ACSBlog

  • September 19, 2014
    BookTalk
    Buying The Vote
    A History of Campaign Finance Reform
    By: 
    Robert E. Mutch

    by Billy Corriher, Director of Research for Legal Progress, Center for American Progress  

    Early on in Robert Mutch's book, Buying the Vote: A History of Campaign Finance Reform, the identity of the villain is clear. Mutch describes the campaign finance reformers of the early twentieth century as focused on keeping corporations from exerting too much influence on politics and politicians. As large corporations first emerged, the public debated the proper role of these institutions in our democracy. After a series of scandals, early reformers' goals included "keeping corporate money out of elections and preventing the inequality of wealth from undermining political equality among individual citizens."

    Mutch also clearly disagrees with the current U.S. Supreme Court's approach to campaign finance reform. But unlike so much commentary today, Mutch provides rich context for his critique. He begins with early campaign finance scandals and the small triumphs of reformers like Louise Overacker. The early reformers achieved some victories, after the public learned that "the country's major political parties were being financed by" large corporations. New laws led to disclosure of campaign contributors and bans on corporate campaign cash.

    The second wave of reforms came in the wake of Nixon's secret receipt of campaign contributions from corporations. But Mutch notes that, unlike the response to the first wave, opponents rushed to the courts to block the new laws. The definition of democracy as excluding corporations was challenged when "the enforcement provisions of the post-Watergate laws raised the possibility that the....reforms would be more than symbolic."

    In the face of campaign finance reform, environmental regulations, and consumer advocates, big business felt like it was under attack at the time. Justice Lewis Powell, while an attorney for the US Chamber of Commerce, wrote an infamous memo warning that business needed direct political action to counter the "assault on the enterprise system."

  • September 18, 2014

    by Jeremy Leaming

    Intending to provide privacy protections to consumers’ data stored on tech companies’ servers overseas or in cloud computing services, a bipartisan group of senators late today introduced legislation to amend the Electronic Communications Privacy Act (EPCA).

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) announced introduction of the Law Enforcement Access to Data Stored Abroad Act or the LEADS Act. A provision of the bill states that law enforcement offices must “obtain a warrant under the Electronic Communications Privacy Act (EPCA) to obtain the content of subscriber communications from an electronic communications or cloud computing service.”

    The bill comes as Microsoft is fighting in court a warrant from federal prosecutors seeking access to data stored oversees. Microsoft is arguing that the federal government cannot compel disclosure of data it stores in Ireland. Microsoft Bradford L. Smith told The New York Times earlier this year, “What is at stake is the privacy protection of individuals’ email and the ability of American tech companies to sustain trust around the world.” The Times noted that Apple, AT&T and Verizon have all filed briefs supporting Microsoft.

    In a press statement about the LEADS Act, Sen. Coons said, “Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant, and just like warrants for physical evidence, warrants for content under EPCA shouldn’t authorize seizure of communications that are located in a foreign country. The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This not only hurts our businesses’ competiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners.”

    Hatch noted that electronic data storage has changed significantly since ECPA was enacted in 1986. More information about the LEADS Act is here.

    In a post for ACSblog, former general counsel of the Commerce Department Cameron F. Kerry said the U.S. government should lead the way and “put reasonable limits on the application of its laws to electronic communications stored outside the United States or belonging to foreign citizens outside the United States.”

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • September 18, 2014
    Guest Post

    by U.S. Representative Keith Ellison (D-Minn). This post is part of our 2014 Constitution Day symposium.

    The right to vote is under attack in many of our states. The Supreme Court is piling on. If you take the decisions in Shelby, McCutcheon, and Citizen’s Untied, you could conclude that the Supreme Court is making it easier to buy an election than to vote in one. 

    We need to amend the Constitution to declare an affirmative right to vote for all Americans. Prior to ratifying the 15th, 19th and 26th amendments to the Constitution, millions of Americans were denied the right to vote based on the color of their skin, their gender, and their age. All three amendments, along with the Voting Rights Act passed in 1965, outlawed discrimination, but didn’t protect Americans’ right to go to the polls. 

    Many states have found ways around outright discrimination based on race, gender, and age through voter ID laws, ending same-day registration and early-voting, and slowing the move to online voter registration. Widespread voting fraud is often the justification for these laws; however dozens of non-partisan organizations have discredited this claim. In fact, voter fraud is very rare.  Thirty-two states have voter ID laws that keep some 23 million Americans from voting. Those without photo ID are disproportionately low-income, disabled, minority, young, and older voters.  

    Voters in 15 states will find it’s much harder to vote this year than it was in 2012. Some of the Americans in these states were protected by section four of the VRA before it was struck down by the Supreme Court in Shelby. They’re now victims of a blatant attempt to disenfranchise voters who might threaten their majorities. 

    At a time when the Supreme Court is gutting the Voting Rights Act and opening the campaign finance flood gates, we should be vigilant in fighting laws that suppress voting and drown out the political speech of everyday Americans. An affirmative right to vote means Americans can exercise their right to vote without political interference. Under our current system without a guaranteed right to vote, over 8,000 voting jurisdictions make decisions about how to administer elections. The result is massive inequality between jurisdictions, both unintentional and intentional. 

  • September 17, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.

    Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

    In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

    Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

    For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

    Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth.