Virginia

More Exposure of ALEC, This Time in Virginia

The exposure of ALEC continues, this time in Virginia. ProgressVA has released a new report exposing the many ties between its conservative, corporate-friendly elected officials and the secretive corporate-sponsored American Legislative Exchange Council (ALEC). As reported in the Washington Post:

In recent years, Virginia legislators have proposed bills that would legalize the use of deadly force in defending your home, call for companies that hire illegal immigrants to be shut down and give businesses tax credits to fund private school tuition for needy students.

All of those bills — and more than 50 others — have been pushed by a conservative group that ghostwrites bills for legislators across the nation, according to a study set to be released in the coming days.

In many instances, the bills are identical to model legislation written by the American Legislative Exchange Council, a pro-business, free-market group whose members include legislators as well as private companies, which pay thousands of dollars to have a seat at the table.

...

"The American Legislative Exchange Council, a secretive organization funded by big corporations, has been writing bills that Virginia legislators are passing off as their own work on everything from education to health care to voting rights," said Anna Scholl, executive director of ProgressVA.

As People For the American Way Foundation demonstrated in a detailed report earlier this year, ALEC is the voice of corporate special interests in state legislatures. Last month, PFAW Foundation and Common Cause released an exposé detailing how Arizona lawmakers are working hand-in-hand with corporate leaders who make up ALEC's membership to deregulate specific industries, privatize education and dismantle unions.

With today's new release from ProgressVA, Americans get a sobering look at how powerful corporate interests, working through ALEC, pull the strings in yet another state to turn their agenda laws that harm the 99%.

PFAW

Mitt Romney and Rick Perry Confirmed to Attend Far-Right Values Voter Summit

The Family Research Council sent word today that GOP presidential frontrunner Mitt Romney is now confirmed to join Rick Perry, Michele Bachmann, Rick Santorum, Ron Paul and Herman Cain at this year’s Values Voter Summit, a far-right extravaganza hosted by some of the most intolerant Religious Right groups in the business. Organized by the vehemently anti-gay Family Research Council, the event is also sponsored by the American Family Association and Liberty Counsel, among other right-wing groups.

Last year, we raised an alarm when Romney and Bachmann, along with Virginia Gov. Bob McDonnell, Rep. Mike Pence and former Arkansas Gov. Mike Huckabee attended the event. We were particularly concerned that these leaders would be willing to share the stage with the American Family Association’s spokesman Bryan Fischer, whose record of bigotry against gays and lesbians, Muslim Americans and American Indians, among others, is truly appalling.

Although Fischer is not yet listed as a confirmed speaker at this year’s event, attendees will have the honor of sharing the stage with some pretty extreme Religious Right activists, including Liberty Council’s Mat Staver, who opposes anti-bullying initiatives that protect LGBT kids and says that gay rights supporters have “a very militaristic anti-Christian viewpoint”; retired General Jerry Boykin, who thinks President Obama is using health care reform legislation to recruit an army of brownshirts loyal only to him; and Star Parker, who claims that black family life “was more healthy” under slavery than today.

And that’s not to mention the two main organizers of the event, the FRC and the AFA, which have both been listed as hate groups by the Southern Poverty Law Center for their propagation of false anti-gay rhetoric.

Highlights of last year’s summit included FRC leader Tony Perkins simultaneously insulting gay troops and a number of key U.S. allies in Iraq and Afghanistan by declaring that countries that allow gays and lesbians to serve openly in their armed forces are “the ones that participate in parades, they don't fight wars to keep the nation and the world free”; and Rick Santorum asserting that there are “no families” in impoverished neighborhoods.

Apparently the tone of last year’s event and the guest list of this year’s haven’t given any pause to the top GOP presidential candidates, who are eager to recruit the support of even the most extreme leaders of the Religious Right. That Romney is returning to VVS is an important reminder that, despite his self-styled “moderate” image, he is just as beholden to extreme Religious Right interests as the rest of the field.
 

PFAW

4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.

PFAW

Deceitful Robocalls Added to List of Dirty Election Tricks in Wisconsin

The Wisconsin GOP has been going to great lengths to sabotage efforts to conduct fair and open recall elections in Wisconsin. Instead of honestly putting their candidates against the Democrats and letting the voters decide between the two, they are running fake Democratic candidates in the primaries in an attempt to confuse voters and draw out the process. They have even distributed posters designed to encourage Republican voters to participate in the Democratic primary and vote for their planted candidates.

