Supreme Court

Republicans Waiting It Out On Judicial Nominations

In the wake of Citizens United and other rulings that put corporate bank accounts ahead of individual rights, it has become increasingly clear where the priorities of the Supreme Court’s conservative majority lie. Republicans in Congress, unlike most Americans, like what they’re seeing—and are doing everything in their power to make sure the Roberts Court’s philosophy is reflected in lower courts throughout the country.

Apparently not satisfied with the current conservative bent of the nation’s entire judicial system (nearly 40% of federal judges nationwide were appointed by George W. Bush), Republican Senators are trying to stall district and circuit court judicial nominations until they are in a position to appoint federal judges once again, packing the court even more firmly for corporate interests.

A recent study by the Center for American Progress found that the current Republican obstruction of judicial nominations is truly unprecedented. The graph below pretty much says it all:

The current Republican obstructionism is unprecedented. Even George H.W. Bush, whose party never controlled the Senate during his term, enjoyed a confirmation rate nearly double that of President Obama and the current solidly Democratic Senate.

Yesterday, several senators put a much-needed spotlight on the GOP’s obstruction of judicial nominations. Senator Sheldon Whitehouse of Rhode Island spoke about the special interests that are preventing public interest lawyer John McConnell, an extremely qualified nominee who enjoys bipartisan support, from serving his home state:

Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? … I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island…The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine.

…Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.

I ask my colleagues…do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees?

This is not just a political question-- the GOP is so concerned about keeping the courts corporate-friendly in the long-term that they’re ignoring the very urgent short-term needs of the federal court system. While judicial positions around the country remain vacant, many Americans are forced to wait for inexcusably long periods to have their day in court as current judges struggle with an impossible workload. The Judicial Conference has declared 42 of the 99 current judicial vacancies “judicial emergencies.” Carolyn Lamm, President of the non-partisan American Bar Association, calls the current dearth of federal judges “urgent.” But the GOP clearly cares more about protecting their allies in the corporate world than allowing the lower court system to function.

PFAW

GOP’s Citizens United Hypocrisy

As we witness the growing influx of corporate spending in elections from Kentucky to Minnesota as a result of the Citizens United ruling, campaigns across the country are bracing for a barrage of corporate expenditures. Senate Republicans claim that by refusing to allow the DISCLOSE Act to come up for a vote, they are defending free speech rights established by the Court. But Norman Ornstein of the American Enterprise Institute criticizes the Republicans’ dangerously selective view of the Citizens United decision. While the 5-4 decision grants for-profit corporations the same free speech rights as individuals, the Court also ruled 8-1 to affirm the government’s right to enact rigorous campaign disclosure laws:

Senate Minority Leader Mitch McConnell, who holds the undisputed twin titles of No. 1 campaign finance anti-reformer and No. 1 hypocrite, once said he didn't understand why a little disclosure is better than a lot of disclosure. Now the Kentucky Republican is leading his party and outside activists in spurning the clear, 8-1 mandate of the Roberts Supreme Court in the Citizens United decision to encourage robust disclosure, as they call the disclosure they once championed a horrendous burden and even an unconstitutional blockage of free speech.

Even though Senate Republicans defend Citizens United, going so far as to compare it to Brown v. Board of Education, they appear to dismiss the Supreme Court’s approval of disclosure requirements to prevent secretive and misleading campaign practices by corporations. Like candidates running for office, CEOs of corporations should appear in their advertisements and go on record with their political expenditures, and publicly report money used for political purposes. As constitutional law expert Lawrence Tribe writes:

[F]ederal legislation should, at a minimum, build on the disclosure and disclaimer requirements that the Court upheld by an 8-1 vote in Citizens United, requirements specifying that electioneering communications funded by anyone other than the candidate must disclose who is “responsible for the content of this advertising” and must display on screen “in a clearly readable manner” for at least four seconds the name and address or website of whoever funded the communication.


 

 

PFAW

The Consequences of Citizens United

Ever since the Supreme Court issued its ruling in the Citizens United case in January, we’ve been warning that the decision would empower corporations to funnel unlimited donations through shadow advocacy groups to directly influence elections.

