PEOPLE FOR BLOG

New Report Examines Supreme Court’s “Citizens United Era”

People For the American Way Foundation's latest report explores the extreme pro-corporate jurisprudence of the Supreme Court in recent years, identifying parallels to the Court’s infamous Lochner era a century ago.

The Supreme Court in the Citizens United Era” by PFAW Foundation Senior Fellow Jamie Raskin explores how the Roberts Court’s right-wing majority has established a precedent for privileging corporations over individuals, allowing corporations to enjoy the rights of the people while reducing the rights that people have against corporations.

Raskin writes:

“Corporations increasingly enjoy all the rights of the people, but the people increasingly have no rights against corporations. Indeed, as we shall see, the conservative majority on the Roberts Court not only interprets federal law in dubious ways to defeat corporate liability but often works its special wonders to preempt state laws that would hold corporations accountable for civil injuries they cause against patients and consumers.”

The report covers cases ranging from Hobby Lobby, which granted corporations religious rights to opt-out of requirements on women’s health, to Sorrell v. IMS Health, which struck down Vermont’s prescription confidentiality law, to Janus Capital Group, Inc. v. First Derivative Traders, which allowed interlocking corporations to hide assets from individuals defrauded by investment advisors.

You can find the full text of the report here. 

PFAW Foundation
C3

Warren Buffett: Citizens United Pushes U.S. Toward a Plutocracy

In a wide-ranging interview with CNN’s Poppy Harlow released this week, Warren Buffett had some strong words about Supreme Court decisions like Citizens United that have handed increasing political power to the super-rich. Responding to a question about income inequality, Buffett raised the issue of money in elections:

With Citizens United and other decisions that enable the rich to contribute really unlimited amounts, that actually tilts the balance even more toward the ultra-rich…The unlimited giving to parties, to candidates, really pushes us more toward a plutocracy. They say it’s free speech, but somebody can speak 20 or 30 million times and my cleaning lady can’t speak at all.

Watch the interview clip here:

PFAW

Half a Million Americans Urge President Obama to Shine a Light on Dark Money

This afternoon activists from PFAW and ally groups participated in a petition delivery at the White House calling on President Obama to issue an executive order requiring corporations that receive government contracts to disclose their political spending. More than 550,000 petition signatures were delivered in support of this executive order, collected by a collaborative effort of more than 50 organizations.

In addition to leaders from organized labor, civil rights, environmental and consumer protection groups, PFAW Director of Outreach and Public Engagement Diallo Brooks (pictured below), was one of the individuals to speak at the event. Highlighting the fact that transparency is essential to accountability, Mr. Brooks and other speakers reiterated the strong message sent by the half a million petition signers.

President Obama has shared his support for reform on numerous occasions. Most recently, in his State of the Union address this January, the president called attention to the issue by speaking out against “dark money for ads that pull us into the gutter.” Obama went on to call for a “better politics.”

Rallies like the one held in Washington today also occurred in nearly 60 cities across 28 states, all encouraging the president to use his authority and issue an executive order to help bring about that “better politics.”

Have you added your name to the petition yet?

 

PFAW

Fighting against Big Money in Politics: The One Year Anniversary of McCutcheon v. FEC.

Today, April 2nd, marks the one year anniversary of the Supreme Court decision, McCutcheon v. FEC. The Supreme Court ruled in a 5-4 decision to remove limits on the total amount of spending an individual could contribute over a two year period to a federal level candidates, parties, or political action committees. Previously, the law limited the amount of money an individual could spend to $48,600 for individual candidates or $74,600 to a party or political action committee over a biannual period. The plaintiff in the case, Shaun McCutcheon, claimed that the limit on political spending was a violation of his First Amendment right to freedom of speech. Using a severely cramped definition of the type of corruption that campaign finance limitations can legitimately address, Chief Justice John Roberts wrote “Congress may target only a specific type of corruption—‘quid pro quo’ corruption . . . Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties”. The court, agreeing with McCutcheon, said that having limits on aggregate spending and campaign contributions was unconstitutional and a violation of the First Amendment.

The impact the McCutcheon v. FEC decision had on the 2014 elections was enormous. There was no longer an aggregate restriction on the amount of money an individual could give to candidates, parties and political committees. One of the biggest impacts of the court’s decision was the expansion of joint fundraising committees as fundraising tools. Joint committees are committees where candidates can combine their separate committees, party committees, and PAC’s into one single committee that fundraises together. As a result, nearly four billion dollars was given to candidates, parties, and political action committees combined, the most money ever spent in any midterm election. In 2014, out of the ten Senate races where the most money was spent on candidates, six of them finished within a ten point margin of victory, while in the ten House races where the most money was spent on candidates in 2014, seven of them ended within a five point margin of victory.

