PEOPLE FOR BLOG

“Big Money” in Our Elections Is Only Getting Bigger

2014 is looking to be a bumper year for election spending. After the Citizens United ruling in 2010, that year’s midterms became a test case for how the newly-minted Super PACs and newly-empowered “dark money” groups would use their strength. They must have liked what their spending bought them, because this year they are back with a vengeance.

According to Open Secrets, spending by outside groups as of May 6th in this election cycle has approximately tripled from the amount outside groups spent in the same time period leading up to the 2010 midterms (leaping from $16.6 million in 2010 to $72.7 million in 2014). In 2006, this number was $2.5 million – that’s a twenty-nine-fold increase in just two midterm cycles.  At this rate, outside spending on this year’s midterms is set to far outpace even outside spending in the 2008 presidential election cycle.

The influence of outside spending groups has increased so much that in some races they are spending far more than the candidates themselves. Forty-nine percent of all election spending on this year’s midterms so far has come from outside spending groups. In hotly contested races, the proportion is even higher. In the North Carolina U.S. Senate race – which is the most expensive so far this cycle – 90 percent of all spending has come from outside groups, 58 percent of which are “dark money” groups not required to disclose their donors like Super PACs do.

The new era of “big money” election spending disproportionately benefits conservative candidates. Seventy-two percent of donors who had maxed out their aggregate contribution limits before the Supreme Court struck down those limits in April had contributed only to Republicans. Forty-five percent of these donors were in the finance industry.  In addition, Americans for Prosperity, the Koch brothers-linked “dark money” group, accounts for nearly one third of all independent expenditures on television advertising so far in this election cycle. 

In the wake of the Supreme Court’s McCutcheon decision, just as reformers predicted, the Republican Party is forming “super joint fundraising committees” that pool large checks from big donors and – now unrestrained by aggregate contribution limits – redirect that money to long lists of candidate campaigns.

The consequences of the influx of “big money” into our elections are clear for the vast majority of Americans who can’t afford to write large check to candidates: they’re being squeezed out of the process. According to the Brennan Center, in current “high-dollar” federal races, only nine percent of funds have come from donations of $200 or less.

Simply put, these trends are disturbing. Even before Citizens United, it was becoming clear that money played an outsized role in our politics. The continued ability of corporations, special interests and wealthy individuals to spend limitlessly on elections calls into question the health of our democracy. The concentration of power away from the voters and towards the donor class creates the specter – and very real threat – of a Congress wholly populated by those elected by dollars, not votes. 

PFAW Foundation

Infographic: Six Months After The Senate Passed ENDA, House GOP Leadership Must Stop Obstructing

Six months ago today, the Senate passed the Employment Non-Discrimination Act (ENDA), legislation that would make it illegal to fire, refuse to hire, or refuse to promote someone because of who they are or who they love. Despite the fact that the majority of states’ laws leave lesbian, gay, bisexual, and transgender (LGBT) workers unprotected – and the fact that most Americans believe that this workplace discrimination is wrong – House GOP leadership continues to stand in the way of progress.

Why are they ignoring the will of the people and blocking LGBT Americans from fundamental rights? You can help put the pressure on Congress to pass ENDA by sharing our brand new infographic:

You can also check out our other ENDA-focused resources.

PFAW

Analysis: Wealthy Could Blanket Wisconsin With $6 Million In Campaign Cash Without Limits

A new analysis by a campaign finance watchdog group has revealed that wealthy donors could have flooded Wisconsin with $6 million each to candidates in 2010 and 2012 elections if the state’s $10,000 aggregate annual limit had not existed.

The Money Out/Voters In Wisconsin Coalition, of which PFAW is a member organization, highlighted the Wisconsin Democracy Campaign’s findings at a press conference last week reacting to the United States Supreme Court’s recent decision in McCutcheon v. FEC, which was announced early last month. In McCutcheon, the court struck down aggregate federal limits on the amount wealthy donors can give to candidates, political parties, and political action committees per election cycle. 

