Constitutional Interpretation and Change

  • October 10, 2013

    by Jeremy Leaming

    Internet links die, that’s the way technology works. Ask the U.S. Supreme Court where according to a recent study by a Harvard professor, 49 percent of links in Supreme Court opinions no longer work

    National Review Online’s Ed Whelan has kindly pointed out some busted links on the ACS website.  Actually he does so with hyperbole, probably born out of paranoia. He says ACS in “Stalinist airbrushing” fashion is trying to advance the careers of people he claims we’d like to see confirmed to “judicial office.”

    Broken links, however, do not make a conspiracy. Whelan’s legwork has helped us restore links and we’ll make progress quickly on providing access to all our archived video. In 2010 we revamped the ACS website and not all links survived the transition. Again that’s technology and we don’t have an army of people at ACS to restore every link in every blog post or every landing page on the site. With time and capacity many links, especially to video, will be restored. In a small, but growing nonprofit we must prioritize. 

    Whelan accuses ACS of removing video of an event that Nina Pillard, a professor at Georgetown law school and a nominee for a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, participated in during fall 2010. The event focused on class action lawsuits and arbitration. Thanks for pointing out the busted link, Ed. It has been restored, you can watch it here

    He was also disappointed that he could not access video from the 2006 ACS national convention containing comments from Stanford law school professor and ACS Board member Pamela S. Karlan. That video link has also been fixed. The video quality is awful. I’m not sure what vendor ACS used at that time, but video quality of Convention programming is much better now. But the audio works just fine.

    California Supreme Court Justice Goodwin Liu, a former ACS Board chair, has spoken at many ACS events. Whelan linked to some transcripts of various Liu speeches, one from 2004, which he says helped defeat his nomination to the U.S. Court of Appeals for the Ninth Circuit. Alas, the links to those transcripts have not been restored. But we’re working on it. When and if the links are fixed, I’ll update this blog post.

     

  • October 9, 2013
    Guest Post

    by Adam Lioz. Mr. Lioz is a lawyer and policy advocate who joined the Demos Democracy Program in November 2011. He focuses on litigation to enforce the National Voter Registration Act and end prison-based gerrymandering; and policy advocacy to promote political equality and democratic fairness through safeguarding the right to vote and curbing the influence of big money on the political process.

    Yesterday, in spite of official Washington being on lockdown, the Supreme Court heard oral argument on McCutcheon v. FEC – a case many are referring to as “Citizens United II.”

    The case is a challenge to the total cap on the amount that one wealthy donor can give to all federal candidates, parties, and PACs, known as “aggregate contribution limits.” 

    An Alabama coal industry executive named Shaun McCutcheon (joined by the RNC) thinks that the current $123,200 cap – more than twice what an average family makes in a year – is a burdensome restriction on his political participation.  So, he’s asking the Court to lift the cap, freeing him to kick in more than $3.5 million to Republican candidates and party committees.

    Senator Mitch McConnell, who proudly embraces his reputation as the “Darth Vader of campaign finance reform,” has asked the justices to go further by overturning key parts of the Court’s seminal campaign finance case and striking all contribution limits, including the cap on the amount an individual can give directly to any one candidate (currently $5,200 per election cycle). 

    What’s at stake in the case?  New research from Demos and U.S. PIRG projects that striking aggregate limits would bring more than $1 billion in additional “McCutcheon Money” through the 2020 election cycle, from just slightly more than 1,500 elite donors. 

    This is not a sea change in overall election spending, and much of this money may be shifted from Super PACs to candidates and parties. But, it will continue to shift the balance of power from average citizens to a tiny minority of wealthy donors. And, who are these wealthy donors?  In a nutshell, they don’t look like the rest of the country, but rather are avatars of what Public Campaign calls “Country Club Politics.”

  • October 8, 2013

    by Jeremy Leaming

    As was widely expected the Supreme Court’s conservative justices appeared sympathetic to a wealthy businessman’s complaint about federal restrictions on overall contributions individuals can give directly to candidates. The limits described as aggregate limits are intended to prevent corruption of democracy.