Adding to the list of dirty tricks, reports are surfacing that a “Right to Life” group is robocalling Wisconsin Democrats and telling them not to go to the polls today, and instead to wait for an absentee ballot to arrive in the mail. This is false, as July 12 is the last day to cast a vote in the Democratic primary, and there is not enough time to cast a vote by mail. Apparently, the robocalls are coming from a 703 area code (Virginia).

We do not know yet exactly who is ultimately responsible for these calls, and even if an individual is caught and takes the fall, we may never find out who’s really pulling the strings. Whoever they are, they are obviously people in synch with the right wing agenda of Governor Walker and the Koch Brothers. Disenfranchising voters by tricking them into not voting is a tried and true method of voter suppression. So is finding excuses at the polling place to keep certain people from voting, as GOP-pushed voter ID laws do. What all the tactics we see in Wisconsin have in common is that the right wing is pulling out the stops to prevent the people from exercising their constitutional right to remove them from office.

PFAW

After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

PFAW

This Time, the Roberts Court Keeps the Courthouse Doors Open

The Roberts Court is notorious for too often seeking excuses to close the courthouse door and keep individuals from vindicating their rights. So yesterday’s unanimous opinions in Bond v. US and Smith v. Bayer were refreshing.

In Bond, the Court ruled that an individual has standing to challenge a federal criminal conviction that she claims violates the Tenth Amendment. That Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Cited by many Tea Partiers as part of their efforts to diminish federal authority, it goes to the federal structure of our country and the rights of states; it does not directly address the rights of individuals. However, that does not bar individuals from standing to argue that they have been harmed by a congressional act that violates the Tenth Amendment.

Yesterday’s Supreme Court decision completely and correctly bypassed the substantive issue and remanded it to the lower courts. But regardless of the merits of Bond’s argument, she has the right to make it as someone whose freedom or imprisonment rests on whether the law she is challenging is constitutional.

Smith v. Bayer was similarly a breath of fresh air. The case asked if a federal court that has denied class certification can prohibit a separate West Virginia state court lawsuit seeking class certification in a case that is brought by people who had not been part of the federal lawsuit, but who would have belonged to the federal class had it gone through. A federal law called the Anti-Injunction Act authorizes a federal court to shut down state litigation of a claim or issue that was already presented to and decided by the federal court.

In an opinion authored by Justice Kagan, the Supreme Court unanimously pointed out that the federal rules on when you can validly form a class are not necessarily the same as West Virginia’s rules. So the state court was addressing a new legal question, not the one that the federal court had already addressed. In addition, eight of the Justices (all but Justice Thomas) agreed that because the federal class status was denied, Smith was by definition not a party to the federal claim and cannot be bound by it.

While the Supreme Court kept the courthouse doors open in these two cases, there are still cases pending like Wal-Mart where the Corporate Court can do significant damage to people’s ability to hold corporations accountable.

PFAW

Has Roberts Repudiated His Umpire Analogy?

Inside yesterday's Supreme Court opinion in Smith v. Bayer lies a repudiation of much of the far right's propaganda about judges. The severely flawed analogy of a judge interpreting the law with an umpire calling balls and strikes is one the right has favored since John Roberts used it at his confirmation hearing for his nomination to be Chief Justice. What makes yesterday's repudiation particularly interesting is that every member of the Court, including Roberts, signed on to it.

The opinion discussed whether one could assume that West Virginia's rule on forming class actions is the same as the federal rule, whose wording it closely follows. The lower court had concluded that the state rule is the same as the federal one. But as the unanimous Supreme Court explained:

The Eighth Circuit relied almost exclusively on the near-identity of the two Rules' texts. That was the right place to start, but not to end. Federal and state courts, after all, can and do apply identically worded procedural provisions in widely varying ways. If a State's procedural provision tracks the language of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue.

In other words, you can't just read the text of a law and automatically know how to interpret it. Different judges can reasonably come to different conclusions about how to interpret the exact same text. The Justices do not condemn state courts for this, but instead understand it as an unexceptional aspect of jurisprudence.

In other words, judging is not simply the mechanical calling of balls and strikes.

PFAW

Empathy and The Loving Story

As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.

Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.

If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.

Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.

PFAW

Judge Rules that Corporations Can Give Directly to Candidates

And the Citizens United slippery slope continues…

A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court's landmark Citizens United decision last year in his analysis.

