PEOPLE FOR BLOG

Americans Push to Shed Light on Dark Money

 With outside contributions in the 2012 federal elections totaling $1 billion, and with the Koch brothers alone already pledging to spend $889 million from their political network in 2016, it’s no wonder 85 percent of Americans agree that the campaign finance system needs serious reform. A particularly disturbing aspect is the prevalence of “dark money,” or political spending by outside Super PACs and so-called social welfare groups with no disclosure requirements. In the 2014 elections, 31 percent of all independent campaign spending was from groups that had no obligation to disclose their donors.

 Despite deep concern from their constituents, Congress has been hesitant to take action against dark money being funneled into our elections. Though Senator Sheldon Whitehouse (D-RI) introduced the Disclose Act, which would require that all organizations disclose their political expenditures, Senate Republicans blocked the Senate majority from being able to vote on it.

 The American people haven’t given up just yet. 73 percent support a constitutional amendment that would allow lawmakers to limit political spending. Further, more than 550,000  have signed a petition urging President Barack Obama to issue an executive order requiring government contractors to disclose their political spending.

 Just this week, advocates for campaign finance reform experienced a major victory when the DC Circuit unanimously upheld the “pay-to-play” provision that bars federal contractors from donating to federal candidates and party committees. In addition, presidential candidates such as Bernie Sanders, Lindsey Graham, and Hillary Clinton have all expressed support for removing big money’s electoral influence. 

 “We have to stop the endless flow of secret, unaccountable money that is distorting our elections, corrupting our political process, and drowning out the voices of our people,” said Clinton in her kick-off campaign speech.

 The movement against dark money clouding our elections has experienced a momentous push as Americans demand a more transparent campaign finance system.

 

 

PFAW

With Toomey's Help, Senate Could Confirm Restrepo Quickly

The Senate Judiciary Committee just held a long overdue vote on Third Circuit nominee Phil Restrepo of Pennsylvania.  To no one’s surprise, he has the committee’s unanimous support.  His nomination now moves to the Senate floor, where it is up to Mitch McConnell to schedule a confirmation vote.

So let’s review some of the reasons McConnell should let the Senate vote to confirm him quickly:

  • The vacancy Restrepo would fill has been designated a judicial emergency.
  • There’s a second vacancy on the same court, adding to the strain on the serving judges, as well as the parties before them.
  • Restrepo has the bipartisan support of his home state senators.
  • He has been vetted and approved unanimously by the Judiciary Committee.
  • The vacancy Restrepo would fill has been open for more than two years already.
  • He was nominated eight months ago, way back in November of last year.
  • The Senate needs to make up for lost time, since committee chairman Chuck Grassley refused to even hold a hearing for Restrepo until seven months after the nomination.  (Senator Pat Toomey’s collaboration with Grassley by withholding his “blue slip” made that delay possible.)
  • Restrepo would expand experiential diversity on the Third Circuit, becoming the first judge on that court to have experience as a public defender.
  • He’d be the first Latino from Pennsylvania on the Third Circuit.
  • Everyone on the ABA panel that looked at his qualifications agreed that he was qualified.  In fact, a substantial majority of the panel said he was “well qualified,” which is the highest rating.

Now let’s look at the reasons McConnell might have for refusing to hold a timely confirmation vote:

  • The nominating president is a Democrat.
  • The nominating president is a Democrat.
  • The nominating president is a Democrat.

It’s pretty clear that the reasons for a quick confirmation vote are a lot better than the reasons for delay.  But given McConnell’s appetite for obstruction, it’s equally clear that he is more likely to choose needless delay.

The person best positioned to help Restrepo is McConnell’s fellow Republican, Senator Toomey.  As noted above, despite his public statements praising Restrepo, Toomey collaborated with Grassley when the committee chair was looking for a way to delay the nominee’s hearing.  Appropriately enough, Toomey got slammed in the Pennsylvania press for this until he finally relented.

Then when faced with the knowledge that the committee would needlessly delay its vote by at least two weeks unless he intervened with Grassley, Toomey not only did nothing, he offered an amazingly lame explanation for his refusal to stand up for Restrepo.

