This afternoon, the full 9th Circuit Court of Appeals declined to hear an appeal of the Prop 8 case. In February, a three-judge panel of the 9th Circuit struck down Prop 8, finding California's revocation of the right of same-sex couples to marry same-sex marriage ban to be unconstitutional. The 9th Circuit's decision means that either the Supreme Court will take up the case or the 9th Circuit’s decision striking down the law will stand.
The appeals court ruling is on narrow grounds unique to California, where same-sex couples were left with all the state rights of marriage but not the name. It found that taking away gay and lesbian couples’ designation of “marriage” while leaving their rights unchanged did not serve any of the purposes put forth by its defenders. Instead, its only purpose and effect was to lessen a targeted group’s status and dignity by reclassifying their relationship and families as inferior. The Court did not address the larger question of whether gays and lesbians have a constitutional right to marry. While the Supreme Court will be presented with the narrower question as framed by the Ninth Circuit, it is impossible to tell, if it agrees to hear the case at all, whether they will rule on this principle or more broadly on the ability of states to deny lesbians and gays the right to marry.
While Florida’s local election supervisors are rebelling against a flawed voter purge championed by Gov. Rick Scott, the Houston Chronicle reports that Texas is holding its own voter purge that could jeopardize the status of hundreds of thousands of registered voters. As noted in the People For the American Way Foundation report, The Right to Vote Under Attack, faulty purge programs “can effectively disenfranchise large numbers of eligible voters” and have been frequently used to accomplish partisan agendas, and the Chronicle has already found many instances of people being wrongfully purged from the rolls:
More than 300,000 valid voters were notified they could be removed from Texas rolls from November 2008 to November 2010 - often because they were mistaken for someone else or failed to receive or respond to generic form letters, according to Houston Chronicle interviews and analysis of voter registration data.
Statewide, more than 1.5 million voters could be on the path to cancellation if they fail to vote or to update their records for two consecutive federal elections: One out of every 10 Texas voters' registration is currently suspended. Among voters under 30, the figure is about one in five.
Texas voter registration rates are among the lowest in the nation, but Texas pays nearly twice as much to cancel voters - 40 cents per cancellation - as it does to register new ones at 25 cents.
State and federal laws require the nation's voter rolls be regularly reviewed and cleaned to remove duplicates and eliminate voters who moved away or died. But across Texas, such "removals" rely on outdated computer programs, faulty procedures and voter responses to generic form letters, often resulting in the wrong people being sent cancellation notices, including new homeowners, college students, Texans who work abroad and folks with common names, a Chronicle review of cancellations shows.
One of the last acts of Justice John Paul Stevens on the Supreme Court bench that he sat on for nearly thirty-five years was to read a summary of his scathing dissent of the Citizens United v. FEC decision, aloud, stating repeatedly, in one form or another that corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” Unfortunately, this view, which the vast majority of Americans agree with, and which seems so self-evident, was not held by the majority of the court.
To read the decision aloud was noteworthy; justices typically do so on cases they believe have special merit. And Justice Stevens correctly understood then that Citizens United was just that.
Over two years later, as the effects of Citizens United take hold, as corporate and special interest spending flood the 2012 elections and overwhelm the political process, Justice Stevens revisited the topic at the University of Arkansas’ Clinton Schools of Public Service. As reported by the Huffington Post, Justice Stevens took to the lectern Wednesday to address the inherent legal contradictions that are still outstanding under Justice Kennedy’s lead opinion.
Stevens alluded to President Obama’s apprehension, voiced in his 2010 State of the Union Speech, that the decision would “open the floodgates to special interests -- including foreign corporations -- to spend without limit in our elections.” Stevens stated (emphasis added):
… the former professor of constitutional law at the University of Chicago Law School [President Obama] made three important and accurate observations about the Supreme Court majority's opinion …
… third, the logic of the opinion extends to money spent by foreign entities. That is so because the Court placed such heavy emphasis on the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity. Indeed, the opinion expressly stated, “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”
Justice Stevens is correct that the logic of the Court’s opinion in Citizens United extends to permitting foreign corporations to make independent expenditures to influence U.S. elections. As he pointed out in his Citizens United dissent, the majority opinion’s failure to take on the issue of foreign corporate spending when striking down portions of the McCain-Feingold Act is a glaring omission, one that exposes the logical flaws in Kennedy’s argument. And as more cases like Bluman v. FEC arise – in which foreign nationals sought, and were denied the right to make electoral contributions and expenditures – the court will need to further clarify its position on why domestic corporations, and not other “speakers” have the right “to speak.” On the subject, Stevens reasoned:
… in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For [Justice Alito's] statement that it is "not true" that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion. And, if so, the Court must then explain its abandonment of, or at least qualify its reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech. It will be necessary to' explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.
