On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.

It cannot be that the United States views itself as the only legitimate prosecutorial authority. We certainly allowed Iraq to adjudicate Saddam Hussein and be hanged without so much as a blink of an eye. Indeed we provided security for the proceedings which if conducted on U.S. soil would most likely have been a violation of cruel and unusual punishment by hanging him and severe deprivations of due process in that the system of justice that adjudicated him and carried out the sentence was tantamount to a lynch mob.

As President Obama prosecutes the "Overseas Contingency Operation" (formerly known as the War on Terror) we must consider that this is a position of unilateral preemptive war which is a paradigm shift in foreign policy of titanic proportions, ratified by both political parties. We are conducting this "war" in violation of human rights, international law, and national sovereignty.

Reflection upon the Vietnam War era informs the absurdity of our position. As has been noted in "The Dark Side" by Jane Mayer, the "North Vietnamese refused to respect U.S. pilots as legitimately covered by the Geneva Conventions, calling them 'pirates' in an illegal war." Many of these pilots were tortured and killed. "The Viet Cong, meanwhile, defied conventional rules of warfare, often fighting without uniforms, disguised as civilians. The United States nonetheless gave the Viet Cong the protection of the Third Geneva Convention." The Vietnam Conflict demonstrates that even under the most challenging circumstances we as a Nation were able to "stay above the fray." This was in the face of over 58,000 service members who died during that conflict (as compared to the over 5,000 during Operation Iraqi Freedom/Operation Enduring Freedom) and the civil outrage that permeated throughout the Vietnam conflict.

As Newton discovered "for every action there is an equal and opposite reaction." The shortsightedness of this policy determination does not make us safe as a Nation, nor does it contemplate third and fourth order consequences. President Obama just proclaimed in his first State of the Union that he will not "accept second place for the United States of America." I hope that this is not just another empty promise and that we apply this philosophy with regard to human rights and the rule of law.

[Image via smith5334.]

A year ago today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (pictured left). The law overturned the disastrous Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co.
The Act explicitly provides that "an unlawful employment practice occurs ... when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid" as a result of such a practice.

In the past year, courts around the country have implemented the Act as Congress intended for straightforward pay discrimination cases. In cases involving pay discrimination based on sex, race, disability, and age, these courts have recognized that the statute of limitations is renewed with each paycheck marred by discrimination.

But not every plaintiff has had their pay discrimination case restored by the Act, and there are a few thorny implementation issues that have emerged which courts will continue to flesh out. So where do we currently stand with the Ledbetter Act? One year later, our assessment is that while the Ledbetter Act was a true, hard-won victory for women and families, it is only the first step towards addressing pay disparities for women.

What are some of the issues on the table? Well, to name just a few:

1.  One question still to be worked out by the courts is whether and how the Act is retroactive. Congress made clear that courts must treat the Supreme Court's decision in Ledbetter as if it had never been issued, and pay discrimination plaintiffs should have their claims restored. Thus, plaintiffs who continue to receive discriminatory paychecks (even if initial acts of discrimination occurred prior to the Act) have had their claims reinstated, as well as plaintiffs whose claims were pending at the time of the Act either in court or at the EEOC. In Hester v. N. Ala. Ctr. for Educ., for instance, the Eleventh Circuit agreed that the plaintiff's Title VII claim that she was paid less than male employees engaged in substantially equal work should be restored in light of the Ledbetter Act. However, it remains to be seen what limits courts will place on the Act's retroactivity. For example, courts have not yet had the opportunity to consider the more complex issue of cases involving claims not pending when the Act came down, because plaintiffs decided not to appeal claims or decided not to bring their claims at all due to the Supreme Court's decision in Ledbetter.

2.  Another unresolved issue is whether the Ledbetter Act overturns the Ledbetter decision's application outside of the employment context, and the express statutes identified by Congress in the Act. Before the Act, several state and federal courts had applied Ledbetter to restrict the time period for bringing claims outside the pay discrimination context. It was applied, for example, by a district court in California to a Title IX athletics discrimination case. It also was applied by state courts in a host of contexts, some involving pay discrimination, some not. In contrast, courts have refused to apply the Ledbetter Act to cases outside the pay discrimination context. In a case decided earlier this month, Low v. Chu, an Oklahoma district court rejected a plaintiff's attempts to apply the Ledbetter Act to her claims, stating how the Act "relates to claims of discriminatory compensation practices only." Other courts have refused to apply the Act to cases involving statutes not expressly cited in the Act, such as the Family and Medical Leave Act.

