Supreme Court

NY Times Analyzes the Corporate Court

As the latest example of the evolving media narrative of the Roberts Court, Sunday's New York Times had an extensive article accurately titled "Justices Offer Receptive Ear to Business Interests." The Times article discusses the successful long-term efforts of the U.S. Chamber of Commerce to get the Court to focus on the rights of Big Business, which come at the cost of the rights of consumers, workers, governments elected by the people, and anyone else who tries to hold corporate giants accountable.

Almost 40 years ago, a Virginia lawyer named Lewis F. Powell Jr. warned that the nation's free enterprise system was under attack. He urged the U.S. Chamber of Commerce to assemble "a highly competent staff of lawyers" and retain outside counsel "of national standing and reputation" to appear before the Supreme Court and advance the interests of American business.

"Under our constitutional system, especially with an activist-minded Supreme Court," he wrote, "the judiciary may be the most important instrument for social, economic and political change."

Mr. Powell ... got his wish - and never more so than with the court led by Chief Justice John G. Roberts Jr.

The Roberts Court's favoritism toward Big Business has become so blatant as to prompt the Times to commission an in-depth study analyzing Supreme Court cases going back more than half a century. The article finds that:

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. ...

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the [U.S. Chamber of Commerce's] position 74 percent of the time, and the four more liberal justices 43 percent of the time.

Unfortunately, the "social, economic, and political change" the U.S. Chamber is so actively working for involves snuffing out the rights of everyday Americans. As made clear from the amicus briefs it has filed this term, the Chamber's values include letting businesses fire family members of any employee who dares assert their rights, devastating state-level consumer protections against fraud, and severely restricting states' ability to take action against corporations' dangerous pollutants. Last term, the Chamber supported the activist Citizens United decision, which has had devastating consequences for American democracy and generated unusual criticism from former Justices O'Connor and Stevens.

When activist pro-business Justices regularly give a sympathetic ear to a national Chamber of Commerce that is hostile to basic American values, the resulting tilt in favor of Big Business is not good for our country.

PFAW

Scalia Asked to Withdraw from Speaking to Bachmann’s Far-Right Caucus

As first reported by Right Wing Watch, Justice Antonin Scalia is set to lecture about the Constitution for the opening class of Rep. Michele Bachmann’s new Constitutional Conservative Caucus. Bachmann, a favorite of Tea Party and Religious Right groups alike, hopes to promote to her peers her far-right and fringe perspective on the Constitution. For example, Bachmann bizarrely rejects the notion of “negative rights” as “infantilism,” even though negative rights are the basis of constitutionally protected non-interference, such as freedom of speech or the freedom from slavery.

But for Bachmann’s Tea Party-inspired caucus, the language and spirit of the Constitution is altered and manipulated to fit their ultraconservative outlook on the country.

On Saturday, the New York Times called on Justice Scalia to bow out from his class for Bachmann’s group in order to maintain the independence of the Supreme Court and to avoid lending credence to the Tea Party’s radical approach to the Constitution:

The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

There is nothing like the Tea Party on the left, but if there were and one of the more liberal justices accepted a similar invitation from it, that would be just as bad. This is not about who appointed the justice or which way the justice votes. Independence and the perception of being independent are essential for every justice.



By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.

Just as Bachmann’s caucus won’t include balanced perspectives on the Constitution, there is nothing apolitical about Bachmann’s caucus either. Other lecturers for Bachmann’s group include right wing Fox News commentators Sean Hannity and Andrew Napolitano. She is also organizing a lecture by pseudo-historian David Barton, a Republican Party activist who has no training or expertise in history but publicizes the belief that the Framers intended to create a Constitution that reflected Biblical law.

Bachmann recently floated conspiracy theories about the Census and AmeriCorps, which she likened to reeducation camps, and demanded investigations of “people in Congress and find out, are they pro-America or anti-America?” But with increased influence in the House GOP and help from Justice Scalia, Bachmann and her radical ideas will have more power as Republicans hold the majority in the House next session.

