to influence elections.

    • 74% say that they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending in elections.


The last point—that 74% of Americans, including a majority of Democrats, Republicans, and Independents would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment is striking. Passing a Constitutional Amendment requires overwhelming support from citizens across the country and across the political spectrum—but it also requires their being willing to take action. This poll shows that a broad majority is ready for both.

Click here to read more.

PFAW

A New Ally For Kagan Opponents

As Republican leadership refuses to rule out filibustering Elena Kagan’s Supreme Court nomination, it’s important to keep in mind the ideological company her opponents keep. One new critic is none other than failed Supreme Court nominee Robert Bork, who plans to elaborate on his complaints against Kagan at a Wednesday news conference hosted by the anti-choice group Americans United for Life.

As we pointed out recently, Bork agrees with Republican Senate nominee and Tea Party darling Rand Paul that certain key parts of the Civil Rights Act should never have been passed. And lest his opposition to Kagan surprise anyone, he also opposed President Obama’s last nominee, Sonia Sotomayor. For more on Bork’s judicial philosophy, see the ad we made in 1987 to oppose Bork’s nomination:


 


It’s good to know that today Robert Bork is just another ultra-conservative lawyer and not a US Supreme Court Justice.

PFAW

Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

PFAW

A Father’s Day For ALL Fathers

Kudos to President Obama for including families with two fathers in his Father's Day proclamation. And further kudos are due to the president for inviting a gay father to speak at his Father's Day mentoring barbecue at the White House this afternoon.

As reported in Right Wing Watch, CBN's David Brody is very upset about the presidential proclamation. Brody writes that President Obama is "running the risk of alienating networks of pastors and church goers."

To be accurate, Brody should have written that Obama might alienate some networks of pastors and church goers: those who believe in using the force of the state to destroy families who they have a religious grudge against. What Brody and like-minded minions of the Christian Right conveniently omit is that Obama is also guaranteed to please networks of pastors and churchgoers who believe in the equality of all people, who believe in fighting injustice in any guise, and who truly believe in family values.

PFAW

Another City Joins Arizona Boycott

In May, People For signed on to a travel boycott of Arizona in response to the state’s new draconian immigration law. We’re pleased to note that not only other advocacy groups, but at least 20 US cities, have pledged to boycott the state until it repeals the noxious legislation.

This week another city was added to the list: Burlington, Vermont, where City Councilwoman and YEO Network member Emma Mulvaney-Stanak was instrumental in passing the resolution. A recent article in the Huffington Post noted the impact the boycott is likely to have:

Arizona would be wise to look at … South Carolina, which has lost over $500 million over the past decade due to a boycott stemming from its refusal to remove the confederate battle flag from the capitol. Phoenix estimates that the recent actions will cause the city to lose $90 million in convention business over the next four years and it likely was a factor in the GOP selecting Tampa for its 2012 convention (which could have brought in as much as $150 million to the financially strapped state).

Thanks to Councilwoman Mulvaney-Stanak and other leaders fighting against Arizona’s discriminatory law.

PFAW

Fieldtrip to the Heritage Foundation

As a new arrival in DC (I started interning here two weeks ago), I was thrilled to get a chance to visit the Heritage Foundation for the first time on Wednesday. I know everyone here at People For was flattered to learn that the folks on their “Myth of the Conservative Court” panel had been reading our Rise of the Corporate Court report. A lot.

The panelists – Todd Gaziano, Hans von Spakovsky, and Manuel Miranda -- took umbrage at progressive groups like PFAW using the term “judicial activism” because, well, it belongs to them. And they like the decisions being handed down!

Spakovsky argued that progressives have called the Citizens United decision judicial activism merely because we didn’t like the outcome. He’s certainly right that we don’t like it—and neither do 80% of Americans—but we agree that our dislike doesn’t make it judicial activism. What makes it judicial activism is that the Court based its decision on utterly specious Constitutional grounds, overturning over a hundred years of settled law and its own precedent in the process. John Roberts promised to be a baseball umpire, just calling balls and strikes, but as PFAW President Michael B. Keegan pointed out, “in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.”

Much to my shock, Gaziano admitted during the panel that the conservatives on the Court had exhibited pro-corporate judicial activism in one case, Exxon Shipping Co. v. Baker, deciding in Exxon’s favor for subjective rather than purely Constitutional or statutory reasons. So what makes him think that the Conservative judges weren’t influenced by their corporate bias in the other cases outlined in our Corporate Court report?

What was most remarkable about the panel, though, probably wasn’t the contortions that conservatives are willing to go through in order to deny “judicial activism” by conservatives on the Court—it’s that they’re still clearly trying to use it against progressives. That and the lunch they served afterwards. It was delicious.

PFAW

Dawn Johnsen on Caution and Principle

Last night, Dawn Johnsen spoke to the American Constitution Society, her first public appearance after a year and a half long battle over her confirmation to head the Office of Legal Counsel. Johnsen withdrew her nomination in April after an extended right-wing attack on her criticism of Bush administration torture policies and history of fighting for the right to choose.

