Washington

Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

PFAW

Future of Public Education at Risk in Florida

Even though Florida’s initial experiment with school vouchers was ridden with cases of fraud and profiteering, Governor-Elect Rick Scott plans to drastically expand the voucher program and put the state’s public schools in his crosshairs. While a recent state-commissioned study found that “students using vouchers to attend private schools in Florida are doing no better and no worse than similar students in public schools,” the new Governor wants to expand the voucher program to include all Florida students.

Scott called for the diversion of funds from the public education system to “education savings accounts,” which families can use to pay for public, charter, private, or virtual schools. While such a plan appears innocuous on its face, the devil is in the details.

Valerie Strauss who writes on education issues for the Washington Post suggested that by encouraging students to leave public schools for private institutions, Scott’s plan would badly undercut efforts to make schools more accountable since most private schools are not subject to the same measures of public accountability, like tests and grading. Strauss maintains that “the notion that private schools would inherently be any better than a system of public schools overlooks all the key factors -- poverty being the first but not the only one -- that affect our most troubled public schools right now.”

Stephanie Mencimer of Mother Jones adds that “Scott’s education ‘reform’ plan seems be less about actually making Florida’s schools better and more about paying private companies to run bad ones.” Under Scott’s proposal, oversight would be seriously weakened, while private and virtual schools stand to profit immensely and at the expense of the public education system. Mencimer profiles cases of fraud and underperformance among the programs that would be given the greatest advantages under Scott’s plan, which she described as “a formula for disaster.”

The St. Petersburg Times questions how Scott would clear basic Constitutional and financial requirements. Firstly, Florida’s Supreme Court has found similar voucher programs unconstitutional before for violating the state constitution’s provision for a “uniform system of free public schools.”

Moreover, the numbers just don’t add up. Scott wants to severely reduce school property taxes and abolish corporate taxes, cutting significant revenue sources. The Times adds that since his plan entails “taking a portion of the per student funding for public schools and allowing families to spend that amount as they wish,” Scott “would not leave enough money for public education. And presumably, the hundreds of thousands of students already in private schools would receive public money as well.”

Rick Scott’s radical experiment with the Florida education system is the latest example of attacks on public schools that are taking place throughout the country. Just as Florida’s vouchers have so far proven largely ineffective, studies about voucher programs in Wisconsin and Washington D.C. also found that the programs did not come close to producing the promised benefits. In essence, Scott’s voucher plan drains money away from public schools in favor of an untested, unaccountable, and financially-questionable voucher program without any evidence that it will improve results.

PFAW

Another Poll Finds Wide Support for DADT Repeal

A new poll from ABC News and the Washington Post shows that a staggering 77% of Americans believe that Congress should let gay and lesbian Americans serve openly in the military. The poll, conducted from December 9 to 12, reflects previous surveys that show overwhelming support for repealing the military’s Don’t Ask Don’t Tell policy. Even self-described Republicans (74%), conservatives (67%), and white evangelical Christians (70%) believe that gay and lesbian soldiers who publicly disclose their sexual orientation should be allowed to serve.

Just as the vast majority of Americans think that the military should not discriminate against gay and lesbian soldiers, a Pentagon study showed that the majority of military service members do not oppose repealing Don’t Ask Don’t Tell.

Today the House of Representatives is set to vote today on a stand-alone bill to repeal Don’t Ask Don’t Tell introduced by Congressmen Steny Hoyer (D-MD) and Patrick Murphy (D-PA), an Iraq war veteran. If the bill wins approval in the House, the measure will be taken up in the Senate with the support of a bipartisan group of Senators.

With the military leadership and service members and the American people all in agreement that it is time to drop Don’t Ask Don’t Tell, the only thing that stands in the way of the discriminatory policy’s repeal are Senate Republicans who want to obstruct legislative action no matter the cost.

PFAW

PFAW Delivers to Senate 25,000 Petitions Pressing for DISCLOSE Act

Yesterday, People For the American Way delivered to Senate Rules Committee Chairman Charles Schumer the signatures of over 25,000 activists urging the Senate to take up and pass the DISCLOSE Act before the end of this Congress. The House passed the bill earlier this year, but Republican Senators have twice blocked it from proceeding in the Senate.

The best chance the Senate has to pass the bill is to pass it now. Despite the overwhelming popularity of campaign finance disclosure measures, the GOP has hardly been friendly to DISCLOSE so far (all but two House Republicans voted against the measure, and it didn’t win the support of a single Republican senator). The bill was also a target of corporate lobbyists—many of whom, the Washington Post reports, will now be moving to Capitol Hill to work as highly placed advisors to new Republican members of Congress.

But even if the Senate doesn’t vote on DISCLOSE this month, we’ll keep on pushing to make it law. There’s absolutely no good reason for any member of Congress to oppose a bill that makes government cleaner and elections more transparent. Most Americans agree…and hopefully the GOP will catch on.

For more on the DISCLOSE Act and the Right’s opposition to it, read Michael Keegan on the “Corporate Money Denial Game”.
 

PFAW

Evolving Media Narrative of the Roberts Court

More and more Americans have noticed the Roberts Court's habit of twisting the law in order to benefit powerful corporations over the rights of individuals. As recently as a year ago, the national dialogue on the Court rarely touched on this issue. But last January's Citizens United decision was so outrageous that it made people see both the Court's previous decisions and its current work through a new lens. Evolving press coverage reflects the changing paradigm in how Americans view the Supreme Court.

For instance, earlier this week, the Supreme Court announced that it had agreed to hear a case of sex discrimination against Wal-Mart and a separate case involving global climate change. Press coverage recognized the common factor in the Court's decisions to hear these very different and unrelated cases.

The Los Angeles Times wrote:

The Supreme Court announced Monday it will hear two major appeals from corporate America that seek to block mass lawsuits, one involving a huge sex bias claim against Walmart and the other a massive environmental suit that seeks to hold coal-fired power plants liable for causing global warming.

