Supreme Court

The Right's Use of Records Requests to Chill Dissent and Attack Academics

In Wisconsin and Michigan, we are seeing what appears to be the latest right wing tool to intimidate and harass its critics: extensive – and baseless – public records requests against academics at public universities. The consequences for the free and open debate on which our democracy depends are serious indeed.

Last week, Wisconsin Republicans clamped down on criticisms of their party's efforts to undermine workers' rights by filing a broad demand for copies of all of the emails of University of Wisconsin-Madison history professor William Cronon that mention Governor Scott Walker, the eight Republican state senators who have been targeted for recall, or unions that represent government employees. Cronon had recently penned a blog post calling attention to the work of a little-known group called the American Legislative Exchange Council (ALEC) and its apparently significant influence on Republican state lawmakers, including those in Wisconsin such as Governor Walker. The message was clear. Criticize what we do and we'll come after you to see what we can dig up to smear you with.

Any thought that this might be an isolated response was quickly shattered when similar requests were made for Wisconsin-related e-mails at three Michigan universities. Rather than being from the Wisconsin GOP, these were from a right-wing organization called the Mackinac Center for Public Policy. They filed requests for e-mails of the faculty of the University of Michigan Labor Studies Center, the Douglas A. Fraser Center for Workplace Issues at Wayne State University, and the Labor Education Program of Michigan State University. The requests cover not only e-mails relating to the Wisconsin clash over the labor rights, but, according to press reports, also any e-mails mentioning Rachel Maddow.

Aside from their far right conservative ideologies, the Mackinac Center and ALEC have something else in common: Although not well known among the general public, they are part of a network of right wing ideological organizations that have been heavily funded over the years by many of the same small group of wealthy funders, including the billionaire Koch Brothers, the Coors family, the Scaife family, and corporate giant Exxon Mobil.

It is not likely a coincidence that these two right wing organizations employed the same unusual tactics in two different states just days apart. Who knows where they will go next. Clearly this is a pattern. And, unfortunately, it's a familiar one. Just as in the McCarthy era, academics face intimidation and harassment and possible threats to their reputations if they take public stands against the far right. The specific method of intimidation may be different (i.e., public records requests), but the goal is the same.

This intimidation is as insidious now as it was more than half a century ago, because it does not matter that the targets have done nothing wrong and have nothing to hide. As we have seen, all it took was one purloined e-mail, taken out of context and distorted beyond all recognition, to manufacture the phony "Climategate" scandal that threatened the reputation of climate scientists around the world and set back climate change regulations by years.

Anyone doubting that the far right is both willing and able to destroy their reputations with such distortions needs look no farther than the devastating video "exposés" of ACORN, NPR, and Planned Parenthood. The ACORN video came first and essentially destroyed the organization. In the best traditions of McCarthyism, the right now uses any association with ACORN to discredit its opponents. They are hoping for equal success with NPR and Planned Parenthood.

People For the American Way strongly supports the Freedom of Information Act and its state and local equivalents. Opening government records to the public serves as an essential check on the abuse of government power. Indeed, the Bush Administration prepared for its long war against civil liberties in the administration's early days by essentially reversing the Clinton Administration's presumption that FOIA requests should generally be granted unless there is some reason to deny it.

Such laws exist to expand public dialogue and the dissemination of information affecting the public welfare. But the rights granted by FOIA laws, like so many others, have limitations and can be abused. A demand for information can be made not to hold government accountable and enhance public debate, but instead to harass, intimidate, suppress public debate, and keep information and opinions out of the public square. This is particularly true when it is aimed at individuals in state academic institutions.

That's what we see happening in Wisconsin and Michigan.

The public has a right to know about the activities of government entities working in its name. When a government entity has the authority to issue licenses, allocate funds, imprison people, conduct safety inspections, conduct elections – the core activities of government, all of which have substantial impacts on individuals, businesses, and groups – open records laws can help ensure that these tasks are done lawfully, without favoritism or waste. Reflecting how often members of the public request such information, many government organizations have entire offices dedicated to fulfilling these records requests.

So how often does a member of the public submit a record request for, say, the Labor Studies Center at the University of Michigan? I asked Roland Zullo, a research scientist there. He had to think about it because such requests are so rare, but he thinks the last one was about five years ago, a fishing expedition from a conservative organization essentially seeking all of their records going back to the 1950s. When the organization learned how much it would have to pay to cover the costs of its truly expansive request, it apparently backed off.

The Supreme Court has recognized the unique role that universities, including public universities, play in maintaining our liberties. As it stated in 1957, during the McCarthy era, "[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."

That is why the American Historical Society has strongly condemned the efforts by Wisconsin Republicans to intimidate Professor Cronon:

The purpose of the state's Open Records Law is to promote informed public conversation. Historians vigorously support the freedom of information act traditions of the United States of which this law is a part. In this case, however, the law has been invoked to do the opposite: to find a pretext for discrediting a scholar who has taken a public position. This inquiry will damage, rather than promote, public conversation. It will discourage other historians (and scholars in other disciplines) employed by public institutions from speaking out as citizen-scholars in their blogs, op-ed pieces, articles, books, and other writings.