It makes you wonder just how much Toomey’s statements of support are worth.

Toomey can do better.  He can talk to McConnell, who has every reason to be responsive to members of his caucus.  And while Toomey’s talking about the needs of Pennsylvanians, he can also remind McConnell how the Democratic-controlled Senate treated George W. Bush’s Third Circuit nominee from Pennsylvania in his last two years.

Like Restrepo, nominee Thomas Hardiman was a district court judge; he had been nominated to the federal bench by Bush earlier in the president’s term.  Like Restrepo, Hardiman was nominated to fill a judicial emergency.  And like Restrepo, Hardiman had the unanimous support of the Judiciary Committee.

And in March of 2007, then-Majority Leader Reid scheduled a confirmation vote just one week after the committee vote.

So is a confirmation vote for Restrepo this month too much to ask?  Perhaps the question is whether it’s too much for Pat Toomey to ask.

PFAW

Hobby Lobby: One Year Later

This post is written by YP4 intern Christina Tudor.

The National Women’s Law Center (NWLC) recently released a report listing all the ways in which the year old Hobby Lobby decision has opened the door to allowing religious exemptions for all sorts of things. NWLC’s report “The Hobby Lobby ‘Minefield’: The Harm, Misuse, and Expansion of the Supreme Court Decision,” highlights how the decision has set the stage for perpetuating discrimination beyond limiting access to birth control and placing restrictions on coverage.

The distortion of “religious liberty” and the Religious Freedom Restoration Act that informed the Hobby Lobby case has led to a paramedic student claiming his religious beliefs should exempt him from vaccination requirements and some religious groups refusing to provide health care services to sexually-abused refugees. It’s even been used as a defense to try to avoid criminal prosecution for a violent kidnapping.

One Supreme Court decision can do all that damage?

Seriously?

Unfortunately, yes.

As Justice Ginsburg warned in her dissent, “The Court, I fear, has ventured into a minefield.”

It turns out that she was very right.

According to NWLC’s report, in the last year, there have been “attempts to use RFRA to challenge laws that: protect women, LGBTQ individuals, and students from discrimination; protect employees by allowing them to unionize; promote public health by requiring vaccinations; and require pharmacies to fill lawful prescriptions.”

Distorting the true meaning of religious liberty, the Supreme Court ruled that employers and businesses can use RFRA to justify their incompliance with the ACA. In other words, this decision gives bosses the freedom and the power to discriminate against their employees, and this disproportionately impacts women and their families.

The Hobby Lobby ruling has an even greater impact on working class women and their access to affordable, readily available birth control and health care services that they are entitled to and need. Lack of birth control access can also greatly increase economic instability, therefore further increasing inequality.

Equally troubling are objections to D.C. anti-discrimination laws by The Family Research Council, Concerned Women for America, Alliance Defending Freedom, USCCB and eleven other organizations based upon the distortion of religious liberty.

Clearly Hobby Lobby will continue to have a serious impact on men and women across the country, especially women of color and low-income women, as more individuals and companies try to deny basic rights under the mantle of “religious accommodations.” 

PFAW Foundation

Unanimous D.C. Circuit Rejects Attacks on "Pay to Play" Prohibition

The D.C. Circuit did something today it doesn’t do very often:  It issued a unanimous en banc opinion.  All 11 judges on the court, conservative as well as progressive, rejected as meritless an effort to strike down a federal law prohibiting federal contractors from contributing money to federal candidates, parties, or committees.  This common-sense “pay to play” prohibition has been on the books for 75 years and, fortunately, will remain in force.

In Wagner v. Federal Election Commission, the plaintiffs are individuals who are also federal contractors, and they claim their First Amendment rights are violated by the ban.  In an opinion written by Chief Judge Merrick Garland, the court disagreed.  The court showed how the federal ban serves two key governmental interests: (1) preventing real and perceived corruption (even as narrowly defined by the Roberts Court); and (2) protecting merit-based government administration.

