Legal

Judges Regard Arguments Against Healthcare's Constitutionality With Healthy Skepticism

The constitutionality of the Affordable Care Act is once again in the news, as a three-judge panel of the Fourth Circuit Court of Appeals heard arguments yesterday on the constitutionality of the healthcare reform law. As reported by the Los Angeles Times:

Lawyers for Virginia struggled to explain how the state had the legal standing to challenge the healthcare mandate on behalf of its citizens. The judges said precedent did not permit states to sue on behalf of their citizens to contest federal laws.

But standing was not a problem in a second case, where lawyers for Liberty University sued on behalf of several individuals. Both lawsuits said a requirement in the new law that everyone purchase healthcare was a violation of the Constitution. ...

By their comments, members of the panel of the 4th Circuit Court of Appeals sounded as though they would reverse that decision and say Virginia Atty. Gen. Ken Cuccinelli had no standing to challenge the law.

Liberty University lost its lawsuit in federal District Court and appealed to the 4th Circuit. Mathew Staver, their lawyer, said Congress could regulate commerce but not "idleness." In this instance, he referred to the refusal of his clients to purchase health insurance.

But the judges didn't sound persuaded. They noted the Supreme Court had said Congress had broad power to regulate a national market, and the mandate was an attempt to regulate insurance. It is a "practical power," Judge Davis said, to regulate effectively.

Perhaps the judges did not sound persuaded because the far right's legal argument is so weak. It cannot be repeated too often that many of those caterwauling most loudly that the healthcare law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose. In fact, the individual mandate was a Republican idea and originally championed by many of those who now claim that it is an unconstitutional usurpation of power by the federal government. Senators Orrin Hatch and Charles Grassley – who co-sponsored legislation during the Clinton Administration that featured an individual mandate – are among the many who have shamelessly flip-flopped on the issue.

Adding to the shamelessness, Mat Staver was one of the attorneys arguing before the court today that the law is unconstitutional. His extremism has long been reported in Right Wing Watch.

PFAW

Attorney General Disappoints on Faith-Based Issue

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

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

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

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

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

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

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

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

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

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

PFAW

Prop 8 Supporters Seek to Vacate Case They Lost

Proponents of California's Proposition 8 are making another assault against the trial court decision they lost and have appealed. This time, instead of addressing the merits of the case, they are attacking the judge who wrote the opinion. As reported in SCOTUSBlog:

Arguing that the judge who struck down California's ban on same-sex marriage was not impartial, because of his failure to disclose his own long-term gay relationship, the sponsors of Proposition 8 asked a federal judge in San Francisco on Monday to throw out all parts of the ruling and any earlier orders in the famous case. The motion to vacate the ruling by now-retired U.S. District Judge Vaughn R. Walker can be read here.

Since Walker retired, the case has been taken over for any further action in U.S. District Court in San Francisco by the chief judge there, James Ware. The new filing by the Proposition 8 backers said they would seek permission from the Ninth Circuit Court — where Walker's ruling is now under review — for Judge Ware to rule on their new challenge. With the case pending in the Circuit Court, that judge may not have the authority to act without permission. ...

The motion asserted that the opponents were "not suggesting that a gay or lesbian judge could not sit on his case." Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.

Right Wing Watch reported last week on The National Review’s Ed Whalen making this same argument.

The claim that Judge Walker had a personal stake in the case that warrants throwing his decision out adds yet another illogical inconsistency to the far right’s arguments against marriage equality. Under this reasoning, since traditional marriage is designed to show societal favor toward monogamous opposite-sex couples, any judge in an opposite-sex relationship has a personal stake in the case that warrants disqualification.

And if same-sex marriage genuinely threatens opposite-sex marriage as the far right claims, then married heterosexual judges (or ones in long-term relationships who might want to marry someday) have a personal stake in the Prop 8 case that could disqualify them from hearing the case.

If anti-equality advocates actually believe the legal principles they espouse, they should apply them across the board, not only when it suits their political agenda. Otherwise, one might be forgiven for thinking that their real goal is to hurt gay people, rather than to protect the integrity of the law.

PFAW

Citizens United Freed Corporations to Politically Pressure Employees

The Supreme Court’s decision in Citizens United v. FEC, which allowed corporations to spend unlimited amounts of money on politicking, has caused ripples of sometimes unexpected consequences – from the toppling of long-established state laws to the rise of secretive corporate spending groups that operate outside the reach of disclosure laws. Now The Nation has uncovered another destructive consequence of the decision:

On the eve of the November midterm elections, Koch Industries sent an urgent letter to most of its 50,000 employees advising them on whom to vote for and warning them about the dire consequences to their families, their jobs and their country should they choose to vote otherwise.

The Nation obtained the Koch Industries election packet for Washington State [1]—which included a cover letter from its president and COO, David Robertson; a list of Koch-endorsed state and federal candidates; and an issue of the company newsletter, Discovery, full of alarmist right-wing propaganda.

Legal experts interviewed for this story called the blatant corporate politicking highly unusual, although no longer skirting the edge of legality, thanks to last year’s Citizens United Supreme Court decision, which granted free speech rights to corporations.

“Before Citizens United, federal election law allowed a company like Koch Industries to talk to officers and shareholders about whom to vote for, but not to talk with employees about whom to vote for,” explains Paul M. Secunda, associate professor of law at Marquette University. But according to Secunda, who recently wrote in The Yale Law Journal Online about the effects of Citizens United on political coercion in the workplace, the decision knocked down those regulations. “Now, companies like Koch Industries are free to send out newsletters persuading their employees how to vote. They can even intimidate their employees into voting for their candidates.” Secunda adds, “It’s a very troubling situation.”

