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by Hannah

Why Courts Matter — A 2010 Lesson for Progressives

1:00 pm in Uncategorized by Hannah

The retirement decisions by Senators Chris Dodd and Byron Dorgan last week gave pundits and analysts story leads, but a far more important announcement is coming, maybe as soon as tomorrow. The Supreme Court, with its five-justice conservative majority, is expected imminently to release its long-awaited decision in Citizens United v. FEC. The ruling could have a much greater influence on the prospects of progressives in 2010 than any individual candidate’s decision to run. Indeed, the Court could change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.

Citizens United involves a hit-job documentary called Hillary, The Movie, produced by David Bossie for Citizens United to coincide with the 2008 presidential primary season. The case began as a relatively insignificant, technical challenge to the Federal Election Commission’s decision to treat the film’s production and release as "corporate electioneering," subject to regulation under the McCain-Feingold campaign finance law. It was transformed into a potential blockbuster last June when the Supreme Court ordered the parties to brief and argue the question of whether the law itself, which restricts the political use of corporate funds, is unconstitutional and whether prior cases upholding such restrictions should be overruled.

Citizens United is now arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would jettison a distinction that has been in place in our Constitution since it was written and in our statutory law since the Tillman Act of 1907. As a result, corporations would get a green light to spend unlimited amounts of money in elections.

To see the significance of this, consider that in his historic run to the presidency, Barack Obama broke every political fundraising record, raising nearly $750 million from more than a million contributors in 2007 and 2008. This sounds impressive until you consider that during 2008 alone, ExxonMobil Corporation generated profits of $45 billion. With a diversion of even 2 percent of these profits to the political process, Exxon could have far outspent the Obama campaign and fundamentally changed the dynamic of the 2008 election, perhaps even the result.

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by Hannah

“Corporate Personhood”: An Oxymoron All Progressives Should Know About

9:30 am in Uncategorized by Hannah

Have you ever wondered why corporations like Exxon Mobil have free speech “rights” under the Constitution when corporations can’t “speak,” and when the Constitution was written to protect “We the People” and never mentions “corporations”? Do you worry that maybe, just maybe, the Supreme Court is putting the interests of corporate America over the rights of hard-working Americans?

If so, then you probably want to learn more about a piece of legal fiction called “corporate personhood.” And you should probably start with this terrific lecture from that preeminent legal scholar, Stephen Colbert.

If, after watching Colbert, your interest is piqued – as it really should be — then I urge you to take a look at this discussion draft of a report on corporate personhood, recently released by the Constitutional Accountability Center (CAC, where I work), which tells you more than you probably ever wanted to know about the topic. (CAC is planning to release a final version of this report in January 2010). While we’ve already distributed this to a number of legal blogs in an effort to get feedback, we also wanted to publish it here, to reach a broader audience.

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by Hannah

Rasmussen Asks A(nother) Very Dumb Question

2:00 pm in Uncategorized by Hannah

This week I learned that the folks over at Rasmussen have conducted yet another embarrassingly-misleading poll, “gauging” the American populace’s opinion of the Supreme Court. The poll, conducted late last month, asked 1,000 likely voters a familiar question:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

The problem with this question, of course, is its false assumption that a judicial decision based on a proper interpretation of the Constitution would, by definition, not be fair or just. I can only assume that in order to come up with a question like this, the folks at Rasmussen must not have read much constitutional text, or history, which in fact make clear that the Constitution – including its 200 years of amendments – is itself largely based on a sense of fairness and justice.

Not surprisingly, a whopping 70% of respondents chose “what’s written in the Constitution,” while a mere 25% selected “a sense of fairness and justice.” (We’re declaring the 6% who went with “Not sure” the winners here.) Also unsurprisingly, our friends at NRO’s Bench Memos seized these figures as evidence of widespread rejection of President Obama’s call for judges with empathy.

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by Hannah

On Constitution Day, Celebrate the Rights of People. (Not Corporations.)

4:30 pm in Uncategorized by Hannah

At the Constitutional Accountability Center (CAC), we are marking Constitution & Citizenship Day this year by focusing on who the Constitution serves and protects: We the People. This month, the Supreme Court is in the midst of an historic deliberation over whether the rights We enshrined in our Constitution should be extended to protect corporations. Citizens United v. Federal Election Commission (widely known as the “Hillary: The Movie case”) has been billed as a case about free speech in elections. In reality, however, it is a case raising a challenge to more than a century of campaign finance law – and more than two centuries of constitutional text and history – that have preserved the principle that corporations and people should be treated differently when it comes to regulating the financing of elections. (Click here to read the “friend of the court” brief filed in Citizens United by CAC and The League of Women Voters, explaining how efforts to remove this distinction run contrary to the text and history of our Constitution.)