It is very possible that a plethora of cases like Bluman v. FEC will reach the district courts. And it’s very possible that the lower courts will begin to poke so many holes in the Citizens United rationale that the Supreme Court will have no choice but to revisit the case.
A federal appeals court in Boston today upheld a lower court ruling that called the key section of the so-called “Defense of Marriage Act” unconstitutional. Section 3 of DOMA bans the federal government from recognizing legal marriages between people of the same sex, meaning that it willfully discriminates against a set of married people when it comes to Social Security benefits, joint-filing tax breaks, military spousal benefits and immigration. When DOMA was passed in 1996 no states allowed gay and lesbian couple to marry – its provisions were purely theoretical. Today, marriage equality exists in six states and the District of Columbia, and DOMA actively harms thousands of married Americans – 100,000 couples, according to the court.
In its decision concluding that DOMA violates the Constitution, the unanimous First Circuit panel – two out of three of whom were nominated by Republican presidents – was cautious. The panel said that under First Circuit precedent DOMA doesn’t trigger “heightened scrutiny” – a tougher standard for the federal government to meet. It also declined to address any arguments based on the premise that lesbians and gays have a constitutional right to marry (as opposed to having their existing marriages recognized by the federal government).
But the court was clear that Section 3 of DOMA does not meet the “rational basis” test for upholding a federal law that denies equal protection to a group long subject to discrimination – in other words, there’s just no good reason for DOMA to do the harm that it does.
The court looked at several justificiations offered for the law by DOMA’s supporters and found that each comes up short. Supporters say DOMA will save the federal government money (reports say that it actually costs the government money…and saving money isn’t a good enough reason for legal discrimination in the first place); that allowing lesbians and gays to marry harms children (it doesn’t, and Section 3 of DOMA doesn’t affect these couples’ rights to raise children anyway); and just plain moral disapproval (Supreme Court precedent says this isn’t enough of a reason). And finally, the court takes on the constant argument of opponents of same-sex marriage: that somehow gay couples getting married will harm the institution of marriage for everyone else:
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
This is the crux of any number of court decisions that have struck down barriers to marriage equality. The main reason given for many laws that seek to deny marriage rights to gays and lesbians is that same-sex marriage will somehow weaken marriage for everybody else. It’s a claim that just doesn’t hold water.
The First Circuit panel did, however, go out of its way to defend DOMA’s supporters even while rejecting the law.
The District Court judge whose ruling the appeals court upheld declared that DOMA was motivated by “irrational prejudice” toward gays and lesbians. The First Circuit explicitly refuses to go there, instead stating that while that may have been true for some supporters, others were motivated instead by what it characterizes as the non-biased wish to “preserve the heritage of marriage as traditionally defined over centuries of Western civilization.” Under recent Supreme Court precedent, they write, the wish to uphold tradition isn’t a good enough one for denying equal protection. But the Supreme Court can change that if it wants:
In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. Preserving this institution is not the same as "mere moral disapproval of an excluded group," and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
Recognizing that the Supreme Court will likely review its reasoning, the court stayed the decision, so it will not go into effect yet.
The most recent spate of companies fleeing from the American Legislative Exchange Council (ALEC) have been from the education and retail sectors, but yesterday ALEC got a rebuke from the healthcare industry as well. Medtronic, the medical technology company, has informed the Center for Media and Democracy that they did not renew their ALEC membership. Medtronic is the 17th corporation to leave the organization.
ALEC’s “healthcare” agenda is much less about helping sick people than about enriching healthcare corporations. To do so, ALEC advocates for policies that put quality care out of reach for many people by privatizing Medicare and Medicaid and repealing important laws that expand public access to care, including ObamaCare. They also push for the deregulation of the pharmaceutical and insurance industries and seek to limit accountability for drug companies that produce faulty medications that can cause injury or death.
The ALEC agenda is extreme, and when it comes to public health, it’s downright dangerous. Medtronic now joins Blue Cross Blue Shield in doing right by their customers and patients by getting out of ALEC.
The U.S. Chamber of Commerce plans to take full advantage of the Supreme Court’s Citizens United decision to push its right-wing agenda, according to its president, Tom Donohue. As reported by USA Today, Donohue told reporters at a breakfast hosted by the Christian Science Monitor earlier this week that under that decision, the Chamber can and will run “an aggressive program” and will not disclose its donors.