3.  Finally, courts are still hashing out what Congress meant by the phrase "when an individual becomes subject to a discriminatory compensation decision or other practice." The legislative history and language of the Act make clear that the "other practice" must in some way relate to compensation discrimination. But where courts will draw the line in terms of what "other practices" impact compensation such that the statute of limitations is renewed remains to be seen. Some courts have made clear that "failure to promote" claims are not the sort of "other practices" contemplated by Congress. This issue is exemplified by a Texas district court, which acknowledged how district courts all over the country have grappled with the meaning of these terms in the Act, but ultimately held that the plaintiff's failure to promote claim did not constitute a "compensation decision" under the Act. While other courts have held that, for example, a "denial of tenure" can qualify as a "compensation decision or other practice" where it affects the plaintiff's salary.

So what's our assessment of the Act? There is no doubt that laws matter and in the one year since the Act was passed, workers around the country have had their fair pay claims restored. Like any new statute, however, there are a few issues, such as the ones identified above, that must be ironed out. And even once they are, the fact remains that women today are still paid, on average, only 77 cents for every dollar paid to men, and women of color are paid even less than that.

What is clear is that in this economy, women and their families simply cannot afford to be shortchanged in the workplace. Congress should view the Ledbetter Act as the first step in addressing pay discrimination, but the fight to achieve wage equality is far from over. Thus, while the targeted steps taken in the Lilly Ledbetter Fair Pay Act are important, they only restored the protection against pay discrimination stripped away by the Ledbetter decision. Congress should build off the Act to continue moving the ball forward to better address pay disparities in the workplace.

Our recommendation -- the Senate should expeditiously pass the Paycheck Fairness Act. Families cannot afford to wait.

In 1966, because of the fear of foreign influence in U.S. elections, Congress passed the Foreign Agents Registration Act. Eventually incorporated in the 1974 Federal Election Campaign Act, the law prohibits foreign governments, foreign political parties, foreign corporations and individuals with foreign citizenship from contributing, donating or spending funds, either directly or indirectly, in any U.S. election.

While this law has been important to the functioning of our democracy, the Supreme Court, in the case of Citizens United v. Federal Election Committee, has moved perilously close to abolishing it and opening the U.S. political process to foreign money, influence and--given the structure of some multinational corporations--direct pressure from foreign governments.

This change stems from the majority opinion's unprecedented elevation of corporations to equal status with individual citizens in the sphere of political speech. For convenience's sake, the law does periodically describe corporations as "legal persons" and "citizens" of the state in which they are incorporated. But in Citizens United, the majority has taken this legal short-hand literally. In the majority's opinion, courts are no longer permitted to take into consideration elements such as limited liability, perpetual life and preferential tax treatment that distinguish a corporation from an individual citizen when analyzing a corporation's rights, nor are courts are allowed to treat corporations differently from actual persons (as they have been doing since the country's founding.) After Citizens United, the law can no longer look behind the curtain of the corporate form: Citizens United commands that the law pertaining to political speech treat corporations exactly as individual citizens. Simply put, distinctions between corporations and human beings are no longer permissible and limitations on corporations' political speech are unconstitutional.

In treating corporations the same as individuals, Citizens United leaves the door wide open for foreign influence in our politics. In the case of Chinese corporations, this also means foreign government involvement. Most multinational Chinese corporations, like Haier, China Telcom, and China State Construction Engineering Corporation (CSCE), have U.S. subsidiaries. These are companies incorporated in the United States: Haier's U.S. subsidiary, Haier American Holding Corporation, China Telecom's subsidiary, China Telecom Americas, and CSCE's subsidiary, China Construction America, are all incorporated in Delaware.

Under Citizens United, all three of these subsidiaries are citizens of Delaware and enjoy the same political speech rights as any other citizen of the United States. Citizens United does not permit us to look behind their corporate veil to see their relationship to foreign corporations. But make no mistake: these subsidiaries are heavily influenced--if not outright controlled--by their Chinese parent corporation. This is not unique to Chinese corporations. In a parent-subsidiary relationship, especially for foreign corporations, there is a lot of overlap between the parent and its U.S. subsidiary; the parent usually owns a majority, if not all of the shares of the subsidiary; capital is often infused to the subsidiary from the parent; and directors from the parent's board usually sit on the subsidiary's board of directors. This is the relationship that Haier, China Telcom, and CSCE all have with their U.S. subsidiaries.