The Kochs were major supporters of the Citizens United case; they were also chief sponsors of the Tea Party and major backers of the anti-“Obamacare” campaign. Through their network of libertarian think tanks and policy institutes, they have been major drivers of unionbusting campaigns in Wisconsin, Michigan and elsewhere.

“This sort of election propaganda seems like a new development,” says UCLA law professor Katherine Stone, who specializes in labor law and who reviewed the Koch Industries election packet for The Nation. “Until Citizens United, this sort of political propaganda was probably not permitted. But after the Citizens United decision, I can imagine it’ll be a lot more common, with restrictions on corporations now lifted.”

PFAW

Supreme Court Seems Likely to Throw Out Global Warming Case

The Supreme Court heard oral arguments today in a high-profile global-warming case: American Electric Power v. Connecticut. At issue is whether and how courts can hold corporate polluters accountable for the planetary climate damage they are causing.

Several states have sued power producers on the basis that they are creating a public nuisance. Instead of being tied to a specific federal statute or regulation, their claim is based on the common law of nuisance, which has been part of our legal system for centuries. (Common law is law developed over time by the courts in the absence of specific legislation or executive rules.) The Second Circuit ruled that the lawsuit could proceed on this theory, and the power companies appealed. However, as the Wall Street Journals reports:

The Supreme Court appeared deeply skeptical Tuesday about allowing states to sue electric utilities to force cuts in greenhouse gas emissions from power plants.

Both conservative and liberal justices questioned whether a federal judge could deal with the complex issue of global warming, a topic they suggested is better left to Congress and the Environmental Protection Agency.

An additional factor arising since the lawsuit began several years ago is a change in the EPA’s stance. When the lawsuit began, the EPA claimed it lacked the authority to regulate greenhouse gases. Now, having been corrected by the Supreme Court, the agency is deciding whether to adopt rules affecting facilities like the ones at issue in this case. Such regulations would, if adopted, trump the common law.

Why let the lawsuit go forward, when "the agency is engaged in it right now?" said Justice Ruth Bader Ginsburg.

The lawyer representing the states acknowledged that the case was before the high court at a "peculiar moment," but said the court should block the lawsuit only if the EPA actually issues regulations. ...

Lawyers for the companies and the administration focused on the enormity of the climate change issue to argue against the lawsuit.

"You have never heard a case like this before," Neal Katyal, the acting U.S. Solicitor General, said. The term global warming, Katyal said, "tells you all you need to know."

The Justices seem likely to rule that the legislative and executive branches should address the issues raised in this case. That will serve the interests of giant corporations with a financial stake in the status quo, who, due to Citizens United, have an undue and growing influence over who populates those branches.

PFAW

Independents Align More Closely With Democrats on Social Issues

Conventional wisdom tells us that Independents swing elections. Logic tells us that the two major parties should be trying to court as many Independents as possible. So why are Republicans emphasizing a legislative agenda that falls out of synch with the priorities of most independent voters?

According to recent polling data compiled by CQ Weekly, the views of Independents align more closely with Democrats than with Republicans on social issues such as funding Planned Parenthood. Interestingly, Republicans are pretty evenly split on the issue, and independent voters are in favor of continuing funding. The majority of Independents also believe that gays and lesbians should be allowed to legally marry and that abortion should be legal in all or most cases.

Why, then, are Republicans actively alienating Independents by threatening to shut down the government over issues that they oppose? As noted in the CQ article, One House, Two Agendas [paywall], even Lamar Alexander of Tennessee, who manages communications strategy for Senate Republicans, fears the consequences of this shift in priorities:
 

“Our focus needs to be on reducing spending,” Alexander said. “We can’t preach the whole Bible in one sermon, so sometimes we have to take it one step at a time.”

Alexander’s views are reflected in the opinions of more libertarian-minded tea party groups. Last November, several tea party leaders and gay conservatives sent a letter to lawmakers asking them not to become distracted by the concerns of social conservatives.

“The tea party movement is a non-partisan movement, focused on issues of economic freedom and limited government,” they wrote. “We urge you to stay focused on the issues that got you and your colleagues elected and to resist the urge to run down any social issue rabbit holes in order to appease the special interests.”

In a recent essay describing a growing coalition between fiscal and social conservatives, PFAW Foundation’s Peter Montgomery explains how the Tea Party, supposedly concerned only about the size and scope of the federal government, is being co-opted by the Religious Right:

Now effectively in the employ of the libertarian David Koch, who founded Americans for Prosperity and chairs the board of its foundation, [Koch political operative Tom Phillips] has deep ties to the evangelical Right, most notably with Ralph Reed, former executive director of the Rev. Pat Robertson's Christian Coalition, who now heads a new entity, the Faith and Freedom Coalition. Reed and Phillips go way back; the two were partners in Century Strategies, the political consulting group through which Reed played a role in the Jack Abramoff bribery scandal. Now, it seems Phillips is partnered with Reed and other Religious Right leaders in a much greater conquest: a merger of the Religious Right and the ostensibly secular Tea Party movement to create an electoral juggernaut that will determine the outcome of the 2012 Republican presidential primary.

Republicans continue to force extreme social issues on the American people, and independent voters are finding it less and less palatable. Hopefully, they’ll get the message.

 

PFAW

NOM’s Gallagher Invited to Share Anti-Equality Myths with House Committee

This morning, Rep. Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, called a hearing on “Defending Marriage” to examine the Obama Administration’s decision to stop defending the so-called “Defense of Marriage Act” in courts.

