People For Blog

PEOPLE FOR BLOG

Long Past Time to Let 3rd Circuit Nominee Restrepo Have His Hearing

Senate Judiciary Committee Chairman Chuck Grassley yesterday announced there will be a judicial nominations hearing next Wednesday, the first one since March 11. He let eight weeks go by without allowing any of President Obama's judicial nominees to testify to the committee. It isn't like there haven't been plenty of nominees who have long been ready for this. Most of those nominated as far back as last November have yet to make it even that far.

As we have written before, Eastern Pennsylvania federal judge L. Felipe Restrepo is among those nominees being obstructed. Confirmed to his current position by the Senate by unanimous voice vote in June of 2013, he earned strong statements of support from home state senators Bob Casey (a Democrat) and Pat Toomey (a Republican) when he was nominated for elevation to the Third Circuit last November.

But since then ... nothing. Chairman Grassley has conspicuously refused to schedule a hearing for him. Although Third Circuit Judge Marjorie Rendell announced in late January that she plans to take senior status this summer, thus opening a second vacancy on the court if Restrepo is not confirmed by then, Grassley did not schedule a hearing. And when the Administrative Office of U.S. Courts formally classified the vacancy Restrepo would fill as a judicial emergency in February, Grassley's response was ... nothing.

Pennsylvanians who care about their state's federal courts have been asking where their senators have been all this time, especially Toomey. As a fellow Republican, Toomey surely has Grassley's ear on matters of importance to folks in the Keystone State.

The fact that this nomination has gone for nearly half a year without a hearing says volumes about both Grassley and Toomey. As for saying things about Restrepo, he can best speak for himself, and surely would be pleased to do so, if only Grassley would let him.

PFAW

Judicial Elections and Government Integrity at the Supreme Court

The Supreme Court issued a 5-4 campaign finance ruling this morning. But rather than another Citizens United or McCutcheon, the Court this time upheld a state campaign finance restriction against a First Amendment challenge. In the case of Williams-Yulee v. The Florida Bar, the Roberts Court narrowly upheld Florida's ban on state judicial candidates directly soliciting campaign funds. With the difference of only one vote, even this reasonable limitation would have been struck down.

If only the Court would apply the reasoning of this case outside the narrow area of judicial elections. The Justices acknowledge that a state can reasonably conclude that an appearance of bias and impropriety is created when a judicial candidate directly asks someone to give her a campaign contribution. The Chief Justice wrote that "it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity."

But that isn't only because they are judges. Any elected official has an obligation to serve the public, whether that is by ruling consistent with the law (like judges do) or pursuing the interests of your constituents and community (as legislators and executives do). That is very different from using that public office to serve the interests of wealthy private interests. When a congressional or presidential candidate wins office due to the financial largess of a small number of extremely wealthy and powerful donors, it just may "diminish their integrity" in the eyes of the public.

It isn't just judges who risk the appearance of corruption when they engage with funders. As we have seen in cases like Citizens United and McCutcheon, Roberts and his conservative colleagues are unwilling to concede that Americans see corruption and the appearance of corruption in the outrageous sums of money being funneled into non-judicial elections.

As for judicial elections (the subject of this case) Justice Ginsburg's concurring opinion is worthy of significant attention. She wrote separately to expound on the "substantial latitude" the Court should give states to regulate judicial campaign finance, and she discussed how much money is now flowing into judicial elections, and the harm that causes to justice:

When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims. Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. ...

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. ...

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. ...

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections "can affect judicial decision-making across a broad range of cases."

The threat to the judicial branch of government in states with high-dollar judicial elections is serious and real.

Today's opinion on judicial elections is an opportunity to focus on the threat to the political branches, as well.

PFAW Foundation

Diversity vs. Scalia at Marriage Oral Arguments

There was a fascinating exchange during oral arguments in the marriage cases this morning that highlighted the importance of having a diverse federal judiciary.

Echoing a right-wing talking point that is utterly without legal merit, Justice Scalia suggested that ministers who oppose marriage equality might be compelled to violate their religious beliefs by marrying same-sex couples. Once the Court rules that the state cannot constitutionally discriminate against same-sex couples seeking to marry, then clergy – who are instruments of the state when they perform a civil marriage – cannot constitutionally decline to marry same-sex couples, Scalia suggested.

I don't see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. … I don't see any answer to that. I just don't.

Really??

Fortunately, while Justice Scalia didn't see any answer to that, Justice Kagan was there to inject what should have been an obvious point:

[T]here are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many rabbis won't do that.

Yes, Justice Scalia, throughout American history, with marriage limited to opposite-sex couples, clergy have been free to refuse to marry people if doing so violates their religious beliefs, even when discrimination against that couple by the state would be unconstitutional. That will not change just because the religious belief in question is about two men or two women. It's called the First Amendment.

For many American Jews, intermarriage is common among our friends and family, so we are quite familiar with rabbis who choose not to marry mixed-faith couples. Bringing her life experience to the bench, Justice Kagan was able to help ease Justice Scalia's mind.

