95 Senate Roll-Call Votes While Lynch Waits for Hers

Loretta Lynch's nomination has been languishing on the Senate floor since February 26. In that time, Majority Leader Mitch McConnell has found time to hold 95 roll call votes but somehow he just can't fit in a vote on the Lynch nomination. Why? Because he's holding Lynch's nomination hostage on a totally unrelated item that has nothing to do with her qualifications to be Attorney General.

Having been thoroughly vetted, Lynch was approved by a bipartisan majority of the Judiciary Committee seven weeks ago. She could and should have confirmed within a few days, as is customary for Attorney General nominees. Yet that hasn't happened. In fact, she has been waiting for a floor vote longer than the seven most recent attorneys general combined, a landmark she passed even before the Senate's two-week spring recess.

Since Lynch has been waiting for a floor vote, the Senate has taken 95 roll call votes. These have covered five bills, four executive nominations, one judicial nomination, one resolution of disapproval of an NLRB action, and one resolution on the budget. That last one is particularly worthy of note, because several dozen of the roll call votes were on non-binding amendments to a non-binding budget resolution.

McConnell held a veto override vote on the Keystone Pipeline bill, a major priority of some important Republican donors but not connected to the Lynch nomination. He held a roll call vote to repeal the individual mandate of the Affordable Care Act, a major priority of the Tea Party base that had no chance of ever becoming law, and which has no connection to confirming Lynch. And he has held multiple roll call votes to force Democrats to accept abortion restrictions on women who are victims of human trafficking ... which also has nothing to do with Lynch, except that McConnell has chosen that particular item as the ransom to demand in exchange for releasing his hostage.

McConnell needs to drop this ridiculous demand and allow a vote. The position of Attorney General of the United States is simply too important for such nonsense.

PFAW

Not Even GOP's Own Witnesses Oppose Loretta Lynch

Today was the second and final day of Senate Judiciary Committee hearings for Loretta Lynch's nomination to be attorney general. Today's session was devoted to witnesses invited by Republican and Democratic senators to help the committee members make the very serious decision as to whether to Lynch is qualified.

Most of the Democrats' witnesses praised Lynch based on their personal and professional experiences with her over the years. But the Republican witnesses had no such personal or professional experience with the nominee, nor did they take issue with her qualifications. In fact, they didn't have much to say about Lynch at all. Instead, they spent their time criticizing President Obama and Attorney General Eric Holder.

But what did they think of Lynch? The committee's ranking Democrat decided to find out: Senator Patrick Leahy asked all of the witnesses, Republican and Democratic alike, to raise their hand if they actually opposed Lynch.

Not one did.

So the GOP couldn't find even one person who could testify that Lynch isn't qualified.

That's very telling. As PFAW explained in our letter to the Senate supporting Lynch, President Obama has made a nomination with bipartisan support who Senate Democrats and Republicans alike can support.

At the conclusion of Lynch's hearings, it's clear that she deserves a timely committee vote and confirmation by the full Senate.

PFAW

4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.

PFAW

Ensuring accountability in a post­-Citizens United era

The Supreme Court’s 2010 Citizens United decision was quickly followed by warnings of the disastrous consequences of opening the floodgates for corporate spending in future elections, but few would have predicted something as bizarre as what was recently discovered in Delaware.

“Restoring Our Future,” a pro-Romney Super PAC, recently received a generous donation of $1 million from W Spann LLC. However, little is known about the firm that only operated in the state for a period of four months, including even the most basic information about its owners. And experts suggest that this arrangement may well be illegal.

“If they put money into the corporation specifically for the purpose of making a political donation that would constitute, in my view, illegally making a donation to avoid disclosure,” says Paul Ryan of the Campaign Legal Center.

While individuals can of course make contributions to PACs and other political organizations, there are disclosure laws in place to help voters and watchdogs understand where the money is coming from. But because the owners of this corporation don’t need to make their names public, Ryan and others suspect the mysterious firm, W Spann LLC, was set up in order to make a large contribution and avoid disclosing any information about the money’s origins.

Ryan’s group along with other watchdog organizations such as the Public Campaign Action Fund and Democracy are calling on Delaware Attorney General Beau Biden as well as officials from the Justice Department and FEC to look into this questionable conduct. But as we wait to see what happens next, it’s clear that this is yet one more of the many examples illustrating how destructive the Citizens United decision has been to our democracy.

