This op-ed was originally published at The Huffington Post.
Some Supreme Court cases are really tough ones, with important, difficult, and complex legal questions about constitutional meaning or statutory interpretation, where justices have to choose between two powerful and compelling arguments. Sometimes the court is called upon to resolve an issue that has divided the circuit courts. Other times there is a lower court ruling so at odds with logic or precedent that it needs to be reviewed and corrected.
And then there's King v. Burwell, the Affordable Care Act subsidies case being argued this week.
Those challenging the law have an extremely weak legal case, there is no split in the lower courts, and there is no clearly wrong lower court ruling that needs to be corrected. This is a meritless case that was ginned up by conservatives seeking to enlist the Supreme Court in their political efforts to destroy the ACA. That at least four justices voted to hear the case is ominous enough. But a victory for the challengers would make it more clear than ever that political considerations are infecting a majority of the court.
Some background: Section 1311 of the ACA directs states to establish health insurance exchanges, creating competitive markets in every state for people to buy affordable insurance no matter where they live. But Congress also recognized that states might choose not do this, so Section 1321 says that in those cases the federal government should set up the exchange instead. The purpose of doing this was to ensure that even if states declined to set up an exchange pursuant to Section 1311, fully functional stand-ins would exist. This is essential to the structure of the law: The financial model relies on competitive markets with affordable insurance being available in every state.
To ensure affordability, the law also establishes subsidies for people below a certain income level to make sure they can buy insurance, which is necessary for the entire structure of the ACA to work. One subsection of the law establishes some key definitions, including an "eligible taxpayer" who is entitled to these subsidies, and the main criterion is income level. Try as you might, you won't find anything there saying that eligibility is at all tied to where someone lives.
A separate subsection says how to calculate the amount of the subsidy. Bizarrely, the conservative opponents of the ACA say that it is here that Congress chose to establish an enormously important additional eligibility criterion that, for some reason, they didn't put in the eligibility section: You have to live in a state that has set up its own exchange, rather than in one where the state has allowed the federal government to set it up instead.
This strange interpretation of the ACA depends on a deliberate misunderstanding of the subsidy provision's stating that the amount is based on the monthly premiums for a policy purchased through an exchange "established by the state under [section] 1311" of the ACA. But to interpret this provision the way the anti-Obamacare activists do, we'd have to deliberately blind ourselves to how it clearly fits with the ACA as a whole.
So we're supposed to pretend that Congress didn't specifically empower the federal government to set up fully functional stand-ins for state exchanges in states that declined to create them. And we're supposed to think that Congress hid a critically important criterion for subsidy eligibility in a section on calculating the subsidy amount. And we're supposed to accept that Congress intended to undercut the financial viability of the law and thwart its central purpose of providing affordable health care to all. As D.C. Circuit Judge Harry Edwards wrote, "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble."
No one could possibly believe that. You can't possibly look at the text of the Affordable Care Act and interpret it in the way that its enemies have conjured up.
And as journalists like Glenn Kessler have pointed out, congressional Republicans who today insist that Congress intended for subsidy eligibility to depend on what state you live in were saying nothing of the sort when the law was being debated. Their statements at the time show they assumed subsidies would be available nationwide.
It is also clear that state legislators -- regardless of party -- deciding whether to set up their own exchanges never contemplated the possibility that choosing to let the federal government do it would deny much-needed subsidies to people in their state. In fact, that point is made quite effectively in an amicus brief authored by the Constitutional Accountability Center on behalf of members of Congress and state legislatures.
When this nonsensical lawsuit was heard at the Fourth Circuit, it was rejected by a unanimous panel of judges. In his concurring opinion, Judge Andre Davis wrote:
What [the ACA opponents] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
Yet when the ACA opponents appealed to the Supreme Court, at least four justices (the minimum required to grant certiorari) agreed to hear the case.
It would be nice to believe that the only reason was to issue a 9-0 ruling slapping down this lawsuit and condemning those who would abuse the court system by seeking to enlist federal judges in their political fights. Unfortunately, this is the Roberts court, a court with a history of bending the rules, twisting the law, and doing whatever it takes to get to an outcome beneficial to conservative and corporate interests. With cases like Citizens United, Hobby Lobby, Ledbetter, Shelby County, and so many others, a narrow 5-4 majority has made opponents of the Affordable Care Act think they could gin up a meritless case and carry the day.
