Speech and expression

  • April 4, 2014
    Guest Post
    by Georgina Yeomans, 2L, Columbia Law School
     
    I am very concerned about the Court’s decision in McCutcheon v. FEC, though perhaps not for the reasons you’d think. I will leave it to others to be concerned that the Court is moving toward a system in which the richest among us have significantly louder political speech than the rest of the country; I won’t even lament the irony of the Chief Justice’s opening line acknowledging that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” when juxtaposed with the Shelby County opinion from last term. I won’t comment, as Ari Berman eloquently has in The Nation, on the Court’s disturbing trend toward “More Money, Less Voting.” My concern right now is more selfish—I’m concerned because I’m a second year law student, exams are a few weeks away, and the Chief Justice has fundamentally confounded my understanding of stare decisis.
     
    In McCutcheon, the Court struck down aggregate spending limits imposed by the Federal Election Campaign Act (FECA). This is a conclusion that would seem to require overruling the Court’s decision in Buckley v. Valeo upholding that very same provision. And yet the Court did not go through the “prudential and pragmatic considerations” announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, when deciding whether to overrule precedent. In Casey, in which the Court refused to overturn Roe v. Wade, the Court stressed the importance of precedent in our Constitutional system: “Indeed, the very concept of the rule of law under our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” And yet we see none of this respect for continuity or the rule of law in the Chief Justice’s decision to override the aggregate limit holding in Buckley.
     
    Instead, the Court notes that Buckley’s holding on the issue was only three sentences long, was not “‘separately addressed at length by the parties,’” and thus “does not control here.” The Chief Justice points to two other cases in which the Court has not felt bound by what the Chief basically characterizes as sloppy decision-making: Toucey v. New York Life Ins. Co and Hohn v. United States. Yet both of those cases dealt with procedural issues that the Court stressed did not alter primary conduct—a situation thought by some to carry less precedential weight. McCutcheon’s invalidation of aggregate political contribution limits will undoubtedly alter primary conduct and thus deserves more precedential respect.
     
  • April 4, 2014
    Guest Post
     
    Goldfish have a reputation for short memories. Once around the bowl and the goldfish forgets where he has been. The Supreme Court is behaving like goldfish when it comes to campaign finance law. Not only are they forgetting precedent from decades ago, they can’t even recall cases from the beginning of the Roberts Court—a mere eight years ago.
     
    On Wednesday, April 2, the Supreme Court in McCutcheon v. FEC ruled 5-4 (natch, since all big campaign finance cases of late are 5-4) that federal aggregate contribution limits are unconstitutional. This trashes the current limit of $123,200 and replaces it with a figure north of $3 million every two years for the very well-heeled, who can afford such extravagant sums.
     
    To get this result in McCutcheon, the Supreme Court overruled part of the seminal Buckley v. Valeo case from 1976 for the first time. Buckley has been at issue in many cases including one from first term of the Roberts Court called Randall v. Sorrell. You can be forgiven if you’ve never heard of this particular case. Randall was a big deal for campaign finance nerds, but it was met with a yawn by the general public as it essentially reaffirmed Buckley from thirty years before.
     
    Randall was a conscious progressive test case of Buckley’s basic structure, which has generated a cottage industry of criticism ever since it was originally decided per curiam in the mid-1970s. Buckley ruled that campaign expenditures could not be limited, but campaign contributions could. This left federal candidates with a bottomless demand for campaign cash and a limited supply. Hence, this case is blamed for the endless treadmill of dialing for dollars for candidates for Congress and the Presidency.
     
  • 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.
  • March 12, 2014
    As the Supreme Court prepares to hear Sebelius v. Hobby Lobby Stores, Inc. on Mar. 25, the companies refusing to provide contraception insurance coverage to their employees prepare to “frame their objections narrowly.” Emily Bazelon at Slate reveals “what the religious right really thinks of birth control.”
     
    Jeffrey Thompson, a government contractor, pleaded guilty to funneling large amounts of campaign contributions to several political candidates, including Washington, D.C. Mayor Vincent Gray. Zoe Tillman at Legal Times reports on the growing controversy surrounding Thompson’s trial and the implications for the 2014 mayoral election. 
     
    A group of Californians filed a petition for certiorari with the Supreme Court in an effort to “block a city ordinance banning gun ammunition-holders (‘magazines’) that contain more than ten bullets.” Lyle Denniston at SCOTUSblog breaks down Fyock v. City of Sunnyvale.
     
    A same-sex couple filed for divorce in Alabama, causing a plethora of legal questions to arise in a state that refuses to recognize gay marriage. Brian Lawson of The Huntsville Times describes how the state’s marriage ban is “[leaving] the couple without an easy way to untie the knot.”
     
    At The New York Times, Paul Krugman explains why “taking action to reduce the extreme inequality of 21st-century America would probably increase, not reduce, economic growth.”
     
    Staci Zaretsky at Above the Law comments on the U.S News & World Report 2015 law school rankings.
  • March 11, 2014
     
    Spencer Overton, former ACS Board Member and current President and CEO of the Joint Center for Political and Economic Studies, visited Selma, Alabama for the 49th anniversary of “Bloody Sunday.” Overton chronicled his experience on Twitter as civil rights leaders urged Congress to remember the legacy of Selma following last year’s controversial Supreme Court decision in Shelby County v. Holder. For further analysis of Shelby County, please see Overton’s guest post at ACSblog.
     
    In an interview with NPR’s Carrie Johnson, Attorney General Eric Holder shares his stance on softening prison sentences, the Senate’s vote to block the nomination of Debo Adegbile for Assistant Attorney General for the Department of Justice's Civil Rights Division, and former National Security Agency contractor Edward Snowden.
     
    The Supreme Court has declined to hear a Pennsylvania school district’s appeal of a lower-court decision to uphold the right of students to wear breast-cancer-awareness bracelets. Mark Walsh at Education Week reports on the student-speech case.
     
    Walter Shapiro at the Brennan Center for Justice discusses the legal issues surrounding the Federal Election Commission and single-candidate Super PACs.
     
    Ann Havemann at CPRblog explains how budget cuts to the Environmental Protection Agency will affect enforcement of environmental laws.