In both cases, the justices agreed to consider stopping these suits before they can move toward a trial.

Monday's move is only the latest sign that the Roberts Court is inclined to rein in big-money lawsuits against business. The conservative justices have been particularly skeptical of sprawling suits that could run on for years and lead to enormous verdicts.

Under a headline reading "Two Supreme Court Cases to Test Corporate Interests," the Washington Post reported:

The Supreme Court on Monday agreed to hear two major challenges brought by corporate interests, ...

In both cases, corporations are challenging decisions by federal appeals courts that the suits can go forward. They come before a court that traditionally has been sympathetic to business interests, but is sensitive about recent criticism from the left that it favors corporations over consumer and environmental groups.

Time wrote:

Two federal courts have ruled that their suit can proceed as a class action on behalf of between 500,000 and 1.5 million women, but on Monday the Supreme Court announced it would review that decision. It looks suspiciously like another case in which the court's conservative majority will twist a procedural rule to prevent victims of discrimination from getting a fair chance at justice

As Jeffrey Toobin observed in the New Yorker this week:

This is the rule in the current Supreme Court. If there is a human being on one side of the "v." and a corporation on the other, the corporation wins.

The Roberts Court is learning that if you look like a duck, walk like a duck, and quack like a duck for long enough, people will eventually realize that you are, indeed, a duck.

PFAW

Policy Questions at the Supreme Court

At yesterday's oral arguments on Thompson v. North American Stainlessthe case of the fired fiancé – the Justices discussed whether Title VII allows Eric Thompson to sue his employer for firing him in retaliation for a discrimination complaint lodged by his fiancée. Everyone agrees that Title VII prohibits the company from firing her. The Justices of the Supreme Court are trying to figure out if that federal law also protects her fiancé.

The Washington Post reports:

But Justice Samuel A. Alito Jr. wondered if the betrothed were included, how far would the law extend.

"Does it include simply a good friend?" he asked. "Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?"

[The fired employee's attorney] said the person fired would have to prove the intent was to punish the person who complained. And then the person would have to show that the retaliatory action was serious enough to dissuade a reasonable person from filing a complaint.

Justice Antonin Scalia put himself in the role of employer, saying he would want a clear rule on who he "had to treat with kid gloves."

Note that Justices Alito and Scalia are not mechanically calling balls and strikes, as in the severely flawed umpire metaphor then-Judge John Roberts used at his confirmation hearings - and which conservatives have been using since to bamboozle the American public. In interpreting Title VII, they are taking policy considerations into account: How would their interpretation work? How could any line-drawing be justified? How could the needs of employers for clarity be met?

This is exactly what we expect judges to do.

Conservative supporters of Alito and Scalia who repeat the tired "balls and strikes" line simply cannot be taken seriously. They simply use it to mask their extremist, results-oriented viewpoint that no matter what the Constitution and statutes actually say, corporations and powerful special interests should win, while workers, women, gays, immigrants, and liberals should lose.

PFAW

Local Chambers of Commerce Push Back Against U.S. Chamber’s Campaign Mudslinging

The U.S. Chamber of Commerce, which spent $75 million to help elect pro-corporate candidates to Congress this year, benefits from the positive image most Americans have of its smaller member organizations—city and county chambers that organize locally run businesses. But now, some of these member organizations are saying they want no part in the U.S. Chamber’s massive attack ad buys on behalf of Republican candidates. From Politico, via Washington Monthly:

“We were getting pounded. We felt here, in central Pennsylvania, that the ads they were running were not professional ads,” said David Wise, president of the Chamber of Business and Industry of Centre County, which is considering dropping its national membership. “This was not a unifying event. It was divisive.”

More than 40 local chambers issued statements during the midterms distancing themselves from the U.S. Chamber’s campaign — including nearly every major local chamber in Iowa and New Hampshire, key states for the presidential campaign.

Other chambers plan to take the extraordinary step of ending their affiliation with the U.S. Chamber, including the Greater Philadelphia Chamber of Commerce in Pennsylvania. Its leaders reported being inundated with angry — and sometimes profanity-laced — telephone calls from people objecting to the U.S. Chamber-backed ads.

Some local chambers were also active in countering the U.S. Chamber’s claims in the run-up to the election. According to Politico, “In Iowa, Democratic Rep. Bruce Braley survived an onslaught of U.S. Chamber attack ads in part because he circulated disclaimers issued by his local chambers.”

Though the U.S. Chamber benefits from the appearance of representing local business associations throughout the country, the numbers show that individual associations and the small businesses they represent hold very little sway over the U.S. Chamber’s national political activities. A New York Times investigation in October found that the U.S. Chamber, which does not have to publically disclose its donors, received half of its 2008 contributions from just 45 donors—large companies like Dow Chemical and Prudential Financial that have strong lobbying interests on Capitol Hill.

The Supreme Court’s decision in Citizens United v. FEC this year allowed companies like Dow and Prudential to funnel money through the U.S. Chamber not only toward lobbying efforts but toward campaign advertising—all while hiding behind the positive image of hundreds of thousands of small businesses who may or may not agree with their legislative priorities. And without strong disclosure legislation, they'll doubtless continue to do so.
 

PFAW

Wal-Mart Class Action at Issue

Earlier today, the Supreme Court accepted a high-profile case that will likely have a substantial impact on employees all over the country. Wal-Mart, the nation's largest employer, is being sued for unlawfully discriminating against its women employees. It is a class-action suit on behalf of the corporate giant's 1.5 million women employees. The Ninth Circuit Court of Appeals held that the case could proceed as a class action.

The Supreme Court has agreed to hear Wal-Mart's appeal. As the Washington Post reports:

[The Court] will be looking at the question of whether a single suit is proper when alleging charges of pay discrimination and lack of promotions spread across thousands of stores in every region of the country. ...

