U.S. Supreme Court to decide whether Corporations have the same First Amendment rights as individuals.

On September 4, 2009, Bill Moyers hosted Trevor Potter, president and general counsel of The Campaign Legal Center (and former chairman of the Federal Election Commission), and Floyd Abrams, a First Amendment attorney. You can view the entire discussion here. The topic is whether longstanding federal election laws should be held unconstitutional so that corporations can freely spend unlimited amounts of money (e.g., in the form of movies, books, and other private initiatives) in order to directly affect the outcome of federal political campaigns. The case is Citizens United v. The Federal Election Commission. Many legal commentators are suggesting the Supreme Court has already suggested that it leaning in favor of the corporations on this issue. And we can almost guarantee how Chief Justice John Roberts is going to vote on this issue (and see here). I highly recommend viewing this discussion. I thought that Abrams looked very much like a man who was being paid big money to take position he knew to be reprehensible. On the other hand, Trevor Potter is taking a position that looks out for people like you and me. I realize that powerful corporate interests have already made puppets out of Congress, the SEC, the FDA and many other federal agencies (see these recent examples regarding tobacco legislation and the rejection of the bankruptcy cram-down option). With this as the context, I believe that Citizens United boils down to a simple question: Should our government be at least somewhat run by ordinary people or should corporate money flow even more freely at election time (much more than it flows already), allowing our federal government to be taken over entirely by powerful corporations driven almost entirely by the profit motive? Here are a few excerpts from Moyers’ discussion with Potter and Abrams:

TREVOR POTTER: This is a case about corporate money. If this case is won by the corporation, we will be in the ironic situation where corporations will have no limits on what they can spend in elections and unions still will. So, it's important to remember we're talking about corporations. Corporations exist solely to make money. Amassing economic power. They want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They're voters.

So, they have a range of issues at stake that corporations don't have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we're deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy. . . . [C]orporations have a different status. And they ought to be focused on the economic marketplace and not the political marketplace.

FLOYD ABRAMS: You're opening the faucet, so to speak, so that more speech can occur. I don't think it's a can of worms to say that corporations, and it is unions as well, ought to be able to participate in the give and take of the democratic processes in the country. From my perspective, at least, the notion of saying that corporations and unions should be out of the picture either because they're too powerful, or because of the way their money has been created, is so inconsistent with the sort of First Amendment approach that we take in everything else, where we say over and over again, we don't care who the speaker is, we don't care where the speaker's coming from. And speech, we think, is, as a generality, a good thing . . .

BILL MOYERS: But we're not talking about free press issues here. We're talking about the power of an organized economic interest to spend vast sums of money that individuals can't spend . . . Would you disagree with the claim that big business dominates the political discussion today? Whether it's the drug industry or the health insurance industry? Big business is the dominant force in Washington. I mean, I see that as a journalist . . . we're not talking about free press issues here. We're talking about the power of an organized economic interest to spend vast sums of money that individuals can't spend.

It is important to deny powerful profit-seeking organizations the right to skew federal election results even more than they do currently. If the Supreme Court goes the wrong way on this issue, it would even make a mockery out of clean-money initiatives, such as this plan being promoted by Common Cause and this plan by Public Citizen.

Continue ReadingU.S. Supreme Court to decide whether Corporations have the same First Amendment rights as individuals.

The spammers win one at the 9th Circuit

As I’ve indicated before, I would LOVE to sue the spammers who deluge this site with thousands of fake comments. I’m still researching whether that kind of suit would be possible under the law. Today, I was reminded of my own frustrations with spammers when I read a recent opinion by the 9th Circuit Court of Appeals, a case titled Gordon v. Virtumundo, Inc. L 2393433, 3 -4 (C.A.9 (C.A.9 (Wash.),2009), 2009 WL 2393433 In Gordon, a professional plaintiff tried to sue spammers based on the federal CAN-SPAM Act, which was enacted in 2004. The Court turned him down because A) he didn’t qualify as an Internet Access Service Provider, B) the Court did not consider him to be “adversely affected” by the statutory violations (the receipt of spam on his email accounts), and C) His state law claims failed because they were precluded by the Act's express preemption clause The "pro-marketing" forces, those who think that they should be allowed to trash my email accounts with special offers for penis enlargement techniques and a wide variety of drugs, are elated by this decision. Here is how the Court sees the overall legal landscape:

Continue ReadingThe spammers win one at the 9th Circuit

Senator Al Franken charges SCOTUS with “judicial activism”

There's no doubt that Senator Al Franken has arrived. Consider his direct accusations aimed at the current version of the United States Supreme Court. In a thumbnail, Franken charges that the Court has worked hard to crank out pro-business rulings that curtail critically important and long-standing individual rights.