The opinion delves in great detail into the history of campaign finance corruption involving contractors, as well as others similarly situated to contractors (such as federal employees).  Decade after decade, from the 19th century to the 21st, the judges take us on a tour of one example after another, on both the state and federal level, of the corrupting influence of money.  It is hard to read this section of the opinion and not want to shower afterward.

Refreshingly, the court doesn’t close its eyes to how the world really works.  For instance, the plaintiffs argued that the introduction of formalized competitive bidding since the ban was passed in 1940 immunized the system from the type of political interference that motivated passage of the statute.  But as several of the examples show, contracting is anything but immune from political interference, including from members of Congress and the executive branch.  As the court writes:

Unlike the corruption risk when a contribution is made by a member of the general public, in the case of contracting there is a very specific quo for which the contribution may serve as the quid:  the grant or retention of the contract.  Indeed, if there is an area that can be described as the “heartland” of such concerns, the contracting process is it.

Today’s opinion applies only to bans on contributions to candidates, parties, and committees; the issue of independent expenditures wasn’t before the court.

But here’s a question to ponder after reading this opinion’s long history of corruption surrounding the nexus of federal contracts and money in politics:  If a contractor publicly giving $100 to a candidate creates an appearance of corruption that can be banned, then why do we let that contractor secretly give $1 million in dark money to some shadowy entity buying ads slamming that candidate’s opponent?  Shouldn’t we know how the money is flowing?  As today’s court ruling shows, federal contractors are right at the nexus of concerns about money in politics.

PFAW Foundation

On Judicial Confirmations, 4 ≠ 21

Politico is reporting today on how the Senate GOP is blocking President Obama’s judicial nominees:

The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts.

The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives.

As we’ve written before, to determine how fairly or unfairly Republican-controlled Senate is treating Obama’s circuit and district court nominees during his last two years in office, the fairest and most accurate comparison is with how the newly-Democratically-controlled Senate treated George W. Bush’s nominees during his last two years:

  • So far this year, the Senate has confirmed only four judicial nominees.  By this same point in 2007, the Senate had confirmed 21 of Bush’s judicial nominees.
  • Since the beginning of the year, circuit and district court vacancies have jumped from just 40 to 59, a nearly 50% increase.  In contrast, in 2007, vacancies dropped from 56 at the beginning of the year to 51 on July 1.  In fact, by the fall of 2008 the Democratic-controlled Senate had confirmed so many of Bush’s nominees that the number of vacancies got as low as 34.
  • Judicial emergencies have skyrocketed from 12 at the beginning of this year to 27 today.  In contrast, in 2007, emergencies dropped from 25 at the start of the year to 18 as of July 1.

When asked about the GOP’s slow-walking of judicial nominees, Republicans went into full avoidance and distraction mode, echoing talking points that Judiciary Committee Chuck Grassley has given before.  Politico reports:

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared to 276 for Bush at the same point in his presidency.

The following passage did not appear in Politico, but it would have been great if it had:

Grassley has not publicly turned beet red with embarrassment for taking credit for so many confirmations when, in fact, he and his party opposed even allowing the Senate to vote on an enormous percentage of them.  The GOP forced time-consuming cloture votes on 93 of President Obama’s judicial nominees, even though Republican senators voted to confirm most of them anyway.  The number is high not because of Republicans but in spite of Republicans.  And cloture votes only tell part of the story of the obstruction.  Although Senate Republicans did everything they could to gum up the works and prevent timely confirmation votes for President Obama’s nominees, they seem more than happy to take credit for their eventual confirmation.

Back to the real Politico article:

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

And here is how that paragraph might have appeared without the prism of Republican talking points:

By this time in 2007, the Senate had confirmed 13 judges left over from 2006 who were denied a vote during the lame duck not by Democrats, but by Republican Sam Brownback of Kansas.  The Senate had by this point in 2007 also confirmed an additional eight judges who had cleared the Judiciary Committee for the first time that year, a number that by itself is twice the number confirmed by the current Senate.

