The Senate Judiciary Committee held an important hearing this morning looking into the disturbing trend of the Roberts Court to shut down people’s access to justice when they go to court to vindicate their rights against large corporations.
The hearing was on Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior. Chairman Leahy opened the hearing discussing how recent Supreme Court cases are making it harder for working Americans to get their day in court. He expressed particular concern about three cases:
The committee invited four distinguished people to address the issue: Betty Dukes (plaintiff in the sex discrimination case against Wal-Mart) was the one panelist who was also a party to one of the cases being discussed. She spoke poignantly about her experience at Wal-Mart and the fear that so many women have of going against their employer, especially one as powerful as Wal-Mart. She promised to continue her fight, but knows that without a national class action, many women will be intimidated into not litigating.
Andrew J. Pincus (a Washington lawyer who has argued many cases before the Court) and Robert Alt (from the Heritage Foundation) denied that the Court was tilting unfairly to favor corporations, argued that the cases were decided rightly, and stated that the Court was simply upholding existing law. In contrast, Melissa Hart (law professor at the University of Colorado) and James Cox (law professor at Duke) took the position that the Court is wrongly shielding wrongdoers from accountability.
Professor Hart correctly characterized as a policy decision the Roberts Court's tendency to interpret procedural law so restrictively, despite congressional intent otherwise, so that Americans become unable to present their case to an impartial court.
Senator Whitehouse discussed the critical role juries play in American government. He noted that juries are mentioned three times in the Constitution, and that they remain a government institution that Big Business cannot corrupt. For years, the far right has been denigrating "trial lawyers" and "runaway juries" in an effort to keep Americans from being able to hold the powerful accountable. Whitehouse argued that the Roberts Court is acting consistently with that pattern.
People For the American Way Foundation submitted testimony to the committee on how the Roberts Court has removed substantive and procedural protections that are the only way that individuals can avoid becoming victimized by giant corporations that dwarf them in size, wealth, and power. These decisions often provide road maps to corporate interests in how to avoid accountability for harm that they do. The constitutional design empowering individuals to consolidate their power against corporations is slowly being eroded by a fiercely ideological Court. Today's hearing is part of an effort to expose the harm that is being done.
We’ve seen Koch-funded politicians across the country introduce bills that dismantle public-sector unions at the state level. Now it seems they’ve got their eye on a bigger prize, attempting to destroy unions at the federal level as well.
On Wednesday, the House Subcommittee on Federal Workforce held a hearing on “Official Time” which the government defines as “authorized, paid time off from assigned Government duties to represent a union or its bargaining unit employees.” Unions use this time to complete tasks such as setting safety requirements, overtime assignments, and dispute-resolution procedures, all of which are necessary for a productive workforce.
Official time was granted by the Civil Reform Act of 1978. This time is strictly regulated, and can only be used on activities that both labor and management deem reasonable, necessary, and in the public interest.
Despite the fact that official time costs only $130 million per year -- significantly less expensive than having outsiders handle arbitration and other issues that would arise without official time -- and has survived and been deemed useful through three Republican administrations, the GOP is now considering cutting it due to “budgetary restraints.”
It’s no surprise that the Koch brothers have invested heavily in those who are now trying to chip away at federal employee unions. The congressman who brought up this issue, Rep. Phil Gingrey, counts Koch Industries as one of his top 20 contributors. Of the “expert witnesses” at the hearing discussing official time, two were from organizations heavily funded by the Koch brothers. Witnesses from both the Heritage Foundation and Competitive Enterprise Institute were present, organizations that received 4,115,571 and $700,499 respectively in 2009.
Federal unions are required, by law, to represent all employees in certain agencies or positions, even if they don’t pay their union dues. In exchange for this, they are allowed “official time” in which to complete some union work. John Gage, the National President for the American Federation of Government Employees, stated the ramifications of ending official time clearly, revealing that ending official time would nearly completely take away the collective bargaining rights of federal employees, making it impossible for unions to effectively function.