The McCutcheon decision has solidified the need for a constitutional amendment because big donors can now give virtually unrestricted amounts of money to influence elections. This money is used to produce television ads for or against candidates, send out direct mail attacking opponents, and to boost a candidate’s own credentials. Such dependence on campaign cash results in our elected officials becoming further beholden to the big donors interests instead of their constituents.

 Fortunately, a nonpartisan movement is growing to get big money out of politics and overturn Supreme Court decisions like McCutcheonand Citizens United. Sixteen states, over 600 towns and cities, and over five million people have already gone on the record in support of a constitutional amendment that levels the political playing field and reduce the influence big money in our political system.

PFAW

If You Liked The Handling Of The Terri Schiavo Case, You'll Love President Jeb Bush

This post originally appeared on The Huffington Post.

As Republican presidential hopefuls begin to pile into yet another clown car, we hear again and again that Jeb Bush is the sane, "establishment" choice for the job.

Anybody who thinks that Bush would provide a less radical alternative to the likes of Ted Cruz and Mike Huckabee should just remember back to a decade ago, when Bush was at the center of one of the most egregious government intrusions into private lives in recent memory, a macabre cause célèbre that sickened people across the country but delighted the right wing. 

Ten years ago this week, Terri Shiavo died. She had been in a persistent vegetative state for 15 years, many of which had been taken up with a legal battle between her husband, who wanted to remove the feeding tube that was all that was keeping her alive, and her parents, who wanted to keep it in place.

The Schiavo case was a weighty one. But the Religious Right, with the help of Jeb Bush and his big brother in the White House, turned it into a vicious, public culture-war battle. 

Who can forget when Bush, under increasing national pressure from the Religious Right, personally wrote to a judge in Schiavo's case? When Bush's lawyers and the Florida state legislature rushed through a blatantly unconstitutional law allowing the governor to issue a "one time stay" of a court order? When Bush convinced Republicans in Congress to intervene, with Bill Frist memorably offering a snap medical "diagnosis" of Schiavo on the Senate floor without ever seeing the patient?

Throughout the ordeal, Bush used every connection available to him to intervene in the Schiavo case. Even after Schiavo's death, he tried to instigate a criminal inquiry into her husband.

As Schiavo's husband chillingly told Politico this year, if Bush and others could do this to him and his wife, "they'll do it to every person in this country."

"That man put me through misery," he told the Wall Street Journal. "He acted on his personal feelings and religious beliefs, so how can he talk about limited government?"

It's no wonder that Bush is now downplaying his role in the Schiavo case. At the time, an overwhelming majority of Americans wanted the government to get out of the family's private struggle. But the case still has a strong resonance with the Religious Right, and to many of them Jeb Bush its hero.

Bush displayed a similar respect for "limited government" when, as governor, he tried to personally intervene to stop a 13-year-old girl and a 22-year-old rape victim from having abortions. These cases, like that of Schiavo, show an astounding willingness to ignore heart-wrenching personal stories in favor of an unyielding ideology; to blow up private stories into national culture war battles; and to sacrifice a stated idea of "limited government" to an intense state interest in a single person's most intimate decisions. 

And let's not forget Bush's comments during his first gubernatorial run comparing what he called "sodomy" to pedophilia and drunk driving - over the top, even for the right wing. Just this week, he immediately came to the defense of Indiana's legalization of discrimination only to walk back his comments in front of big donors. So much for his declaration that he is his "own man".

Bush may be the pick of the Republican establishment, who hope that maybe he won't come across as a crazy to mainstream voters. But his history in Florida shows that he is just as ready as Huckabee or Cruz to be the culture-warrior-in-chief, and has a record to prove it.

PFAW

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

PFAW

Pence's Claims Ignore Indiana "Religious Freedom" Law's History

As he has since signing Indiana's so-called Religious Freedom Restoration Act, Governor Mike Pence today insisted that the law does not allow discrimination. As reported in the Indianapolis Star:

[Pence] stressed that RFRA was about "religious liberty, not discrimination" and emphasized that the law does not give anyone the right to turn away customers on religious grounds.

