Supreme Court

At the Court: Immunity for Child Vaccine Manufacturers

The Supreme Court will hear arguments today in Bruesewitz v. Wyeth, a case that will determine the extent to which pharmaceutical corporations are protected from lawsuits from those who are injured by their products.

Back in the 1980s, Congress passed the national Childhood Vaccine Injury Act to shield child vaccine manufacturers from certain types of state lawsuits. The law preempts certain design defect claims against the manufacturers if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." At issue is the term "unavoidable."

Hannah Bruesewitz's parents sued Wyeth when she suffered significant medical complications after receiving a vaccine manufactured by the drug manufacturer. Among other things, they argue that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available.

Wyeth argues that the federal law preempts all state design-defect claims, even if the manufacturer could have avoided the side effects by designing a different vaccine. They claim that the family's interpretation of the Vaccine Act undoes the statutory preemption intended by Congress, forcing vaccine manufacturers into state tort trials to determine if the side effects could have been avoided with a safer vaccine. In other words, you'd have a lawsuit to determine if the case should have been immune from lawsuit in the first place. Wyeth asserts that such an interpretation goes against Congressional intent to shield vaccine manufacturers from being forced to defend their vaccines in state courts on a case-by-case basis.

The Bruesewitz family cites Supreme Court precedent that, under constitutional principles of federalism, congressional intent to preempt traditional state powers must be "clear and manifest." In this case, they say, it isn't. Specifically, had Congress wanted to preempt all design defect claims, it would have simply written the statute without the "unavoidable" language: claims would be preempted "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. " The family also argues that giving vaccine manufacturers an incentive to design better vaccines to avoid such lawsuits serves Congress's purpose of promoting vaccine safety.

Numerous organizations and individuals have submitted amicus briefs in favor of one party or the other. Not surprisingly, Wyeth is supported by pharmaceutical companies Glaxosmithkline, Merck, and Sanofi Pasteur. The American Association for Justice, Public Justice, and Public Citizen have submitted an amicus brief for the Bruesewitz family.

One of the amicus briefs is particularly interesting by virtue of the unusual pair of jurists who teamed up to submit it: progressive Erwin Chemerinsky and conservative Kenneth Starr, who argue in support of Hannah Bruesewitz and her parents.

PFAW

Big Pharma and the Next Congress

In addition to the obvious legal questions involved in the pharmaceutical immunity case of Bruesewitz v. Wyeth, this case also has a political component that ties it to the midterm elections. If the Supreme Court interprets the Vaccine Act in a way that benefits injured parties, we can expect the giant pharmaceutical companies to push the next Congress to change the law. That would connect this case politically, if not legally, to Citizens United and the DISCLOSE Act.

As detailed in a recent People For report, powerful corporations, unleashed by the Roberts Court, are taking aim at our democracy and spending millions of dollars under cover of anonymity in order to purchase a pliant Republican congressional majority. Republican members of Congress will surely know who they can thank for their offices, but without the transparency rules included in the DISCLOSE Act, blocked by Republicans in Congress, ordinary Americans will have no way of knowing if the pharmaceutical companies are among the corporate sponsors of the newly elected Republican caucus.

That is one of the many reasons we must pass the DISCLOSE Act.

PFAW

Rep. Edwards: Support for Constitutional Amendment growing in “chaotic political climate”

Rep. Donna Edwards, the sponsor of a constitutional amendment to reverse the Supreme Court’s decision in Citizens United, reacted today to the letter in support of such an amendment, signed by 50 prominent attorneys and law professors, that People For and Free Speech for People sent to congressional leaders this week:

“Corporate interests have already spent double the money spent in the 2006 midterms to influence our elections and undermine the voice of the American people,” said Congresswoman Edwards. “That is why I introduced an amendment with Chairman John Conyers to the U.S. Constitution immediately after the Roberts’ Court declared that corporations have the same First Amendment rights as citizens. I am pleased that during this chaotic political climate support for my Constitutional Amendment is growing across the country with academics, elected officials, and working families. Now is the time to remove corporate influence from our policies and our politics. We cannot allow corporations to dominate our elections as they have done this year, to do so would be both undemocratic and unfair to ordinary citizens.”

You can read more about the letter here.

And watch Rep. Edwards explain the need for a constitutional amendment at the panel we hosted at Netroots Nation this summer. “We back up and back up against a wall of corporations, of corporate money, that isn’t just trying to influence the process, it’s trying to own the process”:
 

PFAW

Stevens: Campaign money is “simply not speech”

In a wide-ranging interview with NPR’s Nina Totenberg this week, former Justice John Paul Stevens touched on his strong opposition to the Supreme Court’s decision in Citizens United v. FEC, to which he wrote an adamant dissenting opinion.

