Ron Fein

  • February 15, 2017
    Guest Post

    *This piece originally appeared in Newsweek.

    by Ben Clements, Attorney, Clements and Pineault LLP and Chair of the Board, Free Speech for People and Ron Fein, Legal Director, Free Speech for People

    Patriotic Americans disagree on many things. But one thing almost all of us can agree on is that we are nation of laws and that no man or woman is above the law.

    And in our system of government, the supreme law that stands above all else is our founding charter, the Constitution of the United States.

    No president in our history has openly taken the position that he stands above and need not comply with the requirements of our law, especially the supreme law enshrined in our Constitution.

    Until now.

    Since the moment he took the Oath of Office and swore to uphold our Constitution, President Trump has been in direct and willful violation of these clauses.

    The Foreign Emoluments Clause states that “no person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign State.”

  • February 2, 2017
    Guest Post

    *Disclosure: The author is the Legal Director for Free Speech For People.  On Jan. 20, 2017, Free Speech for People jointly launched with RootsAction the national impeachment campaign at ImpeachDonaldTrumpNow.org.

    by Ron Fein, Legal Director, Free Speech for People

    Recently, President Trump’s ongoing violation of the Foreign Emoluments Clause has received significant attention. There is no need to repeat here the case-in-chief that President Trump is in violation of the Foreign Emoluments Clause. That argument has been made in careful detail in a December 2016 Brookings Institution white paper by Norman Eisen, Richard Painter and Laurence Tribe, amplified by a January 2017 essay by Joshua Matz and Laurence Tribe posted on the ACS web site, as well as in the federal court litigation by the nonprofit organization Citizens for Responsibility and Ethics in Washington.

    Let us take as given that President Trump has violated, and continues to violate, the Foreign Emoluments Clause. (We can reserve for another time the Domestic Emoluments Clause, as well as any potential violations arising from the executive order on immigration and possible defiance of federal court orders.) The present question is: is this an impeachable offense? The answer is clearly yes.  

  • October 6, 2016
    Guest Post

    by Ron Fein, Legal Director at Free Speech For People

    Why do we want to limit the influence of money in politics and what do we tell the courts? For 40 years, since the Supreme Court’s 1976 Buckley v. Valeo decision, the legal arguments for limiting big money in politics have been compelled to focus on “corruption” as the only reason.

    Not anymore. On Wednesday, Free Speech For People (along with partners Indian Law Resource Center, American Independent Business Alliance, American Sustainable Business Council and retired Montana Supreme Court Justice James Nelson) filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the state of Montana’s campaign contribution limits against a challenge led by noted campaign finance reform opponent James Bopp. The amicus brief advances a political equality argument. The district court had chastised Montana’s voters, who passed the contribution limits by a 1994 ballot initiative, for trying to achieve political equality.

    As background, the Supreme Court’s campaign finance precedent has long insisted that limits on political contributions must be grounded in concern about “corruption” and its appearance. In years past, justices with a pragmatic sense of political reality understood “corruption” to include broader concerns of influence and access; more recently, the Roberts Court constrained it to just mean “quid pro quo” corruption, not much more than bribery. And certainly corruption is one legitimate concern.

    But that is not the only, or perhaps even the main, reason that Americans want to limit the influence of big money. A more fundamental principle is political equality. This concept has been part of our constitutional history since before we had a Constitution. “We hold these truths to be self-evident, that all men are created equal,” not equal in assets or abilities but in their unalienable right “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” So wrote Thomas Jefferson in the Declaration of Independence. And when the Constitution was submitted for ratification by the states, James Madison assured hesitant readers, worried that Congress would be dominated by the wealthy, thus: “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.”

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.

  • April 3, 2014
    Guest Post
    by Ron Fein, Legal Director, Free Speech For People
     
    Twenty years ago, we had a problem with special interest money flooding the political system. A bad problem. But on the day John Roberts was sworn in as Chief Justice, it was understood that we had some options for controlling the madness. 
     
    That was then. With breathtaking speed, the Roberts Court has struck down state contribution limits; centuries-old prohibitions on corporate spending in federal and state elections; and federal and state provisions making it easier for publicly financed candidates to run against wealthy self-financed opponents. And now McCutcheon.
     
    What’s left? While Roberts’ opinion carefully stepped around invalidating anything besides aggregate contribution limits, his opinion’s reasoning lays the groundwork for invalidating any type of contribution limit. And this Court scarcely hesitates before discarding precedent, whether recent (as when Citizens United overruled the seven-year-old McConnell v. FEC) or longstanding (as when McCutcheon overruled the 38-year-old Buckley v. Valeo), to strike down bipartisan efforts to breathe some sanity into our democracy.
     
    Only a constitutional amendment can stop the Roberts Court now. To be sure, we need to step up and defend sensible campaign finance laws in federal and state courts across the country—the fight isn’t over yet. And there are many worthwhile legislative initiatives that we should pursue even today, such as public campaign financing. But the people can’t keep up with the 0.1%, or the 0.01%, in an insane financial arms race for our democracy.
     
    That’s why we need a common-sense constitutional amendment to restore the people’s ability to set sensible limits on the amount of money that can be contributed or spent in elections. Because when the umpire has decided in advance to strike out every single batter, we need to change the rules of the game.