PFAW

Future of Public Education at Risk in Florida

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

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

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

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

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

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

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

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White House: Judicial Nominations are a Priority for Lame Duck

White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.

People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:

As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.

Of these nominees:

  • 21 (55%) have been nominated to fill emergency slots.
  • 29(76%) are women or people of color.
  • 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.

There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)

Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:

  • Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
  • Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
  • U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
  • And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.

President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.

 

PFAW

Chamber of Commerce Targets Workers' Families

Miriam Regalado and her fiancé Eric Thompson both worked at North American Stainless. In 2003, after Regalado filed a sex discrimination complaint against the company, it fired her fiancé, Thompson, in retaliation. The Supreme Court is now considering whether Title VII gives Thompson the right to sue the company. While the parties disagree on whether Thompson can sue, they agree that Regalado, the one who was being retaliated against, could sue the company for firing her fiancé.

As noted in a previous blog post, the U.S. Chamber of Commerce filed an amicus brief taking a far more extreme position: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. A company is completely within its rights to intimidate its workers by firing the family members of anyone who dares assert their rights under Title VII.

Unfortunately, it turns out that the Chamber is not alone. SCOTUSBlog reports that during oral arguments, Justice Scalia actually chided the company's attorney for acknowledging that a company can't retaliate against an employee for exercising her Title VII rights by firing her fiancé.

Congress specifically wrote a prohibition against retaliation into Title VII to ensure that workers would not be bullied or threatened into surrendering the rights guaranteed by that law. Congress recognized that without this protection, the rest of the statute would be meaningless. The Supreme Court has previously made clear that the primary purpose of the anti-retaliation provision is "[m]aintaining unfettered access to statutory remedial mechanisms."

Perhaps for as long as there have been families, bullies ranging from neighborhood thugs to totalitarian dictators have used the threat of retaliation against loved ones to keep people cowering in fear, afraid to exercise their basic rights. It is hard to imagine a more effective method of neutering Title VII - and keeping American workers too intimidated to exercise their rights.

It is equally hard to imagine that this is not exactly the sort of retaliation that Congress set out to prevent.

No respectable person should support a company's right to keep its workers too terrified to complain when they are illegally discriminated against. Yet that is the position of the corporate titans who run the U.S. Chamber of Commerce. This should give local Chambers another reason to separate themselves from the national organization.

PFAW

Evolving Media Narrative of the Roberts Court

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

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

The Los Angeles Times wrote:

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

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

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

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

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

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

Time wrote:

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

As Jeffrey Toobin observed in the New Yorker this week:

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

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

PFAW

Policy Questions at the Supreme Court

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

The Washington Post reports:

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

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

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

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

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

This is exactly what we expect judges to do.

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

PFAW

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

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

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

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

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

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

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

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

PFAW

Arizona, Immigration, and the Supreme Court

Stepping into the increasingly volatile and contentious debate over immigration, the Supreme Court will hear oral arguments tomorrow on how far the state of Arizona can go to prevent employers from hiring undocumented aliens. The case is Chamber of Commerce v. Whiting.

The case involves a 2007 Arizona law that punishes employers who knowingly hire undocumented aliens by suspending or revoking most of their state licenses. The Chamber of Commerce argues that the law is preempted by the federal Immigration Reform and Control Act of 1986 (IRCA).

IRCA prohibits the hiring of undocumented aliens and sets forth procedures employers must follow before hiring someone and the sanctions they will incur for violating the law. Most importantly, IRCA expressly preempts local and state laws creating sanctions (other than through licensing and similar laws).

It is the "licensing and similar laws" clause that is crucial in this case, because the draconian punishment set forth in the Arizona law is the suspension and revocation of "licenses," a term defined so broadly in the statute that it even includes a company's articles of incorporation.

The Court will also decide whether Arizona can lawfully require employers in the state to use a federally-administered electronic employment verification database called E-Verify - a database that federal law expressly makes voluntary.