And guess what? It’s begun.

Just as we (and President Obama) predicted, corporations are already forming and funding political action groups with innocuous sounding names to anonymously support candidates they like and attack candidates they don’t.

For example, the coal industry already has a plan to create a shadow organization to directly advocate against “anti-coal” candidates, obscuring the sources of the organization’s money as they go:

The companies hope to create a politically active nonprofit under Section 527 of the Internal Revenue Code, so they won't have to publicly disclose their activities — such as advertising — until they file a tax return next year, long after the Nov. 2 election.

The U.S. Supreme Court ruled last winter that corporations and labor unions may pour unlimited funds into such efforts to influence elections.

"With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard," wrote Roger Nicholson, senior vice president and general counsel at International Coal Group of Scott Depot, W.Va., in an undated letter he sent to other coal companies.

Citizens United didn’t just, as some supporters have claimed, allow corporate voices to be heard; it granted corporations unprecedented influence in democratic elections while permitting them to hide their involvement. It’s shadow organizations like this that make one wonder: why are Senate Republicans filibustering the DISCLOSE Act, which would help make corporate involvement in elections more transparent?

Meanwhile, the Minnesota gubernatorial race is providing another textbook example of the problems Citizens United is already causing for our democracy. Taking advantage of their new ability to pour limitless money into elections, several big corporations, including the retail giant Target, donated $100,000 each to a shadow group called Minnesota Forward, which has already produced an ad for Republican gubernatorial candidate Tom Emmer.

Public reaction to Target’s involvement in the race shows just why many politically involved corporations would prefer to remain anonymous:

Emmer is well known as a hardline conservative on social issues. For instance; he opposes gay marriage — a stance that angers some of Target's employees and customers. The company has been known for its gay-friendly employment policies.

Target CEO Gregg Steinhafel tried to address such concerns today with a letter to employees. He wrote, that "inclusiveness remains a core value of our company." That said, he added, "I consider it my responsibility to create conditions in which Target can thrive." And Minnesota Forward has pegged Emmer as the pro-growth candidate.

If the Senate had passed the DISCLOSE Act yesterday, Minnesota Forward would have to be a lot more forthcoming about the sources of its funding. As long as DISCLOSE is filibustered, the group has a lot more leeway for behind-the-scenes political activity. (And, until Congress passes a Shareholder Protection Act, even Target’s shareholders won’t be able to have a say in which political candidates their money is going to support). Voters and consumers have the right to know whether a corporation’s political money is where its mouth is.

Health insurance companies, too, are banding together to take advantage of the newly permissive electioneering rules:

Five of the nation’s largest health insurers are in serious discussions about creating a new nonprofit group and bankrolling it to the tune of about $20 million to influence tight congressional races and boost the image of their industry.

… “The objective is to make the House more accommodating to concerns that have been raised,” says one industry source. “They’re looking at toss-up candidates,” adding that the companies want to “focus resources to influence campaigns.”

Needless to say, like the coal companies, health insurance groups will not have to make their donations to such an advocacy organization public.

A stunning 85% of Americans agree that corporations already have too much influence on our elections; now we have proof that the Citizens United ruling is giving corporations even more power in our democracy. The proliferation of shadow groups doing the dirty work of big corporations makes the task of amending the Constitution to protect our elections from corporate money all the more urgent.

PFAW

Senate GOP Blocks Election Transparency, Baucus Responds with Constitutional Amendment

Republicans succeeded today in blocking Senate consideration of the DISCLOSE Act, a modest first attempt to start reigning in the money-in-politics free-for-all the Supreme Court set loose in January’s Citizens United decision.

The successful filibuster of DISCLOSE is frustrating, but it makes one thing very clear: the only way for voters to fully take back our democracy is to pass a Constitutional Amendment undoing the damage of Citizens United.

