Supreme Court

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.

PFAW

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.

PFAW

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?

 

PFAW

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

Secret Money in 2010 Election Doubled All Outside Group Spending in Last Midterm

The rapid growth and increased prominence of outside groups attempting to influence voters in the 2010 midterm election was apparent to all Americans who saw the deluge of campaign spending and TV ads this year. But the matter of who actually financed such groups is far less clear, as the Supreme Court’s Citizens United decision made it much easier for groups to raise secret money from individuals and corporations to advance their political agendas. A new report by Public Citizen, Disclosure Eclipse, details how 2010 became a watershed moment for groups who do not publicly disclose the sources of their funding:

Of 308 outside groups, excluding party committees, that reported spending money on this year’s elections, just 116 (53.9 percent) provided any information about the sources of their funding, according to Public Citizen’s analysis of Federal Election Commission (FEC) data.

Of the 10 top spending groups, only three provided information about their founders. These top 10 groups – which collectively spent $138.5 million, equal to 52 percent of the $266.4 million spent by all outside groups in the 2010 to influence this years election – disclosed the sources of only 27.1 percent, of the money they spent.

Groups not disclosing any information about their funders collectively spent $135.6 million to influence this year’s elections. That was almost exactly double the $68.9 million grand total spent by outside groups in 2006, the most recent midterm election cycle.

Although the Supreme Court’s opinion in Citizens United lauded the virtues of disclosure, the effect that decision and the court’s earlier retrenchment of campaign finance regulations in 2007 has been less disclosure.



Such disclosure, [Justice] Kennedy wrote, would enable citizens to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

But, even for independent expenditures, no provision requires the type of disclosure that Kennedy discussed. The plain rules of [Bipartisan Campaign Reform Act] require such disclosures, but the FEC has gutted them.

In 2010, as mentioned above, only 70 percent of 30 top spending groups provided any information about their funding sources. These groups disclosed only 55.4 percent of their independent expenditures.

People For the American Way’s Citizens Blindsided: Secret Corporate Money in the 2010 Elections and America’s New Shadow Democracy report shows how undisclosed money is flowing into groups with a specifically pro-corporate political agenda. Members of Congress who supported measures to reform Wall Street and the health insurance system found themselves in the crosshairs of shadowy organizations which did not reveal their donors to the public. As this Public Citizen analysis demonstrates, Supreme Court rulings and the resulting FEC actions dismantled campaign finance rules to the point where secret money took off in the 2010 election, mostly to the benefit of pro-corporate politicians and causes.

 

PFAW

Former Bush Lawyer: Stop Partisan Bickering and Confirm Liu

The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler. 

This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”

Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:

In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.

Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.

This does not mean the Senators should vote "yes". They can vote "no". But they should vote.

Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.

Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
 

PFAW

Paycheck Fairness Act alert – two days left

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

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

November 15, 2010

United States Senate
Washington, DC 20510

Dear Senator:

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

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

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

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

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

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

Sincerely,

Michael B. Keegan
President

Marge Baker
Executive Vice President for Policy and Program

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

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

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

PFAW

Supreme Court Lets DADT Enforcement Continue

The Supreme Court today declined to reverse a Ninth Circuit Court of Appeals ruling that let the military continue to discriminate against gay and lesbian servicemembers while the legal battle against Don’t Ask Don’t Tell continues. The ban on openly gay Americans serving in the military was stopped temporarily after a federal judge in California ruled the policy unconstitutional. The Ninth Circuit demanded that enforcement continue while the case makes its way through the court system.

The high court’s decision makes it even more urgent for Congress to repeal Don’t Ask, Don’t Tell during this years's lame duck session. With a strong Republican majority in the House next year—including many new members who are not at all open to LGBT equality—there will be little hope for legislative repeal.

In the meantime, the vast majority of Americans, across party lines, continue to oppose Don’t Ask Don’t Tell. One of these Americans is Cindy McCain, whose husband John McCain is the leading the Senate effort to keep the discriminatory policy in place. Watch the video Cindy McCain made for the anti-bullying group NO H8, in which she slams Dont Ask Dont Tell: "Our government treats the LGBT community like second class citizens, why shouldn't [bullies]?"
 