Wisconsin Democracy Campaign’s analysis found that without Wisconsin’s state limit of $10,000, in 2012 millionaire and billionaire donors could have given an estimated 680 times more, at least $6.8 million each to candidates in about 4,700 state and local elections, 386 PACs and 157 political committees. In 2010, the comparable number is as high as $6.1 million.

Most notably, Money Out/Voters In Wisconsin and Wisconsin Democracy Campaign noted that only about 299 individuals gave $10,000 or more to state candidates in 2010 and 2012—about .005 of 1% of Wisconsin’s 2012 population. That number included 173 people who don’t even live in Wisconsin.

Check out the video of the press conference here:

PFAW

Supreme Court Upholds Sectarian Prayer at Official Meetings

In a 5-4 decision, the U.S. Supreme Court today overturned a ruling by the Second Circuit appeals court and upheld the practice of an upstate New York town that begins its council meetings with prayers that are almost always given by Christian clergy. Religious Right groups are celebrating the ruling; Ralph Reed announced that his Faith and Freedom coalition would use the ruling to “redouble its efforts” to encourage more prayers at city and county government meetings. Both the decision and the Religious Right's responses are likely to invite more religiously divisive church-state conflicts.

Justice Clarence Thomas used his concurring opinion to argue, as he has before, that the Establishment Clause of the First Amendment does not apply to the states at all; in other words, he believes there is no constitutional reason that a state cannot have an official religion. Fortunately, the decision in this case is far narrower than that.

It is, as Justice Stephen Breyer says in the opening sentence of his dissent, a “fact-sensitive” case. It did not revolve around the question of whether legislative prayer is unconstitutional – the Court has previously upheld legislative prayer in Marshv Chambers – but in part whether the way clergy were invited to give prayers to open town council meetings was sufficiently inclusive. In Breyer’s words,

“The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” [quoting from the Court’s 1971 decision in Lemon v Kurtzman]

Also at issue was whether a town council meeting, at which members of the public are appealing to councilmembers for specific action, is more susceptible to being a coercive environment than a prayer given by a chaplain to a group of lawmakers about to start their legislative day. For example, the council hears debates on individual applications from residents and business owners seeing zoning permits and other licenses. In her dissent, Justice Elena Kagan recognizes that the Court has upheld the historical tradition of legislative prayer, but writes that the town hall meetings in Greece are a kind of hybrid, “occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters.” That, she says, requires special care that each member of the community is respected as an equal citizen, something the Town of Greece has not done.

While the plaintiffs in the Town of Greece case did not argue that town leaders were motivated by religious bias, they argued that the selection process led almost exclusively to prayers being given by Christian ministers, and to prayers that were not just ceremonial invocations but quite explicitly sectarian. Kagan writes that town meetings need not be religion-free zones, saying that “pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality,” but concluded that the board of the Town of Greece did nothing to recognize religious diversity, and that its practice “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” She offered a hypothetical of a Muslim resident coming before the board to see a zoning variance to build an addition on her home:

“But just before she gets to say her piece, a minister deputized by the Town asks her to pray ‘in the name of God’s only son Jesus Christ.’ She must think – it is hardly paranoia, but only the truth—that Christian worship has become entwined with local governance. And now she faces a choice—to pray alongside the majority as one of that group or somehow to register her deeply felt difference….She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her neighbors would want to deny that tenet. So assume she declines to participate with the others in the first act of the meeting—or even, as the majority proposes, that she sands up and leaves the room altogether…At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town Board has chosen as reflecting its own and the community’s most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.

Everything about that situation, I think, infringes the First Amendment…That the Town Board selects, month after month and year after year, prayergivers who will reliably speak in the voice of Christianity, and so places itself behind a single creed. That in offering those sectarian prayers, the Board’s chosen clergy members repeatedly call on individuals, prior to participating in local governance, to join in a form of worship that may be at odds with their own beliefs. That the clergy thus put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not. And that the practice also alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representatives as would any other citizen.”