As for the court's recent ruling allowing corporations and unions to spend unlimited amounts on candidate elections, Stevens thinks it was dead wrong — and, indeed, still doesn't think that money is the same thing as speech. "Can you hear it talk? Can you read it? [Money is] simply not speech," he says. "And I have to confess that my own views are that there is an interest in trying to have any debate conducted according to fair rules that treat both sides with an adequate opportunity to express their view. We certainly wouldn't, in our arguments in this court, give one side a little more time because they could pay higher fees to hire their lawyers, or something like that."

Stevens is hardly alone among legal luminaries in thinking that the decision in Citizens United was flat-out wrong. On Monday, People For and the fair elections group Free Speech For People sent a letter signed by over 50 prominent lawyers and law professors urging Congress to consider amending the Constitution to undo Citizens United.

Corporate political expenditure regulations do not infringe any speech rights of the American people whatsoever. Rather, such regulations reflect the power of the American people to regulate corporations and the rules that govern such entities as the people and our representatives see fit. Justice John Paul Stevens’ dissent rightly calls the majority opinion a “radical departure from what has been settled First Amendment law.”


You can read the full letter here.
 

PFAW

Kudlow to Corporate-Backed Groups: Disclose Your Funding

Yesterday, Think Progress dropped a campaign finance bombshell when it reported that the US Chamber of Commerce, which is spending tens of millions of dollars this year to run ads supporting GOP candidates in federal elections, is collecting hundreds of thousands of dollars from foreign owned businesses, including companies owned by foreign governments.

Reliable clean elections proponents, like Minnesota senator Al Franken, spoke out immediately for the FEC to investigate the Chamber’s finances. But the voices in support of campaign finance disclosure haven’t been coming only from the left.

CNBC host Larry Kudlow, a columnist for the conservative National Review, said today that groups like the Chamber and Karl Rove’s shadowy group Crossroads GPS should put their funding and spending records out in the open. According to fact sheet from House Speaker Nancy Pelosi’s office, Kudlow said:

“Why not have the media posting of the contribution information on the Internet? That's all. And let everybody decide… Who, what, when, how, where, who got it? Put it up on the net and let free speech and free politics take its work… American Crossroads and Karl Rove and all them should post also.” [10/6/10]

We reported last week on several groups, including the Chamber of Commerce and Crossroads GPS, that are spending buckets of money to back pro-corporate candidates in this year’s elections, while under no obligation to disclose where their money is coming from. This spending is no small change—the Associated Press reported last week that right-wing, pro-corporate groups have outspent progressive groups 6-1 on television ads this year.

Kudlow’s call for disclosure from these big-spending groups should come as no surprise. Disclosure of campaign spending is a principle embraced by many prominent conservatives, including Justice Antonin Scalia. And when the Supreme Court’s conservative majority ruled in Citizens United v. FEC to allow corporations to spend unlimited amounts of money to influence elections, they did so with an important side note: they were in favor of “prompt disclosure” of the campaign spending.

Up against the reality of corporate-backed groups that will spend enormous amounts of money for their electoral benefit, however, congressional Republicans have been significantly less eager to embrace the idea of full disclosure than that of free spending.

The Chamber of Commerce, for one, seems to be solidly in the congressional Republican camp on the disclosure issue. Asked by the Washington Post’s Greg Sargent about Think Progress’s allegations, a spokeswoman for the Chamber responded with a tirade against the blog, denying that the Chamber spends foreign money on electioneering—but refusing to answer any questions on just how that money is kept separate.


 

PFAW

Chamber’s Foreign Funding Demonstrates the Need to Revisit Citizens United

Coming on the heels of a report by ThinkProgress on how the US Chamber of Commerce uses membership dues from foreign corporations to pay for political advertisements in American elections, the Supreme Court’s ruling in Citizens United is facing new scrutiny for opening up the floodgates of corporate spending. People For the American Way has spoken out against the Chamber’s practices of collecting “hundreds of thousands of dollars from foreign owned businesses, including companies owned by foreign governments,” and the editorial board of the New York Times is also sounding the alarm. The Times editors write that the election system is broken as a result of Citizens United and actions by Republicans in Congress and the FEC to weaken the remaining regulations of campaign finances:

Because the United States Chamber is organized as a 501(c)(6) business league under the federal tax code, it does not have to disclose its donors, so the full extent of foreign influence on its political agenda is unknown. But Tuesday’s report sheds light on how it raises money abroad. Its affiliate in Abu Dhabi, for example, the American Chamber of Commerce, says it has more than 450 corporate and individual members in the United Arab Emirates who pay as much as $8,500 a year to join.

Because of a series of court decisions that culminated in the Supreme Court’s Citizens United ruling earlier this year, these and similar 501(c) nonprofits have become huge players in the year’s election, using unlimited money from donors who have no fear of disclosure. (Not surprisingly, the chamber has been a leading opponent of legislation to require disclosure.) One such group, American Crossroads, organized by Karl Rove, announced on Tuesday a $4.2 million ad buy to support Republican candidates, bringing the group’s total spending to about $18 million so far.