PFAW

Justice Alito Confronted at GOP-Related Fundraiser

ThinkProgress’s Lee Fang went out to a high-profile, high-price fundraiser for the right-wing magazine the American Spectator last night, and confronted one of the gala’s distinguished guests: Supreme Court Justice Samuel Alito.

The Spectator is more than merely an ideological outlet. Spectator publisher Al Regnery helps lead a secretive group of conservatives called the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans (the Conservative Action Project helped campaign against Democrat Bill Owens in NY-23), and block President Obama’s judicial appointments. The Spectator’s gala last night, with ticket prices/sponsorship levels ranging from $250 to $25,000, featured prominent Republicans like RNC chairman Michael Steele, hedge fund billionaire Paul Singer (a major donor to Republican campaign committees and attack ad groups), and U.S. Chamber of Commerce board member and former Allied Capital CEO William Walton. Among the attendees toasting Rep. Michele Bachmann (R-MN), the keynote speaker for the event, was Supreme Court Justice Sam Alito.

It’s not the first time Alito has attended the Spectator dinner. In 2008, Alito headlined the Spectator’s annual gala, helping to raise tens of thousands of dollars for the political magazine. According to Jay Homnick, a conservative who attended the 2008 Spectator gala, Alito spent much of his speech ripping then Vice President-elect Joe Biden as a serial plagiarizer.

As Alito entered the event last night, I approached the Justice and asked him why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, given Alito’s position on the court. Alito appeared baffled, and replied, “it’s not important that I’m here.” “But,” I said, “you also helped headline this same event two years ago, obviously helping to raise political money as the keynote.” Alito replied curtly, “it’s not important,” before walking away from me.

This is hardly the first time that Justices on the Court’s far-right majority have been caught in ethically questionable hobnobbing with GOP political figures. Last month, it was reported that Justices Scalia and Thomas had attended a meeting with GOP officials arranged by the Tea Party-funding billionaire Koch brothers. The Huffington Post’s Sam Stein discussed the ethical implications of the Justices’ attendance:

"There is nothing to prevent Supreme Court justices from hanging out with people who have political philosophies," said Steven Lubet, a professor of law at Northwestern University who teaches courses on Legal Ethics.

But the Koch event appears more political than, say, the Aspen Ideas festival. In its own invitation, it was described as a "twice a year" gathering "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." In addition, it's not entirely clear what the two Justices did at the Koch event. A copy of the invitation that served as the basis for the Times's report was posted by the liberal blog Think Progress. It provided no additional clues. A call to the Supreme Court and an email to a Koch Industries spokesperson meanwhile were not immediately returned.

What complicates the report, as Gillers notes, is that the Supreme Court, very recently, handed down a major decision on campaign finance law that Koch Industries quickly utilized. Citizens United overturned existing law by ruling that corporations could spend unlimited amounts of money on federal elections. Koch has always been an active political and philanthropic giver. And its checks have been sent to Democrats as well as Republicans (though weighted more heavily to the latter). This cycle, however, the company has become one of the premier bankrollers of conservative causes, and earned the enmity of Democrats for doing so.

Perhaps what’s even more troubling than Supreme Court justices’ participation in overtly political strategizing and fundraising events is that they don’t seem to see why anyone would find their participation problematic. When Alito told Fang, “It’s not important that I’m here,” he probably believed what he was saying. From someone who exercises judgment for a living, that’s downright baffling.

Maybe the problem with the Corporate Court is not that they’ve allowed their views to be swayed by right-wing and corporate interests…but that they’ve never seen those interests as anything outside of the mainstream.
 

PFAW

Supreme Court Considers Class Action Ban

Corporate interests already exercise an inordinate level of control over Americans' daily lives. This morning, in AT&T Mobility v. Concepcion, the Supreme Court heard oral arguments in a case that threatens to give yet another advantage to powerful corporations over individual Americans. AT&T is essentially asking the Court to take a wrecking ball to state consumer protection laws.

At issue is whether states have the right to protect consumers from contracts that are so unfair as to be unconscionable - where one party has so much bargaining power over the other that the weaker one has little choice but to agree to highly disadvantageous terms.