In a ruling issued late Thursday, U.S. District Judge James Cacheris tossed out part of an indictment against two men accused of illegally reimbursing donors to Hillary Clinton's Senate and presidential campaigns.

Cacheris says that under the Citizens United decision, corporations enjoy the same rights as individuals to contribute to campaigns.

The ruling from the federal judge in Virginia is the first of its kind. The Citizens United case had applied only to corporate spending on campaigning by independent groups, like ads run by third parties to favor one side, not to direct contributions to the candidates themselves.

...

"(F)or better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech," Cacheris wrote in his 52-page opinion. "Thus, if an individual can make direct contributions within (the law's) limits, a corporation cannot be banned from doing the same thing."

Judge Cacheris – one of President Reagan’s earliest judicial nominees – acknowledged that another court addressing the issue has ruled that Citizens United does not invalidate a ban on corporate campaign contributions.

If the ban on corporate contributions to federal candidates were to be struck down by the Supreme Court, it would deal the biggest blow yet to federal clean elections laws that have been in place for over a century.

The first election after Citizens United turned into a corporate spending free-for-all. But it was just the beginning of what, without correction, may be a new regressive era of money in politics.
 

PFAW

Judges Regard Arguments Against Healthcare's Constitutionality With Healthy Skepticism

The constitutionality of the Affordable Care Act is once again in the news, as a three-judge panel of the Fourth Circuit Court of Appeals heard arguments yesterday on the constitutionality of the healthcare reform law. As reported by the Los Angeles Times:

Lawyers for Virginia struggled to explain how the state had the legal standing to challenge the healthcare mandate on behalf of its citizens. The judges said precedent did not permit states to sue on behalf of their citizens to contest federal laws.

But standing was not a problem in a second case, where lawyers for Liberty University sued on behalf of several individuals. Both lawsuits said a requirement in the new law that everyone purchase healthcare was a violation of the Constitution. ...

By their comments, members of the panel of the 4th Circuit Court of Appeals sounded as though they would reverse that decision and say Virginia Atty. Gen. Ken Cuccinelli had no standing to challenge the law.

Liberty University lost its lawsuit in federal District Court and appealed to the 4th Circuit. Mathew Staver, their lawyer, said Congress could regulate commerce but not "idleness." In this instance, he referred to the refusal of his clients to purchase health insurance.

But the judges didn't sound persuaded. They noted the Supreme Court had said Congress had broad power to regulate a national market, and the mandate was an attempt to regulate insurance. It is a "practical power," Judge Davis said, to regulate effectively.

Perhaps the judges did not sound persuaded because the far right's legal argument is so weak. It cannot be repeated too often that many of those caterwauling most loudly that the healthcare law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose. In fact, the individual mandate was a Republican idea and originally championed by many of those who now claim that it is an unconstitutional usurpation of power by the federal government. Senators Orrin Hatch and Charles Grassley – who co-sponsored legislation during the Clinton Administration that featured an individual mandate – are among the many who have shamelessly flip-flopped on the issue.

Adding to the shamelessness, Mat Staver was one of the attorneys arguing before the court today that the law is unconstitutional. His extremism has long been reported in Right Wing Watch.

PFAW

A Reminder of the Mendacity of the Bush Administration

The Washington Blade is reporting on a seemingly frivolous lawsuit launched by a former high-level Bush Administration official that tells us a lot about anti-LGBT zealotry and the mendacity of the previous administration. It involves RICO, the federal racketeering statute.

Scott Bloch was President Bush's choice to lead the Office of Special Counsel, the agency designated to protect federal employees from illegal discrimination and to ensure whistleblower protection. During Bush's first term, he ordered the removal of all information on filing complaints of sexual-orientation discrimination from OSC's website and brochures. And he didn't exactly protect whistleblowers in his own office. As reported by Talking Points Memo back in 2007:

Bloch himself has been under investigation since 2005 for a variety of infractions, including retaliating against employees who took issue with internal policies and discriminating against those who were gay or members of religious minorities. At the direction of the White House, the Office of Personnel Management's inspector general has been pressing on with an investigation of Bloch.

During the investigation, Bloch bypassed OSC's tech staff and hired "Geeks On Call" to scrub his office computer files. He was finally removed from office in the final year of the Bush Administration. Last year, he pleaded guilty to contempt of Congress for hiding the computer caper from a House committee.