The possible commingling of secret foreign money into these groups raises fresh questions about whether they are violating both the letter and spirit of the campaign finance laws. The Federal Election Commission, which has been rendered toothless by its Republican members, should be investigating possible outright violations of the Federal Election Campaign Act by foreign companies and the chamber.

Now, Minnesota Senator Al Franken is calling on the FEC to look into the Chamber’s finances, the Star Tribune reports:

Franken’s letter says that the Chamber’s mixing of funds under current FEC rules “is not per se illegal.” But he wrote that the company had to demonstrate that its foreign funds were not used for political purposes, and pushed the FEC to launch an investigation.

In addition, Franken’s letter asked the FEC to change its regulations allowing foreign companies to spend on elections — which is legal so long as the company is incorporated in the U.S. and creates a special election committee staffed by Americans.

 

PFAW

Chamber of Commerce uses Foreign Funding for Political Ads

In January President Obama in his Statue of the Union address warned Americans of the deleterious impact the Supreme Court’s ruling in Citizens United would have on our political process:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities.

While Justice Alito and others criticized Obama’s assertion that “foreign corporations” will be allowed to spend money in elections, ThinkProgress looked into how the Chamber utilizes its foreign branches to raise money for the $75 million it plans to spend on the 2010 election:

A ThinkProgress investigation has found that the Chamber funds its political attack campaign out of its general account, which solicits foreign funding. And while the chamber will likely assert it has internal controls, foreign money is fungible, permitting the Chamber to run its unprecedented attack campign. According to legal experts consulted by ThinkProgress, the Chamber is likely skirting longstanding campaign finance law that bans the involvement of foreign corporations in American elections.


In recent years, the Chamber has become very aggressive with its fundraising, opening offices abroad and helping to found foreign chapters (known as Business Councils or “AmChams”). While many of these foreign operations include American businesses with interests overseas, the Chamber has also spearheaded an effort to raise money from foreign corporations, including ones controlled by foreign governments. These foreign members of the Chamber send money either directly to the U.S. Chamber of Commerce, or the foreign members fund their local Chamber, which in turn, transfers dues payments back to the Chamber’s H Street office in Washington DC. These funds are commingled to the Chamber’s 501(c)(6) account which is the vehicle for the attack ads.
PFAW

Santorum Slamming JFK, Secularism

Fifty years ago, the man who would become America’s first Catholic president delivered a historic speech that helped reduce anti-Catholic prejudice in our public life. Five decades later, a man who would like to be the nation’s second Catholic president celebrated the occasion by slamming Kennedy. It’s a remarkable reversal. 

Former Senator Rick Santorum has been using the anniversary of then-presidential candidate John F. Kennedy’s famous address on church-state separation to decry the destructive forces of secularism that he says Kennedy unleashed. (People For the American Way is among Santorum’s targets.)
 
Santorum’s attack deserves attention, especially at a time when religious and political leaders, Santorum among them, are eagerly fanning the flames of religious intolerance. Much of Santorum’s recent speech – delivered in Houston on September 9 and reprised since then at events like Ralph Reed’s Faith and Freedom conference – is given over to repeated claims that Kennedy emboldened secularists who want a public square “cleansed of all religious wisdom and the voice of religious people of all faiths.” He says Kennedy’s speech launched a movement that is “repressing or banishing people of faith from having a say in government.”
 
These inflammatory claims are regularly advanced by Religious Right leaders who portray supporters of church-state separation as hostile to faith and religious liberty. But how can they be taken seriously?
 
Choose any topic that is being debated in the public square, and you’ll find people of faith advancing their values, probably on both sides of the issue – and not just on abortion and gay rights.  Religious Right activists spouted Tea Party arguments about the evils of government while progressive religious leaders worked hard to promote health care reform. The Catholic hierarchy is among the religious organizations working to deny gay couples legal recognition while other religious groups like the Religious Action Center of Reform Judaism are working for full marriage equality.  At the same time, the two groups are both lobbying for humane immigration reform.
 
It’s a complicated scene, and it’s a noisy one. Who has been silenced? Not Ralph Reed, who is bragging that he’s planning to mobilize conservative evangelical voters to turn Election Day into a historic rout for Democrats.  And certainly not conservative Catholics like Santorum.  At Reed’s Faith and Freedom conference, a panel included leaders of two groups organized to promote conservative Catholic values in the public arena – Catholic Advocate and Faithful Catholic Citizens.
 
There are situations that bring constitutional values into tension. America, via the Supreme Court and civil rights legislation, has decided (Rand Paul notwithstanding) that a business owner’s desire to discriminate against racial minorities does not trump other individuals’ right to equal access to public accommodations, even if the desire to discriminate was based on sincerely held religious beliefs.  Courts and legislatures are wrangling with similar situations that consider religious beliefs about homosexuality, abortion, and contraception alongside LGBT Americans’ right to legal equality, and all Americans’ access to medical care.
 