If the Roberts Court chooses to sabotage millions of Americans' access to health care, the consequences will be catastrophic for many everyday people, and possibly fatal to some. While there may be Americans who weren't paying attention to some of the wrongly decided cases noted above, it is hard to imagine any American missing this one -- and not knowing exactly who to blame.
Yesterday, People For the American Way members participated in a telebriefing to discuss the Supreme Court’s upcoming term and to preview some of the important cases the Court will be hearing this year. The call was kicked off by PFAW President Michael Keegan and moderated by PFAW Director of Communications Drew Courtney. PFAW’s Senior Legislative Counsel Paul Gordon reviewed highlights of his recent report previewing the Supreme Court’s upcoming term and answered questions from members. Also on the call and answering questions were Senior Fellow Elliot Mincberg and Executive Vice President Marge Baker.
Among the cases Gordon previewed were Young v. UPS, Integrity Staffing Solutions v. Busk, Mach Mining v. EEOC, Holt v. Hobbs, and Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama. The issues addressed in these cases range from employment discrimination and workers’ rights, to religious liberty and voting rights.
He also discussed potential cases that the Court could still add for this term, which included cases on marriage equality, the Affordable Care Act, and contraception coverage by religious nonprofits—the “sequels to Hobby Lobby.”
Members’ questions focused on how the country can move forward to change some of the more damaging decisions like Citizens United, and what each person could do to effect change and impact the courts. Emphasizing what is at stake this election, both PFAW President Michael Keegan and Gordon called on people to vote in November because “when you vote … for the Senate, you are voting for the next Supreme Court justice.”
Listen to the full audio of the telebriefing for more information.
Share this article:
In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.
Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."
In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."
The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.
As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."
Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.
In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."
This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.
In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.
As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.
Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.
Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.
The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.
Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.
To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.
It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.
Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.
At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.
The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.
Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
The movie tracks the effects of the Supreme Court’s Citizens United ruling that lifted a century-long ban on corporate election spending by looking at the standoff in Wisconsin between state employees and GOP Governor Scott Walker. During his election and recall campaigns, Walker was bankrolled by billionaire brothers David and Charles Koch, demonstrating the torrent of unlimited, anonymous political spending by corporations and billionaires that was unleashed through this Supreme Court decision. As the film follows this story, it also shows the fracturing of the Republican Party and proves how Citizens United fundamentally changed how our democracy works.
After a successful Kickstarter campaign to raise funding, and even losing its public television distributor, the movie finally comes to theatres this summer. The process that led to it being pulled from public television airwaves illustrates exactly what “Citizen Koch” depicts—that money buys not only action, but also silence. As Buddy Roemer, whose presidential run is chronicled in the film, stated, “Sometimes it's a check. Sometimes it's the threat of a check. It's like having a weapon. You can shoot the gun or just show it. It works both ways.”
People For the American Way hosted the DC premiere of the documentary film “Citizen Koch” at the Washington’s West End Cinema Friday night to a sell out crowd. Friday’s premiere was followed by a panel discussion with one of the documentary’s Academy Award-nominated filmmakers Tia Lessin, along with PFAW’s director of outreach and partner engagement Diallo Brooks and PFAW president Michael Keegan. After the screening, the audience participated in a question and answer session on the effects of big money in politics and what different organizations and mobilized citizens are doing to reverse the effects of Supreme Court decisions like Citizens United and McCutcheon.
In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions.
Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.
This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.
This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.
The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”
Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.
The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”
Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”
Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act
was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].
[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.
Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.
Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.
As the Supreme Court heard arguments today in McCutcheon v. FEC – a campaign finance case in which the Court will decide whether to strike down overall limits on direct political contributions – a great crowd of PFAW and allies rallied outside the Court in support of getting big money out of politics. From students and small business owners to members of Congress – including Senator Bernie Sanders and Representatives Ted Deutch, Jim McGovern, and John Sarbanes – people from all backgrounds came together in support of protecting the integrity of our democracy.