Business groups say certification of a class action puts enormous pressure on a company to settle regardless of whether the charges can be proved, because of the cost of the litigation and the potential award at stake. In the case of Wal-Mart, the nation's largest employer, the amount could be billions of dollars.

But civil rights groups say class-actions are the most effective way of making sure a business ends discriminatory practices and pays a price for its actions.

Large corporations, with resources dwarfing those available to the average individual, clearly benefit when their victims are unable to pool resources through a class action. Indeed, this is not the only case this term where the Supreme Court is being asked to dismantle this vital tool, one that has proved time and again to be the only way to hold corporate wrongdoers accountable.

We will learn this spring whether the Roberts Court will continue its trend of twisting the law in order to benefit powerful corporations over the rights of individuals.

PFAW

Republican Freshmen Seek Out Corporate Donors

Members of the far-right GOP freshmen class have not been sworn in yet, but are already becoming entangled in the Washington web of lobbyists and corporate donors. The incoming congressmen, many of them Tea Party candidates, have quickly put together fundraisers to pay off their campaign debts and also to fund their 2012 reelection bids. Unsurprisingly, corporate interests have readily stepped up to the plate to support their fundraising efforts, and freshmen Republicans are more than happy to have the help.

Dan Eggen of the Washington Post reports that with the help of the Republican House leadership, many GOP freshmen are embarking on an all-out blitz for corporate cash to recharge their campaign war chests:

After Francisco "Quico" Canseco beat Rep. Ciro Rodriguez (D-Tex.) as part of the Republican wave on Nov. 2, the tea party favorite declared: "It's going to be a new day in Washington."

Two weeks later, Canseco was in the heart of Washington for a $1,000-a-head fundraiser at the Capitol Hill Club. The event--hosted by Reps. Pete Sessions (R-Tex.) and Jeb Hensarling (R-Tex.)--was aimed at paying off more than $1.1 million in campaign debts racked up by Canseco, much of it from his own pocket.

After winning election with an anti-Washington battle cry, Canseco and other incoming Republican freshmen have rapidly embraced the capital's culture of big-money fundraisers, according to new campaign-finance reports and other records.

Dozens of freshmen lawmakers have held receptions at Capitol Hill bistros and corporate townhouses in recent weeks, taking money from K Street lobbyists and other powerbrokers within days of their victories. Newly elected House members have raised at least $2 million since the election, according to preliminary Federal Election Commission records filed last week, and many more contributions have yet to be tallied.

The aggressive fundraising efforts underscore the financial pressures facing new members of Congress even before they take their seats. The contributions also represent a symbolic challenge for the Republican class of 2010, many of whom gained office by running against the ways of official Washington and monied interests.

"The lobbyists are all saying, 'Welcome to Washington; let me help pay off your debt,'" said Nancy Watzman, who tracks political fundraisers for the Sunlight Foundation, a watchdog group. "It's particularly interesting when so many of this year's freshmen were running against Washington. But as soon as they get elected, they come to Washington and put out their hand."



Rep.-elect Bill Flores (R-Tex.), a retired energy executive who held a debt-retirement reception Nov. 17, received post-election contributions from political-action committees for, among others, Deloitte, ExxonMobil and the National Association of Insurance and Financial Advisors. Flores, who ousted Democratic veteran Chet Edwards, also forgave himself more than $600,000 in personal loans, FEC records show.

The financial advisors group also gave $2,500 each to more than a dozen other incoming legislators including Rep.-elect Dan Benishek (R-Mich.), who held a Nov. 18 fundraiser, records show. Benishek took in last-minute donations from Johnson Controls, Delta Airlines and the K&L Gates lobbying firm, records show.

Benishek is a surgeon and abortion opponent who won the seat being vacated by centrist Democrat Bart Stupak (D-Mich.). He campaigned against "ungodly spending" in Washington and pledged not to seek earmarks, which designate federal funds for local projects.



Meredith McGehee, policy director at the Campaign Legal Center, said debt-retirement events and other post-election fundraisers "are God's gift to special interests," allowing corporate PACs and lobbyists to curry favor with grateful lawmakers. It also allows some donors to pitch in with a candidate that they had previously ignored or opposed, she said.

"If you were on the wrong side or just AWOL during the election, this is your chance to make it up," McGehee said. "It' s a great way to get in good with members of Congress."
PFAW

Service chiefs testify, Levin closes, McCain persists, Brown declares

The Senate Armed Services Committee closed its two days of hearings on the Pentagon’s Don’t Ask, Don’t Tell report with the testimony of the chiefs of the various armed services. While there is some disagreement as to when and how, the general consensus was that repeal can and should be implemented. Even General James F. Amos, Commandant of the Marine Corps, who has expressed his opposition publicly on numerous occasions, “think[s] it will be repealed eventually. I just ask for the -- the opportunity to be able to do it with my forces when they're not singularly focused on combat.”

If the effective date really is the sticking point, that has already been addressed in the proposed legislation, which requires President Obama, Defense Secretary Robert Gates, and Joint Chiefs Chairman Admiral Mike Mullen to certify that repeal is consistent with military readiness, effectiveness, unit cohesion, and recruiting. Secretary Gates has made “absolutely” clear that he “will not certify until [he] feel[s] that the process can move forward without any damage to the safety and security of our men and women that are serving, number one, and that our battle effectiveness will not be jeopardized, number two.” Moreover, “before the certification is signed, everything has to be done to get ready. It's not something that I would start, that I would certify while it was still in process as it were.”

Senator Levin, Chairman of the Committee, was quick to point out that “you have to repeal before the implementation stage comes.” Implementation will take considerable thought and time, but there will be nothing to implement if Congress doesn’t first act on repeal.