The significance of this attack on such a fundamental principle of American democracy — that the constitutionally-guaranteed individual rights were intended to protect We the People — has been the subject of both humorous and serious attention this week. On Tuesday night’s show, Stephen Colbert dedicated The Colbert Report’sThe Wørd” to the “rights” of corporations, in a six-minute segment (featured below) extolling the fact that “corporations are people too!” Taking a more serious tone this morning, The Wall Street Journal discussed the history of “corporate rights,” noting how newly-seated Justice Sonia Sotomayor impressed many during the Citizens United argument last week when she openly questioned the validity of corporations’ legal status as “persons.” This most recent media attention follows several weeks of increasing concern and curiosity among mainstream media about the consequences of this monumental case.

It is alarming, on Constitution & Citizenship day, to consider that a conservative majority on the Supreme Court may be poised to unleash corporate money in elections, and heartening to see increasing media attention being paid to this disturbing possibility. For decades, conservatives have attempted to lay claim to the Constitution, yet today they are turning their back on the document’s text and history and threatening to equate the rights of corporations with constitutional rights of American citizens. We hope that today, progressives will reflect on the meaning and importance of our Constitution’s text and history, and on why now, more than ever, we must fight to preserve the integrity of the Constitution as a document of the People, by the People, and (most important) for the People.

Originally posted at Text & History. Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.

by Hannah

Supreme Court Threatens to Undo Progressives’ Work on Campaign Finance

1:30 pm in Uncategorized by Hannah

This month, the U.S. Supreme Court is threatening to strike down key provisions of the 2002 “McCain-Feingold” bipartisan campaign finance reform act, overruling two of its prior rulings in the process and uprooting a century-old principle – existent in American law since Teddy Roosevelt’s Administration – that corporations should be barred from making unlimited expenditures in elections.

Wait, what? What did I just say? Corporations might soon be able to make unlimited expenditures in elections? Can they do that?

The answer is yes, if the Supreme Court says they can. And if you didn’t know that already, you should certainly keep reading.

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by Hannah

Leahy: Striking Down the Voting Rights Act Would Be “Conservative Activism Pure and Simple”

8:33 am in Uncategorized by Hannah

Yesterday, Senate Judiciary Committee Chair Sen. Patrick Leahy (D-VT) delivered a speech at the University of the District of Columbia’s David A. Clarke School of Law, during which he discussed the Supreme Court and the nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter.

During his speech, Sen. Leahy highlighted the Court’s imminent decision in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), expected to be the Court’s most significant ruling of the Term and, as Senator Leahy called it, “one of its most important decisions in years.” The plaintiff is this case, a utility district in Texas, has challenged the constitutionality of the reauthorization by Congress of a key provision of the Voting Rights Act of 1965 — the “preclearance” provision. Given questions posed by a number of the conservative Justices during April’s oral argument, it is widely expected that the Court will rule that Congress exceeded its constitutional authority in 2006 when it voted overwhelmingly (98-0 in the Senate) to reauthorize the preclearance provision. That action was taken by Congress, as Sen. Leahy stated yesterday, based on extensive hearings and written testimony indicating the provision still played an important role Read the rest of this entry →

by Hannah

The D.C. Council Stuck to the Constitution When it Recognized Same-Sex Marriages

10:22 am in Uncategorized by Hannah

Imagine that you’re a resident of, say, Massachusetts, and you decide to bring your spouse down to D.C. for a long weekend of visiting monuments and museums. Now imagine that when you get to D.C., you’re suddenly no longer married, because D.C. refuses to recognize your Massachusetts marriage. Just like that, you’ve lost all the legal protections that being married brings. Heaven forbid that while you’re here visiting, your spouse is hit by a Tourmobile and seriously injured. She’s rushed to a D.C. hospital, where she’s placed in intensive care. And then you find out that only spouses and other immediate family members are permitted to visit patients in the ICU, so you are denied access to your loved one at this moment of great need.

Or imagine that you and your spouse have moved to D.C. from Massachusetts so that you can take a job with a K Street lobbying firm. When you try to enroll your spouse in your employer’s health insurance plan, you’re denied spousal coverage because your marriage isn’t recognized in D.C.