Now, according to the Blade, Bloch is going after the gays and his former Republican colleagues:

Two gay Obama administration officials and the Human Rights Campaign were lumped in as defendants with former Bush administration operative Karl Rove and more than a dozen others in a federal racketeering lawsuit filed by anti-gay Bush official Scott Bloch.

[The lawsuit] charges the defendants – including former GOP Congressman Tom Davis of Virginia – with conspiring to force Bloch out of his job as head of the U.S. Office of Special Counsel through a trumped up criminal investigation, according to Courthouse News Service, which first broke the story. ...

One of the Obama officials being sued is Elaine Kaplan, who ran OSC during the Clinton Administration.

In his lawsuit, Bloch alleges that the Bush White House demanded that he back off from reversing Kaplan's polices at the Office of Special Counsel, saying White House aides threatened to arrange for his dismissal if he failed to comply with their request.

Bloch and his wife, who are representing themselves in the case, filed their suit under a federal statute called the Racketeer Influenced and Corrupt Organizations Act, or RICO. The statute allows both criminal and civil charges to be brought in cases where the government or a private party alleges that others conspired to commit an illegal act or to damage a person or a business through a "criminal enterprise."

Other parties named as defendants in the lawsuit include the Executive Office of the President, the Office of Special Counsel, the National Treasury Employees Union, and several government watchdog groups, including the Government Accountability Project.

Bloch and his wife are representing themselves against this giant conspiracy. One has to wonder if the reason Bloch is representing himself is because no other lawyer could be paid to take it.

Bloch makes up in zealotry what he seems to lack in competence, and he is the person Bush chose to head of the Office of Special Counsel. Despite his disregarding of the law in order to hurt gays and strike back at whistleblowers, the White House kept him on. It was only after the FBI investigation and the embarrassing computer episode became public that he was removed from office. That says everything you need to know about the Bush Administration and its commitment to the rule of law.

PFAW

‘Odd Alliance’ Between the Tea Party and the Corporate Lobby? Maybe, But It’s Nothing New

The New York Times today reports on what it calls the “odd alliance” between populist-seeming Tea Party groups and corporate lobbyists. The paper’s investigation into a Tea Party group’s all-out campaign to boost the profits of an Indonesian paper company is illuminating, but it shouldn’t be surprising. Since its start, the Tea Party movement has been tied to, and financially supported by, giant corporate interests. In January, PFAW’s Jamie Raskin wrote about the corporate agenda behind many of the Tea Party’s legislative priorities:

The 2010 congressional elections should have been centered, at least in the domestic sphere, on three freshly minted corporate catastrophes made possible by industry regulatory capture and systematic deregulation: the subprime mortgage crisis that caused a multi-trillion dollar collapse on Wall Street and the destruction of millions of peoples’ jobs, incomes, pensions and housing security; the BP oil spill, which wrecked an entire regional ecosystem in the Gulf of Mexico and registered as the worst environmental disaster in U.S. history; and the collapse of the Massey Coal corporation mines in West Virginia that killed 25 mine workers after the company had been cited dozens of times for unaddressed regulatory violations.

In the wake of these disasters, the Tea Party skillfully mobilized public anxiety about the direction of American politics but turned it against President Obama’s efforts to deal with the mounting crises of the society. Tea Party activists drew Hitler mustaches on photographs of the president and decried health care reform, which they called “Obamacare” and described as a totalitarian plot. They railed against President Obama’s efforts to get BP to set up a $20 billion fund to pay the victims of the British company’s recklessness and unlawful conduct: Rep. Michele Bachmann (R-MN), a Tea Party hero, denounced Obama’s “redistribution of wealth fund” and Rep. Joe Barton (R-TX) apologized to BP for being “subjected” to “a 20 billion dollar shakedown” by the president. And, in the debate over financial reform, the Tea Party joined other conservative Republicans in seeking to give Wall Street a free pass for the appalling predatory actions and crimes that brought our economy to its knees. Today, many Republicans, flush with Wall Street money, are calling for a severe dilution or outright repeal of the Dodd-Frank Act and have placed a bull’s-eye target on the newly created Consumer Financial Protection Bureau, the entity charged with protecting the public against fraudulent and deceptive financial practices.

PFAW

Wisconsin Republicans Clamp Down on the Right to Criticize Them

Wisconsin Republicans have escalated their assault on Democrats, liberals, unions, and anyone else who does not fall into line for their ideological agenda. This time, it is the right to criticize the Republican Party that is under attack, as the Cap Times reports:

The Wisconsin Republican Party, apparently stung by a blog post written by UW-Madison history professor William Cronon, has responded by asking the University of Wisconsin-Madison for copies of all of Cronon's office e-mails that mention prominent Republicans or public employee unions.