It is also unclear how mentioning last year’s lame duck confirmations makes the GOP look any better.  If Mitch McConnell was unwilling to schedule more than a mere four confirmation votes during the first half of the year, forcing nominees to wait month after month after committee approval before a vote, then it is hardly realistic to think that adding last year’s lame duck nominees to the mix would have done anything except increase the size of this year’s bottleneck.

The Republican talking points also don’t mention that all but three of the lame duck confirmations had unanimous Republican support.  Even though the nominees had been fully vetted, and even though Republican senators concluded that they were qualified for a lifetime position on the federal bench, they still filibustered most of them before voting to confirm them.  They apparently believed then and believe now that the judgeships these nominees filled should have remained vacant well into this year, even though the Senate was prepared to confirm them last year, and despite the harm that delay would have caused to Americans across the country.

But put all that aside.  At mid-year, here’s the short version:  The GOP-controlled Senate confirmed only four Obama judicial nominees in the first half of this year.  By the same point in 2007, the Democratic-controlled Senate had already confirmed 21 of Bush’s.

No matter how you slice it, 4 ≠ 21.

PFAW

PFAW Telebriefing Analyzes End of Supreme Court Term

The Supreme Court finished its session on Monday, ending a term filled with landmark decisions regarding fair housing, marriage equality, and healthcare.

On Wednesday, PFAW hosted a telebriefing for members about the end of the Court’s term and the implications of several cases. PFAW Communications Director Drew Courtney moderated a dialogue among PFAW Senior Fellows Elliot Mincberg and Jamie Raskin, Right Wing Watch researcher Miranda Blue, and PFAW Executive Vice President for Policy and Program Marge Baker.

Raskin covered Obergefell v. Hodges and Arizona State Legislature v. Arizona Independent Redistricting Commission. He first noted that Obergefell would not be possible without the “many decades of intense social struggle and millions of people coming out of the closet” which created a momentous societal shift in public opinion of LGBT rights. The Arizona case, which effectively obstructed state legislature’s gerrymandering efforts, was also a huge triumph for democracy, because, as Raskin notes, “the whole point of democracy is that power begins and resides with people.”

Mincberg discussed King v. Burwell as well as Texas Department of Housing and Community Affairs v. The Inclusive Communities Project—two cases that, according to Mincberg, represent “attempts by the far right to push legal theories that had been rejected by the lower courts over and over again.” The fair rulings in both cases have led many analysts to assume an overall shift left in the Court; however, Mincberg asserts that their inclusion on the docket in the first place contradicts this assumption.

Finally, Blue reviewed reactions from the Religious Right regarding the marriage decision from this session. Presidential candidates and conservative pundits alike have voiced their disapproval of the decision, with responses ranging from terrorist attack predictions to calls for a revolution. “This is a defining moment for the Religious Right,” said Blue. “It’s a test of whether the movement can survive into the future as it exists now.”

At the end of the briefing, Courtney asked the panelists about the next session of the court, including a union case, Friedrichs v. California Teachers Association, that was recently added to the docket. Raskin labeled the case as “the new wedge to destroy unions,” and another GOP attempt to use legal doctrine to undermine progressive initiatives like public sector unions.

Listen to the full briefing here:

PFAW

New Hampshire Budget Battle Highlights How Big Money Affects Fiscal Policy

 In our current political landscape, moneyed interests frequently use their financial leverage to impact policy. For instance, Wall Street banks lobbied against a bill introduced by Sen. Elizabeth Warren that would help relieve students of their loan debt. For every dollar the fossil fuels industry spends on lobbying, it receives $103 in government subsidies. Now in New Hampshire, special interests are looking to change the state’s longstanding fiscal policy in their favor.

 New Hampshire Representative Timothy Smith credits the state’s ability to stay afloat financially without imposing a sales or income tax with its substantial business taxes, which bring in sizable amounts of revenue. However, that might change with the introduction of a bill by 13 Republican senators that would significantly lower the business tax, creating a hole of $90 million in the budget. Rep. Smith connected the introduction of this legislation to the fact that special interest groups, many of which would benefit from this change, spent over $900 thousand in New Hampshire’s legislative elections last year.