This case started when AT&T offered phone purchasers a "free" second phone, then charged the consumers for the taxes on the undiscounted price of the "free" phone. AT&T allegedly pulled this scam on thousands of its customers. One of its victims, the Concepcions, brought a class action suit against AT&T. However, AT&T had a service contract where consumers had to agree to resolve any future claims against the cell phone company through arbitration, rather than the courts. In addition, customers had to agree not to participate in any class action against AT&T. So AT&T asked the court to enforce the agreement it had imposed upon the Concepcions by throwing out the class action suit and forcing them into arbitration, one lone family against AT&T without the protections of courts of law or neutral judges.

However, the court denied AT&T's motion, determining that the "no class action" contractual provision was unconscionable under California law and, therefore, not enforceable. Moreover, the court rejected AT&T's claim that the Federal Arbitration Act preempts state law in this case, making the contract fully enforceable against the Concepcions. (The Federal Arbitration Act generally encourages courts to compel arbitration in accordance with the terms of arbitration agreements.) The Ninth Circuit upheld the lower court decision. However, hoping to get a different result from the corporate-friendly Roberts Court, AT&T appealed.

As countless Americans can attest, it is not at all uncommon for a giant telecommunications service provider to provide extremely complex monthly bills that are nearly impossible for the average person to understand. It is certainly not unheard of for such bills to hide relatively small charges for services never ordered, or mysterious taxes or fees that the company should not be charging. Unfortunately, the vast majority of consumers who are cheated in these situations don't even realize it. Moreover, because the amounts at issue are relatively little, there is little incentive for consumers to undertake the significant expenses of recovering their loss. Even when the company pays out to the tiny percentage of defrauded customers who go to the trouble to engage in lone arbitration against the company, the overall scheme remains profitable.

Class actions are a tool that allows the entire universe of cheated consumers to recoup their losses, making possible a potentially significant financial loss to the company that sets out to defraud its customers. If the Supreme Court rules for AT&T, it will devastate state-level consumer protections and essentially grant a permission slip for rampant corporate fraud against consumers.

As the Alliance For Justice points out in its excellent analysis of this case, it is not only consumer protections that are at risk should AT&T win this case. Class action suits have often been the only way for employees experiencing illegal discrimination to contest it without spending vast amounts of money and risking retaliation. Depending on how the Roberts Court rules, it may enable employers to easily cut off this avenue of anti-discrimination enforcement by simply refusing to hire anyone who does not agree to resolve future conflicts through arbitration, with a ban on class action.

As described in People For the American Way Foundation’s Rise of the Corporate Court report, the Roberts Court has not been shy in twisting the law in order to rule in favor of corporations and against average Americans. AT&T Mobility v. Concepcion may turn out to be another gift of power to the already-powerful.

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Behind The Republican Money Web

Yesterday’s vote does not mean the end for the many Super PACs and shadowy political organizations that have emerged this election season. By raising hundreds of millions of dollars from individuals and corporations, often without having to disclose their sources of funding, these groups are able to maintain their political apparatus and prepare for the 2012 election. American Crossroads, the Karl Rove-linked Super PAC, is already crafting its role for the next election. Mike Duncan, the former head of the Republican National Committee and Chair of American Crossroads, told the New York Times, “We’ve planted the flag for permanence, and we believe that we will play a major role for 2012.”

Back in September, Time magazine discussed how pro-GOP groups such as American Crossroads and the American Action Network were working with Mississippi Governor Haley Barbour, the former RNC chief and current head of the Republican Governors Association. Republican notables and fundraisers “first convened at Karl Rove’s home,” and became nicknamed “the Weaver Terrace group, named for the Washington street on which Rove lives.” American Crossroads and its sister group Crossroads GPS, which does not disclose its donors, spent over $38 million combined to attack Democrats, and the American Action Network spent close to $20 million this year.

Now with the election over, Politico reveals that pro-GOP groups, the US Chamber of Commerce, and the National Republican Congressional Committee (an official Republican Party wing) were intensely coordinating their political efforts. Other Weaver Terrace group members, such as the 60 Plus Association and the American Future Fund, spent tens of millions of dollars against Democrats, but the US Chamber of Commerce and the NRCC made even bigger expenditures, spending $31.7 million and $44.5 million, respectively. As Jeanne Cummings of Politico described how “coordinated attacks” by Weaver Terrace group members “turned political campaigns largely into contests between business-backed, GOP outside groups and the Democratic incumbents.” Pro-GOP outside groups spent $187 million in 2010, more than double their pro-Democratic counterparts, and Cummings reveals how the organizations collaborated in order to maximize their impact:

The groups – including familiar names like the U.S. Chamber of Commerce and American Crossroads – shared their target lists and TV-time data to ensure vulnerable Democrats got the full brunt of GOP spending.