After the Senate’s vote on DISCLOSE, Sen. Max Baucus introduced a resolution calling for just such an amendment:

Baucus said:

The impact of Citizens United goes well beyond merely changing campaign finance law. This decision will impact the ability of Congress, as well as State and local legislatures, to pass laws designed to protect its constituents—individual Americans—when such legislation comes under fierce objection by large corporations. Corporations are now free to spend millions targeting individual lawmakers. Lawmakers’ ability to pass laws such as consumer safety or investor protection now faces even greater challenges when such laws merely threaten the corporate bottom line.

Congress and the American people must respond swiftly and firmly. The Supreme Court’s ruling in Citizens United has severely altered Congress’s ability to limit corporate spending in our electoral process.

The amendment simply returns the power of regulating election spending to Congress and the states. Here it is in its entirety:

Section 1. Congress shall have the power to regulate the contribution of funds by corporations and labor organizations to a candidate for election to, or for nomination for election to, a Federal office, and the power to regulate the expenditure of funds by corporations and labor organizations made in support of, or opposition to, such candidates.

Section 2. A State shall have the power to regulate the contribution of funds by corporations and labor organizations to a candidate for election to, or for nomination for election to, public office in the State, and the power to regulate the expenditure of funds by corporations and labor organizations made in support of, or opposition to, such candidates.

Section 3. Nothing contained in this Amendment shall be construed to allow Congress or a State to make any law abridging the freedom of the press.”

We’ve asked all federal elected officials and candidates to sign on to a pledge to support a Constitutional Amendment to reverse Citizens United. Find out more at www.pledgefordemocracy.org.
 

PFAW

The Supreme Court's Conservative Ideology

Some conservatives are still trying to argue that the Supreme Court is in danger of being overrun by “liberal activists.” But an article in Sunday’s New York Times, entitled “Court Under Roberts Is Most Conservative In Decades,” presented data from political scientists that pretty conclusively showed a conservative, not a liberal, ideology entrenched in the highest court.

One piece of data really stood out to me:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

That’s right: the current “swing” justice is considered one of the ten most conservative judges of the past 70 years. Centrist justices are in some ways even more important than the Court’s ideologues or even chief justices. As the Times article notes, the court’s most extreme shift to the right occurred when Justice O’Connor was replaced with the much more conservative Justice Alito:

By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases. “

On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.

With Justice Alito joining the court’s more conservative wing, Justice Kennedy has now unambiguously taken on the role of the justice at the center of the court, and the ideological daylight between him and Justice O’Connor is a measure of the Roberts court’s shift to the right.

The statistics back up a right wing trend on the Supreme Court that has been hard to ignore. Since Alito joined the Court, it has made startling decision after startling decision, including overturning democratically enacted restrictions on corporate spending in Citizens United v FEC, and defending discrimination against women in the workplace in Ledbetter v Goodyear.

Just one justice can make the difference between democratically enacted campaign finance laws and unlimited corporate spending in elections; between employment discrimination laws that work for employees and those that work for employers; between our democracy holding corporations accountable and corporations owning our democracy.

All of which is why, when we talk about presidents and senators, we have to talk about the Court.

PFAW

President Urges Senators to Pass DISCLOSE Act

President Obama this afternoon urged the Senate to pass the DISCLOSE Act, which it begins debate on today. The president said the transparency bill was a necessary response to the Supreme Court's decision in Citizens United v. FEC:

Because of the Supreme Court’s decision earlier this year in the Citizens United case, big corporations –- even foreign-controlled ones –- are now allowed to spend unlimited amounts of money on American elections. They can buy millions of dollars worth of TV ads –- and worst of all, they don’t even have to reveal who’s actually paying for the ads. Instead, a group can hide behind a name like “Citizens for a Better Future,” even if a more accurate name would be “Companies for Weaker Oversight.” These shadow groups are already forming and building war chests of tens of millions of dollars to influence the fall elections.

He also had harsh words for the Senate Republican leadership, who have been working against the passage of DISCLOSE:

At a time of such challenge for America, we can't afford these political games. Millions of Americans are struggling to get by, and their voices shouldn’t be drowned out by millions of dollars in secret special interest adverting. The American people's voices should be heard. A vote to oppose these reforms is nothing less than a vote to allow a corporate and special interest takeover of our elections.