Franks is pretty, um, far to the right, so it’s no surprise that one of the three witnesses he called to the hearing was Maggie Gallagher, chair of the National Organization for Marriage.

As Justin wrote earlier, Gallagher hit a bunch of the big themes of the Religious Right’s anti-gay activism, but she also dwelled on one argument peculiar to the anti-marriage equality crowd: that marriage exists solely as a structure for procreation:

If we accept, as DOMA explicitly does, that this is a core purpose of marriage, then treating same-sex unions as marriages makes little sense. If marriage as a public and legal institution is oriented towards protecting children by increasing the likelihood they are born to and raised by the man and the woman whose union made them, then same-sex couples do not fit. If same-sex couples “fit” the public definition of marriage, then marriage is no longer about responsible procreation. Same-sex marriage cuts marriage as a public idea off from these deep roots in the natural family. Over time the law will re-educate the next generation that these ancient and honorable ideals underlying marriage no longer apply. Gay marriage, as Judge Walker ruled in wrongly striking down Prop 8, is based on the idea that neither biology nor gender matters to children. Same-sex marriage repudiates the public’s interest in trying to see that children are, to the extent possible, raised by the man and woman whose bodies made them in a loving single family.

The argument that marriage exists solely for having children is, needless to say, flimsy – and has been pretty well demolished in a few marriage equality trials. I’m just going to share this extended exchange from last year’s Proposition 8 trial, in which Judge Vaughn Walker reduces the lawyer defending Prop 8 into babbling incoherence as he tries to defend the marriage-is-only-for-procreation argument:

THE COURT: And my point was that there are a number of heterosexual couples who do not naturally procreate, who require the intervention of some third party or some medical assistance of some kind.

MR. COOPER: Yes, your Honor. And it is not those opposite-sex couples either that the state is concerned about in terms of -- in terms of the threats to society and the natural concerns that society has from irresponsible procreation.

THE COURT: What's the threat to society of people choosing to have medical assistance in order to conceive children?

MR. COOPER: There isn't one there, your Honor. I mean, it's -- it is the -- again, it's irresponsible procreation. The procreation that comes about casually. And often again, as the Eighth Circuit put it, often by accident, unintentionally, unintentionally. The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn't something that is inconsistent with the purposes of -- the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.

And, your Honor, with respect to -- and you asked a question about this in your written questions. Even with respect to the opposite-sex couple where one of the partners is infertile, encouraging that couple to get married, trying to channel that couple into marriage furthers the procreative purposes and policies underlying the traditional definition of marriage in the sense that if that couple gets married, then it -- then all of the social norms that come with marriage to encourage that couple to stay together and to be faithful to one another operate to society's benefit in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.

THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.

MR. COOPER: Those purposes, your Honor, are – we haven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the – with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.

To summarize, Cooper, when pressed on the issue, ended up arguing that opposite-sex couples should get married so they don’t go around “irresponsibly procreating” with people they aren’t married to…but same-sex couples aren’t in danger of irresponsibly procreating, so they don’t need to get married….and that somehow, if gay couples were to get married, they would drive heterosexuals away from marriage, resulting in them having babies out of wedlock.

To be clear, this is the primary argument that opponents of marriage equality have in their toolkit.
 

PFAW

Vitter and Paul Ramp Up Their War Against Latinos

Earlier this year, Senators David Vitter and Rand Paul introduced a constitutional amendment to eliminate one of the key advancements in liberty in American history: the citizenship provision of the Fourteenth Amendment, a necessary reform that was made possible only at the horrendous cost of four years of bloody war. Correcting the mistakes of the past, Americans guaranteed the promises of liberty and equality available for all who were born here. The senators' proposed constitutional amendment was a shameful statement that those who adopted the Fourteenth Amendment had made a mistake.

Even though both senators had also (falsely) claimed that the Fourteenth Amendment did not confer citizenship on people born here to undocumented immigrants, their introduction of a constitutional amendment suggested a recognition that writing millions of Americans out of the Constitution would effect a fundamental change in our nation's character.

However, as Andrea Nill reports in Think Progress, Vitter and Paul have managed to take their hostility toward millions of Latinos to the next level:

This week, the two senators addressed the legislative dissonance by introducing a bill that's essentially a carbon copy of Rep. Steve King's (R-IA) birthright citizenship proposal in the House. Vitter and Paul, along with Sens. Mike Lee (R-UT) and Jerry Moran (R-KS), say their legislation "requires the federal government to limit automatic citizenship to children born to at least one parent who is a citizen, legal resident, or member of the military."

Yet, rather than seeking two thirds of Congress and three-fourths of all the states to amend the Constitution, they now simply seek to redefine it by amending the Immigration and Nationality Act. ...

Since it’s highly unlikely their proposal will get very far, it raises the question of what Vitter and Paul’s goals really are. It’s one thing to argue in favor of a constitutional amendment. The arguments behind it are still beyond questionable, but at least they are based on a general agreement that the 14th amendment has been rightly interpreted throughout the past century. When people start arguing that the Constitution has been misread for over 150 years, it undercuts the legitimacy of the millions of Latino and Asian citizens who at some point in their family tree had citizenship conferred to them through an immigrant family member who came to the U.S. during periods when most foreign residents lacked formal “legal” status. Given the fact that Vitter and Paul waged two of the most blatantly racist campaigns last year, I wouldn’t be surprised if that’s exactly what they’re trying to accomplish.