Kagan writes that the Court majority opinion reflected “two kinds of blindness.” First, it missed the difference between traditional legislative prayer and the setting of the town council, a difference she described as a “chasm,” and the fact that the prayers in Greece are mostly addressed to the public rather than lawmakers. She said the majority “changes the subject” rather than addressing the sectarian content of the prayers delivered in Greece, such as those invoking “the saving sacrifice of Jesus Christ on the cross” or “the plan of redemption that is fulfilled in Jesus Christ.” These are not, as she says, the recitation of “God save the United States and this honorable Court” invoked at the beginning of Supreme Court sessions.

Kagan cites George Washington’s well-known letter to the Newport Hebrew Congregation, in which he assured members of that congregation that the First Amendment does not simply tolerate people of minority faiths, rather all possess the same “immunities of citizenship.”

Writes Kagan:

For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.

Breyer also joined Kagan’s dissent, as did Justices Ginsburg and Sotomayor. The case is Town of Greece v. Galloway.

PFAW Foundation

PFAW Members Protest ALEC'S Task Force Summit

Last week, the American Legislative Exchange Council – better known as ALEC – held its 2014 Spring Task Force Summit in Kansas City. The annual Summit provides a venue for corporate lobbyists to woo state lawmakers and hatch the dangerous right-wing, pro-corporate sample legislation the group plans to vote on at its main conference (this year's will be held over the summer in Dallas).

On Friday, People For the American Way staff and members joined hundreds of protestors and ally organizations to rally outside the Kansas City Marriott Downtown, and speak out against ALEC's corruptive influence on state lawmakers.

ALEC Crowd

ALEC democracy

ALEC Diallo

ALEC handmade signs

ALEC rally

PFAW and our affiliate PFAW Foundation have long been committed to standing up to ALEC's extreme agenda. Read PFAW Foundation's report, "ALEC: The Voice of Corporate Special Interests," for more information on how ALEC sells out citizens' best interests to the highest bidder.

PFAW

Activists See Immediate Results After Petition Deliveries

On April 2, the Supreme Court issued its disastrous decision in McCutcheon v. FEC, knocking down aggregate contribution limits and further opening up the floodgates to big money in our elections. The American people were quick to respond. On the day of the decision, activists participated in response rallies across the country in over 140 municipalities in 41 states, demonstrating that the conservative 5-4 majority of the Roberts Court was once again acting out of step with the American people.

But rallying could only take us so far.  In the wake of the decision, People For the American Way, in coordination with Public Citizen, helped organize in-district meetings and petition deliveries in congressional and senate district offices during the “spring recess” that immediately followed the McCutcheon decision.  The initiative was supported by Public Campaign, PCCC, US PIRG, Common Cause, and the Communication Workers of America. 

In total, activists made over 100 petition deliveries to congressional offices and held roughly 20 meetings with congressional staff or their members of Congress.  In addition to advocating for a wide range of reforms to solve our country’s money in politics problem, the initiative primarily focused on the small donor-empowering Government By the People Act (HR 20) and the need for a constitutional amendment to overturn the Supreme Court’s disastrous decisions like McCutcheon and Citizens United

[Pictured: 13 activists meet Senator Hirono's state director]

Although all of the meetings were vital for raising awareness on the issue of money in politics and the need for legislative and constitutional remedies, some meetings had immediate, and even surprising, results.

In Hawaii, activists met with and delivered petitions to the offices of Senator Mazie Hirono and Senator Brian Schatz on Friday, April 25.  By the following Thursday, both senators – neither of whom had endorsed an amendment to fix our campaign finance system in the 113th session – were co-sponsoring SJRes 19, one such proposed amendment.