Senator McCain is still insisting that he needs more time. He needs to talk to more people. And don’t forget his warning that “the problem with the defense authorization bill isn't confined to the "don't ask/don't tell" issue.” This is another case of putting the cart before the horse. You can’t implement repeal if there is no repeal. And you can’t fix the “problems” with the Defense bill, you can’t even discuss them, if the bill is not allowed to come to the floor. Senator Levin: “The place to address the kind of issues which Senator McCain raises is on the floor of the Senate. There are issues, of course, in any defense authorization bill that come[s] out of committee. And the only way those issues can be addressed is to debate them, resolve them in the Senate.”

Now the final push begins to bring up that Defense bill and ensure that repeal becomes law in 2010. Senator Scott Brown, a target of repeal supporters and opponents alike, removed one stumbling block today with the announcement of his position. Or did he?

I have been in the military for 31 years and counting, and have served as a subordinate and as an officer. As a legislator, I have spent a significant amount of time on military issues. During my time of service, I have visited our injured troops at Walter Reed and have attended funerals of our fallen heroes. When a soldier answers the call to serve, and risks life or limb, it has never mattered to me whether they are gay or straight. My only concern has been whether their service and sacrifice is with pride and honor.

I pledged to keep an open mind about the present policy on Don’t Ask Don’t Tell. Having reviewed the Pentagon report, having spoken to active and retired military service members, and having discussed the matter privately with Defense Secretary Gates and others, I accept the findings of the report and support repeal based on the Secretary’s recommendations that repeal will be implemented only when the battle effectiveness of the forces is assured and proper preparations have been completed.

Senator Brown’s support is welcome news. But important questions remain, as reported by Greg Sargent for the Washington Post (The Plum Line).

One important question: How does this square with Mitch McConnell's letter vowing that the entire GOP caucus would stand in unison against DADT repeal and everything else Dems want until the standoff over the Bush tax cuts and funding the government are resolved? If Brown confirms he will vote for cloture on the Defense Authorization Bill containing DADT repeal, irrespective of whether a deal is reached on the tax cuts, it makes McConnell's threat look pretty empty.

Keep an eye on the remaining moderates. More when I learn it.

UPDATE, 1:32 p.m.: One other quick point. It's one thing for Senator Brown to say he supports repeal in general. What needs to be established is whether Brown's vote for repealing DADT is contingent on Harry Reid jumping through a whole bunch of procedural hoops that some GOPers have demanded. More on that when I get it, but for now, this is clearly a positive step.

Whatever the answers may be, the fight is certainly not over. Click here to contact your Senators.

An archive of today’s webcast is available here.

PFAW

Johnson Picks Corporate Lobbyist as Chief of Staff

The first major decision any newly-elected member of Congress makes is who will serve as his or her chief of staff. The personnel choice says a lot about the member’s personality and priorities. Off-the-charts extremist Congressman-Elect Allen West, for instance, chose off-the-charts extremist radio host Joyce Kauffman (before the “liberal left” raised some concerns about her role inciting a school shooting plot). It should come as no surprise, then, that Wisconsin Senator-Elect Ron Johnson, whose pro-corporate policies earned him plenty of corporate cash on the campaign trail, has picked a corporate lobbyist to lead his team in Washington.

Johnson’s pick, reports Express Milwaukee, is Don Kent, who after a gig at the Department of Homeland Security in the Bush Administration, “became a lobbyist at Navigators Global, where he ‘heads up the Homeland Security practice.’”:

Johnson’s choice of Kent shows that he’s trying to ingratiate himself with big defense contractors, Big Pharma and anti-worker groups.

Navigator Global’s clients include AgustaWestland North America, the world’s largest helicopter manufacturer; the Coalition of California Growers, which was fighting a bill that would make it easier for workers to organize; the Computer and Communications Industry Association, which was fighting an effort that would allow some taxpayers to file their state tax returns for free; the Council of Insurance Agents and Brokers, when then-New York Attorney General Eliot Spitzer was investigating the industry; Pfizer; and the Pharmaceutical Research and Manufacturers of America, which wanted to block the reimportation of Canadian drugs to bring down costs for consumers.

Plenty of people—including members of Congress—go in and out of the revolving door between Capitol Hill and K Street. But Johnson’s choice makes a clear statement about the difference between him and his predecessor, Russ Feingold. Feingold has been one of the Senate’s strongest champions of clean elections and transparent government, and wrote the campaign finance law that was largely gutted by the Supreme Court’s decision in Citizens United. In the first election after Citizens United, Johnson benefitted from a flood of outside money, some from pro-corporate groups, to unseat Feingold.

It’s one of the first signs that the corporate interests that funded Tea Party candidates across the country are going to get what they paid for.

Via The Awl
 

PFAW

Democrats Eschew Republican Example and Follow the Constitution

This week, Americans get to see the difference between a party that respects the rule of law and one that holds it in contempt.

Earlier this week, Senate Democrats got a food safety bill passed - then discovered a procedural problem with constitutional implications: One section of the Senate bill would raise revenue, but the Constitution requires revenue bills to originate in the House. Now, in the face of Republican obstruction, Democratic leaders are working to figure out how to get the bill passed correctly before time runs out.

While the headlines are on the mistake, the main focus really should be on how Democratic leaders are responding appropriately to it - in stark contrast to how Republican leaders dealt with a similar foul-up in February 2006, when they controlled Congress. GOP leaders sent a bill for the president's signature that they knew had not passed the House.

The Deficit Reduction Omnibus Reconciliation Act of 2005 squeaked through the Senate after Vice President Cheney cast the tie-breaking vote. But when the bill was transmitted to the House, in a mistake that no one noticed at the time, one of the numbers in the bill text was changed, changing the rights of Medicare recipients and creating a $2 billion difference between the two bills. The House passed its version with a bare two-vote margin. Then Republican leaders discovered that the two chambers had voted on different bills, meaning that a basic constitutional requirement had not been met.

Having a revote would have been politically difficult. So, faced with a choice between their partisan political agenda and the United States Constitution, GOP leaders chose ... politics. They sent the Senate version to the White House for President Bush's signature, with the Republican Speaker's false certification that it had passed both chambers.