As we have reported, legislative efforts to exclude millions of people who were born here from the rights of citizenship are flatly inconsistent with the Fourteenth Amendment's plain text and its history, buttressed by over a century of case law.

PFAW

Roberts Court Leaves State’s Church/State Money Laundering Scheme Intact

A closely divided Supreme Court issued a seriously flawed decision today in Arizona Christian Tuition v. Winn, using constitutional sleight of hand to get around the Establishment Clause's prohibition against the use of public funds for religious purposes and to frustrate Americans' ability to go to court when the constitutional guarantee of church-state separation is violated.

Here's the background to the case, which involves the state of Arizona's program to support religious schools.

States are constitutionally prohibited from directly supporting religious education. So Arizona figured out a way to try to get around that inconvenient First Amendment by setting up a system where that money goes to the religious organization before it gets to the treasury.

Arizona has a program where taxpayers get dollar-for-dollar tax credits for money they give to "school tuition organizations" (STOs), nonprofit organizations that award private school scholarships to children. Many of the STO awards actually require parents to send their children to religious schools as a condition of receipt.

So an Arizonan can take a certain amount of money that he owes in taxes and instead give it to a religious STO to pay for someone's religious education. As Justice Kagan said during oral arguments, Arizona established the program so STOs, acting as state intermediaries, could "make distinctions that the state itself cannot make."

Essentially, the state has set up a money laundering scheme to get around the Establishment Clause.

However, before the Court could address the program's constitutionality, it first had to determine if the taxpayer plaintiffs have standing to sue. The Constitution prohibits federal courts from hearing a case unless the plaintiff has a personal stake in the outcome. Simply being a taxpayer generally does not give you such a personal stake. However, in the Flast v. Cohen decision of 1968, the Supreme Court recognized that federal taxpayers do have such a stake when they challenge Congressional spending.

The Roberts Court today ignored common sense and the reasoning of Flast and concluded that Arizona state taxpayers don't have standing to bring this case to federal court. As they did in the 2007 Hein v. Freedom From Religion Foundation case, the five conservatives acted to prevent courts from enforcing the Establishment Clause of the First Amendment.

According to the Roberts Court, there is no government spending here to contest. Instead, it is simply a series of independent spending decisions made by private citizens who are spending their own money, not the government's.

This is constitutional sleight of hand at its worst, which Justice Kagan pointed out in dissent. As she noted, the majority is making an arbitrary distinction between cash grants and targeted tax breaks for the purposes of standing: Either way, the government has financed religious activity, so either way, taxpayers should be able to challenge the subsidy.

Since there are times when no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion, the majority opinion "will diminish the Establishment Clause's force and meaning." The dissent continued:

"The Court opinion thus offers a roadmap – more truly, just a one-step instruction – to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts."

It is a good day for the religious right, and a bad one for the United States Constitution and the rule of law.

PFAW

Wisconsin Republicans Seek to Block Americans From Seeing Their Embarrassing Video

Wisconsin Republicans have been using the threat of legal action this week to suppress dissemination of a video that they are, quite justifiably, embarrassed about. As reported by Talking Points Memo:

First the Republican Party in Polk County, Wisconsin, pulled the tape of Rep. Sean Duffy (R-WI) fretting about making ends meet on his $174,000 a year salary from its own website. Now they want it gone from the whole Internet.

For a couple hours, the local county GOP was successful. But we've put an excerpt of the video back up.

A day after TPM posted the video we obtained of Duffy talking about his salary at a Polk County town hall meeting earlier this year, the Polk County GOP contacted the video provider we used to host the video, Blip.tv, and demanded the video be taken down. ...

The county GOP took down the video from its blog after the Washington Post posted a short clip of it yesterday morning.

An official with the Polk County GOP, which posted many other clips of the town hall on its YouTube channel, told TPM yesterday that the video was taken down because it was "was being republished without our consent."

Duffy and his supporters are right to be embarrassed. However, they are not right to use copyright law to keep Americans from seeing and hearing Duffy's words for themselves. Copyright exists to encourage and protect intellectual property. It does not exist to allow an elected official to avoid accountability for his own embarrassing political speech. Nor is it intended to be used as a tool to harass those who criticize you, particularly when dissemination of portions of the video for news and commentary most likely falls within the fair use doctrine - an exception to the exclusive right of copyright holders.

How many bloggers out there without a team of lawyers to represent them are now worried about legitimately posting this video or others like it in the future? How much political speech is being intimidated this way?

Use of the law to squash criticism - particularly when there is a legitimate fair use claim - is not new. For instance, the National Organization for Marriage had Rachel Maddow take down her clip of a NOM audition tape that made viewers heap scorn upon the organization and its latest advertisement.

Molly Ivins once noted how then-Governor George W. Bush used the threat of a lawsuit to shut down an embarrassing parody website:

The parody, run by a 29-year-old computer programmer in Boston named Zack Exley, annoyed Bush so much that he called Exley "a garbageman" and said, "There ought to be limits to freedom." (That's not a parody -- he actually said that.)

Bush's lawyers warned Exley that he faced a lawsuit. Then they filed a complaint with the Federal Elections Commission demanding that Exley be forced to register his parody site with the FEC and have it regulated as a political committee.

In just the past few days, we have seen right wing groups use the law on public records as a weapon to intimidate academics who criticize them. But in a country whose freedom depends on robust and open political debate, the law should be used to protect political discourse, not to prevent it.

PFAW

A Defense of Academic Freedom in Wisconsin

The University of Wisconsin has responded to the state GOP's request for the e-mails of Professor William Cronon relating to the clash over collective bargaining in that state. This was the opening salvo in a series of such requests to bully and intimidate university professors.