We should recognize that public universities are a unique hybrid. They are funded by the public, and we should be able to ensure that taxpayer money is being spent efficiently and legally. But their work also contributes to the robust debate over public issues without which our freedom will die. And that debate requires that we protect academic freedom and ensure that faculty have no reason to feel intimidated for asking difficult questions, conducting their research and writings, and making statements that those in power do not wish to hear.

That is the American Way.

PFAW

Women versus Wal-Mart at the Supreme Court Today

Today the Supreme Court heard oral argument in the case of Dukes v. Wal-Mart, a gender discrimination case brought by female workers of Wal-Mart, the nation’s largest private employer. The workplace discrimination case is a complicated piece of litigation and has already been in the courts for a decade.

The women suing Wal-Mart won an important victory in 2004 when a district court ruled that they could pursue their case as a “class,” representing all similarly situated women working for Wal-Mart.

Class action cases are permitted under very limited circumstances but they serve as important vehicles for groups of plaintiffs who may not have the means or resources to individually take on a deep-pocketed defendant in court. Because without a class action case, most of the plaintiffs wouldn’t be willing to go through the difficult process of filing a suit, class actions mean that corporations are forced to deal with cases they could otherwise ignore. In addition, class actions raise the possibility that a company will have to pay an enormous monetary award and even punitive damages—a powerful incentive to settle out of court.

So it’s no surprise that Wal-Mart appealed the district court’s decision to let this case proceed. The company’s appeal resulted in two split decisions by three-judge panels and a later 6-5 decision from the full 9th Circuit which, among other things, ultimately upheld the district court’s decision as to certification of the class. Wal-Mart appealed to the Supreme Court.

Wal-Mart is arguing that the women suing shouldn’t be designated a class for a number of reasons. The company claims that that the representative plaintiffs do not have claims typical of the whole class—a group which could involve from 500,000 to 1.5 million women with varying jobs and circumstances. Wal-Mart also argued that allowing the district court’s decision to stand would make the trial so unmanageable that it would violate Wal-Mart’s federal and constitutional rights.

The women pushing the suit point to company-wide practices that they claimed resulted in a culture of gender discrimination, including sexist nicknames, managers who held meetings at Hooters restaurants, and other disparaging conduct directed at women. They also point out that only a class action approach would work against a giant corporation like Wal-Mart. Individual claims of $1,100 per worker would do nothing towards ending the company’s discriminatory practices.

PFAW Foundation filed an amicus brief in support of the female class along with 33 other civil rights organizations, including the ACLU and the National Women’s Law Center. The brief emphasizes that sex discrimination in the workplace remains a very serious problem in the United States and the systemic barriers to individual actions reinforce the need for a class action to address the kind of discrimination alleged in the case against Wal-Mart. Not surprisingly, corporate America and its many powerful trade associations, including the U.S. Chamber of Commerce, came out in full force in support of Wal-Mart, filing amicus briefs to protect their corporate interests.

While the outcome of the case remains unclear, it can be certain that there remains a pro-corporate bloc of the Court that will be sympathetic to Wal-Mart’s claims. Justice Scalia tipped his hand at his skeptical view of class actions last year in another case, suggesting that there was “national concern over abuse of the class action device.” The Court is also considering a case this term that would weaken the ability to bring class action lawsuits in the context of state consumer protection laws.

We’ll keep you posted as the case moves forward.

 

PFAW

Jon Stewart Slams Republican Hypocrisy on Corporate Power

The Daily Show’s Jon Stewart took Republicans to task for baselessly holding “parasitic” workers and “greedy” labor unions for the country’s economic and budget problems, while staying silent when many of the country’s largest corporations “pay no federal taxes” at all as a result of off-shore schemes and corporate tax breaks and loopholes.

Stewart also points out that the Supreme Court in Citizens United granted corporations the same political rights as people, defenders of corporations are fine when business giants like General Electric pay no taxes at all while cutting American jobs. “I know the Supreme Court ruled that corporations are people, but what I didn’t realize is that those people are assholes.”

People For the American Way has launched a petition telling members of Congress that “cuts to social security and vital programs that help students, poor children and the unemployed should not be part of the deficit discussion before tax fairness and making corporations pay their fair share.” You can also join our Facebook page, “I pay more taxes than G.E.”

PFAW

The Further Marginalization of the U.S. Chamber of Commerce

For the second time in less than a month, the U.S. Chamber of Commerce has learned that its extremism can sometimes be too much for even one member of the notoriously pro-corporate Roberts Court to swallow.

Yesterday, a unanimous Supreme Court released its opinion in Matrixx Initiatives v. Siracusano. At issue was whether a publicly traded company can be held accountable when it withholds from investors the fact that its main product has been linked to significant, negative health consequences, but not so often as to be statistically significant. (The Chamber submitted an amicus brief supporting the company.)

Matrixx is a pharmaceutical company that makes a product called Zicam Cold Remedy. It submitted a filing to the Securities and Exchange Commission that omitted certain negative information about Zicam. Matrixx had been told independently by three medical researchers and physicians that some users of Zicam had lost their sense of smell. The company was also being sued by two people claiming to have lost their sense of smell due to Zicam. Matrixx's SEC filing did not mention any of these facts.

When the facts about Zicam became known, a pension fund initiated a class-action suit against Matrixx on behalf of investors.