Republican groups had never coordinated like this before, participants said, and backed by millions in corporate cash and contributions by secret donors, they were able to wield outsized influence on the results Tuesday night. The joint efforts were designed to spread the damage to as many of the majority Democrats as possible, without wasting money by doubling-up in races where others were already playing.

The National Republican Congressional Committee, which could not legally coordinate with the outside groups, even took the extraordinary step of publicly revealing its own ad buy strategy.



The Chamber, which set aside $75 million in undisclosed corporate donations for the political season, is listed by Center for Responsive Politics as the biggest of independent players, investing nearly $33 million in radio, television and direct mail advertising alone.

Directly behind the Chamber on the Center’s outside group ranking is the coalition of groups formed by Rove and Gillespie. They are: American Action Network, which spent $26 million; American Crossroads, which invested $21 million, and Crossroads Grassroots Policy Strategies, which sank $17 million into ads and turnout communications in a plan to obliterate the Democrats’ Senate and House majorities.

Although donors to the Crossroads affiliates are largely unknown, the founders made no secret of the fact that they intended to take advantage of the Supreme Court ruling and tap into the vast resources of corporate America to raise more than $50 million help Republicans retake the Congress.

While that sum alone was enough to make Democrats’ nervous, the Crossroads founders also set out a more ambitious goal: To bring together the disparate new and old GOP political players so they could coordinate their efforts and maximize the damage on the political battlefield.

Cummings also shows how this plan worked out over the airways in competitive congressional districts:

In Pennsylvania, the Republican groups called in multiple players to bombard a half-dozen House Democrats, including some facing significantly underfunded Republican opponents. In the quest to oust Democrat Chris Carney, 60 Plus and the Chamber combined to spend about $1 million. The 60 Plus Association teamed up with the Center for Individual Freedom, another group that doesn’t disclose donors, to shell incumbent Democrat Rep. Paul Kanjorski with more than $600,000 worth of ads.

The close collaboration of pro-corporate groups only increases the need for greater transparency in the political process. Americans this election have seen dozens if not hundreds of ads and received substantial amounts of direct mail and phone calls from groups who reveal little information about themselves and do not have to disclose their sources of funding. Voters deserve the right to know who is working towards the election or defeat certain candidates for office, and overwhelmingly support disclosure laws. As such organizations creating new partnerships and intensifying their coordination, Congress needs to pass the DISCLOSE Act to allow the public to know who is behind these outside groups.

 

 

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Sheldon Whitehouse Analyzes "Judicial Activism"

Senator Sheldon Whitehouse has authored a thoughtful piece in the National Law Journal, one that makes an important contribution to our national dialogue on the role of the Supreme Court in Americans' lives. This is a must-read analysis of "judicial activism" - what it means, and how to identify it.

For years, using propaganda like "activist courts" and "legislating from the bench," the Right has demagogued against judges who protect basic American values like church-state separation, equal rights, freedom of speech, and the right to privacy. But the Roberts Court has made clear that the Right doesn't believe their own propaganda about "judicial activism."

Focusing attention on the real meaning of “judicial activism,” rather than simply using the term as an epithet to denigrate decisions one disagrees with, Sen. Whitehouse identifies five key characteristics - the "red flags"- that unmistakably signal judicial activism:

First, an activist court would be less likely to respect the judgments of the American people as expressed through state and federal legislation. ...

Second, an activist court would chafe at unwelcome prior precedents of the court. ...

Third, an activist court, facing the perennial choice between securing a broad consensus and allowing a bare majority to carry the day, would go down the path that allowed it to reach farther in the ideologically satisfactory direction. As a result, an activist court would likely render 5-4 decisions rather than strive to find broader common ground across the court. ...

Fourth, a discernible pattern of results would likely emerge: Whether conservative or liberal, an activist court would issue decisions consistent with its ideological preferences. ...