"This law does not give anyone the right to discriminate...This law does not give anyone the right to deny services," he said.

Let's rewind the tape to the legislative debate over the bill. Senate Amendment # 4 would have added a key provision to the bill that would have made Gov. Pence's words accurate.

This chapter does not apply to:

(1) IC 22-9-1 (Indiana civil rights law); or

(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

However, the state Senate defeated this amendment by a lopsided vote of 10-40.

The Indiana House was equally insistent that the bill not be amended to provide any protection to state and local anti-discrimination laws. House Amendment # 5 would have added the following text to the law:

For purposes of this chapter:

(1) the protection of civil rights; or

(2) the prevention of discrimination;

is a compelling government interest.

Unlike the Senate amendment, this would not have completely exempted anti-discrimination laws from attack under RFRA. Nevertheless, this more moderate effort to make it harder to bypass such laws was still too much for the House, which overwhelmingly rejected the amendment in a 31-60 vote.

It would be nice to think that Governor Pence was right, and that this law didn't open the door to discrimination. But that is exactly what the law does, and its history makes that even clearer.  If Pence wants to "clarify" that the state's RFRA law won't allow denial of service, he can point legislators to amendment language that would make that as clear as day.

PFAW

Hobby Lobby Comes Home to Roost as States Consider "Religious Freedom" Legislation

This op-ed was originally published at The Huffington Post.

Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.

Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.

Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.

But then came Hobby Lobby.

In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."

Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.

Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.

As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.

PFAW

Georgia Pro-Discrimination Bill Exposed, But It Could Still Pass

While Georgia's misleadingly named Religious Freedom Restoration Act may still pass the state legislature before it adjourns, it had a major setback when its conservative supporters' true goal was exposed. Like similar bills being pushed across the country, it is masked as simply a measure defending religious liberty, but it is really a vehicle designed to give legal cover to discrimination. By a one-vote margin, the House Judiciary Committee amended the bill so it could not be used to trump anti-discrimination laws, with three Republicans joining all the committee's Democrats. The bill's supporters then voted to table the bill rather than advance a bill that no longer allowed discrimination.

But the bill isn't dead. Until the Georgia legislature adjourns on April 2, anything can happen. In fact, the House Judiciary Committee announced late Friday that it would resume considering the bill on Monday. But in some encouraging news, that meeting has been cancelled. As reported by the Atlanta Journal Constitution:

A specially called meeting of the House Judiciary Committee set for Monday was cancelled, leaving the future of the ‘religious liberty' bill in doubt.

...

The back-and-forth on the bill comes as Indiana deals with the backlash from adopting a similar law that has led to calls of boycotts and the potential loss of tens of millions of dollars in tourism and economic development. Indiana Gov. Mike Spence on Sunday told ABC News the law is not about discrimination but refused to say whether it would permit a business owner to refuse service to someone with whom they disagree.

As Georgia legislators are learning, this is a bill that has the public's attention, and people are not happy with it. When the Judiciary Committee heard public testimony on the bill last week, far more people showed up than the committee chairman was willing to make time for. Among those who went to the state capitol to testify was Rev. Tim McDonald, senior pastor at First Iconium Baptist Church in Atlanta, former President of Concerned Black Clergy of Metropolitan Atlanta, and current co-chair of African American Ministers In Action at PFAW. He was ultimately unable to offer his testimony in person, but he submitted it in writing. Rev. McDonald wrote, in part:

Equality and basic rights should never yield to discrimination. But this bill would legalize discrimination, and it does so by distorting the concept of religious liberty.

Many other religious leaders here in Georgia have agreed and have opposed this bill. So have conservatives like former state attorney Michael Bowers, and businesses like Wal-Mart, which has opposed similar legislation in Arkansas.

It is clear that rather than fixing a problem, this bill would create problems, often for the most vulnerable among us. Handing people the right to use the mantle of religious liberty to harm others is wrong. My faith teaches me that I should speak out against proposals that could deny basic rights to others, especially when it's being done in the name of religion.