Federal securities laws prohibit companies from making "material" omissions - omissions that an average shareholder would consider important - in connection with the buying and selling of shares. In 2004, when Good Morning America aired a story about a possible link between Zicam and the loss of the sense of smell, the company's share price dropped by 23.8% in just one day, suggesting that this just might have possibly been material information for investors.

Nevertheless, the district court dismissed the case because the number of reports was not statistically significant. The Ninth Circuit reversed that decision and, in a refreshing display of common sense, has now been upheld by a unanimous Supreme Court in an opinion written by Justice Sotomayor: Just because the number of negative incidents isn't statistically significant doesn't mean you automatically can hide it from investors.

Congress enacted the securities laws during the New Deal, in response to widespread abuses in the securities industry - a scenario all too familiar to Americans today. The intent was to replace a system of caveat emptor with an honest market. Congressional intent was clear: If the average shareholder would consider something important, then it must be disclosed.

Big Business was paying attention to this case: The U.S. Chamber of Commerce filed an amicus brief urging the Court to rule for Matrixx - which would have made it harder to hold publicly traded corporations accountable when they choose to omit important information affecting Americans' investments. The Chamber was hoping the conservative Justices would once again throw common sense and legal precedent out the window in order to achieve a corporate-friendly result.

But this time, the Chamber's extremism was too much for even one Justice on the Supreme Court to swallow.

PFAW

Will the Supreme Court Close the Door to Civil Rights Lawsuits?

Today, the Supreme Court is hearing hear oral arguments in Fox v. Vice, a case that threatens to choke off future civil rights litigation. People For the American Way Foundation has joined an amicus brief protecting the right of people to sue to protect their basic rights.

In a federal civil rights lawsuit, where the government or a government official is being sued, a trial court can sometimes order the plaintiff to pay the defendant's legal fees. The law allows this if (1) the defendant is the prevailing party and (2) the plaintiff's case was frivolous. In Fox v. Vice, the Supreme Court is being asked to interpret this law. The potential exposure to paying a defendant's legal fees serves as an obvious deterrent to bringing suit, and it's important, therefore that it be narrowly construed in order not to violate Congress's intent to empower people to vindicate their rights in the courts.

In this case, Ricky Fox sued the local chief of police, Billy Ray Vice, based on two incidents that took place after both men had announced their competing candidacies for the police chief job. Fox claimed that Vice, the incumbent, sent him an "anonymous" letter attempting to blackmail him into not running for office. The next month, Vice allegedly encouraged someone to file a false police report about Fox.

Fox claimed that these acts violated both federal civil rights laws and state tort laws. The case was before a federal court, and Fox eventually acknowledged that he had no valid federal claim. So the trial court judge dismissed the federal claims and remanded the state civil claims to state court for future adjudication. The judge also ruled that the federal claims had been frivolous, and he ordered the plaintiff to pay the defendant's legal fees related to the frivolous claims.

However, because the frivolous and non-frivolous claims were all based on the same set of facts, it was nearly impossible to disentangle legal fees for one from legal fees for the other. So the district court judge classified them all as being for the frivolous federal claims and ordered the plaintiff to pay the entire legal bill. Fox ended up paying the legal fees that will be used by the defendant to oppose Fox's own non-frivolous state court claims still to be litigated. The Fifth Circuit Court of Appeals upheld the decision.

If the Supreme Court affirms this decision, it could severely chill civil rights lawsuits. It sets up a standard where plaintiffs risk having to pay all of the defendant's legal fees even if only one of their claims is judged frivolous. To make matters worse, it is very hard to predict what a judge will consider frivolous. Even judges hearing the same case at the same time may differ wildly as to whether it is frivolous. The standard adopted by the lower court would discourage civil rights plaintiffs from pursuing novel legal theories and create a powerful disincentive against filing valid civil rights suits in the first place.

In considering the case, the Supreme Court should be consistent with Congress's intent to encourage meritorious suits and discourage frivolous ones. It should rule that legal fees should not be awarded in federal civil rights cases when a plaintiff's "frivolous" claim is factually intertwined with non-frivolous claims.

The Roberts Court has devised numerous ways to close the courthouse door to innocent people seeking to vindicate their rights. By the end of the Court's term, we will learn whether Fox v. Vice will join cases like Ledbetter v. Goodyear in the Roberts Court's Hall of Shame.

PFAW

A Religious Exemption From the Rule of Law

As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.

These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:

  • that a public school teacher not be required to teach materials that promote same-sex marriage if the content of the materials violates their sincerely held religious beliefs.
  • that a religious entity (or any nonprofit organization operated or controlled by one) need not provide adoption, foster care, or social services if providing the services would violate the entity's religious beliefs.
  • that a government employee (like a clerk or judge) not be required to perform a civil marriage ceremony if performance of the ceremony would violate their sincerely held religious beliefs.

The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.

Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.

In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.

So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.

As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.

Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?

They have not.

Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.

Whatever it is, it certainly is not a principled fidelity to religious liberty.

We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.