In Alaska, activist Sam Dunham and his baby (pictured above) delivered petitions to the office of Senator Mark Begich on behalf of the thousands of Alaskans who have signed petitions calling for an amendment.  Although the senator was out of the office and unable to receive the petitions personally, he was so enthused by the effort that he recorded a thank you video:

To date, the Government By the People Act has 148 co-sponsors in the House – a number that continues to grow by the day.  And no more than one week following the spring recess initiative, Senator Chuck Shumer announced that the United States Senate would vote on a constitutional amendment to undo the harm of decisions like Citizens United and McCutcheon this year.

The engines of major reform are beginning to rumble.

PFAW

Marco Rubio Doesn't Help Florida Judicial Nominees

Last week, we asked if Florida Sen. Marco Rubio would step in to prevent his party from needlessly delaying committee approval of four highly qualified district court nominees, all of whom he recommended to the White House. All four vacancies are judicial emergencies, with a caseload so high that even if every vacancy were filled today, the districts would still need several additional judges to ensure timely access to justice for those in Florida to protect their rights.

But the GOP as a matter of course delays committee votes on President Obama’s judicial nominees as part of their overall effort to keep as many seats as possible empty so they can be filled by a Republican president.

At this morning’s Judiciary Committee meeting, all ranking Republican Chuck Grassley had to say about the nominees was to agree with the chairman that all four are supported by their home state senators and completely noncontroversial. Yet he had the vote delayed without explanation, as expected.

If Rubio chose the interests of his constituents and the health of our nation's judicial system over his party and asked Grassley not to do this, there was no indication of it this morning.

PFAW

People For the American Way Lobbies in Albany for a Constitutional Amendment to Reclaim our Democracy

On Monday, People For the American Way joined allied organizations and activists of the NY4Democracy coalition for a rally and lobby day at the Albany state house urging New York lawmakers to call for a constitutional amendment to overturn Citizens United, McCutcheon, and related cases. 

Over 100 activists joined the efforts, targeting state senators of all political persuasions to ask for their support in elevating the issue and calling for an amendment.  The group gathered in the morning to lobby senators and their staff, held a press conference at noon, and continued lobbying afterwards.  In total, NY4Democracy activists met with 32 senate offices. 

Click here to view a local news story about the lobby day.

Click here to view an interview with People For the American Way legislative representative Calvin Sloan on the Capital Tonight show.

 

(Photo credit Tony Cresswell)

(Photo credit Tony Cresswell)

(People For the American Way legislative representative Calvin Sloan -- Photo credit Tony Cresswell)

(Public Citizen’s director of the Democracy is For People campaign, Jonah Minkoff-Zern -- Photo credit Tony Cresswell)

(Move To Amend New York state coordinator, Victor Tiffany -- Photo credit Tony Cresswell)

(Communication Workers of America policy and legislative coordinator Joe Mayhey -- Photo credit Tony Cresswell)

 

If successful, NY4Democracy will help New York join the growing chorus of state and municipalities that have already called for an amendment.  To get involved with the campaign, please email amendment@pfaw.org with the subject line, “NY4Democracy.”  

PFAW

A Great 36 Hours for Voting Rights

Hawaii update: HB 2590 still has to be signed by Governor Neil Abercrombie in order for it to become law. Voting rights advocates believe that he will approve the measure but will be working through the next week to ensure that he does.

PFAW has been keeping you informed about what has gone right for voting rights at the state level in 2014. In the last 36 hours alone, Hawaii, Minnesota, and Wisconsin have added new entries to the "win" column.

Thanks to the passage of HB 2590, Hawaii will likely have same-day registration for early voting in 2016 and add it for Election Day in 2018.

The measure (HB 2590) aims to encourage voting in a state where turnout is often dismal. Once the nation’s highest, Hawaii’s voter turnout cratered at 44.5 percent, the nation’s lowest, in the 2012 election, according to the U.S. Elections Project.