In speaking about her nomination, she reminded us why she would have made a strong and honest defender of the law as the head of the OLC:

“As to whether I would have changed any of my positions or softened my stances or decided to just sit out a few issues, the message could not be more clear or more simple: I have no regrets,” Johnsen said.

A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”

Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.

Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.

“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”

PFAW

Texas Textbooks: What happened, what it means, and what we can do about it

People For has been tracking the Religious Right’s crusade to politicize textbooks—and fighting against it—since the 1980s. Our new Right Wing Watch: In Focus report outlines how the latest right-wing takeover of Texas textbooks fits into the history of the religious right’s efforts to influence public education:

Religious Right leaders in Texas have been waging war against science and history for the past few decades. A primary target and battleground has been the state’s public schools, in particular the statewide approval process for textbooks. People For the American Way Foundation first started working with Texans to resist Religious Right takeovers of textbooks back in the 1980s.

The Religious Right has invested so heavily in Texas textbooks because of the national implications. School districts in Texas have to buy books from a state-approved list, and Texas is such an enormous market that textbook publishers will generally do whatever they can to get on that list. Textbooks written and edited to meet Texas standards end up being used all over the country. So Religious Right leaders in Texas can doom millions of American students to stunted, scientifically dubious science books and ideologically slanted history and social studies books. Advances in printing technology make it easier to prevent that from happening now, but it will take vigilance to keep publishers from following the path of least resistance.

Earlier this month, we led a coalition of groups to deliver over 130,000 petitions to a textbook publisher in New York urging them to reject Texas’s new right-wing curriculum standards. You can sign the petition here.

Read the full Right Wing Watch report here.
 

PFAW

After Citizens United: Big Tobacco Aims for More First Amendment Rights

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

 “Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

 “This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others.  But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
 

PFAW

More on the Prop 8 Trial

The frailty of the legal arguments against marriage equality was on full display during yesterday’s closing arguments in the Perry v Schwarzenegger trial. The proponents of upholding California’s Proposition 8, which bans same-sex marriage in the state, insisted during the trial that procreation is central to marriage, and that gay couples should therefore not be allowed to marry. The following exchange between Judge Walker and Charles Cooper, the attorney defending Prop 8, speaks for itself:

MR. COOPER: …Marriage is a license to cohabit and to produce legitimate children.

THE COURT: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.

MR. COOPER: That's true, your Honor, it does not. It does not insist --

THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?

MR. COOPER: No, sir, your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships.

Dante Atkins on the Daily Kos summarizes the circular argument Cooper tried to make:

Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.

Why did Cooper and his colleagues rely on this weak argument? Because they thought the Court would view it more favorably than the toxic anti-gay rhetoric proponents of Prop 8 used in 2008 to convince California voters that same-sex marriages were a threat to children. Christopher Stroll at Pam’s House Blend writes:

[Plaintiffs’ attorney Ted] Olson hammered home the point that during the election, Prop 8 backers argued that children needed be "protected" from gay people -- but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation.

Another baseless argument that backers of Prop 8 made was that gay marriage would “deinstitutionalize” marriage. Olson eloquently debunked that particular right wing myth:

The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution.

PFAW

Our Questions for Solicitor General Kagan

We’ve said repeatedly that Elena Kagan’s Supreme Court confirmation hearings, which start in two weeks, open up the perfect opportunity to the country to have a real discussion of the meaning of the Constitution and the role of the Supreme Court in all of our lives.

Today, we’ve tried to start the conversation by coming up with 20 questions that we would love to see senators on the Judiciary committee ask Kagan.

We want to know Kagan’s answers to questions including:

  • Should Justices respect the original intent of the Constitution’s framers, even when that intent is antithetical to our current values and the Constitution as amended?
  • Does the Constitution give corporations the same First Amendment rights as ordinary citizens?
  • Has the Supreme Court, in cases like Bush v. Gore and Citizens United v. FEC, practiced proper judicial restraint?
  • What theory would govern your evaluation of civil rights laws passed by Congress?


You can read all 20 questions—including a lot more detail—here.
 

PFAW

The Perils of Obstructionism

Senate obstructionism has so crippled one agency that the Supreme Court has ruled invalid over 500 decisions it made over a two-year period.

The National Labor Relations Board, meant to consist of five members, has a statutory quorum of three. But, from the end of 2007 through this March, it operated with just two members. A steel company contested a decision that the two-member board made, saying the board’s decisions weren’t valid without a three-person quorum, and the Supreme Court today agreed.

The question of whether the Supreme Court made the right decision aside (the court, along a 5-4 divide, quibbled about the intent of the statute governing the NLRB), it’s a pretty startling example of the real impact of the Senate’s stalling on executive appointments.

In fact, President Obama finally broke the NRLB’s gridlock in March when he bypassed the Senate to make two recess appointments to the board…after Chief Justice Roberts had urged him to do so in the case’s oral arguments.

By our count, there is currently a backlog of 96 executive nominees waiting for Senate floor votes. A situation like the NRLB’s is extreme, and rare. But it’s a reminder that while the Senate holds up nominees to make political points, there is important work being left undone.
 

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