Talking Points Memo reports that the University has complied with the request, paying due respect to protecting academic freedom, among other values:

We are excluding records involving students because they are protected under [federal law]. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.

Chancellor Biddy Martin also posted a message to the campus community to help ensure that academic freedom would not be chilled by the Republicans' assault:

Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions.

To the extent that the GOP hoped to find evidence that Professor Cronon was using state computers to engage in partisan political activities, they're out of luck:

We have dutifully reviewed Professor Cronon's records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.

But this should not be the end of the story. As we have noted previously, this incident should not be viewed in isolation. If the party officials involved with this are not held accountable for their overreach, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society significantly lowers the bar for what departures from the principles of democracy are now acceptable.

PFAW

Does Holding Banks Accountable Count as “Terrorism”? Glenn Beck Thinks it Does.

This weekend, the New York Times told the story of a man named Charlie Engle who is in jail for being sold a bad loan. Engle did commit a crime by signing a so-called “liar loan,” in which he falsely stated his income to get a mortgage. But what is shocking is who got off scot-free: the financial executives who convinced millions of Americans like Engle to sign similar loans, helping to bring the economy to its knees.

I thought of this story when reading about the new campaign being waged by Fox News demagogue Glenn Beck to get a man who is trying to hold big banks accountable for their actions charged with “domestic terrorism.”

Stephen Lerner is a prominent figure in the labor movement. A former executive at the SEIU, he designed the Justice for Janitors organization, which has secured workers’ rights and living wages for thousands of janitors across the country. Recently, Lerner echoed the frustration of many in saying that big banks got off scot-free after their reckless lending procedures forced millions of Americans out of their homes and caused a major financial crisis. And he proposed a solution. Ezra Klein summarizes:

Like a lot of people, he feels the financial system got off too easy in the crisis. They created the mess, but unlike the millions of foreclosed homeowners and newly unemployed workers, they’ve come out mostly unscathed. It’s still very, very good to be a banker in this country. It’s not good at all to be underwater on your house. And he’s got a plan for changing that.

Union types are always looking for “leverage.” Leverage is what I have that gives me power over you. And Lerner thinks he’s identified the point of leverage that workers and homeowners and students have over the financial system. “What does the other side fear most?” Lerner asked. “They fear disruption, they fear uncertainty. Every article about Europe says a riot in Greece, the markets went down. The folks that control this country care about one thing: how the stock market does; how the bond market does; and what their bonus is. So I think we weed out a very simple strategy: how do we bring down the stock market, how do we bring down their bonuses, how do we interfere with their ability to, to be rich.” To do so, he wants to see a campaign of disruption and strategic default led by community-activist groups and aimed at J.P. Morgan Chase.

As Lerner sees it, once there’s leverage, once the banks are scared, there can be a settlement. What sort of settlement? Lerner gives a couple of examples in his talk. “You” — meaning banks in general, and J.P. Morgan Chase in particular — “reduce the price of our interest, since your interest rate is down; and second, you rewrite the mortgages for everybody in the community so they can stay in their homes. We could make them do that.”

You may or may not agree with the wisdom of Lerner’s idea. But would you call it “terrorism”? Glenn Beck would, and has now chosen Lerner to be the newest anchor point in his vast liberal conspiracy theory, saying that the labor leader is plotting to commit “economic terrorism" by “collaps[ing] the system.”

People For’s legal department looked into what our laws actually say about domestic terrorism and, needless to say, it's not even a close question. There’s no danger to human life involved here. And there’s certainly no effort to intimidate the civilian population or the government.

In fact, under Beck’s definition of terrorism as advocating for peaceful economic disruption, he himself should be investigated. As Media Matters has pointed out, Beck himself has more than once advocated “taking down” or “resetting” our entire financial system—a much more sweeping economic action than the targeted protests Lerner is advocating.

The corporate-funded right wing has made it clear in the last few months that they will not tolerate working people who want to take on big corporations. In Wisconsin and Ohio, teachers and police officers and other public workers have been demonized for fighting to their right to organize, while corporations continue to get massive tax breaks and hold a huge amount of sway over elections.

In their world, the millions of Americans who suffered from the financial crisis—people like Charlie Engle—are the criminals, and the people who try to organize working Americans are “terrorists.” That topsy-turvy view of justice and power is unsettling, to say the least.
 

UPDATE: Lerner responds to Beck in The Nation:

So that was it: Beck, right-wingers and Wall Street sympathizers went ballistic because they knew the ideas I talked about are far from being a secret leftist conspiracy; in fact, they’re in sync with the thinking of most Americans. In my talk, I raised a very simple yet powerful idea: that homeowners, students, citizens and workers should make the same practical decisions Wall Street and corporate CEOs make every day—they should reject bad financial deals.


PFAW

Wisconsin Republicans Challenge The Rule Of Law To Push Anti-Union Agenda

After the Republican-controlled Wisconsin legislature rushed-through Governor Scott Walker’s union-busting legislation, the District Attorney of Dane County, which covers the state capital, sued to block the law’s implementation. According to the District Attorney, the legislature violated the state’s open meetings law by failing to give the public 24 hours notice before meeting about the bill, resulting with a judge issuing a temporary restraining order on the bill’s implementation. But the GOP leaders of the legislature decided to publish the bill despite the judge’s ruling, creating immense confusion about whether the anti-union legislation is the law or not. While the judge did not explicitly bar the Legislative Reference Bureau from publishing the law, the clear intent of the judge’s order was to prevent the law from being implemented.