Cronon revealed the GOP's Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.

In his inaugural blog post on March 15, Cronon, one of the UW's academic stars, had sketched the apparent influence of the American Legislative Exchange Council (ALEC), a shadow conservative policy group that works with Republican state legislators, on Gov. Scott Walker's legislative agenda. It was the first time the respected professor had used a blog format and he was, to put it mildly, surprised by the response. The blog generated more than half a million hits. For many of his readers, it was the first time they were aware of the organization and its involvement with conservative legislators around the country.

Billionaire brothers Charles and David Koch, major Walker campaign contributors, provide funding support for ALEC. ...

The Republican request, filed two days after Cronon's March 15 post appeared, asks for "Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."

The named individuals are the Republican governor, the Republican leaders of the state House and Senate, and the eight Republican senators targeted for recall.

Professor Cronon has written a long, must-read response to this political effort to intimidate him for daring to question the Republican Party.

In some ways, this is reminiscent of Attorney General Ken Cuccinelli's assault on academic freedom in Virginia. Academic freedom exists only in name if scholars questioning the Republican Party are bullied into not using it. In that sense, the Wisconsin assault against Professor Cronon is directly related to all the other ways that the modern-day GOP is actively undermining the infrastructure of our democracy, giving us:

  • elections where significant numbers of the GOP's opponents are prevented from voting;
  • campaigns where the GOP's opponents can't be heard over corporate millions;
  • the right to protest, but if you oppose a Republican official he may secretly plant troublemakers among your group to discredit you;
  • the right to a free press, but if a Republican who you criticize sends his goons to rough you up, the Party will not bat an eye;
  • the right to form a union that cannot collectively bargain;
  • the right to free speech, but if you displease the GOP you risk becoming the subject of phony video smears followed up by legislative attack;
  • the right to lobby, but your lobbying firm loses access to a GOP-dominated Congress if it hires Democrats.

In isolation, the incident in Wisconsin is terrible. But to see it only in isolation would be a grave mistake.

If the party officials involved with this are not condemned and banished from the party, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society – as in the examples above – significantly lowers the bar for what departures from the principles of democracy are now acceptable.

This incident should be a rallying cry for Americans to protect the liberties and rights enshrined in the U.S. Constitution.

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

King Hearings Disregard The Facts About Muslim Americans

As Peter King’s hearings on the radicalization of Muslim Americans continue this morning, civic and security groups are speaking out about the potential negative consequences of King’s divisive hearings. King did not call on any law enforcement officials as witnesses, and security experts from The Triangle Center on Terrorism and Homeland Security released a 2010 study which “found that Muslim-American communities strongly reject radical jihadi ideology, are eager to contribute to the national counterterrorism effort, and are fiercely committed to integration within the mainstream of American social and economic life.” In addition, the Triangle Center reports that “Muslim-Americans have developed strong working relationships with federal and local law enforcement agencies.” The study continues:

Public and private denunciations of terrorism and violence. Muslim-American organizations and leaders have consistently condemned terrorist violence here and abroad since 9/11, arguing that such violence is strictly condemned by Islam. Our research found that these statements were not just for public consumption, but were supported by local Muslim religious and community leaders, who consistently condemned political violence in public sermons and private conversations. These statements represent powerful messages that resonate within Muslim-American communities.

Self-policing. Muslim-Americans have adopted numerous internal self-policing practices to prevent the growth of radical ideology in their communities. The practices range from confronting individuals who express radical ideology or support for terrorism, preventing extremist ideologues from preaching in mosques, communicating concerns about radical individuals to law enforcement officials, and purging radical extremists from membership in local mosques. Muslim-Americans have also adopted programs for youth to help identify individuals who react inappropriately to controversial issues so they can be counseled and educated.

In Foreign Policy, Suhail Kahn of the American Conservative Union discusses how King’s hearings could undercut the struggle against domestic terrorism:

The hearings could also foster mistrust between law enforcement agencies and Muslim communities, thereby weakening a crucial link in efforts to combat terrorism. Although King may believe otherwise, the Muslim community in the United States has cooperated and partnered with law enforcement for years. Tips from Muslim Americans have led directly to the foiling of a number of murderous plots. According to the Muslim Public Affairs Council, Muslim communities have helped U.S. security officials prevent more than 40 percent of al Qaeda plots threatening the United States since the 9/11 attacks. In the past year, that number spiked to three-quarters of all such plots.