During the public testimony, bill supporters kept returning to one misleading talking point: Although the bill mirrors a federal RFRA that has been on the books for 20 years, as well as several longtime state RFRAs, opponents couldn't point to a case where the law was used to enable otherwise illegal discrimination. Rev. McDonald addressed this in his testimony:

[This bill threatens to allow discrimination] even though, and in large part because, the bill's language tracks the language of the federal RFRA. State courts are likely to follow the guidance of the United States Supreme Court in how to interpret this almost identical language. Unfortunately, with last June's 5-4 Hobby Lobby decision, the Supreme Court gravely misinterpreted that federal law. Five Justices ruled, for the first time, that for-profit corporations can invoke the law, and they essentially excised from the statute the requirement that it can be triggered only by a substantial burden on actual religious exercise. Under Hobby Lobby, having your religious beliefs offended is enough. So a state court following the Hobby Lobby logic could easily equate a business owner's being religiously offended by a gay employee or a customer's "lifestyle choice" with a significant burden on the owner's religious liberty. That is why the bill transforms religious liberty protection from a shield into a sword.

Keep an eye out for this. Until the legislature adjourns, the bill can come back to life, and conservatives in Georgia could succeed in weaponizing religious liberty in their state as Indiana did last week.

PFAW

State Money In Politics Reform Victories Show Growing Strength of Movement

While likely presidential candidates chase billionaires they hope will bankroll their campaigns, activists in states across the country are ramping up a very different kind of campaign: grassroots organizing to restore some common sense to the rules governing money in elections. In March alone, we’ve seen significant victories in the movement to get big money out of politics.

Last week, following sustained advocacy by PFAW activists and allies, the New Hampshire Senate unanimously passed a bill in favor of a constitutional amendment to overturn cases like Citizens United v. FEC. If it passes in the House, New Hampshire will become the 17th state calling for an amendment. PFAW’s New Hampshire Campaign Coordinator Lindsay Jakows, who has been leading our on-the-ground effort in the state, said the vote shows that “our state senators are listening to, and responding to, the voices of their constituents.” And after passing 67 town resolutions in support of an amendment – including 11 just this month – the voices of New Hampshire constituents on this issue are crystal clear.

On the other side of the country, local leaders in Washington and Montana are also making important strides. Earlier this month, Washington’s state Senate unanimously passed a disclosure bill that would expose the spending of some of the largest political donors. PFAW activists in the state made calls to their senators, urging them to vote for the bill to strengthen transparency in Washington’s politics. And in Montana a disclosure bill that would help shine a light on “dark money” in state elections passed in the state House this weekend following calls from PFAW activists.

All of these victories share the same core ingredient: people power.

The sustained drumbeat of calls and emails from local advocates, which led to important wins in three states just this month, show what’s possible when grassroots leaders organize to take their democracy back from corporations and billionaires.

PFAW

Supreme Court’s Denial of Wisconsin Voting Rights a Motivator for Millennials

The following is a guest post by Zachary Koop, a 2014 Young People For Fellow.

This past Monday, the US Supreme Court made a troubling decision: it rejected an appeal to overturn Wisconsin’s voter ID law, considered one of the strictest in the nation. In so doing, the justices paved the way for other states to prohibit eligible voters from casting ballots.

As a young, progressive Wisconsin student, my peers and I share the sentiment that our voices are being attacked by Wisconsin’s recent voter ID law. Indeed, this policy disproportionately impacts young voters, especially youth of color. Among voters between the ages of 18-29, 17.3 percent of black youth and 8.1 percent of Latino youth were unable to vote because of inadequate identification, compared to 4.7 percent of white youth. 

Governor Walker claims that subjugation of Wisconsinites is not the intent, but it is unquestionably the impact. This policy threatened to prevent 300,000 Wisconsinites from voting. Inclusion should be an American ideal, but that is clearly not the case today.

This attack on the voting rights is just one example of how the Right is further disenfranchising historically marginalized communities across this country. But despite their intent, these moves are also mobilizing millennials to demand that our democracy include us. While complex legal and legislative processes often make us feel frustrated and powerless, we understand we need to claim our place at the voting booth. As the largest, most diverse and most progressive demographic in history, we have the power to alter the policy and political landscapes in substantial ways – and we’re already doing it.

Millennials are advancing change across the country. I found my own place in the progressive movement thanks to programs like People For the American Way Foundation’s Young People For (YP4) Fellowship. Through YP4’s Vote and Courts Matter programs, I learned how to organize my peers, mobilize voters, and came to understand just how important the courts are to advancing (or dismantling) progressive policies.

Because of YP4’s support, this past fall at UW-La Crosse I passed policies through my campus’ student government that enfranchised students during the 2014 midterm elections. By requiring the administration to issue free student IDs compliant with the voter ID law to all students who requested one, running voter registration drives, and more, we helped ensure that 10,000 students could cast ballots during the election cycle. We are now creating a campus voter registration system that is easily accessible to all students and plan to share our tactics with surrounding state universities to make voting more inclusive and widespread amongst students.