With the important elections in 2012 a little more than a year away, it is incumbent on our elected officials to enact meaningful remedies to ensure the integrity of our elections is protected.

PFAW

Enough Signatures Obtained to Put Repeal of Ohio SB 5 on the Ballot, Five Times Over

A petition to repeal Ohio SB 5, which severely curtailed collective bargaining rights for public employee unions, was just certified by Ohio’s secretary of state and attorney general.

# of valid signatures required: 231,147

# of valid signatures obtained: 1,298,301

We Are Ohio

PFAW

After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

PFAW

Indictments in Maryland Voter Suppression Case

On Election Day last year, while the polls were still open, Maryland Democrats received telephone calls late in the day telling them that Democratic Governor Martin O'Malley had won reelection, so they could "relax" (i.e., not vote). It was soon discovered that the calls were generated by an operative working for the campaign of O'Malley's Republican opponent, former Governor Bob Ehrlich. Yesterday, criminal indictments were handed down against a close Ehrlich aide and a political operative for their efforts to suppress the African American vote. According to the Washington Post:

One of former Maryland governor Robert L. Ehrlich Jr.'s most trusted aides and a campaign consultant were accused Thursday of orchestrating tens of thousands of anonymous election-night robo-calls last year that prosecutors said were part of a larger attempt to suppress the black vote.

Paul E. Schurick, 54, Ehrlich's de facto campaign manager, and Julius Henson, 62, a paid consultant, were indicted on multiple counts of election law violations stemming from an automated call that was placed to more than 110,000 Democrats in Baltimore and Prince George's County, according to prosecutors.

...

The indictments might be the first in the country involving Election Day attempts to suppress voting using robo-calls, experts said. The case also appears to be a rarity nationwide, one in which prosecutors might have the physical evidence necessary to prove intent to commit voter suppression, experts said.

...

"There is a long history in urban areas of people passing out fliers that say Republicans vote on Tuesday and Democrats vote on Wednesday, and specifically in Maryland of ploys telling people if you owe tickets or back child support that you can't vote," [Gilda Daniels, an elections law expert at the University of Baltimore Law School] said. "But this isn't someone printing off fliers that can't be easily tracked. These are phone calls, and there are records of them."

The Baltimore Sun provides some more details:

The indictment describes a document titled "The Schurick Doctrine" and says that it was "designed to promote confusion, emotionalism, and frustration among African-American Democrats."

The indictment quotes from the document: "The first and foremost desired outcome [of the Schurick Doctrine strategy] is voter suppression."

While the criminal case progresses, Maryland Attorney General Doug Gansler is pursuing a civil suit in federal court:

Gansler alleges that the robocalls were made with the intent to suppress and intimidate voters in predominately African-American Democratic neighborhoods. The attorney general says 112,000 such calls were made on election night, and if found to be violations, each carries a $500 fine.

PFAW

DADT repeal on track but not unchallenged, need for vigilance remains

Prior to President Obama’s December 22, 2010 signing of the Don’t Ask, Don’t Tell Repeal Act, then House Majority Leader Steny Hoyer (D-MD5) had this to say about the American promise of equality for all.

Nearly six months later, Minority Leader Hoyer’s message about fundamental rights being “self-evident, but not self-executing” rings true. Even as military leaders are working hard to train the troops for repeal implementation, and reporting back success:

Repeal opponents want to disrupt the mission through the FY12 Defense Authorization bill.

  • Section 533 – Slow down repeal by adding the service chiefs to the certification process. A thoughtful process is already in place. Repeal must be certified by the President, the Defense Secretary, and the Chairman of the Joint Chiefs of Staff in order for it to go into effect, and even then there is 60-day waiting period prior to the full policy change. These Administration officials are the men tasked with setting military policy. The services chiefs will advise as appropriate, but are ultimately tasked with executing the policies set at the Administration level.
  • Section 534 – Enshrine DOMA within the military and the DOD civilian corps. DOMA is unconstitutional. The courts agree. So do President Obama and the Attorney General. With DOMA’s future, at the very least, up for review, if not wholly in doubt, it would be foolish to reaffirm it now.
  • Section 535 – Restrict the right of chaplains and other military and civilian personnel, and the use of DOD property, to perform marriage ceremonies. When DADT repeal takes effect, even if DOMA remains in place, there is no reason why these personnel and facilities shouldn’t be available to same-sex couples whose marriages are recognized at the state level. We wouldn’t force individual chaplains to perform same-sex marriage ceremonies, but we also shouldn’t restrict their ability if they wish to do so.