Fifth, an activist court might be prepared to violate rules and tenets of appellate decision-making that have long guided courts of final appeal. ...

Sen. Whitehouse then analyzes the jurisprudence of the conservative bloc on the Supreme Court and demonstrates, step by step, that it raises all five of the red flags of "judicial activism." His objective analysis shows that the conservative justices who are praised by the right wing exemplify the judicial activism that the right claims to oppose.

The centerpiece of a generation’s worth of right-wing propaganda on the courts crumbles.

The article finishes on a hopeful note:

"Judicial activism" is often in the eye of the beholder. If, as I have suggested here, we can identify red flags for judicial activism, the conservative bloc on the current Supreme Court is flying all of those flags. Let's hope that [the 2010-2011] term sees a renewal of the best traditions of the Court, not merely the imposition on our Republic of the ideological or political will of a determined, but bare, majority of the justices.

Indeed, let us hope.

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3 Reasons to Vote Tuesday

There are many reasons why it is important to vote tomorrow. Here are three of them:

  1. Because you care about a government that cares about people. Take a look at our Rogues’ Gallery of Right-Wing Senate candidates. A coalition of extreme far-right candidates, led by Senator Jim DeMint, want to push a radical agenda that will chip away at individual freedoms while making life even tougher for middle class and working class Americans. These candidates, backed by corporate interests, have plenty of allies running for the House and for statehouses throughout the country. If they’re in charge, they won’t bring progress to a standstill, they’ll start rolling it back.
  2. Because you’re a human being. The Supreme Court ruled this year that corporations have “free speech” rights to spend money to influence elections. Exxon and BP, Goldman Sachs and JP Morgan can now spend millions of dollars from their treasuries to sway your vote. We real human beings may not have millions of dollars to spend for our favorite candidates, but we have one advantage over corporations. We can cast a vote.
  3. Because they don’t want you to. The Right has been up in arms this year about the supposed threat of “voter fraud.” The number of cases of actual voter fraud is minute, and widespread fraud wouldn’t even logically make sense, but the Right loves to talk about it as a way to prevent young, poor, and minority citizens from voting. Don’t let them.

Find your polling place here.

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Video Game Violence and the First Amendment

Tomorrow at the Supreme Court, the Justices will hear arguments over whether the state can limit minors’ access to extreme depictions of violence.

California law bans the sale or rental of violent video games to minors. In adopting the law, the California legislature considered scientific evidence showing a correlation between playing violent video games and an increase in aggressive thoughts and behavior, antisocial behavior, and desensitization to violence in both minors and adults. The law was designed to give parents greater control over whether their children have access to the most violent video games.

Although the law was enacted several years ago, courts have kept it from going into effect on the basis that it violates the First Amendment.

The law parallels a New York law restricting the sale of non-obscene sexual material to minors that the Court upheld in the 1960s. Specifically, it covers those violent video games where:

  • a reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors;
  • it is patently offensive to prevailing standards in the community as to what is suitable for minors; and
  • it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

California argues that, for the purposes of the First Amendment, the Supreme Court should apply the same relaxed standard to violent material as it does to sexual material:

[I]t should make no constitutional difference whether the material depicts sex or violence. ... [T]he Act must be upheld so long as it was not irrational for the California legislature to determine that exposure to the material regulated by the statute is harmful to minors.

This would mark a significant change in First Amendment law.

Just the fact that the Court agreed to hear this case is interesting. The Court often takes a case where there is disagreement among circuit courts on how to interpret a particular law. But here, there is no such disagreement: Lower courts have uniformly struck down laws such as this as violating the First Amendment. The fact that the Supreme Court decided to hear the case anyway may signal that the Justices are ready to make the change that California is asking for.

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Employment Discrimination Case at the Supreme Court

Elections will not be the only thing happening on Election Day. On Tuesday, the Supreme Court will hear arguments in an important employment discrimination case where the official who fired the plaintiff was free of bias, but her decision was influenced by the bias of others.

Although Staub v. Proctor Hospital involves a rather narrow federal anti-discrimination statute - the Uniformed Services Employment and Reemployment Rights Act (USERRA), which generally prohibits discrimination in civilian employment on the basis of military service - the reasoning of the decision could apply to the larger universe of federal anti-discrimination statutes. Therefore, this case might affect millions of American workers both in and out of the military who have the right to be treated fairly.