 Not surprisingly, New Hampshire residents are unhappy with the growing trend of big money influencing politics. Over two-thirds of the state’s voters believe that a constitutional amendment that would overturn decisions like Citizens United should be implemented. Sixty-nine state localities have passed resolutions calling for such an amendment, and over 120 small businesses are hosting Stamp Stampede stations, where patrons can stamp phrases like “not to be used for bribing politicians” on their bills.

 Rep. Smith co-sponsored a bill that called for an amendment to get big money out of politics, which passed in the New Hampshire House with bipartisan support. In addition, New Hampshire Governor Maggie Hassan dismissed the business tax reductions as “unpaid for tax cuts to big corporations” that would “put corporate special interest ahead of New Hampshire's families.” Officials in the state government are listening to their constituents’ concerns about the harmful effects of big money in politics.

 “Our constituents are trying to tell us something. They’re tired of their government serving lobbyists rather than citizens,” said Rep. Smith.

PFAW

Voters Are Concerned About the Influence of Big Money in 2016

Voters Are Concerned About the Influence of Big Money in 2016

Last week the Wall Street Journal and NBC published the results of a poll on various issues leading up to the 2016 presidential elections, showing that the influence of wealthy donors on elections is a growing concern among Americans.

Thirty-three percent of those surveyed say that the influence of wealthy donors is their biggest concern in the 2016 presidential race. Although the majority were Democrats, big money in politics was the issue with the most agreement between the two parties, only a seventeen percent gap separated Democrats and Republicans. The poll suggests that the influence of the wealthy is becoming less of a partisan issue, and more of a general anxiety for Americans when it comes to elections.

 The poll also revealed that

“the influence of wealthy donors was the primary concern for independents.”

This can and should influence the positions of the 2016 candidates as they seek to win over swing voters. Whether the growing anxiety amongst Americans about big money in politics will lead to changes in campaign finance remains uncertain, but the heightened awareness may bring the issue to the forefront of the 2016 race.

PFAW

Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
 

PFAW

New Hampshire Activists Launch Photo Petition Urging Sen. Ayotte to Support an Amendment to #GetMoneyOut

PFAW activists and allies are continuing to pressure Sen. Kelly Ayotte for her reluctance to support a constitutional amendment that would overturn cases like Citizens United.

A group of New Hampshire activists, many of whom have worked to pass local resolutions in their towns in support of an amendment, met with Sen. Ayotte’s legal counsel in May to deliver over 12 thousand petitions in support of the Democracy For All Amendment— a federal constitutional amendment that would allow Congress and the states to set reasonable limits on money in elections.

Over a month later, her office has given no indication she will support the Democracy For All Amendment.

In previous public statements she has characterized a constitutional amendment as “dangerous.”  And in a recent form letter to activists, Sen. Ayotte wrote,

By creating a "carve out" to the First Amendment that gives politicians the power to limit free speech and stifle political dissent, the Udall proposal jeopardizes all Americans' freedom of speech rights - and essentially says that our Founding Fathers got it wrong. It would also alter the First Amendment in ways that jeopardize more than political speech.

Of course, we know this issue isn’t about protecting free speech; it’s about everyone having an equal say in our elections and not having their own voices drowned out by a flood of big money.

In light of Sen. Ayotte’s clear refusal to recognize the influence of money in politics as stifling the voices of all Americans, PFAW activists and allies created photo petitions this weekend to send Sen. Ayotte a clear message about why 69 percent of New Hampshire voters support a constitutional amendment.

photo petition photo petition
photo petition photo petition
photo petition photo petition

 

PFAW

A Liberal Supreme Court Term? Hardly.

In the last week, conservatives lost major cases at the Supreme Court on issues like fair housing, healthcare, nonpartisan redistricting, and marriage equality.  Some are questioning whether the Roberts Court is really all that conservative.  The New York Times’s The Upshot trumpeted The Roberts Court’s Surprising Move Leftward, writing that this term had a greater percentage of liberal decisions than any since 1969.

But this is no liberal court.  It hasn’t even been all that much of a liberal term, certainly not in the way that we saw decades ago.

Take the fair housing case, for instance: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  There was unanimity among all 11 circuit courts that had considered the issue that a practice that has an unjustified discriminatory impact can violate the federal Fair Housing Act even when a discriminatory purpose can’t be proved.  Congress had amended the law with this type of “disparate impact” clearly in mind.  Ordinarily, under these circumstances, the Supreme Court never would have heard a case claiming that the Act does not allow for disparate impact cases.  But this is the Roberts Court, and four Justices (the minimum needed to grant certiorari) were clearly hungry to change the law.  Rather than moving the law in a progressive direction, the 5-4 result simply fought off a fringe right-wing legal attack against a long-established civil rights law.  Even so, this case was only one vote away from going in the other direction.

Similarly, King v. Burwell – the Affordable Care Act subsidies case – hardly marks new frontiers in progressive jurisprudence.  The plaintiffs’ attack against the law was laughably weak, and there was no circuit split in the lower courts to resolve.  That the Supreme Court took this case at all was both absurd and ominous.  While the Court rejected the anti-Obamacare activists’ claim 6-3, it is hard to imagine an earlier Court not ruling 9-0, or even refusing to take the case in the first place.  The majority opinion left the law exactly as it was intended and understood when it was passed.

Yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upholding that state’s nonpartisan redistricting commission shows the same dynamic.  Arizona voters adopted this reform 15 years ago, in response to the damage done by partisanship in the drawing of district lines.  But conservative politicians sought to undo this reform and launched a constitutional attack they thought would find favor in the Roberts Court.  They lost by one vote yesterday, as a 5-4 majority upheld the status quo.

Similarly, in Williams-Yulee v. The Florida Bar, this term saw the Court entertain a conservative attack against a common-sense campaign finance law for judicial elections, one that prohibits state judicial nominees from directly soliciting campaign contributions.  Since the Roberts Court has gone out of its way to undo or undermine longstanding legal precedent supporting efforts to regulate money in politics, many thought the challenge would be successful.  However, by one vote, the Supreme Court chose to uphold the Florida law, one that applies in many other states, as well.

The Court’s four moderates are sometimes able to garner a majority to reject right wing attacks on the law.  That is a far cry from the liberal Court terms of an earlier era, when the Justices expanded the frontiers of liberty and equality, making the stirring promises of the Constitution real for millions of people.  Those were decisions that empowered Americans to vote and effect their will through fair elections, that recognized the essential dignity and liberty of the individual, and that ensured that civil rights statutes were interpreted in ways to carry out Congress’s intent.

So no, the Supreme Court did not just complete a liberal term.  Progressives breathed a sigh of relief after a number of cases this term when the Court didn’t accept invitations to lurch even further to the right.  And the Court did take one important progressive step in affirmatively ruling for marriage equality, although only by a 5-4 vote.  But there is much more work to do if we really want to see a liberal Supreme Court term.

PFAW Foundation

Latest 5-4 Rulings Show Importance of Supreme Court in 2016

The Supreme Court issued its last three opinions of the term this morning.  All three were important.  All three were decided 5-4.  And all three are reminders that no matter what issue you care about, the Supreme Court is a critically important issue in the 2016 elections.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Justice Ginsburg wrote for a 5-4 majority upholding that state’s voter-passed redistricting reform, in which a commission rather than the state legislature resets district boundaries after each census.  She wrote:

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” … The Elections Clause does not hinder that endeavor.

In Michigan v. EPA, Justice Scalia wrote for a 5-4 majority striking down EPA regulations of mercury and other toxins emitted from certain types of electric power plants.  EPA studied the issue and determined that these emissions needed to be regulated.  Then, in a separate proceeding, it adopted regulations, carefully taking the costs of regulating into consideration in crafting its rules.  Notwithstanding that, the five conservative Justices ruled that the EPA had been required to consider costs at the start, in its initial decision on whether regulating these particular emissions was appropriate and necessary.