But the fact that some court cases have gone against those seeking a religious exemption to a generally applied law is no grounds for claiming that religious people have been silenced, or no longer have the right to make their case in the public square. What Santorum seems to want is a kind of double standard: religious conservatives can take part in public debate but should be shielded from criticism. They can engage in legal and political advocacy, but if they lose they can claim the process has been stacked against them by sinister anti-religious forces.
 
Santorum argues that the secularist forces unleashed by Kennedy threaten peaceful coexistence and even put American civilization at risk. He says the founders believed that “if they fostered religion and the Judeo-Christian moral code we would achieve something that was never before seen in a country with so many competing faiths - a truly tolerant, democratic and harmonious public square.”
 
But Santorum himself is actively undermining the possibility for a “tolerant, democratic and harmonious” public square. He seeks political gain by branding his opponents as enemies of religious liberty. And he has played a significant role in inflaming an ugly anti-Islamic wave of public opinion that has resulted in fatal violence and could leave communities damaged and divided for years.
 
Santorum portrays himself as heroic, telling audiences, “I have been criticized in the media for daring to speak out on these sensitive moral issues.”  That’s not true.  Santorum is criticized not for “daring to speak out” but for saying things many people disagree with. Santorum has every right to denigrate the loving relationships of same-sex couples by comparing them to man-on-dog sex. But just as surely others have the right to criticize and even ridicule him for those statements.  
 
The First Amendment is a two-way street. But that seems to be one truth that Santorum and his allies refuse to acknowledge.
PFAW

First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

PFAW

Pro-GOP Outside Groups Eclipse Parties in Spending

Traditionally, political parties and their campaign arms spend the most amount of money promoting their congressional and senatorial candidates across the country. Following the Supreme Court’s decision in Citizens United, however, a flurry of outside groups has materialized with gigantic war chests. As profiled in After Citizens United: A Look into the Pro-Corporate Players in American Politics, the Court’s decision allowed for new groups to surface and older organizations to increase their fundraising capacities. In the midterm elections, Kristin Jensen and Jonathan D. Salant of Bloomberg report that political committees supporting Republicans and attacking Democratic officials have so-far outspent both the Republican and Democratic parties’ campaign arms in 2010:

Republican-leaning groups outspent the two political parties combined during September’s first four weeks in a bid to sway the U.S. congressional elections, Federal Election Commission reports show.

The groups -- including Crossroads GPS, advised by Republican strategist Karl Rove, and the U.S. Chamber of Commerce -- spent more than $33 million, mainly on advertising. That compares with just under $20 million spent by the Republican and Democratic committees charged with electing their party’s candidates.

Outside organizations are focusing most of their fire on Senate races, particularly in California, Colorado, Florida, Missouri, Nevada and Pennsylvania, their reports to the FEC show. Many of the groups are registered as nonprofits that don’t have to disclose their donors, drawing protest from Democrats including President Barack Obama and Montana Senator Max Baucus.

“Republican operatives in the shadows are clearly winning the hidden money game,” said Linda Fowler, a government professor at Dartmouth College in Hanover, New Hampshire.

Obama has used two of his recent weekly addresses to blast Republicans for blocking legislation that would make groups engaged in political activity report their contributions. Baucus, the Senate Finance Committee chairman, today asked Internal Revenue Service Commissioner Doug Shulman to investigate the organizations.

While political parties and their campaign arms must disclose their donors and have caps on contribution amounts, many outside groups accept unlimited amounts of money from individuals and corporations and do not have to disclose the sources of their funding. Thanks to such organizational advantages, such outside groups are now overshadowing political parties as regulations concerning transparency and spending fall by the wayside.

PFAW

Americans For Prosperity Sends Us an Email

Yesterday, PFAW released “After Citizens United,” documenting the torrents of money that have poured into the political system since the Supreme Court’s disastrous decision allowing corporations the same rights as people to influence elections.

Imagine my glee when I found an e-mail from Americans For Prosperity, one of the organizations profiled in the report, in my Inbox this morning:

People for the American Way,

You recently released a report where you parroted a false attack that has repeatedly been levied against Americans for Prosperity. Neither our operations nor our donors were affected in any way by Citizens United. Please see our release below in response to the President’s repeated misrepresentation of this important Supreme Court decision.

I await your clarification.

James Valvo

Director of Government Affairs

Americans for Prosperity

James helpfully included this press release by way of support.

We’re always happy to hear feedback on our reports, even unsubstantiated criticism, so I figured AFP might appreciate some feedback on some of the work it's been doing.

James –

Thanks so much for your note regarding our report.

We’d be more than happy to address your claims just as soon as you address a few concerns that we have.