What is unique to Chinese corporations is the scope of their government ties--indeed, some are controlled outright by the Beijing government. Unlike in, say, Western Europe, places like China, Russia and Vietnam still have a fair share of government-run corporations. Haier, China Telecom and CSCE are all officially government-run. While the Chinese government does not meddle in the corporation's daily affairs, it will exert its influence if it suits the government's self-interest. For example, in 1994, Haier, a manufacturer of washing machines and refrigerators, was pressured by the Chinese government into acquiring a pharmaceutical company, a venture that ended badly.

Citizens United allows for the very real possibility of the Chinese government's direct influence in our elections through a Chinese corporation's U.S. subsidiary. While no official number exists about the number of Chinese companies with a U.S. subsidiary corporation, Dan Harris, a partner at the international law firm Harris & Moure and editor of the China Law Blog, believes that the number is substantial. "My small firm represents a number of U.S. companies that are wholly-owned by Chinese companies or by Chinese citizens and that convinces me there must be thousands of such companies in the U.S." While certainly not all of these Chinese companies with a U.S. presence are directly owned by the Chinese government, there are likely many more than just Haier, China Telecom and CSCE. And given China's vast currency reserves ($2.4 trillion, the world's largest), the Chinese government certainly has the money to spend on U.S. elections should it choose to do so. Corporations in other countries, particularly oil-rich ones like Saudi Arabia and Russia, also own U.S. subsidiaries. The threat of foreign involvement in our elections has been noted by the White House, as seen in the Obama's critique of the decision during his State of the Union, and by Congress as it explores ways to nullify Citizens Untied.

This issue wasn't completely lost on the majority in Citizens United -- they simply chose not to deal with it. While the majority hinted that there could be a compelling interest in preventing foreign nationals, foreign corporations or foreign governments from influencing the political process, the logic underlying Citizens United's literal definition of the corporation as citizen prevents this. After Citizens United, courts are no longer allowed to look behind the curtain of the corporate form to the realities of the situation or to distinguish between corporate citizens and individual ones; the majority opinion allows no leeway to examine the foreign origins of the shareholders. For the purposes of political speech, one person's U.S. citizenship, be it from a passport or from the documents of incorporation, is just as good as another's; to draw distinctions would be discriminatory.

Given that the majority in Citizens United so easily overturned it previous rulings with regard to limitations on corporate participation in elections, one ought not expect the Court to maintain any consistency when a case involving political donations from a U.S. subsidiary of a foreign corporation comes before it. The Justices will want to reach the result that American subsidiaries controlled by foreign entities cannot provide support to political activities; Justice Alito, with his mouthing of the word "not true" during Obama's State of the Union address, certainly signaled this. Such a result, however, will require the Court to overturn the logic of the corporate citizen as equal to an individual citizen. A majority will likely call this an "exception." In reality, it is more of an excuse. In either case, such a ruling will likely prove difficult to enforce.

Many Chinese corporations have American subsidiaries that are private, i.e., are not subject to the same reporting requirements as publicly-traded ones. In some states, such private corporations have no reporting requirements at all. With a private corporation, it is difficult to determine share ownership, identity of officers or even names of the directors. This difficult detective work will become the responsibility of the Federal Election Commission (FEC). Ironically, the majority in Citizens United found that the campaign finance law's requirement that corporations work through their Political Action Committees (PACs) during the law's 30-60 day quiet period was too burdensome since it required copious amounts of paperwork. Imagine the time, effort and money the FEC will be required to put out in to determining the ownership of any number of private corporations.

In equating corporate citizenship with individual citizenship, the Court does more than just disregard its own rules of precedent and stare decisis. It also provides an image of a corporation completely disconnected from reality, does a grave disservice to our political process and jeopardizes our democracy. And that, Justice Alito, is the truth.

[image via www.climaticoanalysis.org]  

Editor's Note: This is the final post in an ACSblog debate on the constitutional rights of corporations between David H. Gans of the Constitutional Accountability Center (CAC) and Michael S. Greve of the American Enterprise Institute for Public Policy Research (AEI). All posts in the debate are here.