PFAW Executive Vice President Marge Baker kicked off the speeches by painting a picture of the “people versus money” nature of the case:
Inside the court – right now – one wealthy man is asking for permission to pour even more money directly into political campaigns. But we’re here, too, and we have a different ask. We’re asking the justices to protect the integrity of our democracy. We’re asking them to protect the voices and the votes of ‘We the People’….We’re here today saying loud and clear: our democracy is not for sale.
Also speaking at today’s rally was Montgomery County Council Vice President Craig L. Rice, Maryland State Director of affiliate PFAW Foundation’s Young Elected Officials Network. Rice spoke about the effect of campaign finance laws on young political candidates:
As a young minority elected official, let me tell you: this [case] is extremely troubling….Young minority candidates throughout this country are routinely outspent and therefore denied the ability to serve in elected roles….Money should not determine who serves in office.
Howard University student Brendien Mitchell, a fellow in affiliate PFAW Foundation’s Young People For program, talked about the importance of being able to hear the political voices of young people in the midst of voter suppression efforts and massive spending by the wealthy in our democracy:
What about the freedom of young Americans who cannot donate grandiose sums of money to political candidates?....We gather to say that this is our country. And that in a case of money versus people, the answer should be apparent: the people.
One of the highlights of the day was hearing from Moral Monday demonstration leader Rev. Dr. William Barber, II, president of the North Carolina State Conference of the NAACP and a member of PFAW’s African American Ministers in Action. Rev. Barber highlighted the millions of dollars Art Pope has poured into conservative projects and campaigns in his home state of North Carolina:
We [in North Carolina] know firsthand that when you undermine laws that guard against voter suppression, and you undo regulations on the ability for corporations and individuals to spend unchecked amounts of money to influence and infiltrate and literally infect the democratic process, it has extreme impacts.
Extreme impacts – and not only on the electoral process itself, but also on a whole host of issues shaping the lives of everyday Americans. Whether you care most about protecting voting rights, preserving our environment, or workers getting paid a livable wage, a political system where the super-rich can make six-digit direct political contributions harms us all.
And that’s why organizations and activists with focuses ranging from civil rights to environmental protection to good government issues came together today with a common message: our democracy is not for sale.
“What do we want? Equality! When do we want it? Now!”
This morning PFAW staff and members joined a crowd of thousands gathered in front of the Supreme Court to chant, march, and speak out in support of marriage equality. As Supreme Court Justices heard the first round of oral arguments on the marriage cases before them this term, multitudes of supporters gathered on the Court steps to share a simple message: our country is ready for marriage equality.
Today, the Court heard arguments on California’s anti-gay Proposition 8. Tomorrow, it will be considering the federal Defense of Marriage Act (DOMA). In the weeks leading up to today, we have been asking friends of PFAW to share why dumping DOMA is important to them. As I stood out at the rally this morning, I thought about all of the people who had been brave enough to share their story with us – and what this day meant to each of them.
For Bishop Allyson Abrams, a member of PFAW’s African American Ministers in Action, it’s time to dump DOMA “because it hurts and humiliates those who know love and who practice showing it each and every day.” For Sam Paltrow, member of affiliate PFAW Foundation’s Young People For Program, DOMA has to go because it “teaches that gay families do not matter,” and for Young People For member Erik Lampmann, it’s an “issue of economic justice.” Missoula City Councilmember Cailtin Copple, member of affiliate PFAW Foundation’s Young Elected Officials Network, “would like the chance to marry the person [she] loves someday.”
While each person at the Supreme Court rally today – and those at the marriage rallies in all 50 states across the country – had a different reason for being there, we had a common goal: Equality. Now.
Yesterday, the Republican National Committee released a web ad featuring the voice of Solicitor General Donald Verrilli haltingly defending the Affordable Care Act. After saying that “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli trails off, coughing and stuttering for an incredibly long time.
But as Bloomberg News revealed, the awkward silence isn’t credible. It’s entirely doctored. In the actual audio of the case, Verrilli pauses only briefly before continuing “But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.