As the Washington Post reported at the time:

Once the mistake was revealed, Republican leaders were loath to fight the battle again by having another vote, so White House officials simply deemed the Senate version to be the law. ...

The issue would be solved if the House voted again, this time on the version that passed the Senate. But that would mark the third time House members would have to cast their votes on a politically difficult bill, containing cuts in many popular programs, and it would be that much closer to the November election.

The way the two parties handled similar situations speaks volumes about their commitment to the Constitution and the rule of law.

PFAW

Right Wing Escalates Drive to Censor and Investigate the Smithsonian

Even after successfully demanding that the Smithsonian National Portrait Gallery censor part of its “Hide/Seek” exhibit, congressional Republicans and conservative commentators have continued their attacks on the Smithsonian. House Republican leaders John Boehner and Eric Cantor joined right wing extremists like Bill Donohue and Glenn Beck to pressure the Smithsonian to remove a video by the late artist David Wojnarowicz in an exhibit on the ways art portrays homosexuality and AIDS.

Georgia Republican Jack Kingston, who is in the running to become chairman of the powerful House Appropriations Committee, called for a Congressional investigation into the art at the Smithsonian with hopes to strip the museum of its funding, despite the fact that the exhibit was entirely funded by private donors. Speaking to Fox News, Kingston said that parts of the “pro-gay exhibit” are “really perverted” with “lots of really kinky and questionable kind of art.” Kingston went on to say that the Smithsonian “should be under the magnifying glass right now” and is “a waste of tax dollars, and during these hard budget times we can’t afford it.”

With the prospect of congressional investigations of art and the de-fuding of museums, critics of censorship are speaking out.

PFAW President Michael Keegan writes in his new Huffington Post Op-Ed that “the path from David Wojnarowicz's struggle with AIDS to the director of a Smithsonian museum announcing, ironically on World AIDS Day, that Wojnarowicz's artwork might spoil someone's Christmas, says a lot about American politics at the start of a new era of right-wing power.”

Blake Gopnik, the arts critic for the Washington Post, spoke out against the Right’s blatant attempts at censorship in a must-read Op-Ed for the Post. In his November 5th review of “Hide/Seek,” written well-before the Right cultivated the controversy, Gopnik in his description of a painting by Andrew Wyeth said that “it’s that censor-baiting force that clearly made it worth painting for Wyeth -- and worth looking at for all the rest of us.” Now, Gopnik is pushing back on the conservatives’ demands for censorship:

If every piece of art that offended some person or some group was removed from a museum, our museums might start looking empty - or would contain nothing more than pabulum. Goya's great nudes? Gone. The Inquisition called them porn.

Norman Rockwell would get the boot, too, if I believed in pulling everything that I'm offended by: I can't stand the view of America that he presents, which I feel insults a huge number of us non-mainstream folks. But I didn't call for the Smithsonian American Art Museum to pull the Rockwell show that runs through Jan. 2, just down the hall from "Hide/Seek." Rockwell and his admirers got to have their say, and his detractors, including me, got to rant about how much they hated his art. Censorship would have prevented that discussion, and that's why we don't allow it.

Rep. Eric Cantor (R-Va.) has said that taxpayer-funded museums should uphold "common standards of decency." But such "standards" don't exist, and shouldn't, in a pluralist society. My decency is your disgust, and one point of museums, and of contemporary art in general, is to test where lines get drawn and how we might want to rethink them. A great museum is a laboratory where ideas get tested, not a mausoleum full of dead thoughts and bromides.

In America no one group - and certainly no single religion - gets to declare what the rest of us should see and hear and think about. Aren't those kinds of declarations just what extremist imams get up to, in countries with less freedom?

Of course, it's pretty clear that this has almost nothing to do with religion. Eleven seconds of an ant-covered crucifix? Come on.



The attack is on gayness, and images of it, more than on sacrilege - even though, last I checked, many states are sanctioning gay love in marriage, and none continue to ban homosexuality.

And the Portrait Gallery has given into this attack.



Artists have the right to express themselves. Curators have the right to choose the expression they think matters most. And the rest of us have the right to see that expression, and judge those choices for ourselves.

If anyone's offended by any work in any museum, they have the easiest redress: They can vote with their feet, and avoid the art they don't like.
PFAW

Paycheck Fairness Act defeated, but we shouldn't be

There’s no denying the fact that it was frustrating to see the Paycheck Fairness Act defeated in a 58-41 vote – 2 votes shy of overcoming a procedural hurdle that has stopped the bill itself from coming to the floor.

Valerie Jarrett, Senior Advisor and Assistant to the President for Intergovernmental Affairs and Public Engagement, was herself frustrated.

Today, only Democratic senators voted to support Paycheck Fairness for women -- not a single Republican voted to allow the Senate to move forward. It is notable that the first vote after the election in which the American people sent a clear message that they want Washington to work better, the Republicans blocked a common sense measure aimed simply to help ensure that women get the pay they deserve.

But in the same post, it’s clear that neither she, nor President Obama, nor his Administration are ready to give up.

Despite today’s vote, the Administration will continue its fight for equal pay for women – an issue that in these trying economic times is even more pressing given American families’ reliance on women’s income. The National Equal Pay Enforcement Task Force, with representatives from the Department of Justice, Department of Labor, Equal Employment Opportunity Commission, and Office of Personnel Management, (“OPM”) continues its pursuit of pay equity for women. The agencies are strengthening their own enforcement efforts and working together, building regional partnerships to promote earlier and more effective collaboration on investigations. And with leadership from OPM, we will continue to improve the federal government’s role as a model employer.

This Administration will keep fighting to improve the economic security for women and their families. This includes working hard in this session and the next Congress we will keep fighting for things such as an extension of emergency unemployment insurance, the Earned Income Tax Credit, and other measures we have supported that must now be extended. The President is committed to working with the women who joined us today and people around the country to support women and their families.