Nothing in Citizens United dissuades me from my earlier post's position that the corporate "personhood" question is an unhelpful distraction. No one (including the CU majority) contends that corporations are persons that can (let alone must) enjoy all the constitutional rights of natural persons. Conversely, the CU dissent acknowledges that corporations are covered by the First Amendment and that private associations of individuals do not lose their First Amendment rights merely because they are organized in corporate form.

Either way, the question is whether government has sufficiently good and relevant reasons to treat corporations (and unions) more restrictively than individuals. Justice Kennedy's opinion for the Court and Justice Stevens's dissent both devote most of their substantive discussion to that question. Of course, they arrive at very different answers.

It should surprise no one that the reasons for corporate expenditure limits that the Court used to credit-the "anti-distortion," "anti-corruption," and "shareholder protection" rationales-have now been found wanting. (I think Progressives actually saw this coming: the "corporations-aren't-persons-and-so-therefore" argument owes its belated rise to the fear that the conventional arguments would no longer do.) Justice Stevens's snarl that the "only relevant thing that has changed ... is the composition of this Court" may be right in a crass legal-realist sense. It is wrong in substance: over the years, campaign finance law and litigation has taught us, and quite probably some justices, that the game isn't worth the candle. The dissent itself suggests the point, although not in the way its author intends.

When citizens get "the impression that corporations dominate our politics," the dissent bemoans, "they may lose faith" in our democratic institutions and fall into "cynicism and disenchantment" (Dissent, p. 81) There is indeed no shortage of public cynicism-and it has risen in tandem with the volume of campaign finance regulation. Public approval of Congress stood at 40 percent in 1974, when legislation started in earnest. It stood at 24 percent in 2000, when BCRA was enacted. It now stands at 17 percent. Progressives loudly clamor for another round of legislation to respond to Citizens United-perhaps, to test whether public approval can sink below zero.

Similarly, "the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other's backs" (Dissent, p. 57) are largely attributable to-well, to campaign finance law, which has spawned entire industries of bundlers, 527s, 501(c)(pick-your-number)s, and high-priced lawyers navigating the Federal Election Commission's torrent of regulations on 33 different types of political speech. On some planet, this regime might reduce the "appearance of corruption," but not on ours. Especially if one worries about bad appearances, one ought to embrace the majority's holding: allow the money to flow the most direct route, and force disclosure.

Perhaps, campaign finance law lacks even a minimally rational means-ends relation because its defenders confuse cause and effect. We don't really know, Justice Stevens writes, what the Framers would have thought about corporations and campaign finance. Clearly, though, "they would have been appalled by the evidence of corruption" that supposedly warrants the now-invalidated provisions (p. 61). "Appalled" is right.

The Framers, however, viewed the form of "corruption" at issue not simply as a private vice but as a product of bad, "mutable" government. "Public instability," James Madison warned, would give an:

unreasonable advantage to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that the laws are made for the few, not for the many. (Federalist No. 62.)

Mutable government begets corruption, which (Madison continues) in turn begets public disaffection: that's a pretty good analysis of and for an age of $3 trillion budgets; a regulatory apparatus that commandeers resources of equal magnitude; $700 billion blank checks to federal agencies; impulse purchases of car and insurance companies; and grand plans to re-arrange today this, tomorrow that, next week the other sector of the American economy. Granted, the relation between rent-seeking (aka corruption) and "mutable government" runs both ways. But the notion that we can and should have more of that government and yet stop the "moneyed few" in their tracks through campaign finance law is oxymoronic. Emphasis not necessarily on "oxy."

Government is not a person; like a corporation, it is an artifact. But "No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability." If you're worried about corporate corruption, start with that Madisonian thought. 

Editor's Note: This is the third post in an ACSblog debate on the constitutional rights of corporations between David H. Gans of the Constitutional Accountability Center (CAC) and Michael S. Greve of the American Enterprise Institute for Public Policy Research (AEI). The final post, from Mr. Greve, is here.

Last Thursday, in Citizens United v. FEC, the Supreme Court announced, for the first time in history, that corporations have the same rights as individuals to spend money on the electoral process, and corporate personhood was at the heart of the Court's opinion. In Justice Kennedy's view, corporations are simply "associations of citizens," and therefore deserve the same constitution rights as living persons. The Court's opinion interred a century of campaign finance law built on the idea that corporate participation in the electoral process must be strictly regulated for the sake of our democracy.