Tom Goldstein of SCOTUSblog calls it “the single most classless and misleading thing I’ve ever seen related to the Court,” and he’s right. But it shouldn’t come as any surprise that this is the tack taken by the GOP. From day one, Republicans decided that the best way to oppose President Obama’s health care reform agenda was by lying about it. Whether it’s about death panels, rationed care or the Solicitor General’ performance before the Supreme Court, Republicans have made clear that there’s no lie they won’t tell in order to damage the president and frustrate his agenda.
After the Citizens United decision, we’ve seen outside groups pushing sleazy “Swift Boat” style attack ads. The fact that the RNC itself chose to push such a blatant lie only underscores how comfortable with dishonesty--and how desperate--the party has become.
Republican leaders, including presidential contenders who hope to lead the party, should renounce these dishonest attacks.
Supreme Court Justice Clarence Thomas is generating quite a bit of attention these days. Questions abound – not from him, as he hasn’t asked a question during oral arguments for over five years – but from citizens concerned about the integrity of the Court.
Last week, the New York Times profiled Mr. Thomas’ relationship with wealthy corporate benefactors who often have business before the Court. Among them, a man Dallas real estate magnate named Harlan Crow, who generously offered Justice Thomas a $19,000 bible once belonging to Frederick Douglass, half a million dollars to Thomas’ wife so she could start a Tea Party group, and even generous contributions to museums featuring exhibits in the Justice’s honor.
Thomas has attended Koch-sponsored political fundraisers, which underwrite the very sort of front groups that now, thanks in part to Thomas’ vote in the Citizen’s United case, do not need to disclose their spending. And Thomas failed to recuse himself from three cases in which the American Enterprise Institute, which had given him a $15,000 gift, had filed a brief. It’s nice to get nice things, but if you sit on the Supreme Court of the United States, it is a serious problem if those gifts potentially influence – or appear to influence – your official conduct.
Perhaps the root of the problem is that the Judicial Conference Code of Conduct does not apply to Supreme Court justices. A movement is underway in Congress to address this gaping hole in our judicial ethical standards – a flaw that helps create an appearance that justice can be bought by the highest bidder. In a step to fix this flaw, Rep. Christopher Murphy (D-CT) is circulating a letter urging the House Judiciary Committee to investigate potential abuses by Justice Thomas and to consider applying the ethical code of conduct to the Supreme Court as a means to restoring the public’s faith in the integrity of the court.
Considering the concerns raised about Justice Thomas’ potential disregard of ethical boundaries, this call for an investigation is coming none too soon.
Check out an article on the subject in the Huffington Post by PFAW President Michael Keegan.
People For's President, Michael Keegan, sent the following letter today to Virginia Governor Bob McDonnell, Minnesota Governor Tim Pawlenty, Minnesota Rep. Michele Bachmann, Indiana Rep. Mike Pence, former Arkansas Governor Mike Huckabee, and former Massachusetts Governor Mitt Romney, and Delaware Senate candidate Christine O'Donnell, all of whom are scheduled to appear this weekend at the Values Voter Summit, alongside the virulently anti-Muslim and anti-gay Bryan Fischer.
I am writing to express my concern about your appearance this weekend at the upcoming Values Voter Summit. Among the participants this weekend will be Bryan Fischer of the American Family Association. We urge you to publically denounce Fischer’s record of hate speech and extremism, and reconsider appearing beside him this weekend.
People For’s RightWingWatch.org blog has tracked Fischer’s career over the past several years. His long and prolific record of hate speech and extremism includes the following recent statements. Just in the past year, Fischer has:
Demanded that no new mosques be built anywhere in America. (8/10/2010)
Argued that inbreeding has caused Muslims to be stupid and violent. (9/10/2010)
Said that Muslims should be banned from serving in the U.S. military. (11/9/2009)
Insisted that all Muslims are traitors, called for the deportation of all Muslims from the U.S. (4/10/2010)
Claimed that U.S. service members died in vain because the U.S. failed to make Iraq a Christian nation. (8/19/2010)
Said that “homosexuals should be disqualified from public office.” (8/5/2010)
Called gay adoption “a terrible, terrible, inexcusable, inhumane thing to do to children.” (8/10/2010)
Argued that we should“impose the same sanctions on those who engage in homosexual behavior as we do on those who engage in intravenous drug abuse." (2/3/2010)
Wrote: “The inescapable conclusion is that gay sex is a form of domestic terrorism.” (6/10/2010)
Said: “Hitler discovered that he could not get straight soldiers to be savage and brutal and vicious enough to carry out his orders, but that homosexual solders basically had no limits and the savagery and brutality they were willing to inflict on whomever Hitler sent them after. So he surrounded himself, virtually all of the Stormtroopers, the Brownshirts, were male homosexuals.” (5/25/2010)
Disparaged family values in the Hispanic community, saying “Also, the illegitimacy rate among Hispanic women is over 50%. I’m not sure pro-family values are as strong in the Hispanic community as Dr. Land wants to believe.” (7/23/2010)
Called the President a “fascist dictator” for taking steps to hold BP accountable for the Gulf oil spill: “And remember the President's been a fascist ... he says ‘I've been a fascist from day one. They can't blow their nose without asking permission from me, they can't clean the wax out of their ears unless they get a sign-off from me.’ That's what fascist dictators do!” (6/18/2010)
I am attaching the names of over 6,500 concerned citizens who have signed the following letter regarding your participation in the summit:
Values Voter Summit Participants:
Reasonable people can, and do, have reasonable differences of opinion. Bryan Fischer, of the American Family Association, is not a reasonable person.
By sharing a stage with Fischer at this year's Values Voter Summit, public figures acknowledge the credibility of his shameless anti-Muslim and anti-gay propaganda. Any candidate thinking seriously of running for president in 2012 should think twice about standing alongside a man who has called for the deportation of all Muslims in America; insulted Muslim servicemembers; claimed that brave Americans died in vain because Iraq was not converted to Christianity; and called gay people deviants, felons, pedophiles and terrorists. Bryan Fischer is no mainstream conservative. And neither is any person who shares a platform with him while refusing to denounce his hate-filled propaganda.
We urge you to denounce Fischer's extremism and separate yourself from his comments.
For more background on Fischer’s extreme rhetoric, please click here.
Fischer’s appearance with conservative leaders such as yourself lends his extreme hate speech credibility. We urge you to publicly denounce Fischer’s record and to think twice about sharing the stage with him.
Michael B. Keegan
President, People For the American Way
Since the Supreme Court decided earlier this year that corporations have a First Amendment right to spend however much they like to influence elections, groups have been attempting to use that decision to hack away at the core of federal and state campaign finance laws.
Last month, the Supreme Court declined to hear a challenge to the federal ban on soft money (unlimited contributions to political parties), a centerpiece of the 2002 McCain-Feingold campaign reform bill. Though that case was cut short, at least one other challenge to the law is in the works.
Now, groups at the state level are trying to use the Citizens United decision as leverage to do away with bans not only on independent expenditures by corporations, but also on corporate contributions directly to candidates’ bank accounts. 22 states, like the federal government, prohibit corporations from contributing directly to campaign committees. After Citizens United, business groups in Montana were the first out of the gates, filing suit to get rid of Montana’s 98-year old ban on both independent campaign expenditures by corporations (the spending that Citizens United allowed on the federal level) and direct corporate contributions to campaigns (which Citizens United didn’t touch).
In May, the Minnesota Chamber of Commerce convinced a federal court to strike down that state’s independent expenditures ban. Now, Minnesota business interests are following the Montanans’ lead and broadening their challenge to include the state’s ban on direct contributions:
State law now allows corporations to spend money independently of campaigns on ads supporting or opposing candidates, an arrangement that the U.S. Supreme Court approved early this year.
But the Taxpayers League of Minnesota, Minnesota Citizens Concerned for Life and Coastal Travel Enterprises seek to go beyond that ruling and allow direct contributions to candidates by corporations.
"Our clients believe ... that the First Amendment gives corporations ... the right to contribute to candidates and political parties through their general treasury funds," said Joe La Rue, an attorney for the plaintiffs, who sued this week in U.S. District Court in Minnesota.