I think the President himself said it best.

Click here for People For the American Way’s statement on the vote.

PFAW

Insurance Industry Funds Chamber to Blast Health Care Reform

The US Chamber of Commerce spent $144 million in 2009 alone to lobby against critical legislation from health care reform to Net Neutrality, and laws to protect consumers, workers, and the environment. The Chamber uses its financial dominance not only by lobbying members of Congress but also by running tens of millions of dollars in ads to help their favorite members win reelection, or in most cases, defeat progressive and reform-minded Congressmen and Senators. As a trade association, the Chamber is not required to disclose its donors, and Tom Hamburger of the Los Angeles Times reported that under the leadership of Bill Donohue “corporations have contributed money to the chamber, which then produced issue ads targeting individual candidates without revealing the names of the businesses underwriting the ads.”

According to a new report by Bloomberg, this system of using secret corporate money to run election ads was used in 2009 during the debate over health care reform. In this case, the health insurance industry trade group, without revealing its identity (until a source leaked it), donated a staggering $86.2 million dollars to the Chamber. In turn, the Chamber waged a vigorous campaign against including the public option in the bill, and the final legislation itself. Drew Armstrong of Bloomberg writes:

The insurance lobby, whose members include Minnetonka, Minnesota-based UnitedHealth Group Inc. and Philadelphia-based Cigna Corp., gave the money to the Chamber in 2009 as Democrats were increasing their criticism of the industry, according to one person who requested anonymity because laws don’t require identifying funding sources. The Chamber of Commerce received the money from the Washington-based America’s Health Insurance Plans when the industry was urging Congress to drop a plan to create a competing public insurance option.

The spending exceeded the insurer group’s entire budget from a year earlier and accounted for 40 percent of the Chamber’s $214.6 million in 2009 spending. The expenditures reflect the insurers’ attempts to influence the bill after Democrats in Congress and the White House put more focus on regulation of the insurance industry.

The $86.2 million paid for advertisements, polling and grass roots events to drum up opposition to the bill that’s projected to provide coverage to 32 million previously uninsured Americans, according to Tom Collamore, a Chamber of Commerce spokesman. The Chamber used the funds to “advance a market- based health-care system and advocate for fundamental reform that would improve access to quality care while lowering costs,” it said in a statement.



The organizations disclosed the funding yesterday in annual tax records required under U.S. law. The Chamber’s records show it received $86.2 million from a single group, which a second person briefed on the transaction by those involved identified as America’s Health Insurance Plans, also called AHIP.

Tax disclosure forms require organizations to list only the amounts granted or received from other groups, and not the organizations’ identities. Health insurers expressed opposition to the law signed in March while they conferred with congressional Democrats writing the bill and the White House. At the same time, the Chamber of Commerce was advertising its opposition.

The funds were given by to the chamber in August 2009 and were funded by health insurers, according to the first person.
PFAW

Paycheck Fairness Act alert – the vote is imminent

The Senate is scheduled to take 2 votes today at 11 am. First up – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.

You already have our letter and fact sheet, and the action alert from the American Association of University Women. Today I wanted to share with you some words from the White House.

This is the official Statement of Administration Policy.

The Administration strongly supports Senate passage of S. 3772, the Paycheck Fairness Act. The persistent gap between men’s and women’s wages demonstrates the need for legislative change. This bill would address this gap by enhancing enforcement of equal pay laws. Specifically, it would prohibit retaliation against employees who ask about or discuss wage information, and it would provide more effective remedies for women subjected to discriminatory pay practices. S. 3772 would strengthen the Equal Pay Act by closing judicially created loopholes in the law and bringing its class action rules into conformity with the Federal Rules of Civil Procedure. S. 3772 also requires the Equal Employment Opportunity Commission to collect pay data to better enforce laws prohibiting pay discrimination.

And here’s a blog post from Terrell McSweeny, Domestic Policy Advisor to the Vice President

The Importance of Equal Pay For Women

Posted by Terrell McSweeny on November 17, 2010 at 07:00 AM EST

Yesterday I picked up my Wall Street Journal and read an opinion piece “Washington’s Equal Pay Obsession” arguing that the Paycheck Fairness Act is unnecessary because, in a nutshell, women don’t face rampant pay discrimination. Instead, the author asserted, the wage gap exists because women are mothers.

So let’s break this down.

First, there is ample evidence that women – regardless of their parental status - do face pay discrimination.  Yes, part of the wage gap is a result of occupational choices and other factors. No one denies that. Most economists agree, however, that no matter how many variables you control for an unexplained wage gap between men and women persists. For example, Francine Blau and Lawrence Kahn did an excellent breakdown of the wage gap in 2007 and identified that 41% of the wage gap between men and women could not be explained by controlling for variables. Regardless of the precise percentage of the wage gap, we have a responsibility to ensure that no one in this country makes less as a result of his or her gender.

Wage discrimination is real.

Just ask Lilly Ledbetter.  She is a mother.  She didn’t seek a “less stressful work environment” than her male counter parts.  And she was paid roughly 30% less.   If she had been allowed to share information about her pay with her colleagues she would have realized she was being paid less than men with less experience.

But Lilly couldn’t bring that case.  She could have lost her job if she discussed her pay with her colleagues.  The Paycheck Fairness Act would provide that protection. The author is right there are a lot of laws aimed at this problem – but because they don’t provide basic tools like pay transparency, discrimination persists.

Where employees know how their pay compares to that of their peers they are better able to advocate for themselves and ensure discrimination does not occur. For example, the Institute for Women’s Policy Research recently conducted a survey that shows that only 14% of public sector workers feel that discussions of pay are discouraged or prohibited. In the federal government, the wage gap between men and women is only 11%. Conversely, in the private sector, the survey showed that 61% of employees are discouraged or prohibited from talking about salary information. The wage gap in the broader economy is much larger.  It’s common sense that in order to identify and prevent discrimination, employees have to know how their pay compares to that of their peers and that pay would be more equal where workplaces are more open.