The Court's conservative majority - including the Justices who repeatedly profess adherence to the Constitution's original meaning - turned their back on our Constitution's text and history, ignoring that the Constitution was written for and by "We the People," and that from the framing on, it has been blackletter law that corporations are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business. As Justice Stevens' brilliant dissent put it, "the Framers took it as given that corporations could be comprehensively regulated in the public welfare." Rather than own up to constitutional first principles, both Kennedy's majority opinion and Justice Scalia's concurrence blithely dismissed them. Both Kennedy and Scalia repeatedly relied on constitutional protection for the media in arguing that the Constitution gives the same rights to corporations and the people, ignoring that the press were the only private business given explicit constitutional protection in the Constitution. Justice Scalia even goes so far as to suggest that the framers would actually have liked modern corporations if they only they had the chance to see them in action. Those who take constitutional text and history seriously should be appalled that this is what passes for legitimate argument by the leading originalist on the Court.

In fact, Michael Greve's initial take is more in line with Justice Stevens' dissent than either Justice Kennedy's majority opinion or Justice Scalia's concurring opinion. It was Stevens' dissent, not the 5-justice conservative majority, that adopted Greve's "common sense" position: "corporations do not enjoy the same rights as individuals." Kennedy's majority opinion, on the other hand, rejected this "sensible" notion, treating corporations as nothing more than "associations of citizens" deserving equal rights as living persons.

To be sure, Greve, much like Kennedy and Scalia, tries to get out from under the Constitution's text and history. Taking pot shots at CAC's forthcoming report, "A Capitalist Joker": Corporations, Corporate Personhood, and the Constitution, Greve derides us for focusing on what the framing-era generation had to say about the role of corporations under the Constitution. This, Greve says, is "pseudo-originalism." Perhaps I'm mistaken, but I had thought that understanding the framers' Constitution was a big part of what originalism is all about.

Then, Greve makes the point that modern corporations look nothing like the ones that existed at the time of the framing. This is, of course, true but does not give Greve any reasons for ignoring the history we lay out in A Capitalist Joker, which begins at the Founding and covers virtually every era in American history. Corporations have changed since the Founding - beginning in the 1830s, states enacted general incorporation laws that made it easier to create corporations because having legislatures vote to approve individual charters led to rampant corruption - but the idea that government has a special role in policing corporations has not. That framing-era bedrock principle is reflected in a century of Supreme Court precedent consistently holding that corporations are not protected by the Fifth Amendment Self-Incrimination Clause; it is reflected in a host of Supreme Court precedents recognizing that governments have broader search-and-seizure authority over corporations; and, until last Thursday's ruling in Citizens United, it was reflected in a century of campaign finance law and Supreme Court precedent recognizing that corporations did not have the same rights to spend money on elections as living breathing persons.

We shouldn't forget how we got here. As explained in more detail in A Capitalist Joker, Citizens United is a culmination of a forty-year struggle that began in earnest in 1971 when Lewis Powell advised the Chamber of Commerce that "political power is necessary" for corporations and "must be assiduously cultivated" and urged corporations to look to the courts for relief. Citizens United also represents a return to the idea of equal constitutional rights for corporations that was embraced briefly by the Supreme Court in the Lochner-era, a era universally viewed to be among the worst in Supreme Court history. Far from heeding our constitutional traditions, the five conservative Justices on the Roberts Court saw the chance to write the idea of equal constitutional rights for corporations back into the Constitution, and took it, casting aside both first principles and precedent to get there. 

A coalition of more than seventy civil rights, women's rights, consumer, fair housing and legal organizations jointly sent a letter to Congress urging the Senate Health, Education, Labor, and Pensions ("HELP") Committee to reject the nomination of Sharon Browne (pictured at left) to the Board of Directors of the Legal Services Corporation ("LSC").

In a separate letter, the American Bar Association ("ABA") also urged the rejection of Browne's nomination yesterday stating:

The ABA opposes the confirmation of Sharon L. Browne of California. The Committee unanimously agreed that her views and qualifications are not consistent with the ABA criteria set forth above. The Committee did not find that Browne is free of all conflict and the appearance of conflict, that she is committed to the freedom of LSC and its grantees from political control, or that she could assure that she is fully committed to the role of legal services attorneys.

