U.S. Legal Blog » Constitutional Law

Citizens United v. FEC: Reargued

Bryan Lieb — Thu, 10 Sep 2009 21:55:17 +0000

Yesterday, I previewed the reargument of Citizens United v. Federal Election Commission, and now the arguments are in. The transcript is here. Or listen to the audio.

OpenSecrets.org has a good report on the debate. It seems that five Justices are inclined to overturn current law limiting corporate spending in political campaigns:

Those five … are Samuel Alito, Clarence Thomas (who did not speak during the proceedings), Anthony Kennedy, Roberts and Scalia. That leaves a 5-4 vote, with Ginsburg, Sotomayor, Stephen Breyer and John Paul Stevens largely in support of current campaign finance laws. Kennedy dissented in Austin and could turn that dissent into the majority view now… . Kennedy left little question about his view on the matter during today’s oral arguments.

When the Supreme Court asked to re-hear oral arguments in this case, the justices specifically posed the question whether they should overturn one previous campaign finance case, Austin v. Michigan Chamber of Commerce (1990), and the parts of another, McConnell v. Federal Election Commission (2003), that uphold the regulation of corporate spending in elections.

In Austin, the Court found that electioneering communications rules were in the government’s interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”

The Hill reports on the McCain-Feingold press conference outside the Supreme Court following the reargument:

After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.

“The questioning shows a real disconnect, a strong disconnect between the justices and political reality,” McCain said at the press conference.

“I wish that one of the justices who were standing up for people’s First Amendment rights had ever run for county sheriff,” he added. The justices showed an “extreme naïveté of the influence of corporate money and soft money.”

The Supreme Court upheld the McCain-Feingold law several times while former Justice Sandra Day O’Connor served on the court. O’Connor was the Senate majority leader in the Arizona state Senate; the court now has no member who has held elected office.

O’Connor’s departure and the arrival of Alito has shifted the balance of the court against McCain-Feingold, according to people on both sides of the debate.

Feingold warned that, should the court roll back sections of McCain-Feingold by overturning Austin and McConnell, it would leave Congress with “no ability” to reform the campaign finance system.

For me, this is very troubling. The Court may find a way to rule narrowly in this case, without drastically altering the law. But if not, my next post on this topic will be titled Notes from the Corpocracy. The Court’s opinion should appear later this year.

Unlimited Corporate Money in Politics?

Bryan Lieb — Wed, 09 Sep 2009 20:16:25 +0000

Citizens United v. The Federal Election Commission (a.k.a. “The Hillary Movie Case”) began as a challenge to the distribution of a conservative interest group’s documentary denouncing Hillary Clinton during her presidential election campaign. Because the documentary was funded with corporate money, the FEC claimed authority to prevent its distribution under the “McCain-Feingold” Bipartisan Campaign Reform Act of 2002 (which limits corporate expenditures nationwide on political campaign messaging transmitted via broadcast, satellite or cable TV). About half of the states also have laws limiting corporate political campaign spending.

A while back, a federal district court ruled in Citizens United that the corporate-funded documentary was political speech prohibited by McCain-Feingold. The Supreme Court agreed to hear an appeal of the case, and heard oral arguments on the district court’s narrow ruling. Then came the surprise: a re-hearing was requested by the Justices, asking the parties to argue whether or not McCain-Feingold and the various state restrictions violate First Amendment free speech. That oral argument happens today.

I watched an excellent debate on these issues on Bill Moyers’ Journal the other night. The transcript is here, or you can watch it. Trevor Potter, an attorney who has filed a friend-of-the-court brief defending the McCain-Feingold legislation observed that oil giant Exxon Mobil, through its political action committee (which accumulates funds through voluntary contributions of shareholders, employees and management) spent about 900 thousand dollars in the last election cycle under the restrictions imposed by current laws. But the company made 85 billion dollars net profit last year. If even a fraction of that money could be tapped for political campaigns, the megaphone given to such entities would be huge beyond compare.

What if a candidate was going to take positions Exxon Mobil didn’t like, perhaps strongly advocating alternative energy over oil, emphasizing measures against global warming, or increased taxation on oil companies? Exxon could threaten to drown such a candidate in a deluge of attack ads and unlimited funding for their opponent. Candidates not willing to toe the corporate line could be deterred from running.

Potter argues that by law, vast economic power has been given to corporations – power not available to individuals – but it was never intended for corporations to engage in unregulated, unlimited political speech. A corporation’s sole purpose is to maximize profit. It cannot vote, it is not among the constituents represented by elected officials. The First Amendment protects the free speech of PEOPLE, not of these creatures of statute we call corporations.