The DISCLOSE Act would requiring prompt and full disclosure of corporate campaign expenditures and prevent campaign spending by government contractors, TARP fund recipients, and foreign-controlled corporate subsidiaries.

Earlier today, PFAW executive vice president Marge Baker called DISCLOSE “a necessary and urgent step” towards dampening the effects of the Supreme Court’s decision in Citizens United v. FEC, which allowed corporations to spend unlimited amounts of money to influence elections.

You can watch the president's remarks here:
 

PFAW

Netroots Nation Takes on Citizens United

When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.

Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.

The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”

Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.

Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”

In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”

All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.

Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.

Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”

Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”

Grayson and Edwards have both agreed to sign the Pledge to Protect America’s Democracy, a pro-amendment effort organized by People For and Public Citizen. Urge your candidates and elected officials to do the same, at www.pledgefordemocracy.org.

UPDATE: Netroots Nation has posted a video of the discussion:

PFAW

Making the Courts a Progressive Priority

If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.

In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.

Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”

Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.

In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.

Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold seats open until a Republican president comes in and he’ll fill them in a New York minute.”

Which is exactly what Senate Minority Leader Mitch McConnell is trying to do as he repeatedly refuses to hold votes on confirming President Obama’s judicial nominees. He’s making a deliberate effort to stall all Senate business, but also a calculated plan to keep seats on the federal bench empty for as long as possible with the hope that they won’t be filled by progressives.

What courts do every day—from the Supreme Court down—matters to ordinary people. Indeed, courts are central to our ability to hold corporations and other special interests accountable for harmful behavior. Judicial appointments are essential to securing corporate accountability for environmental safety (just look at the Fifth Circuit, where the judges making important decisions about oil drilling regulation are closely connected to the oil industry); they’re essential to holding businesses accountable for how they treat workers (see Rent-a-Center v. Jackson); and, of course, they’re a critical part of ensuring our civil rights.

Dahlia Lithwick, who covers the Supreme Court for Slate, pointed out that “conservatives have been laser-focused on the court,” while progressives don’t always connect the issues we care about with the courts that ultimately decide their fate.

It's time to change that.

UPDATE: You can watch the full discussion in the video above.

PFAW

Saying No To Good Government

Although Elena Kagan’s nomination moved out of committee yesterday, almost every Republican committee member voted against her, and most Senate Republicans are expected to follow suite. Why? As an editorial in the New York Times pointed out , Republican opposition to the broad interpretation of the commerce clause in recent decades may partly explain their refusal to support Kagan:

[D]ozens of Senate Republicans are ready to vote against [Kagan], and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.

…Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.

In voting against Kagan’s anticipated interpretation of the commerce clause, the “Party of No” isn’t just opposing the confirmation of extremely qualified Supreme Court Justice; they’re also opposing the government fulfilling its responsibility to protect clean air and water, fair labor standards, and civil rights for all.

PFAW

Kagan Clears Judiciary Committee

Yesterday the Judiciary Committee voted to forward Elena Kagan’s Supreme Court nomination to the full Senate. Here’s PFAW President Michael B. Keegan’s statement:

Today’s vote is a step towards achieving a Supreme Court that understands the way the law affects individual Americans. In her hearings, Solicitor General Kagan made clear that, unlike the current Court, she understands that corporate interests shouldn’t be allowed to run rampant over the rights of individual Americans.

It’s frankly puzzling that the GOP seems dead set on opposing that principle. Throughout much of the hearings, Republican senators lavished praise on Citizens United v. FEC, a decision that gave corporations unchecked rights to buy elections and which most Americans abhor. Given the national outrage at companies like BP and Goldman Sachs, it’s surprising that the GOP would expend so much breath pining for a Supreme Court Justice who would give even greater deference to corporations while slamming the door on individual Americans fighting for their rights.

Apparently, the ‘Party of No’ can’t stop from saying ‘Yes’ to corporate interests who want to get their way in the Supreme Court.

Fortunately for the country, the GOP has been unable to block the confirmation of this supremely qualified nominee. But as we’ve noted, their largely under-the-radar obstructionism on lower priority nominations is still going strong.