LSC is governed by an 11-member board appointed by the President and confirmed by the Senate. By law, no more than 6 board members may be of the same political party. Senate Minority Leader Mitch McConnell recently recommended Ms. Browne, along with Charles Keckler and Victor B. Maddox, to President Obama, who nominated them to the LSC Board on December 17, 2009.

Sharon Browne's nomination is highly troubling because she has spent her entire career advocating against the very constituencies the Legal Services Corporation serves. Immediate reactions to her nomination ranged from "stunned" to a suggestion for President Obama to withdraw the nomination.

When creating the LSC, Congress established that members of its board should be committed to the development of legal assistance for the poor and supportive of the principal that this population have access to adequate and effective legal services. Sharon Browne does not meet any of those criteria.

Instead, after an extensive review of her record, there is nothing to indicate that she is committed to supporting women, people of color, or the poor - the very people LSC was created to support.

Browne and her employer, the Pacific Legal Foundation, have a long track record of involvement in highly partisan and politicized efforts to deny equal access to justice.

Eva Paterson, Equal Justice Society President indicated, "At a time when inadequate funding means that legal services turns away nearly half of those who seek its help, LSC needs leadership from those dedicated to its core mission: serving society's neediest."

For more information on Sharon Browne's record you can view our fact sheet at afj.org.

[Image via Pacific Legal Foundation.]

The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]

It's been thirty-seven years since the Supreme Court recognized a woman's constitutional right to abortion in Roe v. Wade, and in that time, without fail, a woman's ability to obtain an abortion has been under attack. Between stringent state laws, a lack of funding, and a severe shortage of abortion providers, abortion is virtually unattainable for significant numbers of women.

And it gets worse. The promise of affordable healthcare for all is quickly turning for women as federal lawmakers threaten to strip millions of the abortion coverage that they already have. And this past week, the judge presiding over the trial of the man accused in the shooting death of Kansas provider Dr. George Tiller essentially opened the door to a dangerously forgiving legal defense for those who commit violent acts-including murder-against doctors who provide abortion.

We expect judges to uphold the rule of law and make sure that its protections apply equally to everyone. But Judge Warren Wilbert (left) has stepped over that line. Last week, the judge indicated that he will allow the accused, Scott Roeder, to potentially avoid conviction on first-degree murder charges on the grounds that he honestly, albeit unreasonably, believed his actions - shooting Dr. Tiller at point blank range while he was serving as an usher at his church - were justified to prevent Dr. Tiller from performing abortions. After considering this evidence, the jury may have the option of convicting Roeder of voluntary manslaughter, a considerably less serious crime which also carries a significantly smaller penalty.

The fallout from such a ruling cannot be understated. If anti-choice extremists can justify murdering or physically harming abortion providers because they personally believe that abortion is wrong, then they would be, in effect, above the law. Take it from Reverend Don Spitz of Virginia, a member of the notoriously anti-choice group Army of God himself. He predicts that the judge's decision "may increase the number of people who may be willing to take that risk." As a result, abortion providers will fear for their lives even more than they already do because the laws that protect other citizens from violence do not apply with equal force to them.

Instead of a straightforward murder trial, Roeder's case will most certainly turn into a debate on the legitimacy of violence against abortion providers. Permitting this to occur in a judicial forum provides a patina of credibility that the misguided and illegal ideology that animates anti-abortion violence has not received before. In U.S. history, no other court has allowed these perpetrators to avoid a full conviction on the basis that their acts were necessary or justified.

Even more alarming then the potential miscarriage of justice that may occur if Dr. Tiller's assassin is acquitted of first degree murder while being convicted of only voluntary manslaughter is the broader signal that this ruling sends to those who might contemplate violent action against abortion providers - and to doctors, who now must feel like they have a target painted on their backs. Just because abortion is a divisive issue in which people (on both sides) hold deep moral and spiritual beliefs does not change the fact that violent acts intended to advance any cause are illegal. The law must not, and up to now has not, created special protections for those who commit crimes based on the sincerity of their beliefs.

As our investigative report last summer found, anti-choice forces have targeted abortion providers for decades - with appalling physical attacks, threats and intimidation - far too often with impunity. Abortion is the most stigmatized medical procedure in this country, while remaining legal and a core constitutional right, as well as a fundamental part of health care for women.