As our report notes, AFP spent $750,000 on an ad claiming that “government-run health care” would harm cancer patients, especially women with breast cancer. PolitiFact gave the ad its “Pants on Fire” rating for distorting both new recommendations on mammograms and the Health Care Reform bill, which has a provision to “ensure that mammograms for women aged 40 to 50 would be covered,” and FactCheck called it “very misleading.” AFP should retract these ads.

AFP has also run ads concentrated on the Stimulus Plan, the American Clean Energy and Security Act, and Health Care Reform. AFP’s ads push the fictitious claim that Health Care Reform creates “Government Healthcare.” PolitiFact points out that “Obama’s plan leaves in place the private health care system, but seeks to expand it to the uninsured.” AFP should certainly retract these ads.

In addition, your group also misleads viewers by interpreting savings from waste and overpayment in the Medicare program as cuts affecting seniors. Americans for Prosperity also employs false attacks against the American Clean Energy and Security Act, and groundlessly blames the Stimulus Plan for increased unemployment, even though studies show that the Stimulus stopped the prolongation of the massive job losses which began under the Bush Administration. These claims should be clarified or retracted.

Also, while I have your attention, I’d be curious to get your take on the unethical and possibly illegal voter caging in Wisconsin in which AFP has been implicated. As you know, federal law prohibits racially targeted caging operations as well as the process of challenging voters based solely on returned mail. It seems appropriate for AFP to make public statements affirming the right of all American citizens to cast a vote and to dissociate itself from any attempts at voter suppression.

Once you’ve taken care of those issues, I’d be happy to arrange a time for our lawyers to go over our report with you.

With best wishes,

Drew

Drew Courtney

Director of Communications

People For the American Way

We’ll see if they write back.

In the mean time, read more about Americans For Prosperity, Club For Growth, the U.S. Chamber of Commerce and other organizations trying to buy the 2010 elections in “After Citizens United.”

PFAW

New Term for the Supreme Court, New Opportunities for Corporations

As detailed in PFAW Foundation’s report Rise of the Corporate Court, the Roberts Court has been routinely and consistently bending the law and the Constitution to elevate the rights of corporations over the rights of individuals. To borrow a metaphor from Chief Justice Roberts, when corporate power over employees, consumers, and the American population at large is at risk, the umpire is biased. Corporations win, people lose.

In January, this judicial tilting of the scales of justice to favor corporate America reached a new height with Citizens United.

So what’s in store for the Supreme Court term that begins next Monday? While we will not know for sure until the opinions are issued, we are beginning to see some of the cases that may become important. For instance, the Court earlier today added a number of new cases to its docket, including three focusing on the rights of corporations in what the New York Times characterizes as “unusual settings.”

In two of the cases, the justices will consider how the state secrets privilege, which can allow the government to shut down litigation by invoking national security, applies in a contract dispute between the Navy and military contractors hired to create a stealth aircraft.

In the third case, the justices agreed to decide whether corporations have privacy rights for purposes of the Freedom of Information Act. ...

The privacy case [FCC v. AT&T] will consider whether a provision of the Freedom of Information Act concerning "personal privacy" applies to corporations. ...

AT&T seeks to block the release of documents it provided to the FCC, which conducted an investigation into claims of overcharges by the company in a program to provide equipment and services to schools. The documents were sought under the freedom of information law by a trade association representing some of AT&T's competitors.

AT&T relied on an exemption to the law for law enforcement records that could "constitute an unwarranted invasion of personal privacy." ...

The federal government, represented by Solicitor General Kagan, urged the Supreme Court to reject the argument that the exemption "protects the so-called 'privacy' of inanimate corporate entities."

This case will turn on the language and legislative history of the FOIA statute, as well as prior Court rulings. Court watchers will be looking out for any efforts by the Roberts Court to use this case, as it did in Citizens United, to aggrandize corporate power far beyond anything contemplated by the law or even the parties themselves.

PFAW

Conservative Groups Saturating the Airways

The Associated Press and the Washington Post described today what many predicated after the Supreme Court in Citizens United knocked down most restrictions on corporate spending in elections: political groups with a pro-corporate agenda and little transparency have flooded the airways.  Jim Kuhnhenn and Liz Sidoti of the AP write that “groups allied with the Republican Party and financed in part by corporations and millionaires have amassed a crushing 6-1 advantage in television spending, and now are dominating the airwaves in closely contested districts and states across the country.”   Many of these organizations, like Crossroads GPS and Americans for Job Security, can take unlimited amounts of money from both individual and corporate donors without having to disclose the sources of their funding.

In the Washington Post, Dan Eggen and T.W. Farnam describe the rapid growth of so-called “super PACs.”  Such super PACs have “spent $4 million in the last week alone and are registering at the rate of nearly one per day.” The foremost super PAC today is the right-wing group American Crossroads, Crossroads GPS’ sister organization.  Although such committees must disclose their donors, “unlike regular political action committees, there are no limits on how much money can be raised or spent.  And unlike some other types of committees, super PACs can explicitly urge voters to oppose or support a candidate in an election.”