Potential terrorist attacks that have been foiled with Muslim help include the arrest of five Northern Virginia men accused of attempting to join the Taliban and the May 2010 Times Square bomb plot, which was foiled when a Muslim vendor notified police of a suspicious-looking vehicle. These examples highlight the importance of community-oriented policing by U.S. law enforcement agencies. Why poison this crucial relationship through misguided and alarmist hearings?



But the risk that the hearing will reinforce dubious religious stereotypes and stir already high levels of anti-Muslim sentiment outweighs the potential benefits. If the hearings devolve into a political circus, here's hoping that sensible Americans will be willing to stand up for the rights and dignity of the Muslim American community.
PFAW

Another Attempted Smear of Planned Parenthood

Live Action, the anti-choice group that has been attempting to smear Planned Parenthood with heavily edited videos of its activists posing as sex traffickers in Planned Parenthood offices, has released another video. And this one, according to a Planned Parenthood press release, has also been heavily altered:

In an interview with the FBI, the two health center workers featured in the video said that they did not hear the words “sex work” or “sex worker,” uttered by the actors on camera who were hired by Live Action to play the role of a “pimp” on the videotape in an effort to undermine the credibility of Planned Parenthood staff in Live Action’s coordinated lobbying effort to support legislation that would bar Planned Parenthood from receiving federal funds.

In addition, it is clear from the edited tape that there are two or more video sources, as well as an additional audio source, increasing the opportunity for manipulation and selective editing.

Unlike other publicized tapes, the hoax “patients” in New York were not able to get beyond the reception desk for a private consultation. Like other encounters that have been recently publicized in Virginia, our staff responded professionally to questions, discussed these encounters with management, and provided a report to the FBI.

We expect Live Action, a political operation, to continue publicizing a number of secretly recorded videotapes made at our health centers in an effort to undermine health center services and support federal legislation designed to bar Planned Parenthood from receiving federal funds.

Multiple media organizations have analyzed Live Action’s videos and found them to be fraudulent, and the claims that they are meant to back up misleading.

Although the mainstream media has for the most part recognized Live Action’s smear campaign as the fraud it is, Live Action isn’t giving up. Last week, a coalition of progressive groups, including People For, sent a letter to members of Congress supporting Planned Parenthood as the organization faces continued right-wing smears.

For more background, read our Right Wing Watch: In Focus report on the anatomy of Live Action’s campaign, and watch PFAW Senior Fellow Peter Montgomery's analysis on the Thom Hartmann show:
 

PFAW

Justice Scalia and Sex Discrimination

Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:

[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

The Huffington Post notes:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.

Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)

When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.

Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.

Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.

PFAW

NY Times Analyzes the Corporate Court

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

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

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

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

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

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

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

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

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

PFAW

Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

PFAW

Today's Healthcare Ruling: Ideology and Judicial Activism

Today, a Bush-nominated federal district court judge struck down the insurance mandate of the landmark health care bill. This is the bill that Republicans did everything in their power to derail - including creating the breathtaking lie that Democrats wanted to kill voters' grandmothers.

The modern Republican Party has a deep-rooted antipathy toward the federal government (unless they're running it). They have created all sorts of legal theories to reinterpret the Constitution - especially the Commerce Clause - so as to prevent Americans from using government as the founders intended to tackle our most serious nationwide problems. With a federal government made impotent by this revision of the Constitution, corporations will continue to pollute, cheat their consumers, discriminate against their workers, and put out fatally defective products with impunity.

Today, it is health care legislation on the docket. But that is just the opening salvo against a wide variety of government endeavors.

Talking Points Memo observes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Indeed, contrary to conservatives' long-standing anathema to "activist" judges who "legislate from the bench," that is precisely what Judge Hudson appears to be doing in this case.

For instance, on page 38:

However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care - over 400 in all.

These are not the words of a neutral, apolitical judge, but of someone with a policy ax to grind and his own view of what the legislative process should have comprised. The activist ax comes out again on page 39, when discussing whether striking down the insurance mandate section of the bill requires the judge to strike down the entire law:

The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, with Section 1501.

If you didn't know better, you might think this was a talking points document put out by Congressional opponents of health care reform.

PFAW