Agreeing with the Chamber that the Arizona law is unconstitutional are the Obama Administration and an array of civil rights groups (such as the National Council of La Raza and the Anti-Defamation League).

When the Court issues its ruling next year, it may give clues on how it might rule on Arizona's more recent "your papers please" law, which has yet to work its way up to the Court.

PFAW

Many Opportunities for Corporations at the Court This Term

Now seems as good a time as any to take a brief look at just how many cases are before the Supreme Court this term that threaten to take away people's right to hold giant corporations accountable. The Court is being asked to:

  • Empower retaliation against employees who file discrimination complaints;
  • Prohibit a class-action discrimination lawsuit against Wal-Mart on behalf of its 1.5 million women employees;
  • Bar states from using federal nuisance law to hold power companies accountable for the climate damage they are causing;
  • Make it harder for employees to hold their employers accountable for providing inaccurate summaries of major changes in their pensions plans;
  • Demolish class-action suits and cripple state consumer protection laws through corporate-imposed arbitration agreements;
  • Protect pharmaceutical corporations from lawsuits from those who are injured by unsafe child vaccines; and
  • Recognize "personal privacy rights" of corporations.

There are other cases, as well, and their number will increase as the Court continues to accept new cases. It makes one realize just how big an impact the Supreme Court has on all our lives.

PFAW

The Case of the Fired Fiancé

Tuesday morning, the Supreme Court will hear oral arguments in Thompson v. North American Stainless, an employment retaliation case that threatens to keep illegally fired employees from holding accountable the companies that fire them.

In 2003, North American Stainless fired Eric Thompson in retaliation against his fiancée, who also worked for the company and had just filed a sex discrimination complaint against it. Such retaliation against an employee seeking to vindicate her rights under Title VII is illegal. So Thompson sued.

Two separate provisions of Title VII are relevant here:

  • First, to remove employees' fear of retaliation, Section 704(a) states that an employer may not "discriminate against any of his employees ... because he has ... made a charge ... under this title."
  • Second, in a provision relating to employment discrimination overall and not just retaliation, Section 706(f )(1) authorizes a person aggrieved by an unlawful employment action to file suit to enforce Title VII.

The firing was designed to retaliate against an employee seeking to vindicate her rights and was therefore clearly an unlawful employment action. Thompson, who lost his job, was undoubtedly aggrieved by this unlawful employment action. There shouldn't be any question that Congress gave him the right to sue.

Yet the Sixth Circuit Court of Appeals, dominated by nominees of George W. Bush, held otherwise. Ten judges (nine of whom were nominated by Republican presidents, a full seven by George W. Bush) held that Thompson cannot sue because he wasn't the person who was being retaliated against. North American Stainless is asking the Supreme Court to uphold that holding.

The U.S. Chamber of Commerce has filed an amicus brief that is even more extreme: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. In the frightening world the Chamber wants us to live in, firing a complaining employee's fiancé, spouse, daughter, etc. is not at all considered unlawful retaliation.

As the Obama Administration points out in its amicus brief supporting the fired employee, the Sixth Circuit opinion ignores the plain language of Title VII. In addition, if upheld, it will have a devastating real-world impact. Most lay people unassisted by lawyers would naturally assume that the person who was fired - not the one who is still employed - should be the one to sue. If the Supreme Court bars suits by the most obvious plaintiffs, the ones who have suffered the most, then many injured parties will in the real world be left without a remedy.

PFAW

Wal-Mart Class Action at Issue

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

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

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

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

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

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

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

PFAW

Court Accepts Global Warming Nuisance Case

This morning, the Supreme Court agreed to hear a case affecting whether and how corporate polluters can be held 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. This is federal common law, not tied to any specific federal statutes or regulations. The Second Circuit ruled that the lawsuit could proceed on this theory, and the power companies appealed.

According to the Los Angeles Times:

The global warming case will decide whether judges and courts can put limits on carbon emissions on the theory that this pollution is a public nuisance. Eight states, including New York, California and Connecticut, joined with environmentalists and launched a lawsuit against the power producers in the Midwest, arguing that their coal-fired plants were contributing to climate change.