[ . . . ]

“It’s about making elections relevant to the modern world,” Rep. Kaniela Ing, D-Kihei, Wailea, Makena, the bill’s introducer, said in a statement. “Today’s policy decisions will impact young people for decades to come, and it doesn’t make sense to exclude them because of arbitrary registration deadlines based on technological limitations that no longer exist.”

Hawaii Chief Elections Officer Scott Nago said in written testimony supporting the measure that any qualified person who wants to vote should be able to register and vote.

In Minnesota, after the online voter registration system launched by Sectary of State Mark Ritchie was forced to shut down, legislators acted quickly, and Governor Mark Dayton signed into law its replacement.

Gov. Mark Dayton signed the Minnesota Legislature’s revival of online voter registration on Tuesday, just one day after a judge had ordered the system shut down, ruling that Secretary of State Mark Ritchie overstepped his authority in creating it last year.

“I am very pleased that this bill passed with bipartisan support in both bodies, and I look forward to signing it into law today,” Dayton said in a statement, soon after the Minnesota Senate gave the measure final approval.

The quick action means that Minnesotans’ access to Web-based voter registration, which more than 3,600 voters have used since September, will continue unimpeded. With Dayton’s signature, Minnesota officially joins about half of the states in offering some form of voter registration online.

In Wisconsin, US District Judge Lynn Adelman ruled against the state's voter ID law, saying that "it is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes."

From the American Civil Liberties Union:

"This law had robbed many Wisconsin citizens of their right to vote. Today, the court made it clear those discriminatory actions cannot stand," said Karyn Rotker, ACLU of Wisconsin senior staff attorney.

"This is a warning to other states that are trying to make it harder for citizens to vote,” said Dale Ho, director of the ACLU’s Voting Rights Project. “This decision put them on notice that they can't tamper with citizens' fundamental right to cast a ballot. The people, and our democracy, deserve and demand better."

We can win, and let's not forget that.

Check out PFAW’s website for more voting rights updates.

PFAW

Sen. Reid Cosponsors Amendment to Fix Campaign Finance System, Senate to Hold Vote in 2014

Big news for our democracy: This morning at a Senate Rules Committee hearing on “dark money,” Sen. Chuck Schumer announced that the Senate will vote this year on a constitutional amendment that would put the power of regulating the raising and spending of money in elections back in the hands of Congress and the states.

The Hill reports:

“The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections. That needs to stop, and it needs to stop now,” said Senate Rules Committee Chairman Charles Schumer (D-N.Y.), who announced the plan.

“The only way to undo the damage the court has done is to pass Senator Udall’s amendment to the Constitution, and Senate Democrats are going to try to do that,” he said.

Adding fuel to the amendment efforts, Majority Leader Harry Reid recently signed on as a cosponsor of Sen. Udall’s proposed constitutional amendment. Sen. Reid is among the senators People For the American Way has reached out to urging cosponsorship.

In the wake of this month’s McCutcheon v. FEC decision and a recent study that found the US to be an oligarchy rather than a democracy, efforts to reclaim our political system from the outsized influence of wealthy interests are more essential than ever. Sen. Reid’s support and the newly announced Senate vote plans highlight the growing momentum of this movement, with over 150 members of Congress, 16 states, more than 550 cities and towns, and even our nation’s president already on record in support of an amendment.

As former Supreme Court Justice John Paul Stevens said at the committee hearing this morning, “Unlimited campaign expenditures impair the process of democratic self-government.” You can add your name to PFAW’s petition and tell other members of Congress to support a constitutional amendment to restore government by the people.

PFAW

Obstruction 2.0: How Republican Senators Continue to Block Judicial Nominations Post-“Filibuster Reform”

Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.

Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.

She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.

Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.

Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.

Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).

Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.

Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.

Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.

Click here more information on our Fair and Just Courts campaign.