PFAW

Arizona Senate Defeats Extremist Anti-Immigrant Laws

Arizona’s state Senate yesterday defeated five extreme anti-immigrant bills, including two aimed at provoking the U.S. Supreme Court to reconsider the constitutional definition of citizenship, and three more that would have required hospitals, schools, public housing administrators, and DMV officials to become immigration enforcers:

One of the rejected bills would have required hospitals to contact federal immigration officials or local law enforcement if people being treated lack insurance and can't demonstrate legal status.

Critics said that would burden hospitals, but Republican Sen. Steve Smith of Maricopa said his bill didn't require much.

"Maybe you forgot it's illegal to be in this country illegally," he said during the vote on his bill. "We just ask them to report the crime, not be the judge and executioner."

Also defeated was a bill to require schools to file reports on enrollments of illegal immigrant students.

The fifth bill was a sweeping measure sponsored by Pearce. It would have made it a crime for illegal immigrants to drive in Arizona. It also had provisions on registering vehicles, workplace hiring and various public benefits.

It would ban illegal immigrants from attending Arizona's public universities and community colleges. The state does not now have a ban but it does require illegal immigrants to pay higher, non-resident tuition rates.

Pearce's bill also would have required eviction of public housing tenants who let illegal immigrants live with them and make applicants for vehicle titles and registration prove they are in the country legally.

Arizona has in recent months led the way in extremist anti-immigrant measures, including passing last year’s SB 1070, which would have required racial profiling by state police. Parts of that bill were temporarily blocked by a judge as the bill is appealed.


That these five bills couldn’t make it through the Arizona Senate shows the power of the backlash against such harsh—and possibly illegal—measures.
 

PFAW

Encouraged by Citizens United, Right-Wing Groups Demand Even More Corporate Influence in Politics

While the Supreme Court’s decision in Citizens United overturned decades of precedent by granting corporations the right to spend money from their corporate treasuries to help elect or defeat candidates, many pro-corporate activists believe that the ruling didn’t go far enough and seek to eviscerate even more restrictions on corporate money in elections. Opponents of campaign finance reform are spearheading efforts to allow corporations to contribute directly to candidates for office, permit political groups to keep the identity of their donors a secret, and loosen restrictions on foreigners contributing to candidates. The Supreme Court is also set to consider a major case on the constitutionality of Arizona’s clean elections laws that provide public financing for qualifying candidates. Politico reports on the Right’s “sustained assault” on campaign laws:

Not satisfied by the 2010 Supreme Court ruling that opened the floodgates to corporate-sponsored election ads, conservative opponents of campaign finance regulations have opened up a series of new legal fronts in their effort to eliminate the remaining laws restricting the flow of money into politics.

They have taken to Congress, state legislatures and the lower courts to target almost every type of regulation on the books: disclosure requirements, bans on foreign and corporate contributions and – in a pair of cases the Supreme Court will consider this month – party spending limits and public financing of campaigns.

The sustained assault, combined with the Supreme Court’s rightward tilt on the issue, has some advocates for reducing the role of money in politics fretting about the possibility of an irreversible shift in the way campaigns are regulated and funded that would favor Republicans and corporate interests in the 2012 presidential race and beyond.



“Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections,” warns a memo by Gerry Hebert and Tara Malloy, lawyers at the pro-regulation Campaign Legal Center, which filed a brief defending the Arizona law.

“Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy,” their memo predicted.

Opponents of campaign rules argue that removing restrictions allows more voices to compete in the political marketplace. And they have a slew of other suits pending that could dramatically alter the political money landscape, including one challenging a rule that limited how much the Republican National Committee could spend supporting the unsuccessful 2010 reelection campaign of former Rep. Joseph Cao (R-La.).

The Supreme Court is set to decide on Friday whether to hear the case which is being handled by Jim Bopp, a Republican lawyer and leading opponent of campaign restrictions. The impact of the Cao case “could be real big,” if the court overturns the so-called coordination limits at issue, predicted Bopp, who has dozens of cases pending in courts around the country.

One seeks to advance the Citizens United ruling by challenging an Iowa law banning direct corporate contributions to state candidates, while a pair of others dispute whether non-profit groups called the Committee for Truth in Politics and The Real Truth About Obama that aired ads critical of then-candidate Barack Obama had to disclose their donors or activity.
PFAW

Japanese American Groups Supporting American Muslims in Fight Against Discrimination

The Washington Post today reports on the work some Japanese American groups are doing to support American Muslims, who are increasingly the objects of widespread fear and suspicion because of their faith. These groups see echoes of the persecution Japanese Americans faced during World War II in the scapegoating and vilification of American Muslims, exemplified by the congressional hearings Rep. Peter King is beginning this week:

Spurred by memories of the World War II-era roundup and internment of 110,000 of their own people, Japanese Americans - especially those on the West Coast - have been among the most vocal and passionate supporters of embattled Muslims. They've rallied public support against hate crimes at mosques, signed on to legal briefs opposing the government's indefinite detention of Muslims, organized cross-cultural trips to the Manzanar internment camp memorial near the Sierra Nevada mountains in California, and held "Bridging Communities" workshops in Islamic schools and on college campuses.

Last week, Rep. Michael M. Honda (D-Calif.), who as a child spent several wartime years living behind barbed wire at Camp Amache in southeastern Colorado, denounced King's hearings as "something similarly sinister."