Environmentalists said they took the issue to court because Congress was not likely to take up the climate change issue and set limits on greenhouse gasses. They won a significant preliminary victory when the U.S. appeals court in New York cleared the suit to proceed.

But the power industry, the U.S. Chamber of Commerce and the Obama administration joined in urging the high court to stop the lawsuit. They argue that the global warming issue and limits on carbon emissions should be decided by Congress and the White House, not by judges acting on lawsuits.

Justice Sotomayor has recused herself, since at the time she was nominated to the Supreme Court, she was a member of the Second Circuit panel considering this case.

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Appeals Court Starts Hearing Prop 8 Case Today

The Ninth Circuit Court of Appeals has just begun hearing an appeal of the decision that struck down California’s gay marriage ban. The court will be considering the legal arguments laid out by Judge Vaughn Walker in his decision to strike down Prop 8 in August. As it does so, the Court will rely on the substantial factual record that Judge Walker gathered in the original trial—much of which demolishes the “facts” presented by anti-gay activists.

You can watch the proceedings live here:

...and follow the Constitutional Accountability Center’s live blog at the Huffington Post.

Whatever the Ninth Circuit decides, the case is likely to end up before the Supreme Court. Back in August, People For’s Michael Keegan wrote about the stakes involved for the Right:

For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?

Of course, basic human rights should never be decided by majority vote--they are guaranteed by the Constitution. But, on the issue of gay rights, the Right Wing now finds itself up against both the Constitution and the will of a steadily increasing majority.


 

 

PFAW

Johnson Picks Corporate Lobbyist as Chief of Staff

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

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

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

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

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

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

Via The Awl
 

PFAW

New Details on the Money Behind American Crossroads

A new Center for Responsive Politics report uncovers some more details about the money behind American Crossroads, one of the most powerful right-wing spenders in the 2010 elections.

The Karl-Rove founded group acted as a “Shadow RNC” in this year’s elections, collecting and distributing money from wealthy donors who were shying away from the embattled party committee. But it also had a brand new leg up: the Supreme Court’s decision earlier this year to allow corporations to spend unlimited amounts of money on influencing elections. A full third of American Crossroad’s $28 million in funding came from corporate donors, CRP found. And a big chunk of American Crossroad’s remaining cash—54%--came from just four wealthy donors.

And that’s just the branch of American Crossroads whose funding we know about. The group’s sister organization, Crossroads GPS, spent $17 million on elections, and according to CRP,” saw its preferred candidates win in 71 percent of the races in which it invested money.” We can’t know for sure about the sources of GPS’s funding, since it doesn’t have to report its activities to the Federal Election Commission, but we do know that it received significant funding from Wall Street bankers. Once source told Politico in October that “most of the GOP corporate money is believed to be moving through [Crossroads GPS], so that it isn’t disclosed publicly.”

Rove himself has said that the Citizens United decision made the success of American Crossroads and American Crossroads GPS possible. In turn, his groups helped to define what political spending looks like in the post-Citizens United era, where corporations and a few wealthy individuals have enormous power over elections—but rarely have to own up to it.


 UPDATE: Mother Jones has more on the Big Four donors to Crossroads.

PFAW

At the Supreme Court, a New Threat to Workers

Tuesday morning, with Justice Sotomayor recused, the Supreme Court will hear oral arguments in CIGNA v. Amara, a case that will test the Court's pro-corporate leanings, in this case, whether it will become harder for employees to hold their employers accountable for providing inaccurate summaries of major changes in their pensions plans.

Cigna has 27,000 employees participating in the pension plan at issue. Several years ago, Cigna made a number of significant changes to its plan. As required by federal law (ERISA, or the Employee Retirement Income Security Act), the company gave its employees a summary of the major changes written in a way that the average plan participant would understand.