Continue ReadingSenator Al Franken charges SCOTUS with “judicial activism”

U.S. Supreme Court decision salvages pre-clearance provisions of Voting Rights Act

The US Supreme Court carved out a narrow and near unanimous decision today which retains the pre-clearance provisions of the Voting Rights Act of 1965. All justices concurred in the opinion which remanded the case back to the District Court for further proceedings but, there was a partial dissent filed by Associate Justice Clarence Thomas. The NW Austin Municipal Utility District filed an action to be removed from the pre-clearance provisions of the Voting Rights Act or to declare the statute unconstitutional insofar as it mandated the District be subject to the 2006 enactment of such requirement. The Supreme Court declined to declare Section 5 of the Voting Rights Act unconstitutional, and instead carved out a more limited remedy for political entities such as the utility district to have a private right to file suit to be removed from the pre-clearance requirement (presumably if the DOJ does not allow a “bail out”). In his concurrence Associate Justice Thomas also dissented in part, arguing in favor of striking down the enforcement provisions of the Voting Rights Act, making the claim that;

Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of…’property qualifications’ …are gone. There is thus currently no concerted effort in these jurisdictions to engage in the ‘unremitting and ingenious defiance of the Constitution’ that served as the constitutional basis for upholding the ‘uncommon exercise of congressional power embodied in [Section] 5’ (citations omitted).

Nothing could be further from the truth. It is in fact the case that since 1986, there have been “some 200 cases in which the voter change was withdrawn after DOJ objection” according to Associate Justice Souter in the oral arguments of the case. Associate Justice Breyer in the same oral argument noted that “[s]ince 1982 there were at least 105 successful Section 5 suits and 653 Section 2 suits.” Justice Thomas went on:

Continue ReadingU.S. Supreme Court decision salvages pre-clearance provisions of Voting Rights Act

How to do harm by following the rules

Stephen L. Winter is a law professor at Wayne State University School of Law I've followed his excellent writings for many years. I recently read one of his more recent articles, "John Roberts Formalist Nightmare," alleged in the January, 2009 edition of the University of Miami Law Review (63 U. Miami L Review 2009) (not available online). To set the stage for his brutal critique of Supreme Court Chief Justice John Roberts, Winter considers four approaches to the meaning of "formalism." In the first approach,

The term "formalist" is an epithet to describe a judicial decision that ascribes away responsibility (as in, "It's not me, it's my job . . . or the law, or the text, etc."). Hence, formalism is the frequent refuge of socially and politically conservative judges when faced with the claims of reform movements.

The second approach is closely related to the first. It refers to "mechanical jurisprudence." The basic idea is that "general doctrines can be applied deductively to decide specific cases, thereby assuring the objectivity and neutrality of judicial decision-making." Under this approach, the reasoning process is "supposed to be guided solely by the formal entailment of the concept. Under this second approach, a judge will insist that a concept (e.g., "freedom of contract") fully determines the outcome of a particular dispute, irrespective of the broader social ramifications. The third approach connotes "hypertechnicality in judicial decision-making." Winter points to two recent decisions by Chief Justice Roberts in which the United States Supreme Court rigidly applied legal deadlines "notwithstanding the presence of strong equable claims and long recognized exceptions." One of those cases was Ledbetter versus Goodyear Tire & Rubber Co., a decision so palpably unfair in its anal-retentive application of a narrow statute limitations that Congress promptly got to work on the issue and recently overruled it. See here and here. As Winter points out, Ledbetter is a great example of the many instances in which "hypertechnicality and conceptualism often work hand-in-hand to provide a cover of necessity for willfully reactionary decisions." There is also a fourth sense of formalism. In this fourth approach to formalistic reasoning, concepts are treated as meaningful "entirely abstracted from their contexts. Winter gives the example of Plessy vs. Ferguson, in which the Supreme Court presented its solution to the case as one of "formal equality," presuming the absolute equality of the races before the law, bringing to mind Anatole France's famous quote that "The law in all its majesty forbids the rich and poor alike to sleep under bridges, to beg in the streets, and this deal their bread." Winter laments that thanks to its ability to frame individuals in abstract ways, far from their real-life social contacts, this sense of formalism allows a court to simultaneously express regret for an outcome yet fiercely perpetuate it through conscious and narrowly tailored decision-making. What do each of these senses of formalism haven't common? Each of these approaches allows decision-makers to

give every appearance of deciding the case according to law without ever acknowledging that the law they are "following" is in actuality a product of their own interpretive acts. . . . Formalist legal reasoning engages the decision-maker in a performance of impersonal decision by appealing to authority. It disclaims the personal responsibility of the decision-maker and, though us, frustrates accountability. . . It operates in abstraction from the social prerequisites and consequences of law. In all these ways, formalism is anything but democratic . . . it is a distorting methodology that weighs on the law like a nightmare more reminiscent of the injustices of the 19th century than of a modern society that professes to value equal justice under law.

Stephen Winter's analysis of formalism can be extended far beyond exercises in jurisprudence. It can be extended to all instances wherein someone wielding political power makes an argument or a decision by focusing tightly on a principle detached from the social context that gives that principle its legitimacy. Winter's article is also well worth reading for anyone who wants to see substantial evidence that the Chief Justice of the Supreme Court of United States is quite capable of a substantial misreading of one of the most important cases ever decided, Brown v Board of Education. For instance, Justice John Roberts claims that Brown determined the outcome of Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) in that Brown purportedly prohibited government classification and separation, whereas the boundary plan adopted by the Seattle and Louisville school boards did not "separate" students at all. These were plans that were adopted for the purpose of providing a remedy for racial isolation. Winter points out several other major distortions Roberts gives to Brown. Winter also establishes Roberts' hypocrisy in criticizing a fellow justice (Justice Stephen Breyer) for relying on dicta when Roberts himself strays even further from relying on the holdings of precedent when he relied upon statements contained in appellate briefs, statements not included in Supreme Court opinions at all.

Continue ReadingHow to do harm by following the rules