“Protecting the poor should not be a partisan issue,” said Rep. Elijah Cummings (D) of Maryland Wednesday at a congressional hearing on “Duplication, Overlap & Inefficiencies in Federal Welfare Programs.” It shouldn’t, but House Republicans at the hearing seemed more concerned with cutting tiny fractions of federal spending than with the men, women, and children who suffer when the services they rely on lose funding.
The Oversight and Government Reform hearing was supposedly aimed at “duplication” in welfare programs, but witnesses and Republican members of Congress used the occasion to lob many of their favorite attacks on welfare programs as a whole.
Robert Rector, Senior Research Fellow at the Heritage Foundation, criticized welfare programs, claiming that they reward people for not working and not marrying. “What welfare assistance has done is to supplant a male in the household. That may be a little crude, but yes, welfare has served as a substitute for the male breadwinner in the home. These low-income mothers would not be able to raise these kids without those welfare checks."
Crude? Try sexist.
When Patricia Dalton, COO of the Government Accountability Office, lamented that some federally funded programs provided similar services to similar populations, Lisa Hamler-Fugitt, Executive Director of the Ohio Association of Second Harvest Food Banks, explained that program overlap doesn’t always mean duplication. Because different programs have different criteria for qualification, many families may be struggling, but not count as being “poor enough” to qualify for all the services they need.
Over and over again in this hearing, Republicans discussed “streamlining duplicative programs,” a euphemism for cutting spending on the services that struggling Americans need the most.
The House Oversight and Governmental Reform Committee is planning two hearings today, providing an interesting one-two punch against favorite Republican debt scapegoats: public workers and the poor.
The first hearing of the day, Official Time: Good Value for the Taxpayer? will likely discuss how we need to shrink the size of the federal workforce. The second, Duplication, Overlap and Inefficiencies in Federal Welfare Programs will likely discuss how our social safety net is somehow unsustainable.
My predictions as to the take-away messages of these hearings are based on Chairman Issa’s predictable witness list. As we’ve noted with great frequency, Issa calls industry and think-tank “experts” to the stand who will tell him what he wants to hear, and today’s lineup is no exception. The Heritage Foundation will be featured prominently this afternoon, as well as the Competitive Enterprise Institute. Interestingly, both of these very conservative think tanks have received large amounts of funding from the Koch brothers – to the tune of $4,115,571 and $700,499 respectively in 2009. Yes, these are the very same Koch brothers who quietly fund the tea party and a plethora of right wing politicians and organizations. Check out the Center for American Progress’ report and PFAW’s Koch Brothers Fact Sheet for many, many more details.
John Mashburn, executive director of the Carleson Center for Public Policy, will be testifying in the welfare hearing. His organization, which might as well be the Ronald Reagan fan club, wants to reduce federal assistance programs to a series of block grants administered by the states:
The first order of business for the CCPP will be to help reverse the damage done to the 1996 welfare reform. Then, it will concentrate on extending the successful design of returning power and responsibility to the states for other welfare programs, specifically Medicaid and Food Stamps.
- Restore the integrity of the 1996 welfare reform.
- Develop a plan to emulate the 1996 model to block grant Medicaid to the states.
- Develop a plan to block grant the Food Stamp program to the states.
- Develop a plan to consolidate the 180+ additional categorical federal means-tested programs and replace them with finite block grants to the states.
As many Republicans are discovering back home in their districts, applying this goal to Medicare is proving to be rather unpopular. It’s concerning that other important social programs could face the same treatment, especially since the beneficiaries of these programs don’t carry the same political clout as senior citizens.
Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.
What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.
To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.
Today, when questioning the first panel of witnesses for the Elena Kagan confirmation, Senator Jon Kyl decided not to ask questions, but simply to attack those who had agreed to testify.