Unfortunately for the 27,000 participants in Cigna's pension system, Cigna gave them a misleading summary, one that did not reveal some of the financial disadvantages of the plan. In a class action suit against the company, a federal district court found that Cigna had deliberately misled its employees in order to avoid a backlash, one that might have led the company to roll back some of the changes. Had employees known the truth, they could have protested, they could have sued to stop the changes, or they could have begun looking for work elsewhere with a better retirement plan. In a decision affirmed on appeal, the court concluded that since the class of plaintiffs suffered "likely harm" as a result of the misleading summary, Cigna has to give them some measure of recovered benefits.

So Cigna has turned to the Roberts Court for a bailout.

The corporation argues that employees need to do more than show "likely harm" to recover benefits. Instead, according to Cigna, the standard should be "detrimental reliance:" Each of the up to 27,000 plaintiffs in this class action suit should be required to convince a court that they (1) actually read the summary document; (2) had no knowledge of plan terms contradicting the summary; and (3) relied on the summary to make a detrimental employment or retirement decision that he would not otherwise have made (e.g., prove that they would have moved to a company with better retirement benefits but for the misleading summary).

That's an extremely high hurdle for each individual. How likely is it that employees will be able to prove that they read a summary document that they may have received years ago? How does it help employees who relied on their coworkers to explain the summary document to them? How will employees prove that if they had known the truth about the pension plan, they would have challenged their employer to change it or, alternatively, would have found a new employer with a better pension package?

In addition, forcing the employees to prove their individual cases rather than act as a class would be an administrative nightmare for a court, and a boon to large corporations with thousands of employees.

The statutorily mandated summary document is the central mechanism for achieving one of ERISA's fundamental goals - ensuring that participants accurately understand their rights and obligations under the plan. Cigna's "detrimental reliance" standard threatens to frustrate that goal, taking power from the employees who Congress sought to protect and handing it to the corporations.

PFAW

Groundswell of Support for Overturning 'Citizens United' Continues

The latest polling on the Citizens United decision reflects the growing public support for overturning the Roberts Court’s ruling. According to a new Public Policy Polling analysis, 46% of Americans agreed that “Congress should consider drastic measures such as a constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections,” while 36% disagreed and one-in-five had not formed an opinion.

A large majority of Americans across party lines disagree with the Citizens United decision, according to poll after poll after poll after poll. Members of both the House and Senate have already introduced constitutional amendments to overturn the ruling and reaffirm Congress’s right to limit corporate spending in elections. As Rep. Donna Edwards (D-MD), the chief sponsor of one amendment in the House, told the Huffington Post:

A lot of progressives are not accustomed to using the mechanisms of the Constitution. The right has used-- has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we're not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.

People For the American Way and Public Citizen joined together this election year to support candidates who pledged to back a Constitutional Amendment overturning Citizens United, and are continuing the fight for both constitutional and legislative remedies by advancing bills such as the DISCLOSE Act. Americans are increasingly speaking out against the Court’s far-reaching pro-corporate bent, and calling on Congress to make sure that corporations don’t dominate the political system and drown out the voices of individuals.

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AT&T's Political Pitch to the Roberts Court

 Earlier this month, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, where the cell phone company is asking the Supreme Court to demolish class-action suits and cripple state consumer protection laws. This case threatens to be one of many where the Roberts Court bends the law in order to give even more power to already-powerful corporations.

In the Huffington Post, David Arkush of Public Citizen has an interesting observation about the arguments AT&T is making to sway the Roberts Court: They are nakedly aimed at the conservative Justices' political ideology, not any conception of the law. After noting how eager the Roberts Court has been to overrule decades of once-settled law, Arkush writes:

[W]hen the court is so willing to remake the law in a broad range of areas, individual political appeals become much more important. A devastating piece of evidence on this point came [when] AT&T's lawyers made this argument:

"Accordingly, California's professed belief that class actions are necessary for deterrence boils down to the proposition that deterrence is served by imposing on all businesses -- without regard to culpability -- the massive costs of discovery that typically precede a class certification motion and the inevitable multimillion dollar fee award extracted by the class action attorneys as the price of peace. In other words, because class actions always cost vast amounts to defend and eventually settle with a large transfer of wealth from the defendant to the class action lawyers no matter how guiltless the defendant may be, all businesses will be deterred from engaging in misconduct by the very existence of this externality producing procedure." 