PFAW

Video: PFAW’s Calvin Sloan Discusses Money in Politics on Capital Tonight

On Monday, People For the American Way joined ally organizations in the New York for Democracy Coalition in Albany to urge state lawmakers to call for a constitutional amendment to overturn decisions like Citizens United v. FEC and McCutcheon v. FEC.  If successful, New York would become the 17th state to go on record in support of such an amendment, joining a rapidly growing nationwide movement to reclaim our democracy.

People For the American Way’s legislative representative Calvin Sloan joined Nick Reisman on Capital Tonight to discuss the efforts underway in New York – and across the country – to fight back against the outsized influence of big money in our political system.

PFAW

Scalia's Mistake Exposes His Ideological Agenda

Yesterday's 6-2 Supreme Court ruling in EPA v. EME Homer City Generation upholding the EPA's cross-state air pollution rules is in the news, and not just because it reversed a highly criticized DC Circuit opinion that served as an example of that court's ideological, pro-corporate rulings when it was dominated by conservative judges. Berkeley Law Professor Dan Farber noticed a glaring factual error in Justice Scalia's dissent:

Scalia's dissent also contains a hugely embarrassing mistake. He refers to the Court's earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that's exactly backwards: it was industry that argued for cost considerations and EPA that resisted.

This morning, the mistake was rectified. But it is a telling incident, not because Scalia made a factual mistake in which party made which argument in a decade-old case. What the mistake and the way Scalia corrected it show is that Scalia jumps to conclusions to fit his preconceived ideological and political beliefs.

Page 3 of the dissent raises the specter of Marxism, describing the EPA's "utterly fanciful 'from each according to its ability' construction" of the Clean Air Act. While we now come to expect far right hysterics about President Obama being a communist, a Marxist, a socialist, or a Stalinist, Americans deserve better from Justices of the Supreme Court. But Scalia's fanciful allusion to communist ideology suggests that he's approaching this case less as a disinterested judge and more as an ideological Tea Party warrior.

In this case, the EPA wants to incorporate cost considerations into its analysis of what regulations will best serve the goals of the Clean Air Act. In the 2001 American Trucking case that he cites, the Supreme Court ruled that in a different context, such an analysis is not permitted by the law. In that case, it was industry and not the EPA that wanted to include cost considerations.

But that apparently didn't fit into Scalia's preferred conception of the world. So he wrote:

[t]his is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation.

Sounds like a long-term conspiracy, with the big bad federal government constantly grasping for power in a lawless way. But this morning's scrubbed version says:

[t]his is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation.

Not so scary.

Scalia's subject headings and the change he made this morning are equally telling. Scalia gleefully began this section of this pre-scrubbed dissent with the sarcastic header:

Plus Ça Change: EPA's Continuing Quest for Cost-Benefit Authority.

As we now know, the only "continuing quest" was Scalia's quest to see federal regulations as part of some vast left wing conspiracy. A potentially chagrined Scalia has now changed the heading to the glee-less:

Our Precedent

Making a simple factual mistake is embarrassing for a Supreme Court Justice. You might forget which was Marbury and which was Madison. Ordinarily, we might note the mistake, correct it, and move on. But yesterday's mistake and today's corrections suggest that Justice Scalia is approaching cases with an overly ideological lens, rather than as a fair and disinterested judge.

PFAW Foundation

Over 1,000 Law Professors Condemn Senate Vote on Debo Adegbile’s Nomination

Last month, the US Senate failed to invoke cloture on the nomination of Debo Adegbile to head the Civil Rights Division at the Justice Department after a right-wing smear campaign that attacked Adegbile for helping provide legal representation at the appellate level to Mumia Abu-Jamal, a convicted murderer, while working at the NAACP Legal Defense Fund. Every Senate Republican and seven Democrats voted to filibuster Adegbile’s nomination, effectively blocking the nomination and throwing out the window the constitutional ideal that all criminal defendants should have access to quality legal representation.

People For the American Way’s vice president Marge Baker called the filibuster a “triumph of demagoguery.”

Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:

[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.

As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.

…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.

The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.

…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.

…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).

Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.

PFAW