Instead of, say, listening to the witnesses, or even ignoring them, he accused three witnesses testifying about sex discrimination, age discrimination, and the devastating impact of the Exxon Valdez spill of demanding a Justice who would rule for them. All they wanted, he claimed, was “results oriented judging.”
He didn’t give them a chance to answer the accusation, so maybe we can answer for them.
No, Senator Kyl, all we want is a Justice who will follow the law.
In Ledbetter, the Court read the law in a cramped and unnatural way in order to limit the right of women to sue for discrimination. In Gross, the Court arbitrarily changed the standard used to determine discrimination on the basis of age. And in Exxon v. Baker, the Court invented a limit on punitive damages out of whole cloth—the ruling was so bad that even the Heritage Foundation thought it was judicial activism.
In the Ledbetter, Gross and Exxon cases, the Court went out of its way to side with corporations and defend them from people who were trying to hold them accountable.
Remind me again, Senator Kyl: what’s the definition of “results oriented judging?”
As a new arrival in DC (I started interning here two weeks ago), I was thrilled to get a chance to visit the Heritage Foundation for the first time on Wednesday. I know everyone here at People For was flattered to learn that the folks on their “Myth of the Conservative Court” panel had been reading our Rise of the Corporate Court report. A lot.
The panelists – Todd Gaziano, Hans von Spakovsky, and Manuel Miranda -- took umbrage at progressive groups like PFAW using the term “judicial activism” because, well, it belongs to them. And they like the decisions being handed down!
Spakovsky argued that progressives have called the Citizens United decision judicial activism merely because we didn’t like the outcome. He’s certainly right that we don’t like it—and neither do 80% of Americans—but we agree that our dislike doesn’t make it judicial activism. What makes it judicial activism is that the Court based its decision on utterly specious Constitutional grounds, overturning over a hundred years of settled law and its own precedent in the process. John Roberts promised to be a baseball umpire, just calling balls and strikes, but as PFAW President Michael B. Keegan pointed out, “in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.”
Much to my shock, Gaziano admitted during the panel that the conservatives on the Court had exhibited pro-corporate judicial activism in one case, Exxon Shipping Co. v. Baker, deciding in Exxon’s favor for subjective rather than purely Constitutional or statutory reasons. So what makes him think that the Conservative judges weren’t influenced by their corporate bias in the other cases outlined in our Corporate Court report?
What was most remarkable about the panel, though, probably wasn’t the contortions that conservatives are willing to go through in order to deny “judicial activism” by conservatives on the Court—it’s that they’re still clearly trying to use it against progressives. That and the lunch they served afterwards. It was delicious.
AAMIA Members Revs. Frank Dunn and Joseph Smith attended yesterday’s Senate Judiciary Committee hearing on The Matthew Shepard Hate Crimes Prevention Act of 2009 (S.909), where Committee Chair Sen. Patrick Leahy (D-VT) acknowledged the work of AAMIA toward passage of this critical legislation. Witnesses included Attorney General Eric Holder, Jr., Author Janet Langhart Cohen, University of Dubuque Theological Seminary Professor Dr. Mark Achtemeier, US Commission on Civil Rights Commissioner Gail Heriot, The Heritage Foundation’s Brian W. Walsh, and the Anti-Defamation League Washington Counsel Michael Lieberman. You can view the webcast of the hearing here.
AAMIA and PFAW have submitted letters in support of the legislation, along with a fact sheet on the legislation, and myths and facts about hate crimes protections. AAMIA and PFAW have been out in front combating the lies from the right wing that this bill will silence pastors who speak out against homosexuality and same-sex marriage.
While they were at the hearing AAMIA staff and Rev. Joseph Smith caught up with author, playwright and producer Janet Langhart Cohen, a witness before the committee, and learned more about her Anne & Emmett Project, a play about a beyond-the-grave conversation between Anne Frank and Emmett Till. The play was scheduled to premiere at the US Holocaust Museum the week of the unfortunate tragedy at the museum where Officer Stephen Johns was killed in the line of duty by an avowed white supremacist.