American Crossroads, which was founded by Repulican patriarchs Karl Rove and Ed Gillespie, has received huge contributions from a handful of wealthy individuals and corporations.   Although they cannot coordinate with campaigns, “In two days last week, American Crossroads' super PAC reported spending $2.8 million on ads attacking Democratic candidates, including Rep. Joe Sestak (Pa.), Jack Conway (Ky.) and Senate Majority Leader Harry M. Reid (Nev.).”   With more and more money poured into politics as a result of the Citizens United ruling, the burst in television advertising in the 2010 midterm election is just the beginning, as many of these outside groups prepare for the presidential election in 2012.

PFAW

“The ACLU Chromosome” and other judicial disqualifiers

Politico today outlines an emerging trend in judicial obstruction. While partisan battles over judicial nominees have in past years focused on the occasional appellate court judge or Supreme Court justice, these days even nominees to lower-profile district courts are fair game for partisan obstructionism. Among other problems, this doesn’t make it easy to keep a well-functioning, fully staffed federal court system:

According to data collected by Russell Wheeler of the Brookings Institution and analyzed by POLITICO, Obama’s lower-court nominees have experienced an unusually low rate of confirmation and long periods of delay, especially after the Senate Judiciary Committee has referred the nomination for a confirmation vote by the full Senate. Sixty-four percent of the district court nominees Obama submitted to the Senate before May 2010 have been confirmed — a number dwarfed by the 91 percent confirmation rate for Bush’s district court nominees for the same period.

But analysts say the grindingly slow pace in the Senate, especially on district court nominations, will have serious consequences.

Apart from the burden of a heavier case load for current judges and big delays across the federal judicial system, Wheeler, a judicial selection scholar at Brookings, says that potential nominees for district courts may think twice before offering themselves up for a federal nomination if the process of confirmation continues to be both unpredictable and long.

"I think it means first that vacancies are going to persist for longer than they should. There’s just not the judge power that there should be," Wheeler said. And private lawyers who are not already judges may hesitate to put their practices on hold during the confirmation process, he added, because "you can’t be certain that you’ll get confirmed" for even a district judgeship, an entry-level position to the federal bench.

Jeff Sessions, the top Republican on the Judiciary Committee, has been at the lead of the GOP’s obstruction of every judicial nominee who can possibly be obstructed. He told Politico that he simply wants to make sure every new federal judges passes his litmus test: "If they’re not committed to the law, they shouldn’t be a judge, in my opinion."

Sounds fair. But the problem is, of course, that Sessions’ definition of “committed to the law” is something more like “committed to the way Jeff Sessions sees the law.”

In a meeting yesterday to vote on eight judicial nominees-- five of whom were going through the Judiciary Committee for the second or third time after Senate Republicans refused to vote on their nominations--Sessions rallied his troops against Edward Chen, nominated to serve as a district court judge in California. Chen is a widely respected magistrate judge who spent years fighting discrimination against Asian Americans for the American Civil Liberties Union. But Sessions smelled a rat: Chen, he said, has “the ACLU chromosome.”

The phrase really illuminates what Sessions and his cohort mean when they talk about finding judges “committed to the law” or who won’t stray from “the plain words of statutes or the Constitution.” It isn’t about an “objective” reading of the Constitution. It’s about appointing judges who will find ways to protect powerful interests like Exxon, BP, and the Chamber of Commerce, while denying legal protections to working people, women, racial, ethnic, and religious minorities, and gays and lesbians.

(Sessions himself was nominated for a judgeship in 1986, but was rejected by a bipartisan majority of the Senate Judiciary Committee for his history of not-so-ACLU-like activity).

Sessions’ warns that “Democrats hold federal judiciary as the great engine of the left,” but the reality is far from that. Besides having the most conservative Supreme Court in decades, nearly 40% of all current federal judges were appointed by George W. Bush, who made a point of recruiting judges with stellar right-wing credentials.

No matter how much disarray it causes in the federal courts, it’s in the interest of Sessions and the Right Wing to keep the number of judicial seats President Obama fills to a minimum. If they succeed, they keep their conservative, pro-corporate courts, tainted as little as possible by the sinister “ACLU chromosome.”
 

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The GOP Displays Effective Use of Taxpayer Dollars

The Senate Judiciary Committee this morning voted to approve seven federal judicial nominees. Four of these nominees are Judiciary Committee pros by now—they’ve already been approved by the committee, but were blocked by Senate Republicans, and had to start the nomination process all over again. Two are going through the process for the third time.

So what high ground is the GOP standing on in their months long blocking of these four nominees and insistence on holding the same debate multiple times?

Well, there are the objections to Rhode Island nominee John McConnell, who had the gall to represent victims of lead paint poisoning, and be proud of it.