Sound farfetched? Hardly.

Until last week’s unanimous vote by the D.C. Council paved the way for D.C. to Read the rest of this entry →

by Hannah

The Iowa Supreme Court Justices Did Their Job on Friday. Now, They Are Apparently “Judicial Activists”

7:45 am in Uncategorized by Hannah

On Friday, the Iowa Supreme Court, in a unanimous ruling, held that a state statute prohibiting same-sex couples from marrying under civil law violated the equal protection guarantees of the Iowa Constitution. The ink was barely dry on the ruling before right-wing critics predictably began hurling charges of “judicial tyranny” and “judicial activism” at the seven justices on the Iowa High Court. (Strangely, conservatives never seem to lob these charges at judges who strike down laws that protect individuals from discrimination or otherwise rule in ways that make it more difficult for Americans to obtain justice in the courts, but we digress.)

Underlying these charges is a dangerous misunderstanding of the role of the courts in our constitutional democracy. Whether at the state or the federal level, it is the role of the legislature to make the laws, but those laws must be consistent with the requirements of the federal Constitution and, in the case of state laws, with the state Constitution as well. And when a specific law has been challenged on the basis that it violates constitutional provisions, it is the responsibility, in fact the obligation, of judges to determine whether or not that is the case.

This is, of course, the principle of judicial review, affirmed more than 200 years ago by Chief Justice John Marshall in Marbury v. Madison. As Justice Marshall famously wrote, “It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is.” And as Chief Justice Marshall recognized, what would be the point of having written a written constitution, if the legislature could just ignore it in passing laws and the courts could do nothing but sit idly by?

In their opinion on Friday, the Iowa Supreme Court Justices in fact specifically addressed the nature of their obligations as judges to determine whether the challenged state law violated the Iowa Constitution: Read the rest of this entry →

by Hannah

Before the Judicial Noms Battle, We Must Win the Framing War

1:19 pm in Uncategorized by Hannah

In a turnabout event in the topsy-turvy world of judicial nomination politics, prominent conservatives have already started to threaten filibusters against President Obama’s judicial nominees before Obama has nominated a single judge. In Boston recently, former Whitewater prosecutor and Bush I Solicitor General Ken Starr quoted Senate Republican sources for the proposition that a filibuster (denial of an up-or-down vote) is appropriate treatment for Obama nominees because Obama joined in attempted Senate filibusters of Bush nominees. Specifically, Starr noted that Senate Republicans have said that Obama’s “voting record and long simmering resentments over Democrats’ treatment of President Bush’s nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote.”

Never mind the fact that the Supreme Court nominee Obama attempted to help filibuster (Samuel Alito) had a disturbing record and was confirmed anyway, and that Senate Republicans during the Bush Administration criticized the use of filibusters and threatened to change the rules of the Senate to prevent them. Never mind, also, that the constitutional role of the Senate is to provide “advice and consent” — and not “categorically reject” – the president’s judicial nominees, something that President Obama certainly understands as both a Read the rest of this entry →

by Hannah

The Real Reason Ledbetter Matters

7:18 am in Uncategorized by Hannah

They are expected to do just that today when President Obama signs into law the Lilly Ledbetter Fair Pay Act of 2009. This new law effectively overturns the Supreme Court’s infamous 2007 ruling against Ms. Ledbetter in Ledbetter v. Goodyear Tire & Rubber Co., a ruling that made it much harder for workers who have been victims of unlawful pay discrimination to obtain compensation for that discrimination.

At issue in the Ledbetter case was the proper interpretation of certain provisions of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, race, and similarly irrelevant factors, and which generally gives employees only 180 days to file a complaint if they believe they have been discriminated against. Unbeknownst to Ms. Ledbetter, for much of her long career at Goodyear she had been paid less than male colleagues doing the same work, all because of sex-based discriminatory compensation decisions. After she learned about the discrimination from an anonymous tip, Ms. Ledbetter sued, and a jury ruled in her favor, awarding her several million dollars.

But the Supreme Court, in a sharply divided and much-criticized 5-4 ruling, took that verdict away, holding that Ms. Ledbetter had sued too late. The Court’s opinion, written by Justice Alito, rejected the longstanding notion that each discriminatory paycheck given to Ms. Ledbetter by Goodyear started the time to sue running again, and held that Ms. Ledbetter should have sued when the discriminatory compensation decisions were first made. In a harsh dissent, Justice Ginsburg pointed out that in many workplaces, employees have no idea what Read the rest of this entry →