Donohue also suggested that estimates that the business group would spend $50 million on the 2012 elect were too low. Thanks to Citizens United, individuals, corporations and organizations like the Chamber of Commerce can make unlimited, often anonymous expenditures on ads supporting or attacking candidates. Until that decision is overturned, disclosure rules would at least shed light on the process and give Americans insight into who is using their wealth to disproportionately influence elections.
But that’s not how Donohue sees it: “The disclosure thing…is all about intimidation.” While requiring disclosure might makes sense on the surface, he said, “in this instance you become a target.”
Americans deserve to know who’s trying to buy their elections. Even far-right Supreme Court justice Antonin Scalia knows that "Democracy requires a certain amount of civic courage." Donohue’s demand that corporate entities be allowed to pour money into elections without having to show their faces makes his agenda perfectly clear: it’s not about democracy or free speech, it’s about maximizing corporate profits by any means necessary.
Two more educational organizations, the for-profit Scantron Corporation and the nonprofit Lumina Foundation, have ended their association with the American Legislative Exchange Council, according to the Center for Media and Democracy.
Scantron, the educational testing company that produces standardized test forms (those ubiquitous bubble sheets), is the 15th corporation to sever ties with ALEC. The company was a member of ALEC’s Education Task Force, having first joined ALEC in late 2010. Lumina Foundation, a nonprofit foundation claiming to have invested assets in excess of $1 billion, makes grants to think tanks and other organizations with the goal of enrolling more Americans in college.
Scantron and Lumina join the growing list of educational organizations distancing themselves from ALEC’s education policies – an agenda that consistently prioritizes corporate profits over the needs of kids and communities. Other educational organizations to cut ties with ALEC include the for-profit Kaplan and the non-profit National Association of Charter School Organizers and the National Board for Professional Teaching Standards.
Transferring public resources to private hands is a major component of the conservative agenda. An extensive profile of the push to weaken public schools and transfer wealth to private academies through tax credit programs is the subject of an extensive profile in today’s New York Times, which highlights how conservative legislators, school privatization advocates and organizations like the American Legislative Exchange Council are helping secure tax dollars to bolster private school systems. Disguised as programs to help needy children gain access quality education, in reality these programs simply channel money to individuals who don’t need the assistance and boost profits for private schools, often at great cost to students and communities.
Across the country, state legislatures are adopting tax credit programs, which allow individuals and corporations to receive a dollar-for-dollar tax refund for donations to private school “scholarship funds.” In Georgia, for example, a couple can donate up to $2,500 to a nonprofit scholarship fund to be used to send a needy child to a private school. In turn, the donors can subtract their donation from their Georgia tax bill. But according to school administrators, needy children hardly benefit from the practice, with the majority of the funding benefitting children that already attend private schools:
“A very small percentage of that money will be set aside for a needs-based scholarship fund,” Wyatt Bozeman, an administrator at the school near Atlanta, said during an informational session. “The rest of the money will be channeled to the family that raised it.”
The result is a system in which gives selected students a taxpayer-funded education at a private school. Around the country, the Times notes, similar programs have redirected nearly $350 million from public budgets. This “tuition” money may go to the payrolls of the nonprofit scholarship groups or even to recruit star athletes – only a small portion goes to needy kids. Politics pervades the entire process, and it is glaringly evident that tax credit programs are more about making money than educating children:
Some of the programs have also become enmeshed in politics, including in Pennsylvania, where more than 200 organizations distribute more than $40 million a year donated by corporations. Two of the state’s largest scholarship organizations are controlled by lobbyists, and they frequently ask lawmakers to help decide which schools get the money, according to interviews. The arrangement provides a potential opportunity for corporate donors seeking to influence legislators and also gives the lobbying firms access to both lawmakers and potential new clients.
Organizations such as ALEC have been instrumental in spreading such programs around the country:
“ALEC is a huge player in pushing forward a conservative agenda based on the premise that the free market and private sectors address social problems better than the government,” said Julie Underwood, dean of the school of education at the University of Wisconsin, Madison, who has been critical of ALEC’s education agenda.
ALEC promotes a “Family Education Tax Credit Program” similar to the program adopted in Georgia. The organization promotes a number of other methods of transferring public education dollars to private hands. In addition to numerous voucher and scholarship programs, ALEC promotes its “Education Accountability Act,” which allows a state to override the elected school board and declare schools to be “educationally bankrupt” and divert funds to private schools. Perhaps the boldest plan is the “Virtual Public Schools Act,” which permits online education companies to receive the same per-pupil funding as a brick-and mortar school providing classrooms, athletic facilities, lunch and transportation services.