Second, lots of women who are parents don’t take time off or seek flexible schedules.  This is particularly true in tough economic times when families increasingly rely on women’s income.  That’s one of reasons why, for the first time, women now make up nearly half of all workers on US payrolls.   In fact, now more than ever women are the primary breadwinners for their families.  As families depend more on women’s wages, eliminating wage discrimination is also critical for middle class economic security - families who are working hard can hardly afford to lose part of a paycheck to discrimination.

Motherhood should not be used as a scapegoat here. BLS reports that in 2009, 64% of women in the workforce were not parents at all. And many still are paid less than their male counter parts.   

Third, “career breaks” do not necessarily equate with loss of skill.  Taking a year or ten off to stay home with kids doesn’t necessarily mean a parent has lost skills.  

The Paycheck Fairness Act gives women more tools to get fair pay in the workplace. For example, the legislation allows employees to inquire about wages or share salary information without fear of reprisals. The Act closes loopholes that make it harder for women to challenge being paid different wages for the same work, and it ensures that women who prove their case are compensated fairly.

Women deserve these protections.

Terrell McSweeny is Domestic Policy Advisor to the Vice President

We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Take a few minutes now to dial 877-667-6650.

It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join American Association of University Women, American Civil Liberties Union, the National Committee on Pay Equity, National Women’s Law Center, and hundreds of other organizations nationwide in calling on the Senate to do the same and send this important legislation to the President’s desk.

PFAW

Paycheck Fairness Act alert – two days left

The Senate is scheduled to take its first votes of the lame duck session this Wednesday. Number 2 on the list – the Paycheck Fairness Act! They’ll consider what’s called a “motion to proceed.” Overcoming this procedural hurdle would allow the bill itself to come to the floor.

In addition to our recent fact sheet, PFAW has just sent its letter to the Senate urging the bill’s passage.

November 15, 2010

United States Senate
Washington, DC 20510

Dear Senator:

President Obama’s signing of the Lilly Ledbetter Fair Pay Act formed a strong foundation for pay equity in this country. Now that fair access to the courts has been restored, it is time to build on that foundation. On behalf of the hundreds of thousands of members of People For the American Way, we urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.

The Ledbetter v. Goodyear decision was a clear step backward for ending employment discrimination in the workplace, when the Supreme Court held that employees could not challenge ongoing compensation discrimination if the employer’s original discriminatory decision occurred more than 180 days before filing of the claim. The Lilly Ledbetter Fair Pay Act was meant to correct this misinterpretation of the nation’s civil rights laws. It reiterates Congress’ intent to hold employers accountable for discrimination and allows employees a fair chance to fight back.

But they still need the tools to do so. S. 3772 strengthens the remedy, enforcement, and exception provisions of the existing Equal Pay Act. It engages the Equal Employment Opportunity Commission (EEOC) and the Department of Labor in a number areas including technical assistance, data collection and review of existing data, and the provision of wage discrimination training to government employees and individuals seeking their assistance. It supports negotiation skills training for women and girls and general public awareness regarding the means available to eliminate pay discrimination.

S. 3772 sends a clear message: The wage gap is real. No employer should benefit from discriminating against employees like Lilly Ledbetter. Retaliating against employees who fight for equal pay is unacceptable. Pay equity should be the rule, not the exception. What S. 3772 does not do is also clear: It does not eviscerate employers’ legal rights. It does not take away their right to set their own business practices or constrain them in terms of job applicants. It does not create unfair comparisons between jobs performed or where they’re performed. It does not hurt small businesses, and it certainly does not negatively impact women.

In fact, S. 3772 is good for families who are facing daily struggles in this unsteady economy. The last thing they should be worrying about is whether the women who work so hard to support them are being treated fairly in the workplace. Americans know this to be true. According to a June 2010 National Partnership for Women and Families/Lake Research Partners poll(1) regarding the Paycheck Fairness Act, 84% said they supported “a new law that would provide women more tools to get fair pay in the workplace.” 72% expressed strong support. This message resonated with men (81% support/69% strong) and women (87% support/74% strong) and among Democrats (91% support/83% strong), Republicans (77% support/61% strong), and Independents (87% support/70% strong). It also holds up among racial and ethnic groups and across geographic regions.

For these reasons and more, we strongly urge you to support the Paycheck Fairness Act (S. 3772) as a clean bill with no amendments.

Sincerely,

Michael B. Keegan
President

Marge Baker
Executive Vice President for Policy and Program

(1) A press release announcing the poll results is available at http://www.nationalpartnership.org/site/News2?page=NewsArticle&id=24776&security=2141&news_iv_ctrl=1741. Visit http://www.nationalpartnership.org/site/DocServer/5-2010_Poll_Data_One_Pager.pdf?docID=6681 for additional information.

We’ll continue urging the Senate to pass the Paycheck Fairness Act, but your Senators also need to hear from you. Save a few minutes on the national call-in day to dial 877-667-6650. That’s tomorrow – the day before the vote.

It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join American Association of University Women, American Civil Liberties Union, the National Committee on Pay Equity, National Women’s Law Center, and hundreds of other organizations nationwide in calling on the Senate to do the same and send this important legislation to the President’s desk.

PFAW

Leaked Pentagon Study Says DADT Repeal Won’t Harm War Efforts

The case for keeping the discriminatory Don’t Ask, Don’t Tell became even weaker today, as leaks from a Pentagon study of the policy suggest that the policy could be repealed “with only minimal and isolated incidents of risk to the current war efforts.”

The Washington Post confirmed with two people familiar with the report that the Pentagon study group found overwhelming support or ambivalence to Don’t Ask, Don’t Tell among current servicemembers:

More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent, said two sources familiar with the document. The survey results led the report's authors to conclude that objections to openly gay colleagues would drop once troops were able to live and serve alongside them.