CNN reports on the ensuing legal crisis and the reactions of labor organizers and State Senator Chris Larson, a member of PFAW Foundation’s Young Elected Officials Network, who are leading the charge against the GOP’s latest power grab:

The litigious and contentious battle in Wisconsin over collective bargaining rights has a new twist -- the publishing of the law despite a judge's order against such a move.

That left lawmakers and observers wondering Saturday whether the law had taken effect.

This latest drama started Friday afternoon when the state's Legislative Reference Bureau published the controversial act that curbs the collective bargaining rights of most employees.



The Wisconsin State Employees Union Council 24 blasted the publishing of the law.

"By attempting to unilaterally publish their bill eliminating the rights of hundreds of thousands of Wisconsinites, (Gov.) Walker and his cronies have unquestionably violated the laws of this state to further their extreme overreach for absolute power over our state's people."

Democratic state Sen. Chris Larson said, "The courts are going to step in again and say, 'No, you have to follow the letter of the law' and again they broke it. ... I think it's pretty shameless of Walker and the Republicans."

Update: Gov. Walker has announced that he will begin implementing the anti-union law despite the legal uncertainties. In response, state Democratic chair Mike Tate said:

"Are there any laws that yet bind Scott Walker and the Republicans? With the arrogance of the zealot, they act as if they were laws unto themselves. Ultimately, our Constitution and our courts will protect us from their warped ideologies, but in the meantime, our democracy in Wisconsin is being flayed."

Update 2: (AP) MADISON, Wis. (3/30):

A Wisconsin judge has ruled that there should be no further implementation of a law taking away nearly all collective bargaining rights for public workers.

Dane County Circuit Judge Maryann Sumi said Tuesday that her earlier restraining order saying the law shouldn't be enacted had either been ignored or misinterpreted.

Sumi stopped short of saying the law was not already in effect. She says she will take more testimony on that issue.

The Legislative Reference Bureau posted the law on a legislative website Friday, leading Gov. Scott Walker's administration to declare the law was in effect.

Sumi revised her original March temporary restraining order blocking the secretary of state from publishing the law, which is typically the last step before it becomes effective.

PFAW

The Further Marginalization of the U.S. Chamber of Commerce

For the second time in less than a month, the U.S. Chamber of Commerce has learned that its extremism can sometimes be too much for even one member of the notoriously pro-corporate Roberts Court to swallow.

Yesterday, a unanimous Supreme Court released its opinion in Matrixx Initiatives v. Siracusano. At issue was whether a publicly traded company can be held accountable when it withholds from investors the fact that its main product has been linked to significant, negative health consequences, but not so often as to be statistically significant. (The Chamber submitted an amicus brief supporting the company.)

Matrixx is a pharmaceutical company that makes a product called Zicam Cold Remedy. It submitted a filing to the Securities and Exchange Commission that omitted certain negative information about Zicam. Matrixx had been told independently by three medical researchers and physicians that some users of Zicam had lost their sense of smell. The company was also being sued by two people claiming to have lost their sense of smell due to Zicam. Matrixx's SEC filing did not mention any of these facts.

When the facts about Zicam became known, a pension fund initiated a class-action suit against Matrixx on behalf of investors.

Federal securities laws prohibit companies from making "material" omissions - omissions that an average shareholder would consider important - in connection with the buying and selling of shares. In 2004, when Good Morning America aired a story about a possible link between Zicam and the loss of the sense of smell, the company's share price dropped by 23.8% in just one day, suggesting that this just might have possibly been material information for investors.

Nevertheless, the district court dismissed the case because the number of reports was not statistically significant. The Ninth Circuit reversed that decision and, in a refreshing display of common sense, has now been upheld by a unanimous Supreme Court in an opinion written by Justice Sotomayor: Just because the number of negative incidents isn't statistically significant doesn't mean you automatically can hide it from investors.

Congress enacted the securities laws during the New Deal, in response to widespread abuses in the securities industry - a scenario all too familiar to Americans today. The intent was to replace a system of caveat emptor with an honest market. Congressional intent was clear: If the average shareholder would consider something important, then it must be disclosed.

Big Business was paying attention to this case: The U.S. Chamber of Commerce filed an amicus brief urging the Court to rule for Matrixx - which would have made it harder to hold publicly traded corporations accountable when they choose to omit important information affecting Americans' investments. The Chamber was hoping the conservative Justices would once again throw common sense and legal precedent out the window in order to achieve a corporate-friendly result.

But this time, the Chamber's extremism was too much for even one Justice on the Supreme Court to swallow.

PFAW

Will the Supreme Court Close the Door to Civil Rights Lawsuits?

Today, the Supreme Court is hearing hear oral arguments in Fox v. Vice, a case that threatens to choke off future civil rights litigation. People For the American Way Foundation has joined an amicus brief protecting the right of people to sue to protect their basic rights.

In a federal civil rights lawsuit, where the government or a government official is being sued, a trial court can sometimes order the plaintiff to pay the defendant's legal fees. The law allows this if (1) the defendant is the prevailing party and (2) the plaintiff's case was frivolous. In Fox v. Vice, the Supreme Court is being asked to interpret this law. The potential exposure to paying a defendant's legal fees serves as an obvious deterrent to bringing suit, and it's important, therefore that it be narrowly construed in order not to violate Congress's intent to empower people to vindicate their rights in the courts.

In this case, Ricky Fox sued the local chief of police, Billy Ray Vice, based on two incidents that took place after both men had announced their competing candidacies for the police chief job. Fox claimed that Vice, the incumbent, sent him an "anonymous" letter attempting to blackmail him into not running for office. The next month, Vice allegedly encouraged someone to file a false police report about Fox.

Fox claimed that these acts violated both federal civil rights laws and state tort laws. The case was before a federal court, and Fox eventually acknowledged that he had no valid federal claim. So the trial court judge dismissed the federal claims and remanded the state civil claims to state court for future adjudication. The judge also ruled that the federal claims had been frivolous, and he ordered the plaintiff to pay the defendant's legal fees related to the frivolous claims.

However, because the frivolous and non-frivolous claims were all based on the same set of facts, it was nearly impossible to disentangle legal fees for one from legal fees for the other. So the district court judge classified them all as being for the frivolous federal claims and ordered the plaintiff to pay the entire legal bill. Fox ended up paying the legal fees that will be used by the defendant to oppose Fox's own non-frivolous state court claims still to be litigated. The Fifth Circuit Court of Appeals upheld the decision.

If the Supreme Court affirms this decision, it could severely chill civil rights lawsuits. It sets up a standard where plaintiffs risk having to pay all of the defendant's legal fees even if only one of their claims is judged frivolous. To make matters worse, it is very hard to predict what a judge will consider frivolous. Even judges hearing the same case at the same time may differ wildly as to whether it is frivolous. The standard adopted by the lower court would discourage civil rights plaintiffs from pursuing novel legal theories and create a powerful disincentive against filing valid civil rights suits in the first place.

In considering the case, the Supreme Court should be consistent with Congress's intent to encourage meritorious suits and discourage frivolous ones. It should rule that legal fees should not be awarded in federal civil rights cases when a plaintiff's "frivolous" claim is factually intertwined with non-frivolous claims.

The Roberts Court has devised numerous ways to close the courthouse door to innocent people seeking to vindicate their rights. By the end of the Court's term, we will learn whether Fox v. Vice will join cases like Ledbetter v. Goodyear in the Roberts Court's Hall of Shame.

PFAW

The Costs of Eliminating Constitutional Citizenship

Last month, Right Wing Watch looked at the historical revisionism, lack of legal logic, and indifference to practical results endemic in the movement to change the Constitution’s definition of citizenship. Following last week’s defeat of a law challenging constitutional citizenship in the Arizona senate, the Arizona Republic took takes an extensive look at the arguments for and against Constitutional citizenship. Their analysis of the pragmatic pros and cons is telling. While denying citizenship to American-born children of undocumented immigrants might save some money on social programs in the short term, the paper reports, the long-term costs of creating a huge American-born undocumented underclass—with up to 400,000 new children each year—could be huge. In addition, implementing a system to discriminate against children based on the citizenship status of their parents would be burdensome:

Limiting birthright citizenship could create costs and challenges for the government at various levels while potentially saving money in other areas.

At some level - local, state, federal or even at the hospital - someone would have to determine whether a newborn's parents were legally in the United States before the infant could be processed for a Social Security number.

Regardless of how the process worked, it would require governments to spend money creating and running an agency to verify the citizenship of parents at a time when the public is calling for less government spending and bureaucracy, said Margaret Stock, a retired Army Reserves lieutenant colonel and immigration attorney specializing in military cases.

She is concerned too that limiting birthright citizenship could hurt the nation's armed services because immigrants, and the children of immigrants, have a higher propensity to join the military than other citizens, she said.

Denying citizenship to the children of illegal immigrants could save taxpayers some money.

According to the Pew Hispanic Center, the children of undocumented immigrants are more likely to live in poverty and lack health insurance than children of U.S. citizens. As citizens, many of those children qualify for public benefits.

By denying them citizenship, those children would not be eligible for most public-assistance programs, so some of the costs to taxpayers would be less, Van Hook said.

In the long run, however, without citizenship, those children would not be able to work legally and would probably earn less money, pay less in taxes and cost the public in other ways such as emergency medical care, she said.

 

PFAW

Pence Admits to Using Women’s Health as a Bargaining Chip

NPR reports today on Republican efforts to gut funding to Title X family planning clinics, which “serve 15 percent of women in the United States who obtain contraceptive prescriptions or supplies, or who receive an annual checkup for birth control.” In February, all but three Republican representatives voted for a budget proposal that completely nixed Title X funding, after approving an amendment that also strips Planned Parenthood of all federal funds. As NPR reports, Rep. Mike Pence, the sponsor of the Planned Parenthood amendment, actually thinks that Title X funding is a good thing….but is willing to use it as a bargaining chip to achieve his ultimate goal of decimating Planned Parenthood:

Supporters of defunding have characterized it as an effort to strip funds from Planned Parenthood and other organizations that use other funds to provide legal abortions, without singling out any particular group. The House in February voted 240-185 to defund Title X in the current budget year.

But even staunch anti-abortion legislators like Rep. Mike Pence, the Indiana Republican who has crusaded against federal funding for Planned Parenthood clinics, say that jettisoning the Title X program may be going too far.

"I've never advocated reducing funding for Title X," Pence said during a recent radio interview with the chairman of a county Right to Life organization in his home state.

"Title X clinics do important work in our inner cities," Pence said. "They provide health services for women and children that might not otherwise have access to them."

So, why have Republican House members set their sights on the $327 million that would fund the program this year?

The answer, largely, is Planned Parenthood and politics.

Social conservatives have pressed House Republicans to make cutting off federal funds to Planned Parenthood a priority; but they see room for negotiation over Title X funds.