"Rep. King's intent seems clear: To cast suspicion upon all Muslim Americans and to stoke the fires of anti-Muslim prejudice and Islamophobia," Honda wrote in an op-ed published by the San Francisco Chronicle.

Last November, in the heat of the debate over the Park51 Islamic community center in lower Manhattan (aka the “Ground Zero Mosque”), former Supreme Court Justice John Paul Stevens spoke [pdf] about the parallel between the prejudice Japanese Americans faced during World War II the demonization that American Muslims are facing today. Stevens, a WWII veteran, recalled a visit to Pearl Harbor in 1994, when he spotted a group of Japanese tourists and had to fight his first reaction, which was that “those people really don’t belong here”:

But then, after a period of reflection, some of those New Yorkers may have had second thoughts, just as I did at the Arizona. The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11. Indeed, terrorists like those who killed over 3, 000 Americans -including Catholics , Jews , Protestants, atheists and some of the 600 ,000 Muslims who live in New York -have also killed many more Muslims who disagree with their radical views in other parts of the world. Many of the Muslims who pray in New York mosques may well have come to America to escape the intolerance of radicals like those who dominate the Taliban. Descendants of pilgrims who came to America in the 17th century to escape religious persecutions -as well as those who thereafter joined the American political experiment that those people of faith helped launch -should understand why American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning laws.

Our Constitution protects everyone of us from being found guilty of wrongdoing based on the conduct of our associates. Guilt by association is unfair. The monument teaches us that it is also profoundly unwise to draw inferences based on a person's membership in any association or group without first learning something about the group. Its message is a powerful reminder of the fact that ignorance -that is to say, fear of the unknown -is the source of most invidious prejudice.


PFAW

Karl Rove’s Crossroads GPS Blasts Unions in Misleading Ad

A shadowy political organization founded by Karl Rove is spending $750,000 to run a nationwide ad blasting workers and their collective bargaining rights. Crossroads GPS is a pro-corporate group with a history of using misleading if not outright false claims to attack Democrats and progressive causes. The organization does not disclose its donors but NBC News found that “a substantial portion of Crossroads GPS’ money came from a small circle of extremely wealthy Wall Street hedge fund and private equity moguls.”

Now, the group is out with an ad trashing organized labor on cable news in light of attempts to cut the collective bargaining rights of public employees in Wisconsin, Ohio, and Idaho. Crossroads GPS asserts that public employees are overpaid, however, a study from the Economic Policy Institute shows that public workers in Wisconsin and Ohio actually “earn lower wages than comparable private sector employees.”

Crossroads GPS isn’t the only shadowy pro-corporate group to support the GOP’s war on organized labor.

Americans for Prosperity, an organization closely tied to the Koch Brothers, is vigorously supporting Republican union-busting and unfairly blames public workers for the country’s budget problems. Like Crossroads GPS, Americans for Prosperity doesn’t disclose its donors and advocates for the agenda of corporate special interests.

As People For president Michael Keegan writes, the Supreme Court’s decision in Citizens United has empowered groups like Crossroads GPS and Americans for Prosperity to secretly use corporate money to fund pro-corporate causes:

What is perhaps most troubling about the post-Citizens United flood of corporate money in politics is the free rein it has given for corporations to hide behind front groups to run misleading ads without ever being held accountable for their content. Americans for Prosperity is now employing the same tactics it used to smear health care reform in key House districts in its ad campaign against Wisconsin unions. Like in its ads falsely claiming that health care reform hurt Medicare recipients, the group's ads in Wisconsin pretend to champion populist values while pushing a decidedly anti-populist agenda. The ads seek not only to misinform voters, but to blame ordinary Americans for problems they did not cause.
PFAW

The Corporate Discount: Who the Republican Spending Cuts Really Benefit

In the Huffington Post today, People For the American Way's President Michael Keegan connects the extreme pro-corporate policies being pushed by federal and state GOP officials with the new liberty that corporations have to buy influence in elections:

One year after Citizens United v. FEC, when the Supreme Court opened American elections to a corporate spending free-for-all, elected officials in Washington and in statehouses around the country are pushing a stunning set of financial policies that, if passed, will provide a windfall for giant corporations at the expense of already-hurting individual taxpayers. Largely proposed under the guise of financial responsibility, these proposals threaten job creation and essential government services while ensuring the coffers of corporations remain untouched.

American taxpayers are beginning to fight back against some of the most egregious proposals, such as Wisconsin Gov. Scott Walker's attempt to bust public employee unions and the House GOP's slashing of funding for women's health care. But as long as corporations can buy unlimited political influence, these battles will only escalate and they will continue to be just as lopsided.

In the coming weeks, we will see the interests of corporate funders and the interests of individual taxpayers go head-to-head as Congress and the president attempt to hammer out a continuing spending resolution that will keep the government running for the rest of the year. The Republican House wants to block funds to reproductive health services, gut the Affordable Care Act, and even prevent the Environmental Protection Bureau from regulating pollution -- all while costing an estimated 700,000 American jobs. The winners in the House's proposal? Large corporations and the wealthy, who under the proposal astoundingly would not even be asked to give up a single tax loophole.

Read the whole thing here.