PFAW

Will Your Representative Sign the Pledge to Protect America’s Democracy?

Today, People For the American Way and Public Citizen launched a new campaign to get the ball rolling on a Constitutional Amendment to kick corporate money out of elections.

In January, the Supreme Court overturned a policy that was more than a century-old to allow corporations to spend millions of dollars from their treasuries to influence elections. To get to that decision, in the case of Citizens United v. FEC, the Court determined that corporations have the same free speech rights as individuals.

This reasoning, and the conclusion it led to, have been soundly rejected by Americans across the political spectrum. A poll we commissioned last month found that 85% of Americans disagree with the Court’s conclusion that the First Amendment allows corporations to spend whatever they like on elections, and 77% wanted to amend the Constitution to undo it.

What’s more, 74%--including majorities of Democrats, Republicans, and independents-- said they’d be more likely to vote for a candidate who pledged to work for a Constitutional Amendment to undo Citizens United.

We saw this as a clear call to action. So we joined up with Public Citizen to create www.PledgeForDemocracy.org and start making a Constitutional Amendment a reality.

Here’s how it works. We’ve written up a pledge for federal candidates to sign, committing them to work towards a Constitutional Amendment to return our democracy to voters. It reads:

The Supreme Court's flawed decision allowing corporations to spend unlimited amounts to influence election outcomes endangers our democracy and threatens to drown out the voices of individual citizens. I pledge to protect America from unlimited corporate spending on our elections by supporting a Constitutional amendment to overturn the Supreme Court's decision giving corporations the same First Amendment rights as people.

If you support a Constitutional Amendment, contact your representatives and candidates in your area and urge them to sign the pledge. Then get back to us and let us know what they said. We’ll keep track of contacts to candidates and officials, and publicize which candidates sign the pledge and which refuse to sign it.

We know that elections belong to voters…it’s time for elected officials to show they agree.
 

PFAW

Second Circuit Strikes Down FCC’s Indecency Rules

Few people could have imagined that Bono’s utterance of a single expletive during a 2003 awards show would have such a massive impact seven years later. Today, in Fox v. FCC, the Second Circuit Court of Appeals held that the FCC’s unclear rules regarding fleeting vulgar language are unconstitutional. From the Wall Street Journal, the court said that:

…the FCC's indecency policies were "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The 32-page ruling was laced with many of the words FCC policy said broadcasters could not allow to be spoken on air. It sets up the possibility that the Supreme Court could be asked to revisit rulings that have formed the basis for government curbs on "indecent" broadcast speech, including a 1978 decision that allowed the FCC to fine the Pacifica Foundation for broadcasting a monologue on dirty words by the late comedian George Carlin.

This decision will almost certainly lead to an appeal, but it remains unclear to what extent the Obama administration will fight it. Keep in mind that the current FCC regulations date back to George W. Bush’s time in the White House. In any case, today’s decision signals that the FCC cannot broadly punish broadcasters for airing expletives, absent clear guidelines. And as the court stated, all TVs 13 inches or larger sold in the United States come with V-chips, allowing parents to choose what their children can and cannot watch, further weakening the rationale for the FCC’s regulations.

PFAW

The Next Frontier in Undoing Campaign Finance Reform

Since the Supreme Court decided earlier this year that corporations have a First Amendment right to spend however much they like to influence elections, groups have been attempting to use that decision to hack away at the core of federal and state campaign finance laws.

Last month, the Supreme Court declined to hear a challenge to the federal ban on soft money (unlimited contributions to political parties), a centerpiece of the 2002 McCain-Feingold campaign reform bill. Though that case was cut short, at least one other challenge to the law is in the works.

Now, groups at the state level are trying to use the Citizens United decision as leverage to do away with bans not only on independent expenditures by corporations, but also on corporate contributions directly to candidates’ bank accounts. 22 states, like the federal government, prohibit corporations from contributing directly to campaign committees. After Citizens United, business groups in Montana were the first out of the gates, filing suit to get rid of Montana’s 98-year old ban on both independent campaign expenditures by corporations (the spending that Citizens United allowed on the federal level) and direct corporate contributions to campaigns (which Citizens United didn’t touch).