But it's disconcerting to think that Scalia had to be reminded of this in the first place.

PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

At today's oral arguments in Obergefell v. Hodges (the marriage cases), some Justices expressed concern with concluding that the Constitution prohibits marriage bans when no state allowed same-sex couples to marry until 2003, and that they could not think of a society in history that had allowed same-sex couples to marry.

It seems that gets things backward. It's not like throughout recorded history, gays and lesbians have been treated well but for the itty-bitty fact that we were not allowed to marry the people we loved. In fact, the opposite is true. For much of history, gays and lesbians have been stigmatized, tortured, scorned, cast out, etc. by the governing forces in their societies, both church and state. American society from our founding is far from immune from this indictment.

It is hardly a surprise that societies that suppress a minority don't establish institutions like marriage to take that minority's needs into account.

The absence of marriage equality in much of human history is not a rationale to continue to deny this fundamental right to same-sex couples. Oppression does not warrant continued oppression under the U.S. Constitution's Equal Protection Clause. Exactly the opposite is true: A history of oppression warrants heightened scrutiny of laws that harm the targets of historical oppression.

PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

During oral arguments in Obergefell v. Hodges this morning, Justice Scalia sought to frame the marriage issue as a question of who decides how to define marriage: the people, or the Court?

At one point, he asked how many states have chosen to allow same-sex couples to marry by legislative act or referendum. When the attorney for the couples also mentioned states whose courts have interpreted their state constitutions as requiring marriage equality, Scalia responded:

But ... that's not the people deciding, it's judges deciding.

But those state constitutions, like the federal one Scalia is tasked to interpret, were adopted by the people. And in adopting constitutional guarantees of Equal Protection, the people agreed to impose powerful and permanent limitations on their future lawmaking. The people agreed that they wanted to be held to a higher standard when, then or at some future point, they decide to pass laws harming a particular group. And the people chose to do so by adopting Equal Protection as a general principle, rather than adopting a specific list of who is worthy of protection.

The Supreme Court should rule that denying same-sex couples the right to marry violates the Equal Protection Clause, a promise the people made to themselves and to us when they adopted the 14th Amendment.

PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

PFAW Foundation

“One Person, One Vote” Rallying Call for 2016

“One Person, One Vote” represents what democracy is supposed to be about — the notion that everyone has an equal say in our government. People For the American Way has helped advance this principle through many of our organizing efforts, including our ongoing #DemandDemocracy video blog series.

Now that Hillary Clinton has officially launched her presidential campaign and voiced her support for reforms to promote “One Person, One Vote,” even if it takes a constitutional amendment, this issue is certain to be a point of focus in the 2016 election.

As primary season moves along, People For the American Way and our partners will continue to connect the need for an amendment to many of the most pressing issues of today. Check out some of our #DemandDemocracy videos, which highlight the importance of getting money out of politics from various perspectives.

PFAW’s #DemandDemocracy video blog series is a collection of short videos that highlight how big money in politics affects — and often stalls progress on — a range of other critical issues.

PFAW

PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:

PFAW

Grassley Threatening to Shut Down His Minimal Actions on Judges in Mid-2016

According to press reports, Senate Judiciary Chairman Chuck Grassley suggested today at a National Press Club event that the Senate will shut down judicial confirmations in July of next year since it is a presidential election year. CQ reporter John Gramlich tweets:

.@ChuckGrassley on judicial noms: "Come July of 2016, probably they'll be cut off...It's just kind of tradition."

This is awfully rich, coming from the man who has done so much since becoming chairman to ensure that our nation's courts are not adequately staffed. Even though President Obama nominated seven qualified people to the bench back in November, Grassley has allowed only two of them to have hearings. Ranking Democrat Patrick Leahy noted last week that the committee had “not held a hearing on single judicial nomination in more than six weeks and we have several well qualified nominees waiting for a hearing.”

For instance, Eastern Pennsylvania district judge Phil Restrepo was nominated to the Third Circuit back on November 12 with the support of both of his home state senators (Democrat Bob Casey and Republican Pat Toomey), but Grassley has refused to schedule a hearing for him. Other nominees from last November being affirmatively neglected are Dale Drozd (Eastern District of California), LaShann DeArcy Hall and Ann Donnelly (Eastern District of New York), and Travis McDonough (Eastern District of Tennessee).

Once they have their hearings, there are another seven people who were nominated this year who also need consideration, most of whom were nominated back in February.

Even when he allows hearings and schedules a committee vote to advance a circuit or district court nomination to the floor – something that he has allowed only six times this year – Grassley delays the vote without providing a reason.

The backlog that the Iowa senator is deliberately creating is growing.

And now he is talking about shutting down the process next year? You could barely tell he's started the process!

Also, someone ought to remind the Senator what happened during George W. Bush's last year in office. In 2008, the Democratic-controlled Judiciary Committee held hearings for ten of Bush's judicial nominees in September, and all ten were confirmed by the full Senate that same month. In fact, half of those were confirmed just three days after their committee hearing.