PFAW

Supreme Court Decision Exposes Religious Right Deceit on Hate Crimes Laws

When Congress debated and ultimately passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, detractors unfairly criticized the law as a threat to free speech and religious freedom. Opponents, especially from the Religious Right, tried to cover up their animus by maintaining that efforts to protect people against violent crime were really attempts to ban “hate speech,” and consequently “criminalize religion."

Rob Boston, a senior policy analyst of Americans United for Separation of Church and State, writes about how the Supreme Court’s recent ruling in Snyder v. Phelps yet again exposes the dishonesty of the Religious Right’s arguments:

There has been no end of discussion about this church and its antics. Today I want to focus on an overlooked aspect of the controversy: For years, we’ve been hearing Religious Right leaders claim that their freedom to speak out on issues like homosexuality and abortion is at risk. To hear them tell it, “hate speech” laws are just around the corner, and Pastor Bob is only one step away from being tossed in the hoosegow if he dares to read from the Book of Leviticus in the pulpit.

It’s hard to imagine speech more hateful than that put forth by Westboro Baptist’s members. They think God is punishing America for tolerating homosexuality, so they hoist signs reading, “God Hates Fags,” “Thank God for IEDs” and “Pray for More Dead Soldiers.”

This is some seriously hateful stuff – and by an 8-1 vote the Supreme Court said in Snyder v. Phelps that it is protected speech. If Westboro Baptist can claim the mantle of the First Amendment to unleash this stuff, I don’t think Pastor Bob has to worry about his pulpit criticisms of same-sex marriage. W

henever cases like this come up, the term “hate speech” is thrown around a lot in the media. Although this term appears in common parlance, it’s not something the courts have adopted. Sure, a lot of speech can be termed “hateful” – and it’s also protected speech. The First Amendment does not require that speech be polite, rational or popular. After all, the First Amendment wouldn’t be very useful if all it did was protect your right to say something everyone agrees with.



The claim that “hate speech” laws are going to shut down fundamentalist churches and gag conservative pastors is, to put it politely, bunk. It was never a persuasive argument, and in light of Wednesday’s ruling stands in shreds. I’m hoping Religious Right leaders will have the decency to stop saying it – but I won’t hold my breath.
PFAW

Supreme Court Recusal Bill Introduced

For several weeks now, more and more people have been paying attention to the general absence of enforceable standards for the recusal of Supreme Court Justices from cases in which their impartiality is in question. Rep. Chris Murphy (CT) has introduced a bill, cosponsored by Rep. Anthony Weiner (NY), that would introduce significant reforms to the manner in which Supreme Court Justices recuse themselves – or don't – from cases in which their impartiality may reasonably be questioned.

Currently, Justices decide for themselves whether they will recuse themselves. They do not need to state the reasons for their decision to recuse or not to recuse, and their decisions are non-reviewable. This can be a problem. As Talking Points Memo reports:

Justices Thomas and Scalia have been under frequent fire in liberal circles over their attendance at conferences sponsored by Koch Industries in recent years, a company whose owners have been major financial backers of conservative political causes. Thomas' wife, Ginni Thomas, runs a conservative nonprofit group, Liberty Central, and some have suggested her activism against President Obama's health care legislation could be a conflict of interest for her husband if the new health care reform law -- as expected -- reaches the Supreme Court. Justice Thomas raised eyebrows this weekend when he said in a speech at a banquet that his wife was working "in defense of liberty" and that they "love the same things, we believe in the same things."

Rep. Murphy discussed this at an event yesterday to generate support for his reform bill.

"The problem is the only person who can decide whether Justice Thomas can recuse himself is Justice Thomas," Murphy told reporters at a press conference outside the Capitol. "That's wrong and that needs to change."

Fortunately, by the time the Supreme Court hears the healthcare case, Americans might not have to rely only on Justice Thomas' goodwill. As described on Rep. Murphy's website, his bill would:

  • apply the Judicial Conference's Code of Conduct, which applies to all other federal judges, to Supreme Court justices. This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
  • require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
  • require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.

Until the bill passes, we will continue to strongly urge Justice Thomas to recuse himself from future healthcare reform cases, as requested by Rep. Weiner and 73 of his colleagues.

PFAW

Still More Bipartisan Support for Goodwin Liu

Richard Painter, once the chief White House ethics lawyer for President George W. Bush, has a comprehensive, well-researched piece in the Huffington Post whose title says it all: "Qualified, Measured, and Mainstream: Why the Senate Should Confirm Goodwin Liu." Now a professor at the University of Minnesota, this conservative lawyer is one of the many legal scholars from across the political spectrum to support Liu's nomination.

Despite this broad support, perhaps no jurist nominated to the federal bench by President Obama has been maligned, mischaracterized, and mistreated by far right extremists more than Goodwin Liu. Point by point, Painter demolishes the myths about Liu. As Painter explains in detail, the caricature the far right has created bears no relation to reality. As he writes:

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee. ...

This post brings together a variety of material about Liu:

  • First, I review Liu's background, qualifications, and key endorsements.
  • Second, I highlight two letters from respected authorities that shed important light on Liu's scholarly record.
  • Third, I provide several responses to various attacks on Liu.
  • Fourth, I address Liu's opposition to the Supreme Court confirmations of Roberts and Alito, two Justices whom I vigorously supported as a Bush administration lawyer and whom I believe were outstanding additions to the Court.