In May, the Minnesota Chamber of Commerce convinced a federal court to strike down that state’s independent expenditures ban. Now, Minnesota business interests are following the Montanans’ lead and broadening their challenge to include the state’s ban on direct contributions:

State law now allows corporations to spend money independently of campaigns on ads supporting or opposing candidates, an arrangement that the U.S. Supreme Court approved early this year.

But the Taxpayers League of Minnesota, Minnesota Citizens Concerned for Life and Coastal Travel Enterprises seek to go beyond that ruling and allow direct contributions to candidates by corporations.

"Our clients believe ... that the First Amendment gives corporations ... the right to contribute to candidates and political parties through their general treasury funds," said Joe La Rue, an attorney for the plaintiffs, who sued this week in U.S. District Court in Minnesota.

In Citizens United, the Supreme Court clearly created a slippery slope of corporate money in politics. State-level bans on independent spending by corporations have been the first to go. Will guards against corporate-to-candidate contributions—and the very clear appearance of corruption that they create—be next
 

PFAW

The Substance of the Kagan Hearings

Many viewed it as a foregone conclusion that Elena Kagan’s Supreme Court confirmation hearings would lack any real discussion of law and the Constitution. In fact, People For’s Marge Baker argues in a new memo, Kagan’s hearings were more substantial than any in recent memory. Kagan politely but decisively refused to buy into empty conservative rhetoric, and laid out a strong view of the limited, but not simple, role of the courts in a democracy:

Kagan said a great deal about how judges should approach Congressional statutes and argued for significant deference to legislators and reluctance to strike down federal law. Even when invited to take on straw men (like Senator Coburn’s fruits-and-vegetables line of questioning) she went to great lengths to describe the latitude that Congress should be allowed, even pointing to Justice Holmes, approvingly noting that he “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

In applying laws passed by Congress, she emphasized looking at Congressional intent and examining the Congressional record—approaches very much at issue in cases like Ledbetter and Citizens United. Her testimony made an unmistakable argument both for the importance of judges’ responsibility to uphold the Constitution and for the limits of what judges should do.

We’ve put together a collection of some of the most interesting moments from the hearings. Here, Kagan takes down Chief Justice Roberts’ flawed judge-as-umpire analogy:

Click here to watch our top ten favorite clips from the hearings.
 

PFAW

A Hot Mess of Intolerance

In a new op-ed in the Huffington Post, Michael Keegan, People For’s president, asks why the GOP spent so much of Elena Kagan’s Supreme Court confirmation hearings defending the nearly-dead Don’t Ask, Don’t Tell policy. The answer? They just can’t seem to quit gay people:

We were once again given a strong reminder of this at Elena Kagan's confirmation hearings, when Republican senators hosted a four day-long attack on the nominee based on one issue--her opposition to Don't Ask, Don't Tell, the anti-gay policy that is not only overwhelmingly unpopular across the political spectrum, but is unlikely to even be on the books by this time next year.

This line of attack was catnip for the GOP because it provided a too tempting mix of three Republican stock favorites: provoking resentment of gay people, accusing Democrats of being anti-military, and insinuating the existence of an Ivy League East Coast Elite Conspiracy. With so many critically important issues facing the country and the world, this Republican obsession came off as a ridiculous hot mess of intolerance and irrelevance.

Read the full piece at the Huffington Post.
 

PFAW

The Oil Industry Ties of Oil Industry Judges

We’ve been worried about what will happen if liability suits from BP’s massive oil spill in the Gulf reach the Supreme Court. But it sounds like fans of justice might have more immediate concerns.

When a district court judge halted the Obama administration’s Gulf drilling moratorium last month, that judge’s history of ties to the oil industry caused a stir. Today, a three judge panel from the 5th Circuit Court of Appeals is set to hear an appeal of the case.