Nothing is more voice-squelching than voter ID laws, an economically inefficient policy that marginalizes youth and other minorities. The Supreme Court’s decision is a call to action for Wisconsin millennials to realize that justice does not advocate for itself and that we must incorporate courts activism in our fight for civil rights.

PFAW Foundation

Supreme Court Sends Racial Gerrymandering Case Back to Lower Court

The Supreme Court issued a 5-4 ruling yesterday disagreeing with a lower court that had upheld Alabama's racially gerrymandered state legislative redistricting. The cases are Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama.

As we discussed in our Term Preview, the Republican-controlled Alabama legislature enacted a state redistricting plan after the 2010 Census that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black, a process some have called bleaching. (This plan was adopted while Alabama was still subject to the preclearance provisions of Section 5 of the Voting Rights Act, before Shelby County v. Holder.) Ostensibly to comply with the requirement under Section 5 that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, legislators decided that the African American percentages in the redrawn majority-minority districts had to be at least whatever they had become before redistricting. So if a district that was (say) 65% African American in 2002 had become 75% African American by 2010, the new lines had to keep the district at least 75% African American.

Because of population shifts over the past decade and a decision to minimize population differences among districts, this policy meant that African Americans in majority-white districts were redistricted into majority- and supermajority-black districts.

The Alabama Legislative Black Caucus and the Alabama Democratic Conference argued that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment. But a special three-judge district court had upheld the redistricting, ruling that (1) minimizing population differences among districts, and not race, was the predominant factor in drawing the lines, so strict scrutiny didn't apply; and (2) even if strict scrutiny applied, the boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 (which was in force then).

In an opinion written by Justice Breyer and joined by the other moderates plus Justice Kennedy, the Supreme Court repudiated the lower court, sending the case back so certain districts can be reanalyzed under the proper standards to determine if they are racially discriminatory. They held that Alabama can't avoid an analysis of whether race was the predominant factor by pointing to its desire to have population balance among districts:

[I]f the legislature must place 1,000 or so additional voters in a particular district in order to achieve an equal population goal, the "predominance" question concerns which voters the legislature decides to choose, and specifically whether the legislature predominately uses race as opposed to other, "traditional" factors when doing so.

Another key part of the ruling was the discussion of Section 5, which the Court made clear does not require a covered jurisdiction to maintain a particular numerical minority percentage. Instead, it requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice.

The state's Section 5 rationale seemed like a stretch designed to justify a redistricting process that some have called "bleaching." Yesterday's ruling will ensure that no one grasps for that particular straw again in an effort to cover up racial gerrymandering. (This assumes, of course, that Congress eventually restores Section 5's efficacy by adopting a new formula for coverage, since the Roberts Court struck down the existing formula in the infamous 5-4 Shelby County ruling.) The case is also important because the dissent by the four most right-wing Justices, which was only one vote from becoming the majority opinion, would have allowed the Alabama legislature in this case to use race in drawing districts in a way that would harm minority voters.

PFAW Foundation

PFAW Member Telebriefing: Preview of Upcoming PFAW Foundation Report, The Supreme Court in the Citizens United Era

Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.

To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.

Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money  influencing who gets elected to office.

In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.

You can listen to the full telebriefing here:

PFAW Foundation

Peggy Young Will Get Her Day in Court

There's good news in the Supreme Court ruling in Peggy Young v. UPS, a case we discussed in our Term Preview and also blogged about after oral arguments. That's the case where UPS refused to give light duty to a pregnant employee who was under doctor's orders not to lift heavy packages, even though they gave light duty to other employees with similar lifting restrictions (those injured on the job, those who'd lost their DOT driving certification, and those with permanent disabilities).

The Court ruled in favor of Young in a five-Justice opinion written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts. (Justice Alito concurred in the result but didn't join the majority opinion.) It's an important victory for Peggy Young individually and for women across the country, since it shuts down corporate efforts to make it much easier to discriminate against pregnant workers.

The Pregnancy Discrimination Act (PDA), passed in 1978, says that pregnancy discrimination is a form of illegal sex discrimination. Congress had to make this explicit after the Supreme Court ruled otherwise in a 1976 case. But that isn't all the PDA says. It also has a second provision: women affected by pregnancy "shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work."