These materials summarize why Liu is an excellent choice for the federal bench. But even if you read this entire post, nothing substitutes for reading Liu's writings or watching his testimony for yourself. That is how I reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed.

Liu's nomination has been stalled by Republican senators for more than a year. Today, he appears yet again before the Senate Judiciary Committee. When the committee once again approves his nomination and sends it to the Senate floor, leadership should schedule a vote, defy any GOP threats to filibuster, and get this most talented of judicial nominees confirmed at last.

PFAW

Chamber Fails to Poke a Hole in Nation's Anti-Discrimination Laws

The Supreme Court issued its decision in Staub v. Proctor Hospital today, addressing whether an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but who did not make, the ultimate employment decision.

Although the case involved the Uniformed Services Employment and Reemployment Rights Act (USERRA), that statute's similarity to Title VII means the outcome of this case could affect people's ability to fight against a variety of different types of employment discrimination. Both statutes state that unlawful discrimination has occurred if bias was a "motivating factor" behind an employment decision, even if other, legitimate reasons existed.

The Supreme Court ruled today for the fired employee. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.

The Court held that if a worker's supervisor is motivated by bias and intentionally takes steps to cause the worker to be penalized in some way, which then results in the worker being penalized, then the employer is liable, even if someone else who is free of bias actually carries out the penalty.

The hospital was supported by Big Business interests in an amicus brief filed by the U.S. Chamber of Commerce. They had argued that as long as the person who made the actual firing decision was not biased and had made an independent investigation of the facts, then the company could not be held liable for the discriminatory actions leading up to that point. This interpretation, if accepted, could potentially have opened a loophole in anti-discrimination statutes, one where corporations could maneuver their internal processes to shield themselves from liability for unlawful employment decisions.

However, as SCOTUSBlog reports:

[T]he Court majority rejected the hospital's argument that, since the supervisor who made the final decision actually did her own investigation before acting, that should neutralize the effect of the other supervisors' bias and get the hospital off the hook. If the biased supervisors' intent fit into the scenario laid out by the Scalia opinion, the Court said, an investigation by the final decision-maker would not remove liability.

This defeat for the Chamber of Commerce is a victory for workers across the country.

PFAW

Corporate Personhood Debunked (This Time)

It's not often these days when you can't get even one of the conservative Justices on the Supreme Court to ignore precedent, twist the facts, ignore logic, or do whatever else it takes to help Big Business consolidate the already substantial power it exercises over ordinary Americans. Today is such a day.

In FCC v. AT&T, the giant telecom corporation, backed by supportive amicus briefs from numerous corporate interests, argued that inanimate corporations have "personal privacy" for the purposes of the Freedom of Information Act (FOIA).

Several years ago, the FCC investigated alleged overcharges by AT&T. After the investigation, AT&T's competitors filed a FOIA request to get the FCC to release documents on what they had found. The FCC said it would not disclose confidential commercial information about AT&T, pursuant to a specific exemption in the FOIA statute. However, the company argued that certain additional material would cause the company embarrassment and therefore fell into a separate statutory FOIA exemption allowing government agencies not to disclose material compiled for law enforcement purposes that would "constitute an unwarranted invasion of personal privacy."

The Third Circuit Court of Appeals had ruled for AT&T, holding that FOIA's statutory language "unambiguously" indicates that a corporation may have a personal privacy interest within the meaning of this FOIA exemption. The court said that: (1) FOIA defines "person" to include a corporation; and (2) the term "personal" is derived from the word "person" and is simply the adjectival form of the word.

Aside from leading to a bizarre definition of "personal," Big Business's idea of corporate personhood would significantly weaken the ability of news organizations and government watchdogs to examine government records containing vital information about corporate behavior affecting public health and safety – records that would otherwise remain hidden from the American people.

Fortunately, this assertion of corporate personhood was too much even for the Corporate Court that gave us Citizens United. A unanimous Court noted that in common conversation, the term "personal" is often used as the opposite of "business-related." Moreover, a simple look at a dictionary suggests that the word "personal" does not relate to artificial entities like corporations.

The U.S. Chamber of Commerce submitted an amicus brief in support of AT&T. Its extremism has reached the point that not even one Justice on the Supreme Court was willing to accept its view. Keep that in mind the next time the Chamber purports to represent mainstream values as it seeks to weaken Americans' efforts to impose reasonable regulations on businesses and hold them accountable when they do wrong.

PFAW

Wisconsin after Citizens United

In the Huffington Post today, People For President Michael Keegan looks at what happens after corporations get unlimited influence in elections. In Wisconsin, big corporate funders not only have elected officials willing to unpopular and anti-populist policies, but also have instant access to decision makers:

The story of the year since Citizens United v. FEC may be perfectly crystallized in the fight that Wisconsin Gov. Scott Walker is waging against his state's public employee unions. Organizations like Americans for Prosperity spent millions of dollars in 2010 running misleading ads bashing health care reform, progressives, immigrants, and American Muslims in order to elect politicians who would stand up for the interests of big business. Now those interests are working hard, and spending a little extra money, to make sure they collect on their investments.