The effect of this deliberate campaign to shut down providers by any means at the disposal of organized anti-choice groups has been fewer doctors providing abortion and fewer women across the country who have safe and meaningful access to abortion services. It is incredibly important that this trial show that the lives of doctors who perform necessary, legal services will be protected by the full force of the law. No matter where you stand on abortion, the murder of doctors who provide a safe and legal medical service sought by one out of three American women is intolerable.

Allowing a voluntary manslaughter option negates the Supreme Court's constitutional protection of abortion rights and is an invitation to grotesque and self-serving vigilantism. The promise of Roe is increasingly in jeopardy as the numbers of abortion providers, under intolerable conditions of threats and harassment, rapidly decline. The government must aggressively protect these doctors who are defending women's rights, not expose them to further violence by weakening criminal penalties for pre-meditated murder.

With today's decision in Citizens United, the Roberts Court has proudly unveiled the Anatole France First Amendment. "The law, in its majestic impartiality, forbids the rich and poor alike to sleep under bridges and beg in the streets," Anatole France famously wrote. After today, the First Amendment, in its majestic impartiality, will allow ordinary citizens and massive corporations alike to spend as much as they desire to elect their preferred candidates to office.

In a pre-argument blog on Citizens United, I pointed out how radically the scale of money in politics would change if the Court were to hold that the First Amendment outlaws any distinction between giant corporations and individuals when it comes to electoral spending. As the Solicitor General's supplemental brief in Citizens United explains:

During the 2007-2008 election cycle . . . FEC-registered political parties spent $1.5 billion, and federal PACs spent $1.2 billion, while the Fortune 100 companies had combined revenues of $13.1 trillion and profits of $605 billion. If those 100 companies alone had devoted just one percent of their profits (or one-twentieth of one percent of their revenues) to electoral advocacy, such spending would have more than doubled the federally-reported disbursements of all American political parties and PACs combined.

One of the most striking features of the majority opinion is thus the disconnect between its rhetoric - which frames the ideal of protecting the political arena from the terrible dangers of public oversight - and the reality - namely, the massive damage the decision itself will do to the political arena and the ideal of self governance by unleashing for-profit corporate treasury funds in the electoral sphere. At the heart of this disconnect is the deeply flawed assumption that political spending by an artificial, entirely state-created entity such as a for-profit corporation serves precisely the same function of self-expression and political actualization as it does for an individual person. The amicus brief that I helped author for the American Independent Business Alliance summarized the problems with that assumption as follows:

The governance system of . . . corporations is highly successful for the pursuit of profit, making them important instruments in the economic sphere. But the very factors that make the corporate form an effective instrument of wealth accumulation are the factors that make it inappropriate for corporations to claim the full panoply of First Amendment protections for political speech and participation that are enjoyed by natural persons. Because of the way corporations are structured, corporate speech does not express the political views of any individual or group of individuals associated with the corporation. Moreover, the constraints that drive a corporation's political speech - the requirement that corporate actions all must be calibrated toward profit - directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.

Justice Stevens' dissent picks up on these themes (and even quotes our amicus brief, the only kind of comfort the reform side is getting from campaign finance opinions these days). In Justice Stevens' words "the fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it." He continues:

Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their "personhood" often serves as a useful legal fiction. But they are not themselves members of "We the People" by whom and for whom our Constitution was established.

But the majority's decision to overrule decades of precedent in order to unleash for-profit corporate participation in the political marketplace displays an even more striking disconnect when we think about the timing of the decision. The notion of perfecting our democracy by casting off all restrictions on corporate political spending comes on the heels of massive and appalling failures of corporate governance in the economic sphere itself - the very sphere for which the corporate form was created. Unrestrained and under-regulated pursuit of corporate profit helped spark a financial meltdown that wiped out $2 trillion in retirement savings in 15 months, lost 2 million homes to foreclosure over the past two years; and saw the disappearance of 7.2 million jobs. In the wake of all this, the Roberts Court's response is to ask "What could possibly go wrong from putting corporations in charge of politics too?"

The reform movement is gearing up quickly to move from outrage to action. The responses vary. Many are calling on a renewed push for public financing of congressional elections to help give citizens a place at the table; others are urging the need for a constitutional amendment to overturn the decision; and others are proposing shareholder protection measures that would give shareholders greater control over political spending by corporations. All of these approaches have promise and should be widely debated in the coming days.

[image via www.yellowdoggereldemocrat.org]

For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]