The Court rejected UPS's extremely restrictive reading of the law. The corporation had argued that it hadn't discriminated on the basis of pregnancy because they were treating Young the same way they'd have treated a non-pregnant employee whose restrictions weren't caused by an on-the-job injury or other category. As Peggy Young learned the hard way when the lower courts ruled in favor of UPS without a trial, this made it much too easy for employers to force an employee to choose between her pregnancy and her job.

But the Supreme Court majority also rejected Young's reading of the law, where she would not have needed to show any intent to discriminate. Instead, the majority said that women in Young's situation – women asserting disparate treatment but without direct evidence of discriminatory intent – have to do more than show that they are being treated differently than workers with similar restrictions on their ability to work. Once they demonstrate the disparate treatment, the employer has a chance to offer up legitimate, non-discriminatory reasons for their policy ("saving money" doesn't count). Then it's up to the employee to convince a jury that those reasons are just a pretext. This is the same framework used in other types of Title VII disparate treatment cases, and it can create a hurdle that can be hard for victims of discrimination to overcome.

So this was not the complete victory Young sought, but it is still a victory, because it vacated the lower court and gives her a chance to make her case.

In a brief paragraph, the majority noted that the law has changed since Young's pregnancy, to the benefit of women like her. Specifically, Congress modified the Americans with Disabilities Act in 2008 to specify that impairments that limit your ability to lift, stand, or bend are disabilities under the law, thereby presenting legal options to women that were unavailable to Young. In addition, EEOC rules require employers to accommodate temporary lifting restrictions that originate off the job.

Not mentioned by the Court (appropriately enough, since it isn't the law) is a bill in Congress supported by a number of progressives – including our affiliate PFAW – called the Pregnant Workers Fairness Act. This would make clear that employers are required to make reasonable accommodations to pregnant employees.

The Court's ruling could have severely restricted women's rights under the Pregnancy Discrimination Act. Fortunately, the Court did not accept the misinterpretation of the law that would have benefited corporate interests at the expense of women everywhere.

PFAW Foundation

Shining a Light on Corporate 'Dark Money'

This op-ed was originally published at OtherWords.com.

If 2014 was the “Year of Dark Money” in elections, then 2016 is likely to be the “Year of Way, Way More Dark Money” — that is, unless something big changes soon.

One of the most troubling aspects of the explosion of big money in politics in recent years is the rapid rise in spending by groups that aren’t required to disclose their donors.

Right now, corporations and super-rich political donors like the Koch brothers can funnel millions into elections through groups that hide their identities, leaving voters and candidates unable to tell who’s behind the attack ads they buy in bulk, or what their agendas are.

More than $600 million of this so-called “dark money” has already been poured into our federal elections, and that’s only going to increase as we ramp up for the next presidential race.

Americans aren’t happy about this.

When President Barack Obama called in January for a “better politics” where “we spend less time drowning in dark money for ads that pull us into the gutter,” he wasn’t just speaking for himself.

He was tapping into a deep-seated unease among everyday Americans who know that our political system can’t work for us when it’s awash in millions of dollars of untraceable money.

But President Obama can do more than simply call attention to the problem. He can take a big step toward fixing it by issuing an executive order requiring companies with government contracts to disclose their political spending.

That would mean that many of the nation’s biggest corporations — like Exxon Mobil, Lockheed Martin, AT&T, Chrysler, and Verizon, just to name a few — would have to let the American people know about their political spending. That would turn some of that dark money into plain old “money.”

As The Washington Post editorial board wrote earlier this year, disclosure is “the backbone of accountability.” The public needs to be able to follow the money trail, see who’s behind political spending, and call them out when they don’t like what they see.

Even the Supreme Court’s conservative majority, which opened the floodgates to unlimited corporate political spending with its 2010 Citizens United decision, has underscored the need for disclosure. Transparency, wrote Justice Anthony Kennedy in the ruling, “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Today, only one-fourth of the country’s largest government contractors disclose their contributions to outside groups. That means that many of the corporations receiving the biggest government contracts — from taxpayer money — are likely doing a great deal of secret spending to influence elections.

President Obama is right: Ordinary Americans are tired of being pulled “into the gutter.” We’re tired of seeing corporations rig our political system with untold amounts of money from undisclosed sources.

The White House should issue an executive order to let voters see for themselves who’s trying to buy political influence to distort our democracy.

What are these corporations trying to hide? And why should We the People hand over our taxpayer money to help them hide it?

PFAW