The real story behind the protests in Wisconsin has little to do, as Gov. Walker would have you believe, with a state-level push for fiscal responsibility. It has everything to do with the changing dynamics of money and influence in national politics. Pro-corporate politicians have never liked the power wielded by unionized workers. Last year, in Citizens United v. FEC, the Supreme Court handed them the tools do to something about it, paving the way for a wave of corporate money that helped to sweep pro-corporate politicians into power in November. Citizens United also increased the power of labor unions, but union spending was still no match for money pouring into elections from corporate interests. As Rachel Maddow has pointed out, of the top 10 outside spenders in the 2010 elections, 7 were right-wing groups and 3 were labor unions. Gov. Walker's attempt to obliterate Wisconsin's public employee unions, if it succeeds, could be the first of many attempts across the country to permanently wipe out what are the strongest political opponents of the newly empowered corporate force in American politics.

Read the whole thing here.
 

PFAW

Hundreds in California Protest Corporate Influence in Elections

In the year since the Supreme Court’s decision in Citizens United v. FEC, there has been new scrutiny on the increasingly cozy relationship between corporate funders of elections and national policy makers. Exemplifying that relationship have been the Koch brothers, billionaires whose dollars have helped to fund right-wing organizations and campaigns for years, and who were behind one of the most powerful outside groups in the 2010 elections, Americans For Prosperity. The brothers also hold twice-yearly meetings of influential donors, pundits, and politicians—past guests have included Glenn Beck, Sens. Jim Demint and Tom Coburn, and even Supreme Court Justices Antonin Scalia and Clarence Thomas (both of whom were in the Citizens United majority).

The Kochs held their most recent strategy meeting at a spa in Palm Springs this weekend. Attending the secretive event was House Republican Leader Eric Cantor, among other undisclosed guests. Outside were 800-1,000 protestors, 25 of whom were arrested for trespassing. The LA Times reports:

Protest organizers said they hoped to raise awareness about the Koch brothers and what activists portray as their shadowy attempts to weaken environmental protection laws and undercut campaign contribution limits.

The brothers control Koch Industries, the nation's second-largest privately held company. They have funded groups pushing a limited-government, libertarian agenda, helped organize "tea party" groups and contributed $1 million to a failed ballot initiative to suspend California's law to curb greenhouse gases.

"We cannot have democracy unless everyone has a voice," said Cathy Riddle, a Temecula website developer who held a sign reading "Corporations are not people." Donors like the Koch brothers are "drowning us out," she said. "Their voices are louder."

The protest, organized by Common Cause, included some members of People For the American Way. It came one week after activists, in events around the country, marked the first anniversary of Citizens United and called for a constitutional amendment to reverse it. Watch PFAW’s video explaining the decision and its impact:
 

PFAW

Justice Scalia Teaches at Michele Bachmann's Constitution School

People For's president, Michael Keegan, has a piece it the Huffington Post today on Justice Antonin Scalia's visit to Rep. Michele Bachmann's Constitution class:

Yesterday, Supreme Court Justice Antonin Scalia traveled to the Capitol to teach a class about the Constitution to members of Congress, led by controversial Tea Party caucus chairwoman Michele Bachmann. Justice Scalia's participation in Bachmann's Constitution school has prompted a heated debate about the proper relationship between Supreme Court justices and political leaders. But the real debate that should be raging is not about judicial ethics, but about the dubious vision of the Constitution that Scalia and leaders of the Tea Party will be discussing.

As Jonathan Turley pointed out in the Washington Post this weekend, while Supreme Court Justices across the ideological spectrum have taken on increasingly prominent public roles, Scalia has become a true "celebrity justice." But Scalia's pugnacious celebrity is in service of a distorted and bizarre reinterpretation of the Constitution championed by the Tea Party movement.

Although the Tea Party seeks to wrap the Constitutional founding in religious doctrine and intention, this view conveniently ignores the Establishment Clause, the clause forbidding religious tests for public office, and the fact that neither the Bible nor God is mentioned in the Constitution's text. Meanwhile, the Tea Party's Constitution offers very few of the hard-won protections ensuring equal rights and liberties for all Americans, and all but eliminates the power of government to protect and empower its citizens in interstate commerce. Tea Party candidates across America in 2010 also called for repeal of the 16th Amendment (making federal income taxation possible), the 17th Amendment (providing for direct popular election of U.S. Senators), and parts of the 14th Amendment.

Bachmann's Constitution classes are not so much an introduction to the founding documents, but to a new interpretation of the Constitution that mirrors the Tea Party's radical political agenda.

Read the whole thing here.

PFAW

The Anniversary of Roe v. Wade

Today, in events around the country, Americans marked the anniversary of a Supreme Court decision that diminished the rights of individuals. Tomorrow, we’ll celebrate the 38th anniversary of a decision that took a great step toward recognizing the rights and liberties of individual citizens: Roe v. Wade.

The Center for Reproductive Rights has gathered reflections from a number of men and women on why Roe v. Wade and its guarantee of women’s reproductive choice matters to them. You can read those, and contribute your own, here: http://reproductiverights.org/en/feature/38-years-of-roe-v-wade

And don’t forget to wear a silver ribbon to show your support for reproductive rights and justice.

Finally, a quote from Justice Louis Brandeis, who in 1928 spoke of the importance of the Constitution’s protections for individual Americans and our freedom “to be let alone”:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.

 


 

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