Perhaps Chairman Grassley should spend more time processing circuit and district court nominations and less time laying the groundwork for prematurely shutting down the confirmation process altogether.

PFAW

Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.

If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.

Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).

Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people.  For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere.  Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.

But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.

A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people.  And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.

Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts.  This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.

While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents!  The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.

The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United.  Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.

In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era.  Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it.  But this is predictable and pedestrian.  The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.

Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure.  It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court.  If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.

For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that.  He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless.  Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954).  But does that make passage of the Fourteenth Amendment a bad idea?  The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.

If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual  contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.

But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage.  But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification.  For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine.  Constitutional movements can change the mind of the Court.

Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era.  It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.

Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.

PFAW

Montana Activists Clinch a Victory Against Big Money in Politics

Last week, Montana Governor Steve Bullock signed into law a sweeping campaign finance reform bill that represents a major bipartisan victory in the movement to get big money out of politics.

SB289 – the Montana Disclose Act – will require dark money groups to report their spending on state political races. The bill is a much-needed update to Montana’s campaign laws, and will help provide Montana voters with more information on the groups behind the political attack ads they see every election cycle.

During the state legislature’s debates on SB289, Montana PFAW members and other local activists lobbied their representatives, calling state representatives and urging them to support  greater transparency in Montana’s politics. While signing the bill, Gov. Bullock announced that the state finally has a law “that mandates that every penny spent in our elections will be disclosed.”  

“When it comes to Montanans as individuals having control of our elections, this is the most significant day in the last 112 years since Montanans passed the Corrupt Practices Act,” said Bullock.

SB289 passed with bipartisan support in both the State House and Senate. Montana’s victory is yet another indicator that big money’s threat to our democracy transcends party affiliation – and that money in politics is really only a partisan issue in Washington, DC.

PFAW

“Selma” Release Offers Great Opportunity to Organize Around Civil Rights

On May 5, “Selma” – the award-winning film chronicling the voting rights movement and its violent opposition – will be released on DVD. And while this year marks the fiftieth anniversary of the marches from Selma to Montgomery that culminated in the signing of the Voting Rights Act, the fight to ensure that all Americans have equal access to the voting booth continues today. Voter suppression still threatens many Americans’ ability to cast a ballot, and we are still in dire need of a fix for the Supreme Court’s gutting of the VRA in the 2013 Shelby County decision.

“Selma” is an important film for all progressives, and its release presents a great organizing and activism opportunity for voting rights activists. The film’s creators have put together this guide for hosting a “Selma Salon” – a watch party that brings friends, family, neighbors, or colleagues together to talk about and mobilize around civil rights. If you’re interested in hosting your own Selma Salon, check out the guide for tips and discussion ideas.

If you are a teacher (or have a teacher in your life), the Selma4Students campaign is giving every high school in the U.S. a free copy of “Selma” on DVD, along with a companion study guide to help use the film as an educational tool. Learn more at Selma4Students.com.  

PFAW Foundation

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW

Clinton Recognizes the Key Role of Supreme Court Nominations in Protecting Our Democracy

Hillary Clinton's campaign has made clear perhaps the most important way that America's choice for president in 2016 will have a profound effect for good or for ill on the health of our democracy: the next president's Supreme Court nominees.

As reported in Bloomberg, Clinton campaign chair John Podesta noted the importance of Supreme Court nominations during an interview with PBS's Charlie Rose yesterday:

"What she's out there doing is saying that we need to clean up financial—the campaign finance. Just listen to the voices of everyday Americans to, you know, move forward, and if it takes a constitutional amendment, so be it. I think the first thing that she'll do, quite frankly—and that this will set her apart from her Republican opponents—is that she'll appoint Supreme Court justices who protect the right of every American to vote, not every corporation to buy an election."

The Roberts Court's devastating campaign finance rulings like Citizens United have all been 5-4. It is that one-vote margin that gave corporations the ability to pour unlimited amounts of dark money into influencing our elections, that has tossed out common-sense efforts to restore the voices of those who are not among the nation's financial elite, and that has ramped up the ability of millionaires and billionaires to give even more money directly to parties and campaigns.

But those recent cases are sharp departures from the Court's previous jurisprudence on the First Amendment, and it could take only one new Supreme Court Justice to overrule them.

Similarly, the rampant assault on voting rights we have seen in recent years can be traced back to bad rulings in Shelby County (gutting the Voting Rights Act) and Crawford (okaying restrictive photo ID requirements to vote). We can be sure that more challenges to the right to vote will make their way to the Supreme Court, and it is critical that we have Justices who understand the importance of protecting that right.

Three of the current Justices will be 80 or older by the time the next president is inaugurated, and a fourth will turn 80 in 2018. The next president may have one or more opportunities to change the Court, either to strengthen the current hard-right majority for a generation or more, or to restore a Court that we can rely on to protect our rights and our democracy.

PFAW