June 2011

  • June 27, 2011

    The Obama administration’s disappointing record on government transparency is a lesson in the limits of the “trust us” approach to governing, writes ACS Board Chair Geoffrey R. Stone in an op-ed in The New York Times.

    Stone, a constitutional law professor at the University of Chicago who worked with President Obama at the university and acted as an informal adviser to Obama’s presidential campaign, laments that President Obama has not lived up to the promises of “Senator Obama” to “promote openness and public accountability in government policy making.”

    Stone points to the journalist-source privilege, whistleblower protection and the state secrets privilege as areas in which President Obama has shown a “disappointing willingness” to continue the Bush administration policy of hiding its decisions from the American public. He notes that one bright spot in Obama’s record was his repeal of a Bush administrative directive that allowed broad classification of government information.

    Nonetheless, he writes, “[t]he record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations.”

    He continues:

  • June 27, 2011

    The following is a roundup of some recent developments in antitrust news:

    • The Federal Trade Commission plans to launch a formal investigation into whether Google Inc. has “abused its dominance in Web-search advertising,” a probe that some policy watchers say could be a watershed moment for antitrust policy, The Wall Street Journal reports. While Google has been the subject of several antitrust investigations, prior investigations have focused on mergers and acquisitions, as opposed to the search advertising business, which is Google’s biggest money-maker, according to WSJ. In a blog post, Google Fellow Amit Singhal responds to the FTC’s announced investigation by articulating Google’s core principles, which he says will enable the company to “stand up to scrutiny.”  And in a recent column in Main Justice, TechFreedom Senior Adjunct Fellow Geoffrey Manne blasts the FTC’s plan to investigate Google for “unfair methods of competition” under Section 5 of the FTC Act, which, he argues, does not apply to claims that Google harms competitors rather than consumers.
    • AT&T’s planned acquisition of T-Mobile is sparking continued questions about the reason for the merger, with the FTC investigating AT&T’s claim that it needs more “wireless spectrum” to avoid dropped calls and satisfy the need for data access, and a Department of Justice probe continuing, NPR reports. Sprint and other opponents of the deal allege AT&T has more licensed spectrum than any other carrier in the country, and that much of it goes unused, but some policy experts say AT&T is just doing long-range planning. Sprint also filed an FCC petition against AT&T last month.
    • Intel Corp., Apple and several other large companies have received approval from the Department of Justice to bid on a “trove of high-tech patents” from the now-bankrupt telecommunications gear-maker Nortel Networks Corp.,The Wall Street Journal reports.
  • June 27, 2011
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families


    The Supreme Court’s decision in Wal-Mart v. Dukes was deeply disappointing for those who care whether workers can vindicate their statutory rights. Last week’s narrow and controversial decision creates new hurdles for the 1.5 million women who are fighting the discriminatory pay and promotion practices of the nation’s largest private employer and for all workers who seek to challenge systemic employment discrimination in the future. The ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it.

    Wal-Mart’s ten-year strategy in this case was to divide and conquer. Unfortunately, that strategy prevailed before the Supreme Court. The corporate giant convinced a narrow majority to reverse lower court decisions to certify the class of women. The Court was sharply divided on the question of whether the women should be allowed to move forward.

  • June 24, 2011

    by Jeremy Leaming

    Under the leadership of Gov. Andrew Cuomo, the New York legislature passed a measure recognizing gay marriage -- making the action the nation's biggest step forward for marriage equality. 

    By a vote of 33 to 29, the Senate, after a week of wrangling, moved the bill, introduced by Gov. Cuomo, to his desk for approval. The New York Times reported that the governor signed the bill into law not long after the measure's passage. New York is the sixth state to legalize gay marriages. The District of Columbia also recognizes same-sex marriages.

    The vote came late Friday night, and after many days of intense debate, especially over an exemption for religious groups that refuse to perform same-sex marriages, citing religious liberty rights.

    A few Republican senators, including Sen. Stephen Saland, who TPM reported on, supported the measure:

    Republican Sen. Stephen Saland, who had been undecided about the bill and was one of the legislators who led the negotiations, announced during the debate on the Senate floor that he would support the bill; effectively giving it the 32 votes it needed to pass.

    Saland said in his speech that the new language would ensure that "conflicts [were] resolved in favor of religious exemptions." He added that people on both sides of the debate had contacted him and asked him to "do the right thing."

    "My intellectual and emotion journey has ended here today," Saland said, "and I have to find doing the right thing as treating all persons with equality, and that equality includes within the definition of marriage. And I fear that to do otherwise would fly in the face of my upbringing."

    Civil rights groups hailed the victory as a landmark.

    The Human Rights Campaign’s Joe Solmonese said, "History was made today in New York. This victory sends a message that marriage equality across the country will be a reality very soon.”

    The Daily Beast blogger Andrew Sullivan called the approval of gay marriage in New York a really big deal because it was a "Republican-led State Senate" that passed the measure. He added that the credit goes to "one of the most determined, consistent, professional and impassioned campaigns we have ever fought for marriage equality."

     

  • June 24, 2011

    In a piece for the Boston Review, Stanford University law school professor Pamela S. Karlan examines the Supreme Court’s changing view on the rights of corporations, concluding that the ruling in Citizens United v. FEC should not end the debate over the “constitutionality” of campaign finance regulation.

    Karlan, also an ACS Board member, notes that the Supreme Court a long, long time ago found that corporations “are entitled to constitutional protection, but not the same as human beings.”

    And in recent times under direction of a conservative Supreme bloc, Karlan notes that “when it comes to a willingness to restrict constitutional rights in the name of confidence in the democratic process, the Court’s decisions show a troubling and puzzling asymmetry in favor of corporations.”

    One of those areas of favoring corporate interests, of course, centers on campaign finance regulation. In Citizens United, the conservative high court bloc overturned precedent that found a compelling government interest in “preventing ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’”

    Karlan points to a “better argument” for limiting outlandish corporate spending on elections.

    She writes:

    Under current law the actual owners of corporations – their shareholders – have little say in how corporations make decisions in the political arena. That corporate managers might spend corporate funds not to maximize the shareholders’ welfare but to maximize their own is a very real danger. Many shares are owned by mutual funds and pension funds that in turn are owned by individual citizens who often have political convictions that go beyond maximizing the profitability of the corporations whose stock forms part of their retirement savings. What is more, those political commitments may be sharply at odds with the economic interests of the corporate managers who are making decisions about corporate political spending. The law should not force citizens to forgo beneficial investments in order to avoid subsidizing their political opponents.