Politics also makes its way into the classroom. Because the tax credit system allows the money to stay in private accounts – from donors to scholarship funds to schools – the effect is a loophole that creates a legal fiction that they are not being supported with government funds. So state governments are funneling taxpayer money to religious education and political indoctrination of children, insulated from court review. Republican Arizona Representative Trent Franks, who is credited with the idea to insulate private schools from court challenges for constitutional violations this way, bragged that the teachers’ union called the scheme “fiendishly clever.” As a result, the public is forced to foot the bill for a curriculum that would be unacceptable for a public school:
Frances Paterson, a professor at Valdosta State University in Georgia who has studied the books, said they “frequently resemble partisan, political literature more than they do the traditional textbooks used in public schools.”
Mr. Arnold, the headmaster of the Covenant Christian Academy in Cumming, Ga., confirmed that his school used those texts but said they were part of a larger curriculum.
“You have to keep in mind that the curriculum goes beyond the textbook,” Mr. Arnold said. “Not only do we teach the students that creation is the way the world was created and that God is in control and he made all things, we also teach them what the false theories of the world are, such as the Big Bang theory and Darwinism. We teach those as fallacies.”
ALEC, corporate lobbyists and conservative activists are pulling the rug out from beneath American kids and communities. Tax credit programs, vouchers and other “scholarships” are being used to promote profits and politics above education. All children deserve access to a quality education – instead of taking money out of public schools, we should make sure they work for everyone.
A major component of the American Legislative Exchange Council’s agenda is shielding corporations from liability by removing consumer protections and limiting the people’s ability to seek justice in a court of law. At their meeting last week in Charlotte, N.C., ALEC’s Civil Justice Task Force considered legislation that would hamstring some of the mosteffective consumer advocates: state attorneys general.
Common Cause recently released some 4,000 of ALEC’s internal documents, including task force agendas, participants and model legislation. The documents revealed ALEC’s “Attorney General Authority Act” under consideration at the task force meeting, which seeks to limit state AGs from bringing suits against corporations. ALEC’s explanation of the bill reads in part:
Just as a private attorney cannot bring a suit on behalf of a client without the client agreeing and authorizing such action, and then only within the guidelines allowed by the client, so it should be with the attorney general. Rather than an attorney general deciding on his or her own what authority the office may have to bring a lawsuit, the authority should be defined by the state as reflected by the specific decisions of the legislature via statute. The legislature, not the attorney general, is best positioned to balance the competing concerns that go into the decision of whether to allow a cause of action and under what circumstances.
Put simply: this act would prohibit the attorney general from bringing a suit in the public’s interest unless the state legislature specifically authorizes it.
As the Minnesota Post astutely points out, a legislature that enacts such a provision to protect corporations is unlikely to subsequently grant the attorney general the authority to prosecute them. The consequences are significant: "This legislation would have prevented [an attorney general] from suing tobacco manufacturers in the ‘90s for tobacco-related health costs associated with the Medicaid program,” said Mike Dean, head of Common Cause of Minnesota. “It is easy to see why corporations would want to stop these types of lawsuits because tobacco manufacturer were forced to pay $6.1 billion in a settlement to the state of Minnesota."
This law doesn't just help ALEC-member corporations, it helps ALEC. After recently filing a whistleblower complaint with the IRS alleging that ALEC abused its tax-exempt status by failing to report lobbying activities, Common Cause is calling on state attorney generals to investigate ALEC for tax fraud in all 50 states. What better way to derail investigations into ALEC than by advocating for legislation that removes the attorney general’s ability to investigate ALEC?
The Center for Media and Democracy released a new report today detailing the American Legislative Exchange Council’s influence in Wisconsin’s laws. At a time when ALEC members are jumping ship thanks to increased exposure of the ALEC agenda – 14 corporate members and 45 legislative members so far – this report serves as yet another window into ALEC’s shadowy, undemocratic method of ushering an extreme, pro-corporate agenda into law.
With the loyal help of Governor Scott Walker and a slew of complicit state legislators, ALEC has successfully implemented much of its corporate wish list in the state, including union-busting and corporate tax giveaways. According to the report, in Wisconsin:
• 32 bills or budget provisions reflecting ALEC model legislation were introduced in Wisconsin's 2011-2012 legislative session;
• 21 of these bills or budget provisions have passed, and two were vetoed;
• More than $276,000 in campaign contributions were made to ALEC legislators in Wisconsin from ALEC corporations since 2008;
• More than $406,000 in campaign contributions were made to ALEC alumnus Governor Walker from ALEC corporations over the same time period for his state campaign account;
• At least 49 current Wisconsin legislators are known ALEC members, including the leaders of both the House and Senate as well as other legislators holding key posts in the state. Additionally, the Governor, the Secretary of the Department of Administration, and the Chairman of the Public Service Commission are ALEC alumni; and
• At least 17 current legislators have received thousands of dollars of gifts cumulatively from ALEC corporations in the past few years, in the form of flights and hotel rooms filtered through the ALEC “scholarship fund” (complete “scholarship” information is not available).
People For the American Way Foundation has contributed to similar reports covering ALEC’s influence in Ohio and Arizona, and work continues to shine light on how ALEC paves the way for a state-by-state corporate takeover of our democracy.
Young People For (YP4), a program of People For the American Way Foundation, is a year-long leadership development program that helps a diverse set of student leaders turn their idealism into actions that advance social change on their campuses and in their communities. YP4 Fellows design and implement a capstone project called the Blueprint for Social Justice and work on social justice projects of their choosing.
We’ll be highlighting the work of some of our outstanding Fellows here. This week, we’re pleased to introduce Ariel Boone, representing the University of California at Berkeley.
Originally from Davis, CA, Ariel quickly became active in student government and advocacy upon arriving at Cal. She was elected to serve as a senator in the Associated Students of U.C., and also was the Internal Vice President of the largest college political party chapters in California. Her passion for the democratic process began early – she has extensive campaign experience and has been canvassing and phone-banking for various candidates for years. As an advocate, she was a co-chair of the 2011 Western Region LGBTQIA Conference and is active with the CalSERVE (Students for Equal Rights and a Valid Education) coalition, which works to promote civil rights, improve college affordability and other issues facing Cal students.
Seeking to improve fairness and transparency in government, as her Blueprint for Social Justice, Ariel wrote and introduced a bill in the Student Senate that would withdraw the Berkeley Student Government’s $3.5 million treasury out of Bank of America, and encourages the University to do the same. Ariel’s bill passed the Student Senate with unanimous support.
This action was prompted by the growing national effort to get major corporations to refrain from spending their vast treasuries to influence elections. Just last week, the shareholders of Bank of America called on the company to refrain from such spending and strengthen its disclosure practices. People who have a stake in Bank of America and companies like it – from shareholders to 401(k) enrollees and even students at universities like Cal – have a right to know if the corporations they invest in are using those funds to support candidates, causes or attack ads without their knowledge or approval. By withdrawing the Cal Student Government’s funds from Bank of America, students are sending a powerful message: like all Americans, young people are affected by the undue influence that wealthy special interests have in our democratic system, and it is time to do something about it. Ariel’s effort was echoed around the country last week, as students joined demonstrations at various Bank of America branches to add their voices to the call and telling corporations to stop spending money on politics.
You can read Ariel’s article in the Daily Californian about how to enact change by making informed financial decisions here.
Joining the scores of corporations that have recently dropped their support of ultra-conservative organizations that represent shady, undemocratic and disingenuous practices, the London-based beverage giant Diageo, which owns brands such as Guinness, Smirnoff, Johnny Walker and others, announced that they will no longer fund the Heartland Institute, a right-wing think tank. General Motors also discontinued their support for the organization earlier this year.
The decision came after the Heartland Institute ran an unsavory billboard ad showing a picture of the Unabomber, Ted Kaczynski, with a caption that read, “I still believe in global warming. Do you?”
In addition to the Unabomber, the Heartland Institute’s ad campaign also compares climate change scientists and advocates to murderers such as Charles Manson and the Cuban dictator Fidel Castro, and the organization believes that "The people who still believe in man-made global warming are mostly on the radical fringe of society," a statement reads. "This is why the most prominent advocates of global warming aren’t scientists. They are murderers, tyrants, and madmen."
The Institute, which receives funding from the Koch Brothers, has also posted an impassioned defense of the American Legislative Exchange Council on their blog: “The Heartland Institute stands with ALEC in support of free enterprise, limited government, and federalism, and asks that you do so as well.” Apparently, this includes a blatantly disingenuous and hateful ad campaign that calls those who oppose their pro-oil, pro Koch-brothers agenda, even scientists, “murderers” and “tyrants.”
While Diageo should be commended for severing ties with the Heartland Institute, the corporation unfortunately has not joined a number of other corporations, including The Coca-Cola Company, Pepsi and Kraft Foods, who have severed their ties with ALEC.