ACSBlog

  • May 16, 2016
    Guest Post

    by Johanna Kalb, Jurisprudence Fellow, Brennan Center for Justice

    *This post also appears at Brennan Center for Justice and Demos

    In May, the University of Pennsylvania Law Review Online will publish a series of essays examining the role that political equality could play in the Supreme Court’s campaign finance jurisprudence.  The authors in this collection are helping to relaunch a conversation that has been stagnant for forty years. 

    Today’s constitutional framework for money in politics dates back to the Supreme Court’s decision in Buckley v. Valeo.  The Buckley Court was asked to evaluate the constitutionality of the Federal Election Campaign Act of 1974, an extensive package of reforms including limits on contributions and independent spending, disclosure requirements for political spending, and the creation of a system of public funding for presidential campaigns.  Defenders of the law argued that regulating political spending was necessary to prevent corruption and promote voter confidence, as well as to equalize the ability of interested citizens to influence electoral choices and run for office.  The Buckley Court agreed that preventing corruption or its appearance was a compelling government interest, which justified an incursion on First Amendment rights.  However, the Court flatly rejected any government interest in promoting political equality, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”

    Buckley’s rejection of the equality interest was immediately and widely criticized.  As time passed, however, attention in political equality arguments quite understandably receded.  Instead reformers (and scholars) focused their energies on arguing for a broad understanding of the government’s interest in preventing corruption.  In the 1990s and early 2000s, this seemed like a winning strategy.  The Court upheld a variety of contribution limits, oftendescribing the government’s corruption interest broadly in terms of the dangers that wealth could pose to the integrity of the democratic process.  Then Roberts and Alito replaced O’Connor and Rehnquist, and the newly constituted Court began a concerted effort to dismantle the system of campaign finance regulation by narrowing the government’s interest in preventing corruption to the quid pro quo exchange of cash for votes.

    The Roberts Court’s aggressive attack on campaign finance regulation and the recent death of Justice Scalia have created an opening for rethinking the constitutional framework for money in politics.  Political equality is back on the table, bolstered in part by success of the Sanders presidential campaign and its focus on the relationship between economic and political inequality in America.  More than enthusiasm is needed, however, to move equality theory from the sidelines to the center of the constitutional doctrine.  As Rick Hasen has been saying for years (and most recently in his book, Plutocrats United), equality theory is replete with questions that have gone mostly unaddressed by scholars of campaign finance law.  We need to understand which form(s) of political equality justify regulation; equality of “inputs” into the political process – or equality of the “outputs” that process creates?  We need to have some way of thinking about how much equality is enough, in order to guide the Court in balancing the equality and liberty concerns raised by campaign finance regulation.  And, we need to have some idea of how the corporate media operates in this framework.

  • May 16, 2016

    by Jim Thompson

    Today, the Supreme Court vacated judgments in Zubik v. Burwell, instructing both parties involved to go back to the lower courts and make “tweaks in the contraceptive mandate to eliminate any faith-based concerns ‘while still ensuring that the affected women receive contraceptive coverage seamlessly,’” reports Sarah Ferris at The Hill.

    The Obama administration on Friday issued a directive telling every public school district to allow transgender students to use bathrooms that correspond with their gender identity, report Julie Hirschfeld and Matt Apuzzo at The New York Times.

    A federal district judge in Washington, D.C., ruled Thursday that the Obama administration had improperly funded a major subsidy of the Affordable Care Act, dealing a surprise blow to President Obama’s signature legislative achievement, writes Matt Ford in The Atlantic

    P.R. Lockhart at The American Prospect says a new Mississippi law that legalizes discrimination against LGBT individuals on religious grounds “could have sweeping implications well beyond the realm of gay marriage.”

  • May 11, 2016
    Guest Post

    by Ruben J. Garcia. Ruben Garcia is Professor of Law at UNLV William S. Boyd School of Law, where he teaches Labor Law and Professional Responsibility. He can be reached at ruben.garcia@unlv.edu.

    We are looking at another hot summer of litigation over the Obama Administration’s attempts to bring a modicum of regulation to the workplace. Currently, the Department of Labor’s Persuader Rule, enacted pursuant to federal labor law, is being reviewed in three different district courts and in Congress. Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required employers to disclose certain expenditures used to persuade employees in their choice of a bargaining representative. Once the DOL’s final revised rule implementing the mandate of the statute was published, employers and their law firms quickly brought suit to block the rule. The House Committee on Education and the Workforce held a hearing on April 27 which included three witnesses opposed to the rule, and one supporting it. Republicans in the House have introduced a Congressional resolution challenging the revised Rule as well.

    Federal courts in three different states will soon decide whether the revised rule should be enjoined because it exceeds the DOL’s authority or violates the U.S. Constitution. Apart from the merits of these challenges, there have been several complaints about how the revised rule’s requirement to report arrangements to provide “indirect persuasion” might cause attorneys to violate their ethical duty of confidentiality. The former president of the American Bar Association testified at the April 27 hearing that the revise Persuader Rule would “undermine the confidential attorney-client relationship.” The problem with these concerns, as I and numerous other labor law and legal ethics professors have written in a letter to the Committee, is that the revised Persuader Rule can coexist comfortably with the ABA Model Rules of Professional Conduct.

  • May 11, 2016

    Thomas Tobin, a member of the Harvard Law ACS chapter and online editor for the Harvard Law & Policy Review, writes about how Senate obstruction of judicial nominations is threatening the federal judiciary and harming Americans in The News&Observer.

    Harry Bruinius examines the concept of gender identity in The Christian Science Monitor and quotes ACSblog contributor Steve Sanders, who says “the phenomenon of gender identity is still frequently misunderstood—just like the phenomenon of sexual orientation was misunderstood.”

    Fredrick Kunkle in The Washington Post writes about a new Uber drivers’ association in New York and links to a recent ACSblog post by Catherine Fisk.

  • May 10, 2016
    Guest Post

    by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.  

    Why did the United States sue the governor and various state agencies of North Carolina?

    As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”).  All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.  

    North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.”  “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” 

    On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex.  (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)

    Why did North Carolina Governor McCrory sue the United States?

    McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges.  Essentially, it was a preemptive strike in the face of warnings by the DOJ.  The legal questions in both suits are essentially the same.