Vincent Staub sued his employer after he was dismissed from his job as a hospital technician. The hospital official who fired him had no unlawful motives. However, according to Staub, she relied on false information provided to her by his supervisor, who did act out of bias against Staub’s military service. Moreover, according to Staub, the decision-maker failed to vet that information in any meaningful way. At trial, the jury returned a verdict in Staub’s favor, but the hospital won a reversal on appeal.

At issue before the Supreme Court is whether an employer can be held liable for employment discrimination based on the unlawful intent of officials who influenced - but who did not themselves make - an adverse employment decision. If the employer can be held liable, then under what circumstances? How much influence must the biased official’s actions have had before that bias can be attributed to the employer? What if the biased action is not the sole cause for the employment decision? How easy or difficult should it be for an employer to evade liability in these circumstances?

As the Supreme Court determines how to answer these questions, it should keep in mind Congress’s repeated efforts to ensure that discrimination has no place in the modern American workplace.

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Public Continues to Demand Campaign Disclosure and Spending Caps

A new New York Times/CBS News survey confirms the findings of other polls taken after the Supreme Court’s decision in Citizens United: Americans want greater transparency and stronger reforms in the political system. According to the poll, “nearly 8 in 10 Americans say it is important (including 6 in 10 who say “very important”) to limit the amount of money campaigns can spend.” This includes majorities of Democrats, independents, and even Republicans. In addition, “more than 7 in 10 of the public said spending by groups not affiliated with a candidate should be limited by law, and just 2 in 10 said it shouldn’t.”

Support for campaign transparency is so high that one must wonder if the only Americans who oppose disclosure rules are Republicans in Congress and pro-corporate lobbyists. The Times/CBS poll found that a staggering 92% of Americans believe “it is important for campaigns to be required by law to disclose how much money they have raised, where the money came from and how it was used.” Such findings corroborate the results of a Hart Research poll taken on behalf of People For the American Way, which found that 89% of voters favor “legislation that would require greater disclosure by corporations of their spending to influence elections,” and that a majority of Democrats, independents, and Republicans wants not only disclosure laws but also “limits on how much corporations can spend to influence the outcome of elections.”

The business community is increasingly calling for substantial campaign finance reform as well, as seen in a survey of business leaders conducted by the Committee for Economic Development. The poll found that 77% of business leaders “believe that corporations should disclose all of their direct and indirect political expenditures, including money provided to third party organizations to be spent on campaign ads.”

Despite the vast support of Americans and even business leaders for more openness and transparency in the political process, Republicans and corporate lobbyists continue to oppose commonsense proposals like the DISCLOSE Act. The obstructionist Republican minority in the Senate voted in lockstep to keep the DISCLOSE Act from passing, and recently the chairman of the Republican National Committee, Michael Steele, deceptively denied the very-existence of active political groups that do not disclose their donors.

Steele later said that “if people are that bothered by” the lack of transparency in Congress, “then the Congress needs to change it.” As People For the American Way’s President Michael B. Keegan pointed out:

The glaring problem with Steele's supposed embrace of transparent elections is that just a couple of months ago, people were "bothered by" hidden corporate spending in elections, the majority in Congress did draft a law to make that spending transparent...but Steele's party united to stop the law in its tracks just before the midterm elections.

Steele's bumbling and disingenuous response was infuriating, but it served as a perfect illustration of why Republicans have done everything they can to allow unfettered, undisclosed corporate influence in our elections. With the system as it is, Steele can watch corporate interest groups spend millions of dollars to help elect Republican candidates, and nobody is held accountable to voters.

The post-Citizens United landscape -- where corporations are allowed to spend unlimited amounts from their treasuries to run ads for and against candidates, but aren't required to disclose that spending -- has been a boon to candidates who push a pro-corporate agenda. Michael Steele knows it. And so does every candidate who is benefiting from the influx of secretive spending. They know it, but they don't have to own up to it.

The Republicans in Congress continue to reject the beliefs of nine-in-ten Americans that support disclosure and campaign finance reform, and want to tie the hands of Congress from making even basic changes to increase transparency in the system.

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