One source, who has read the report in full, summarized its findings in a series of conversations this week. The source declined to state his position on whether to lift the ban, insisting it did not matter. He said he felt compelled to share the information out of concern that groups opposed to ending the ban would mischaracterize the findings. The long, detailed and nuanced report will almost certainly be used by opponents and supporters of repeal legislation to bolster their positions in what is likely to be a heated and partisan congressional debate.

In September, when Republicans in the Senate—without a single exception—joined together to filibuster a Defense Authorization bill that included Don’t Ask, Don’t Tell repeal, we compiled a list of prominent arguments for and against repeal. The list was lopsided, to say the least, with military leaders and the American public favoring repeal and right-wing leaders railing against it. Since then, two federal judges have found the policy unconstitutional.

Jen wrote yesterday on the prospects of the Senate passing Don’t Ask, Don’t Tell repeal during Congress’ lame duck session this year. Sen. John McCain, who is leading the fight to keep Don’t Ask, Don’t Tell, has called the Pentagon’s study “a political ploy.” But, the Post reports, at least 10 senators of both parties say they’re waiting to read the report, which will be published on Dec. 1, before deciding how to vote on DADT repeal. Maybe today’s news—suggesting that the forthcoming report will corroborate what experts have been saying all along in the DADT debate—will help them along in their decisions.
 

PFAW

Big Victories for Young Progressives

This year People For the American Way Action Fund endorsed over eighty candidates of the age 35 or younger who were running for public office. Many of the candidates were already elected officials, while others were running for office for the very first time. The PFAW Action Fund helped provide young progressives with the resources to spread and bolster their messages of equality, justice, and good-government, and put them in the leadership pipeline to strengthen the progressive movement.

Of the candidates we endorsed for the general election, seventy-two of the eighty-six endorsed candidates won their races! Highlights from Tuesday include:

  • Kyrsten Sinema of Arizona, a solidly progressive State Representative and one of Time magazine’s 40 under 40, was elected to the State Senate.
  • Elena Parent of Georgia upset a conservative incumbent to secure a seat in the State House.
  • Ariana Kelly, a women’s-rights activist from Maryland, was elected to the House of Delegates.
  • Angie Buhl, a YP4 Fellow and Front Line Leaders Academy graduate, won a seat in the South Dakota State Senate.
  • We are also still waiting to hear the final results of Montana State Rep. Kendall Van Dyk, who is currently slightly ahead of his right-wing opponent in a competitive race for the State Senate.

Congratulations to all of the young candidates, and we hope you can support the efforts of the PFAW Action Fund to ensure a progressive future.

PFAW

Known Money, Secret Money

OpenSecrets.org reported yesterday that on the whole, millionaire and billionaire self-financed candidates pretty much flopped in Tuesday’s elections. Four out of every five of the 58 federal-level candidates who spent more than $500,000 of their own money on their campaigns ended up losing in the primary or general election. Among those who lost their expensive gambles were former World Wrestling Entertainment CEO Linda McMahon, who spent more than $46 million on her Senate campaign in Connecticut and Carly Fiorina, who spent more than $5.5 million of her own money in her California Senate race.

And OpenSecret’s data doesn’t even count the most prominent big-spending loss this year, California’s Meg Whitman, who spent a whopping $141 million on her gubernatorial bid.

Self-financed candidates generally have a fairly dismal track record of winning elections—partly because some lack the political experience to pull off a successful campaign, partly because voters reject the idea of a person buying themselves political office. (The Washington Post and the American Prospect both looked into the self-funding paradox earlier this year).

So, you might conclude from this, money can’t buy you electoral love. But the data from other kinds of campaign spending tells a very different story.

Public Citizen reported Wednesday that spending by outside groups—like those we profiled in our After Citizens United report—had a huge impact on the outcome of elections throughout the country. In 58 of the 74 races in which power changed hands yesterday, the candidate who benefitted from the most outside spending also won their election, Public Citizen’s analysis found. Of course, the cause and effect can go both ways—special interests often back shoe-in candidates just to be in their good graces once they’re in office—but it’s undeniable that spending by outside groups really did make a difference in many close races.

The Chamber of Commerce alone promised to spend $75 million to influence this year’s elections…more than 90% of which had, as of the last reporting deadline, gone to support Republican candidates. The Chamber, like many of the pro-GOP power players in this election, spent millions of dollars of money from undisclosed sources to buy ads that often had very little to do with its real goals.

Polling shows that the vast majority of Americans really don’t like the idea of corporations and interest groups pouring money into elections…and also really don’t like it that outside groups don’t have to reveal the major sources of their money.

But not liking the idea of wealthy people or corporations or powerful special interest groups trying to buy elections isn’t much help when you’re seeing a convincing ad on TV from a group with a name like the “Commission on Hope, Growth, and Opportunity”—and have no way of finding out what the money and motivations behind the ad are.

When a candidate is bankrolling her own campaign, voters know what’s going on, and can go into the polling place knowing full well who’s most invested in that candidate’s success. When a candidate is backed by millions of dollars from shadowy interest groups, the equation gets more difficult. The money’s there, but it’s impossible to tell what that money is meant to buy. As PFAW’s Michael Keegan wrote in the Huffington Post last week, that system works great for candidates who back the interests of corporate America and the wealthiest citizens…but isn’t so great for those who don’t have fat bank accounts ready to help them out.

Interestingly, one candidate who invested heavily in his own campaign did notably well on Tuesday—Ron Johnson of Wisconsin, who beat incumbent senator Russ Feingold. Johnson invested more than $8 million in his campaign (almost twice as much as he received from individual contributors). But Johnson was also propped up by over a million dollars worth of ads paid for by out-of-state pro-corporate groups.
 

PFAW