In Glossip v. Gross, the Court, in an opinion written by Justice Alito, ruled that it is not unconstitutionally cruel and unusual to execute someone by lethal injection using midazolam as the initial drug.  That particular drug is supposed to ensure that the person doesn’t feel burning, searing pain when the follow-up drugs causing death are given.  There is evidence that the drug does nothing of the sort, so that people endure what Justice Sotomayor in her dissent calls “the chemical equivalent of being burned at the stake.”

These decisions join a host of other 5-4 rulings this term, including

And let us not forget some of the most notorious 5-4 cases of recent years:

  • Citizens United (opening the flood gates to untold amounts of money in politics);
  • Hobby Lobby (upholding a corporation’s “religious liberty” right to exempt itself from a law protecting women’s health);
  • Shelby County (striking down the heart of the Voting Rights Act).

By 2018, four Justices will be in their 80s, meaning there may be several vacancies during the next president’s term.  Any replacements could cement a hard-right conservative majority that would extend cases like Citizens United and Shelby County and seek to limit the rights of LGBT people that were gained in Obergefell.  Or we could see the end of what our affiliate PFAW Foundation Senior Fellow Jamie Raskin has called The Citizens United Era, so the Court will no longer bend logic and twist the law in order to rule in favor of powerful and corporate interests.

No matter what issue you care about – money in politics, LGBT equality, voting rights, women’s health, the environment, defendants’ rights, the death penalty – the president elected in 2016 will make all the difference, as will the Senate that will either confirm or block the president’s nominees.

On Election Day, it is the Supreme Court that will be on the ballot.

PFAW

PFAW Foundation Rallies #LoveWins

Paul said it best, "Wow."

It was certainly a "Wow" moment as People For the American Way Foundation stood outside the Supreme Court to watch marriage equality become the law of the land.

People For the American Way Foundation at the Supreme Court for Love Wins

Though there were clouds aplenty, the crowd was strong.

Crowd at the Supreme Court for Love Wins

And spirits were high.

Spirits High as Love Wins at the Supreme Court

Spirits High as Love Wins at the Supreme Court

Marriage equality is now.

But the fight for justice is not over.

People For the American Way Foundation Fights for Justice for All

People For the American Way Foundation will keep fighting every day for justice for all.

PFAW Foundation

A Historic Day for Liberty, Equality, and America

Wow.

The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation

Protecting Civil Rights from Judicial Attack

To many people’s surprise, the Supreme Court this morning didn’t gut the Fair Housing Act in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  Many had feared the far-right conservatives would rule that a practice that has an unjustified discriminatory impact could no longer be judged to violate the FHA unless a discriminatory purpose could be proved.  Such an interpretation would have gone against congressional intent to create a robust legal tool to bring fair housing to everyone in the nation, all 11 circuit courts that have considered the question, and the interpretation of the law by the Department of Housing and Urban Development.

Despite the absence of a circuit split, and despite the fact that Congress had amended the FHA after those judicial decisions with the clear assumption that such “disparate impact” cases would be generated, the Roberts Court had taken identical cases in 2011 and 2013, but the parties settled before the Court could rule.  But at least four justices – the minimum required for the Court to agree to hear a case – clearly wanted to address this issue.

And now we can be pretty sure who they were: today’s four dissenters (the Chief Justice, and Justices Scalia, Thomas, and Alito).

Fortunately, they did not prevail.  Writing for the majority, Justice Kennedy highlighted the vital role played by the Fair Housing Act, both at the time of its passage in 1968 and today, in eliminating “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”

Much progress remains to be made in our Nation’s continuing struggle against racial isolation.  …  The FHA must play an important part in avoiding the [1968] Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Kerner Commission Report 1.  The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.

For nearly 50 years, the Fair Housing Act has been a critical tool for eliminating discrimination and expanding opportunity to all.  After today, it will remain so.

So much was at stake in this case, and this morning’s 5-4 ruling could easily have gone the other way had one Justice voted differently.  That is much too close for comfort.  Indeed, this second anniversary of the 5-4 Shelby County decision gutting the heart of the Voting Rights Act reminds us that those who value equality and civil rights are too often on the losing side of these 5-4 cases.

PFAW Foundation