Not to mention the record of former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to stop his reelection.

Then there’s the outrage against U.S. Magistrate Edward Chen for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.

And then, of course, there’s the all-out battle against Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page points out today, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

And these are just the nominees to which the GOP has been able to articulate some sort of objection. There are now 23 nominees waiting for votes on the Senate floor--17 of them made it through the Judiciary Committee without the objection of a single Republican.

Witness the trademark efficiency of the Party of No.
 

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Scalia’s Selective Originalism

Earlier this week, Supreme Court Justice Antonin Scalia told an audience of law students that the Constitution does not protect against sex discrimination. In a great column for Time today, Adam Cohen outlines what has gone so wrong with the trend toward vehement--but inconsistent--Constitutional originalism that Scalia represents:

The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping — when the founders could not have conceived of a telephone, much less a tap?

Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.

The view of the Constitution that Scalia champions—where corporations have rights that the Constitution’s authors never imagined, but women, minorities, and working people don’t—has become a popular political bludgeon for many on the Right. GOP senators pilloried now-Justice Elena Kagan during her confirmation hearings for offenses such as thinking Congress has the right to spend money, arguing the case against giving corporations the same free speech rights as human beings, refusing to judge according to a subjective view of “natural rights,” and admiring the man who convinced the Supreme Court that school segregation was unconstitutional.

An avowed allegiance to the original intent of the Constitution has become a must-have for every right-wing candidate. The talking point sounds great, but it hides the real priorities behind it. Anyone who needs reminding of what the fidelity to the Constitution means to the Right needs just to look to Scalia.

 

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Citizens United Impacts Ohio Senate Race

Senator Sherrod Brown, in this morning's debate over the DISCLOSE Act, noted an article in today's Columbus Dispatch demonstrating the great need for this law:

Before a U.S. Supreme Court ruling in January, the most Cincinnati billionaire Carl Lindner could directly contribute to Senate candidate Rob Portman was $4,800.

But because of a decision opening campaigns to corporate contributions, Lindner's American Financial Group was able to give 83 times that amount, $400,000 ... to American Crossroads, a group that former George W. Bush adviser Karl Rove helped create to aid GOP candidates. In mid-August, American Crossroads launched a statewide TV ad backing Portman's Senate candidacy.

In this case, a newspaper exposed the corporate spending. But that disclosure to the voters is the exception, not the rule. DISCLOSE would change that - and that's why Senate Republicans are fighting it tooth and nail.

It's worth noting that Portman's Democratic opponent, Lee Fisher, has signed People For the American Way and Public Citizen's Pledge to Protect America's Democracy and supports a constitutional amendment to correct Citizens United.

 

 

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Senator Sessions Can’t Get His Stories Straight

In a “Critical Judiciary Alert” released today on Facebook (where else?), Senator Jeff Sessions went on the attack against five of President Obama’s judicial nominees that the GOP has worked overtime to obstruct.

The whole piece is a fine example of the out of context scare quotes and blatant distortions that are the stock in trade for Senate Republicans trying to block President Obama’s judges. But it seems that Senator Sessions can’t even keep his arguments in line for the length of one piece.

Take for instance, his attacks against Jack McConnell, a nominee for the District of Rhode Island.

After McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing a preference for outcome-driven judicial decisions.

Setting aside the fact that fighting against the ingestion of lead paint by children is apparently not a good thing in the eyes of the GOP, Sessions clearly doesn’t like “outcome-driven” judicial decisions (although any lawyer not looking for a positive outcome for his client, as McConnell was doing, seems like a pretty poor attorney to me.) Got it. Outcome driven rulings = bad.

But then, take a gander at Sessions’ attack on Louis Butler, a nominee for the Second Circuit and a former state judge.

In one case, he held that a manufacturer could be held liable for injuries from a product that, as the dissent explained it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

Why, it sounds like Sessions doesn’t like the outcome! And this unhappy outcome is apparently reason to think the judge is doing a poor job. Outcome driven rulings = good?

So what does Senator Sessions want? Outcomes that go his way, or judges who ignore political pressure to rule according to the law?

Of course, there might be a third option: It doesn’t matter. Senator Sessions will say whatever it takes to block judges nominated by President Obama.

PFAW

“The Money’s Flowing,” But From Where?

Michael Luo and Stephanie Strom of The New York Times profiled the rapid growth of political organizations that can receive unlimited contributions but do not have to disclose their donors. 501(c)(4) groups* have become more numerous, and unlike 527’s, do not have to reveal the sources of their funding, which is “arguably more important than ever after the Supreme Court decision in the Citizens United case earlier this year that eased restrictions on corporate spending on campaigns.”

“I can tell you from personal experience, the money’s flowing,” said Michael E. Toner, a former Republican F.E.C. commissioner, now in private practice at the firm Bryan Cave.

The growing popularity of the groups is making the gaps in oversight of them increasingly worrisome among those mindful of the influence of money on politics.