    But Alabama businessman, Shaun McCutcheon, and the Republican National Committee are urging the high court to set aside such limits, saying they subvert free speech rights. McCutcheon told The Times last week that Americans need to spend more, not less on politics. But in reality only a tiny few have the resources to spend the kind of money McCutcheon has and wants to on politics.

    Nevertheless, the conservative justices, especially Antonin Scalia and Samuel Alito, showed little confidence in U.S. Solicitor General Donald Verrilli’s argument that aggregate contribution limits, help prevent corruption of democracy.

    “Aggregate limits combat corruption both by blocking circumvention of individual contribution limits and, equally fundamentally, by serving as a bulwark against a campaign finance system dominated by massive individual contributions in which the dangers of quid pro quo corruption would be obvious and inherent and the corrosive appearance of corruptions would be overwhelming,” Verrilli said during oral argument in McCutcheon v. Federal Election Commission.

    Later, Verrilli acknowledged that the aggregate limits might restrict an individual like McCutcheon from making direct contributions to a certain number of candidates. But that limit Verrilli continued would not stifle McCutcheon’s First Amendment rights. For he could still funnel money into groups that help advance those candidates. “Mr. McCutcheon,” Verrilli said, “can spend as much of his considerable fortune as he wants on independent expenditures advocating for the election of these candidates.”

    If the conservative justices vote to erase or greatly weaken limits on overall contributions, it would as The New York Times Adam Liptak notes “represent a fundamental reassessment of a basic distinction in Buckley v. Valeo in 1976, which said contributions may be regulated more strictly than expenditures because of their potential for corruption.”

    Democracy 21 President Fred Wertheimer said in a press statement that if the contribution limits are invalidated in McCutcheon “we are bound to see the $1 million and $2 million contributions that would be permitted by such a decision used by influence-seeking donors to corrupt government decisions.”

    He urged the high court to “not empower the wealthy few to buy the government that belongs to all Americans by striking down longstanding contribution limits that protect citizens against corruption.”

  • October 7, 2013
     
    * This post originally appeared on Talking Points Memo.
     
    The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
     
    Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
     
    So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).
     
  • October 7, 2013

    by Jeremy Leaming

    Former Attorney General Edwin Meese III is frequently credited with helping to pack the federal bench with judges that adhere to strict construction or orignalism, a method of trying to interpret today’s legal controversies through the lens of the Constitution’s framers.

    The Federalist Society notes Meese via his work at the right-wing Heritage Foundation, “counseled White House staffers, Justice Department officials and Senate Judiciary Committee members about the importance of filling judicial vacancies with people committed to interpreting the Constitution according to its original meanings.”

    Meese a member of the Federalist Society’s Board of Directors, has also been instrumental in the shutdown of the federal government over the 2010 landmark health care law, the Affordable Care Act. In an extensive piece for The New York Times, Sheryl Gay Stolberg and Mike Mcintire note that he helped launch a “loose-knit coalition of conservative activists” early in Obama’s second term to craft a new push to “repeal” the Affordable Care Act.

    “It articulated a take-no-prisoners legislative strategy that has long percolated in conservative circles: that Republicans could derail the health care overhaul if conservative lawmakers were willing to push fellow Republicans – including their cautious leaders – into cutting off financing for the entire federal government.”

    The Meese coalition created a defunding “tool kit” with talking points saying it “simply is calling to fund the entire government except for the Affordable Care Act/Obamacare.”

    Meese, as the newspaper notes, also helped launch a group, the Conservative Action Project (CAP) to peddle the defunding plan. Its “welcome friends!” message says President Obama “is trying to remake our government and economy into the image of today’s European social welfare state.”  

    Groups like the Heritage Foundation, where Meese is the Ronald Reagan Chair in Public Policy, and the billionaire Koch brothers have also been involved in pushing the defunding campaign, which has led to the shutdown.

    As noted here, scholars and prominent commentators have blasted the strategy as undermining and endangering democratic processes. The Affordable Care Act became law after extensive debate in Congress, survived a constitutional challenge by lawmakers, and the House’s outlandish number of votes to repeal the law have been for naught. And yes, as The Dish’s Andrew Sullivan noted, the American electorate spoke clearly in 2012 when Obama won a second term in strong fashion.