The Right’s obsession with bringing down Planned Parenthood is destructive enough…that people like Pence are willing to put millions of women at risk to achieve it shows just how blind an obsession it is.

 

PFAW

Arizona Senate Defeats Extremist Anti-Immigrant Laws

Arizona’s state Senate yesterday defeated five extreme anti-immigrant bills, including two aimed at provoking the U.S. Supreme Court to reconsider the constitutional definition of citizenship, and three more that would have required hospitals, schools, public housing administrators, and DMV officials to become immigration enforcers:

One of the rejected bills would have required hospitals to contact federal immigration officials or local law enforcement if people being treated lack insurance and can't demonstrate legal status.

Critics said that would burden hospitals, but Republican Sen. Steve Smith of Maricopa said his bill didn't require much.

"Maybe you forgot it's illegal to be in this country illegally," he said during the vote on his bill. "We just ask them to report the crime, not be the judge and executioner."

Also defeated was a bill to require schools to file reports on enrollments of illegal immigrant students.

The fifth bill was a sweeping measure sponsored by Pearce. It would have made it a crime for illegal immigrants to drive in Arizona. It also had provisions on registering vehicles, workplace hiring and various public benefits.

It would ban illegal immigrants from attending Arizona's public universities and community colleges. The state does not now have a ban but it does require illegal immigrants to pay higher, non-resident tuition rates.

Pearce's bill also would have required eviction of public housing tenants who let illegal immigrants live with them and make applicants for vehicle titles and registration prove they are in the country legally.

Arizona has in recent months led the way in extremist anti-immigrant measures, including passing last year’s SB 1070, which would have required racial profiling by state police. Parts of that bill were temporarily blocked by a judge as the bill is appealed.


That these five bills couldn’t make it through the Arizona Senate shows the power of the backlash against such harsh—and possibly illegal—measures.
 

PFAW

Encouraged by Citizens United, Right-Wing Groups Demand Even More Corporate Influence in Politics

While the Supreme Court’s decision in Citizens United overturned decades of precedent by granting corporations the right to spend money from their corporate treasuries to help elect or defeat candidates, many pro-corporate activists believe that the ruling didn’t go far enough and seek to eviscerate even more restrictions on corporate money in elections. Opponents of campaign finance reform are spearheading efforts to allow corporations to contribute directly to candidates for office, permit political groups to keep the identity of their donors a secret, and loosen restrictions on foreigners contributing to candidates. The Supreme Court is also set to consider a major case on the constitutionality of Arizona’s clean elections laws that provide public financing for qualifying candidates. Politico reports on the Right’s “sustained assault” on campaign laws:

Not satisfied by the 2010 Supreme Court ruling that opened the floodgates to corporate-sponsored election ads, conservative opponents of campaign finance regulations have opened up a series of new legal fronts in their effort to eliminate the remaining laws restricting the flow of money into politics.

They have taken to Congress, state legislatures and the lower courts to target almost every type of regulation on the books: disclosure requirements, bans on foreign and corporate contributions and – in a pair of cases the Supreme Court will consider this month – party spending limits and public financing of campaigns.

The sustained assault, combined with the Supreme Court’s rightward tilt on the issue, has some advocates for reducing the role of money in politics fretting about the possibility of an irreversible shift in the way campaigns are regulated and funded that would favor Republicans and corporate interests in the 2012 presidential race and beyond.



“Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections,” warns a memo by Gerry Hebert and Tara Malloy, lawyers at the pro-regulation Campaign Legal Center, which filed a brief defending the Arizona law.

“Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy,” their memo predicted.

Opponents of campaign rules argue that removing restrictions allows more voices to compete in the political marketplace. And they have a slew of other suits pending that could dramatically alter the political money landscape, including one challenging a rule that limited how much the Republican National Committee could spend supporting the unsuccessful 2010 reelection campaign of former Rep. Joseph Cao (R-La.).

The Supreme Court is set to decide on Friday whether to hear the case which is being handled by Jim Bopp, a Republican lawyer and leading opponent of campaign restrictions. The impact of the Cao case “could be real big,” if the court overturns the so-called coordination limits at issue, predicted Bopp, who has dozens of cases pending in courts around the country.

One seeks to advance the Citizens United ruling by challenging an Iowa law banning direct corporate contributions to state candidates, while a pair of others dispute whether non-profit groups called the Committee for Truth in Politics and The Real Truth About Obama that aired ads critical of then-candidate Barack Obama had to disclose their donors or activity.
PFAW

Another View of the Judicial Vacancy Crisis

The Los Angeles Times today highlights the judicial vacancy crisis by spotlighting the senior judges who have already retired, but who are still needed to hear cases due to the lack of new judges being confirmed.

As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like [Betty] Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.

"It's kind of a double whammy," Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. Nearly 11% of the nation's 875 lifetime positions are empty.

Senior judges, working overtime to keep the wheels of justice turning, earn the gratitude of their overwhelmed colleagues. But they do not earn a penny more for continuing to work, many of them almost full time, than they would if they were to hang up their robes and head for the golf course.

Of course, as another judge points out, the real victims of the Senate’s inaction on judicial nominees aren’t the judges themselves, but the ordinary people who need their cases to be heard.

"I feel a responsibility to the litigants," said [Judge Dorothy] Nelson, 82. "The courts are not for the judges, and they are not for the lawyers. They are for the people who have real grievances that need to be heard."

In recent weeks, the rate of confirmations in the Senate has risen slightly, but it’s still nowhere near fast enough.

Americans deserve a judicial system that works. Thanks to the obstruction and delay caused by Senate Republicans, that’s not what we’re getting.

PFAW