In Citizens United, the Supreme Court clearly created a slippery slope of corporate money in politics. State-level bans on independent spending by corporations have been the first to go. Will guards against corporate-to-candidate contributions—and the very clear appearance of corruption that they create—be next
As Miranda reported back in May, the Citizens United decision mobilized its proponents in the direction of securing more rights under the First Amendment. The specific target? Soft money contributions.
In the case, RNC v. FEC, the RNC and several affiliate groups argued political parties should be allowed to raise and spend unlimited "soft" money contributions for purposes other than influencing national elections.
The RNC, the CA GOP and the San Diego Co. GOP had claimed they should be allowed to raise the money for redistricting, non-federal state elections and grassroots advocacy. A 3-judge panel in DC Circuit Court ruled unanimously against the RNC earlier this year. Only 3 members of the Supreme Court wanted to hear the case; 4 members must approve for the Court to accept a case.
The Court’s decision today not to take the case – with Scalia, Thomas and Kennedy on the other side - is a slim victory for the American people, already harmed by the harsh reality of the Roberts Court’s pro-corporation bent. We should temper our happiness, however, given the fact that a similar case is already pending in another circuit court, and pro-corporation groups are energized about its prospects.
Meanwhile, the U.S. Court of Appeals for the Fifth Circuit recently heard Cao v. FEC May 25. This case is a similar challenge to party restrictions, questioning the very low coordination limits for political parties and congressional candidates.
Republicans say they’re plotting to use any Supreme Court nomination battle to their advantage in November.
But polls show that the issue cuts strongly the other way—the American public is overwhelmingly concerned about the current Court’s pro-corporate sympathies and its failure to fully appreciate how the law affects individual Americans.
Within hours of President Obama’s announcement that he would nominate Solicitor General Elena Kagan to the Supreme Court, Illinois Senate candidate Alexi Giannoulias seized on that message in an email to supporters. Here’s a screenshot:
Giannoulias isn’t the first candidate to appeal to the public’s discomfort with the Court’s pro-corporate bent. Last month, now-Rep. Ted Deutch decisively won a special election in Florida, after running on a platform that included a Constitutional Amendment to reverse Citizens United v. FEC.
Citizens United, Ledbetter, and Exxon v. Baker have brought home the impact that the Court’s corporate leanings can have on all Americans. We’re expecting to see a lot more office-seekers raising these issues as November approaches.
The day Justice John Paul Stevens announced his retirement, Senate Republican leadership vowed to obstruct the confirmation of whoever was nominated to replace him. Today, Republican Senators who had previously praised nominee Elena Kagan’s intellect and qualifications have become strikingly less supportive.
And now we have evidence that the obstruction of Obama’s Supreme Court pick, as a way of delaying progress on policy initiatives like climate change regulation and immigration reform, has been the GOP’s explicit strategy all along.
Talking Points Memo’s Brian Beutler obtained a recording of an April 22 RNC strategy call led by right-wing activist Curt Levey:
The crux of the GOP's strategy is to use Obama's nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.
"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."
Levey acknowledged that a filibuster likely won't last--that Obama's nominee, now known to be Solicitor General Elana Kagan, will almost certainly be confirmed. But he hammered home the point to Republicans that there's value in mischaracterizing any nominee, and dragging the fight out as long as possible, whether or not Obama's choice is particularly liberal.
This is frustrating, but not surprising, from a party that has recently displayed an unparalleled mastery of the Senate’s rules for delay. If they’re willing to stall the confirmation of one of their own party’s most prominent spokespeople, why would they not draw out the confirmation process for an obviously qualified Supreme Court nominee?
Overall, two-thirds of Americans say they are comfortable with Obama selecting the nation's next justice, including nearly a third of Republicans. That is comparable with a Fox News poll conducted last May before the president chose Sonia Sotomayor to be his first nominee to the court.
The poll finds 65 percent of Americans -- 63 percent of registered voters -- comfortable with Obama making the choice. In June 2005, a Fox poll found 54 percent of registered voters comfortable with President George W. Bush choosing a replacement for the retiring Justice Sandra Day O'Connor.