“The Supreme Court has completely lifted restrictions on corporate spending on elections,” said Taylor Lincoln, research director of Public Citizen’s Congress Watch, a watchdog group. “And 501(c) serves as a haven for these front groups to run electioneering ads and keep their donors completely secret.”

Almost all of the biggest players among third-party groups, in terms of buying television time in House and Senate races since August, have been 501(c) organizations, and their purchases have heavily favored Republicans, according to data from Campaign Media Analysis Group, which tracks political advertising.

These organizations are considered “social welfare” groups that are legally allowed to lobby on certain issues, but until Citizens United, were not permitted to explicitly urge voters to vote for or against a candidate. “As a result, rarely do advertisements by 501(c)(4) groups explicitly call for the election or defeat of candidates,” Luo and Strom write, “Instead, they typically attack their positions on issues.” That has changed dramatically since Citizens United, as seen in the rise of organizations like American Crossroads GPS. 501 (c)6 groups that are “business associations” like the US Chamber of Commerce and Americans for Job Security are “spending heavily in support of Republicans.”

But with weak and ineffective regulatory oversight, many of these political organizations disguised as “social welfare” groups can continue to hide their donors from the public eye:

In fact, the I.R.S. is unlikely to know that some of these groups exist until well after the election because they are not required to seek the agency’s approval until they file their first tax forms — more than a year after they begin activity.    

"These groups are popping up like mushrooms after a rain right now, and many of them will be out of business by late November,” Mr. Owens said. “Technically, they would have until January 2012 at the earliest to file anything with the I.R.S. It’s a farce.”    

Social welfare nonprofits are permitted to do an unlimited amount of lobbying on issues related to their primary purpose, but there are limits on campaigning for or against specific candidates.

I.R.S. officials cautioned that what may seem like political activity to the average lay person might not be considered as such under the agency’s legal criteria.



* People For the American Way is a 501(c)(4) organization.

 

 

PFAW

So Much for "Prompt Disclosure"

When the Supreme Court decided earlier this year to allow corporations to spend unlimited amounts of money to influence elections, the justices in the majority (save Justice Clarence Thomas) took care to note that “prompt disclosure” of political spending would allow citizens to hold candidates, and their funders, accountable. It’s a nice idea…but things haven’t exactly worked out that way.

Instead, Public Citizen reported last week, in the first election after Citizens United, groups funneling money to political activities have increasingly been hiding where their money comes from.

Only 32 percent of the organizations broadcasting electioneering communications in the 2010 primary season revealed in their filings with the Federal Election Commission (FEC) the identities of donors funding their advertisements, according to Public Citizen’s analysis of FEC filings. In contrast, nearly 50 percent revealed their donors in the 2008 election cycle, and close to 100 percent did so in the 2004 and 2006 cycles. Electioneering communications are campaign ads run shortly before elections that focus on candidates but don’t expressly urge a vote for or against them.

Only 10 percent of Republican groups disclosed their funders, in contrast to 50 percent of Democratic groups.

This shouldn’t come as a surprise. As Target learned the hard way this summer, shareholders, consumers, and voters aren’t particularly keen on large corporations bankrolling political campaigns. Funneling money through secretive groups allows corporate political spenders to have the best of both worlds: they can fund the campaigns of candidates favorable to them, and never have to be held accountable.

An attempt this summer to patch up the loophole that allows corporations to keep their election spending secret ran up against stiff opposition from corporate lobbyists and a unified filibuster from the GOP. President Obama summed up the result in his weekly radio address Saturday:

What is clear is that Congress has a responsibility to act. But the truth is, any law will come too late to prevent the damage that has already been done this election season. That is why, any time you see an attack ad by one of these shadowy groups, you should ask yourself, who is paying for this ad? Is it the health insurance lobby? The oil industry? The credit card companies?

But more than that, you can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run – no matter how many elections they try to buy – the power to determine the fate of this country doesn’t lie in their hands. It lies in yours. It’s up to all of us to defend that most basic American principle of a government of, by, and for the people. What’s at stake is not just an election. It’s our democracy itself.

This fall, the Senate will have another chance to bring the DISCLOSE Act to a vote. As the New York Times pointed out yesterday, the vote should be a no-brainer for moderate senators like Susan Collins and Olympia Snowe of Maine:

The Citizens United decision, paradoxically, supported greater disclosure of donors, but Senate Republicans have filibustered a bill that would eliminate the secrecy shield. Just one vote is preventing passage. That act is coming back for another Senate vote. The two Republican senators from Maine, Susan Collins and Olympia Snowe, might want to read a recent poll by the Maine Citizens for Clean Elections, which showed that 80 percent of the state’s voters support public disclosure.

In a poll we commissioned in June, 85% of Americans said that corporations already have too much influence over the political process. Voters want information. Will Congress provide it?
 

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