But we shouldn’t get our hopes up. Alliance For Justice has looked into the backgrounds of the three judges on the panel and found some pretty startling oil industry ties: two of the judges represented major oil companies in previous jobs, two have major investments in oil companies, and two went on an oil industry-financed junket to Montana in 2004 to learn “why ecological values are not the only important ones.”

Read the full Alliance For Justice report here.


 

PFAW

Epstein Echoes Sessions: “Massive Resistance” to Citizens United

Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.

What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.

To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.

PFAW

Regulation and the 2010 Elections

The Washington Post is reporting that Wall Street contributions to Democratic campaign committees are markedly lower than this time in 2006 or 2008.

The drop in support comes from many of the same bankers, hedge fund executives and financial services chief executives who are most upset about the financial regulatory reform bill that House Democrats passed last week with almost no Republican support. ... This fundraising free fall from the New York area has left Democrats with diminished resources to defend their House and Senate majorities in November's midterm elections.

With Democrats seeking to impose reasonable regulations designed to protect the American people, this is no surprise.

The Republican Congress was a dream come true for the rapacious financiers who dragged our economy over a cliff, just as it was for all manners of giant corporations. We're seeing the results of the Republican ideology of allowing the most powerful industries to write their own laws and draft their own regulations. Not even the Supreme Court is immune, as a recent report from our affiliate People For the American Way Foundation demonstrates.

Deregulation has made the most powerful even more powerful, while the rest of us find ourselves more and more helpless against corporate behemoths.

Anyone who's spent an hour on hold waiting to get through to a large corporation knows who holds the power in our society, and it isn't us. These companies have been allowed to become so large that they can afford to mistreat their consumers in ways that no business would have gotten away with a generation ago.

Are you happy with the level of corporate influence on our politicians and on our lives? Do you wish you could make Big Business even stronger?

Or do you think it's time for Americans to retake control of our lives? If so, then it's time to act. Because the corporations aren't sitting this election out.

PFAW

A Lopsided Witness List

There’s an interesting pattern among the members of the military who are weighing into Elena Kagan’s Supreme Court nomination. On one side, we have members of the military who were at Harvard when Kagan was Dean and have showed up to testify or written letters in support her confirmation. And then there are the conservative activists who the GOP has recruited to testify against the Solicitor General and who, as far as I can tell, have never so much as met her.

All of these people should be commended for their military service. But are they equally qualified to speak about Kagan’s record?
 

PFAW

Lilly Ledbetter Recounts Her Fight

Lilly Ledbetter just appeared in front of the Senate Judiciary Committee to speak about the damage that can be done by a Supreme Court that’s not grounded in the realities of life for average Americans.

When Ledbetter found out that she’d been discriminated against, it would have been easy for her to just walk away—after all, it’s not in any way easy to pursue a discrimination claim—but Ledbetter was used to tough jobs. She stood up and demanded that Goodyear be held accountable for its actions. She fought hard, she pursued her case for many years, and she won.

But when the case made it to the Supreme Court, it decided that Goodyear couldn’t be held accountable for its actions. Because the company hid the discrimination for long enough, they were free to discriminate for as long as they wanted.

In 2007, when the Court denied her compensation for decades of pay discrimination, Ledbetter sat down with us to talk about her fight for fair pay for herself and others like her:

After the Supreme Court stopped her from collecting the pay she had earned, she led the fight to make sure it wouldn’t happen to anybody else—and she’s still fighting to make sure that the Supreme Court gives a fair hearing to people like her when they go up against big corporations like Goodyear.

She told the Judiciary Committee:

Since my case, I’ve talked to a lot of people around the country. Most can’t believe what happened to me and want to make sure that something like it doesn’t happen again. They don’t care if the Justices are Democrats or Republicans, or which President appointed them, or which Senators voted for them. They want a Supreme Court that makes decisions that make sense.

That’s why the hearings here are so important. We need Justices who understand that law must serve regular people who are just trying to work hard, do right, and make a good life for their families. And when the law isn’t clear, Justices need to use some common sense and keep in mind that the people who write laws are usually trying to make a law that’s fair and sensible. This isn’t a game. Real people’s lives are at stake. We need Supreme Court justices who understand that.
 

PFAW