The Senate version of the bill is expected to be taken up by the Senate Armed Services Committee this week. Please help us make clear to the subcommittee and full committee that we want to keep repeal on track and free of harmful amendments.

Before I go, a special shout out to our friends at the Servicemembers Legal Defense Network for demonstrating that servicemembers are still waiting. We’re all still waiting. We need swift certification and effectuation of DADT repeal.

PFAW

A Supreme Court Win for John Ashcroft, a Grim Reminder for the Rest of Us

Yesterday, the Supreme Court ruled unanimously (with Justice Kagan recused) that former Attorney General John Ashcroft cannot be personally sued for alleged abuse of material-witness arrests in the days after the 9/11 attacks. In the weeks and months after 9/11, innocent people were being rounded up by the federal government with little to no evidence against them through abuse of the Material Witness Statute. However, the Justices agreed that what Ashcroft did was not in violation of "clearly established law" at the time, so he cannot be personally sued for money damages.

But that unanimity hides a deep divide on other issues. Justice Ginsburg's concurrence reminds us of the lawless nature of the Bush Administration. She asks:

what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days' incarceration, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.

...

[His] ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.

Americans should never forget the many ways that the Bush Administration violated basic American constitutional principles and the rule of law. After 9/11, People For the American Way Foundation led the nation in exposing and condemning the Ashcroft Justice Department's multifaceted threats to liberty.

Perhaps if the threats had been against Big Business's bottom line, today's corporate-funded Tea Partiers would have joined us in protecting the Constitution. Their silence then makes shameful their current efforts to appropriate the Constitution as uniquely theirs.

PFAW

Attorney General Disappoints on Faith-Based Issue

Question: When does a law saying "do not discriminate" really mean "discrimination is allowed"? Answer: Now, since Attorney General Holder yesterday refused to repudiate the Bush Administration’s seemingly deliberate misreading of federal law in the context of grants to faith-based organizations.

One of the gravest flaws of the Faith-Based Initiative that President Obama inherited and has since made his own is that it permits federally funded employment discrimination on the basis of religion. Numerous federal statutes creating grant programs specifically prohibit those receiving funds from engaging in employment discrimination. However, the Bush Administration’s Office of Legal Counsel (OLC) adopted a policy memo turning those provisions on their head.

According to the memo, requiring compliance with anti-discrimination laws as a condition of receiving federal funds can impose a substantial burden on the religious beliefs of faith-based grant recipients. Therefore, it reasoned, such a requirement may be impermissible under the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. According to this harshly criticized legal memorandum, RFRA can be interpreted to let religious grantees ignore very specific nondiscrimination provisions within a federal grant program.

At a hearing before the House Oversight Committee yesterday, upon questioning by Rep. Bobby Scott, Attorney General Holder testified that the OLC memo is not being reconsidered. Even worse, when asked the Obama Administration has adopted that interpretation as its policy, Holder gave a meaningless and evasive answer. According to Congressional Quarterly (subscription required):

SCOTT: So if you're running a Head Start Program, they're running the Head Start Program they can discriminate, even though there's a statutory provision prohibiting discrimination? They can discriminate anyway?

HOLDER: What I'm saying is that in terms of -- with regard to that specific OLC opinion, we are not in the process of reconsidering it. That is not something that, as I understand ...

SCOTT: Well I'm not talking about the memo. I'm talking about the policy. Can they discriminate notwithstanding a specific statutory prohibition against discrimination; they can discriminate anyway based on that interpretation?

HOLDER: Obviously discrimination cannot occur, that is, that contravenes federal law.

Since whether an act of employment discrimination violates federal law is the focus of the debate, Holder’s response is not enlightening.

It is hard to believe that less than three years ago, candidate Barack Obama told an audience in Zanesville, Ohio that "if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion."

PFAW