Note that this is a pure policy argument, not a legal argument. More important, it's politically charged hyperbole. ...

AT&T's lawyers are not hacks. They are some of the nation's best Supreme Court litigators. It is a devastating indictment of the Roberts court that these lawyers think repeating myths about greedy trial lawyers is an effective way to argue. They must think the court is brazenly activist and political.

 Hmm, I wonder what gave them that idea?

 

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Editorial Boards From Across the Country Call on Senate to Pass DISCLOSE Act

Even though Republican obstructionism has upheld passage of the DISCLOSE Act in the US Senate twice before, the need to pass the bill has grown more urgent following the midterm election which experienced an onslaught of campaign ads funded by secret money from shadowy groups. The DISCLOSE Act will ensure that organizations who run ads to influence elections reveal to the public their donors, as under current law organizations can hide the identities of all of their donors, damaging transparency and the public’s right to know. In the last vote, 59 US Senators supported bringing the DISCLOSE Act to the Floor for an up-or-down vote, but the Republican minority blocked the vote from taking place.

Newspaper editorial boards from around the US are speaking out, calling for the Senate to act on the DISCLOSE Act:

Miami Herald:

Regardless of which candidates win, voters lose when they are left in the dark about who is signing the checks to pay for the commercials -- mostly, attack ads -- that dominate political campaigns. Disclosure enables voters to make informed decisions about the message and the candidate. Secrecy leaves them clueless.

The remedy lies in the Disclose Act, which the House has passed and is pending in the Senate. It would expand disclosure requirements to help the public know more about the rivers of money pouring into campaigns. Thus far, it has failed to attract any Republican support, but sponsors say they are willing to drop some nonessential provisions -- prohibiting government contractors from making donations, for example -- to attract at least one or two Republicans.

This bill should be at the top of Congress' agenda in the lame-duck session that begins later this month. It's too late to do anything about this year's elections, but it can remove the shield of secrecy before the next round of races in 2012. A failure to act benefits only those who thrive in political darkness.

Charleston Gazette:

The Supreme Court breakthrough even lets businesses hide their identity as they funnel cash to front committees that buy smear ads. To halt this concealment, Democrats in Congress drafted the Disclose Act, which would force big donors out into the daylight. They still could spend freely to buy elections, but they could no longer hide from the public.

The House passed the Disclose Act, but Democrats in the Senate twice could not overcome Republican opposition. "Not a single Senate Republican and only two in the House have been willing to vote for the Disclose Act," the San Jose Mercury News noted.

The Senate is expected to try again after the election -- before more winning Republican senators take their seats. We hope the bill finally passes. It's disgusting that firms now can spend millions of company money to sway elections, under the silly pretext that such spending is free speech. At least, they shouldn't be allowed to hide while they do it.

Kansas City Star:

One solution being offered is the DISCLOSE Act (Democracy Is Strengthened by Casting Light on Spending in Elections), which passed the U.S. House this summer, but not surprisingly stalled in the Senate.

The act, simply summarized, seeks to force those pumping money into campaigns to take personal responsibility for their actions and not hide behind front organizations.

It must be passed. Specifically, corporations, labor unions and nonprofits would have to disclose their donors, and their leaders would have to appear on their television ads noting "I approve of this message."

Philadelphia Daily News:

The DISCLOSE Act, passed by the House of Representatives last year, would require, among other things, that political donors be publicly identified. The bill has majority support in the U.S. Senate, but twice has been blocked when not one Republican senator would vote to break a filibuster - even senators who have supported campaign-finance reform in the past.

There's one last chance to impose a minimum check on the Wild West environment that campaigns have become: let the disclosure provision of the DISCLOSE Act come to a vote in the "lame duck" session of the Senate that begins next week.
PFAW