Noted First Amendment lawyer Floyd Abrams responded with a broad defense of free speech:

And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources … then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.

If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.

Check the transcript for the entirety of the discussion. I’ll try to link a report on the oral arguments taking place today. I agree with Potter’s argument that corporations aren’t people, and their “speech” should be regulated. They have a huge advantage over individuals in amassing funds – we have given them those preferences in a careful balancing of our societal interests, of which economic prosperity is one part. To suddenly allow corporations to also dominate the political money scene - when their interest is not societal betterment but solely profit maximization – would have a negative long term impact on the people of our nation.

Burka Controversy Coming to America

Bryan Lieb — Wed, 26 Aug 2009 16:58:43 +0000

CNN flags a First Amendment clash.

(Image source: wikimedia commons)

Can a Muslim woman wear a burka/niqab while testifying in court? Michigan small-claims court judge Paul Paruk said no, ordering Ginnah Muhammed to remove her religious head covering so that he could observe her temperament and demeanor during her testimony.

Muhammad refused, saying that she was a practicing Muslim and would take off the veil only in front of a female judge.

Paruk said a female judge was not available and told Muhammad she could remove the niqab or have her case dismissed — she chose the latter, according to court documents.

She sued the judge in federal district court, which declined to exercise jurisdiction over the case. Muhammad has since appealed to the 6th Circuit Court of Appeals.

Yesterday, the Michigan Supreme Court issued an order instituting a rule change allowing courts to exercise reasonable control over the appearance of parties and witnesses for the purpose of observing demeanor and assuring proper identification.

I think this will play out thusly:

Even under the most strict scrutiny applied by the United States Supreme Court to Constitutional issues, Muhammed’s argument – that the Michigan rule violates her First Amendment right to be free from laws prohibiting the free exercise of her religion – will fail.

She may believe that the rule IS interfering with her religious beliefs, but the rule isn’t targeted at her or her religion. It’s aimed at head coverings in a courtroom setting, and for very practical (and essential) purposes. The government has a fundamental and compelling interest in the equitable administration of justice, and this incidental infringement will be allowed.

There is no less restrictive means. The request for a female judge fails on at least two grounds. First, it would institutionalize gender discrimination in these cases, there being no rational basis for distinguishing between a male or female judge in this situation. Second, it’s an affront to the principle of judicial economy. Already-crowded court dockets would be further confused by attempting to rearrange assignments for the purpose of obtaining a female judge. What if there were no female judges available in the jurisdiction? Absurdity results.

In America, you’ve never had to check your religion at the courthouse door. Oaths are taken on the religious text of your choice, or simply sworn to. But if your religion interferes with the long established procedures and practices essential to the fair and equal administration of justice, you are materially and adversely affecting other Americans, and thereby crossing the Constitutional line.

Caperton v. Massey: Preserving Faith in Fairness

Bryan Lieb — Fri, 26 Jun 2009 18:04:02 +0000

To allow, or to forbid, a judge’s judging a case when one litigant has pumped millions of dollars into the judge’s election campaign. How best to preserve Americans’ faith in the integrity and fairness of our judicial system? The U.S. Supreme Court faced just this question in Caperton v. Massey, a suit between rival West Virginia coal companies. The closely divided Court issued its decision earlier this month. The three opinions totaling just 40 pages are a breeze to read compared to the Supremes’ more lengthy screeds – if you’ve never read a Supreme Court opinion, try this one.

Caperton’s coal company had sued the Massey coal co. for many misdeeds, winning a $50 million jury verdict. Massey appealed. Prior to the appeal’s hearing date, however, the West Virginia Supreme Court of Appeals had an election. Massey’s CEO Don Blankenship poured over $3 million (almost 3/4 the total spent) into the campaign of Brent Benjamin, who managed to unseat his incumbent opponent in a close election.

When the appeal of the $50 million verdict came before newly-minted Justice Benjamin, he refused to recuse himself – despite Caperton’s stringent objections that he was biased, or appeared to be, due to Blankenship’s huge contribution to his election. Benjamin said he had no direct pecuniary (monetary) interest in the outcome of the case, and there had been no objective information offered to show he had a bias or had prejudged the outcome. Ultimately, in the court’s 3-2 decision for reversal of the damage award, Benjamin voted to reverse.

Caperton appealed this reversal (and Benjamin’s failure to recuse himself) to the U.S. Supreme Court on the Constitutional question of whether Benjamin’s refusal to step aside violated Caperton’s Fourteenth Amendment right to Due Process (procedural fairness). And how could it not? The outcome reeks of unfairness, does it not? It appears unfair, or that there is a risk of unfairness afoot since we cannot know, finally and with certainty, whether or not Justice Benjamin was influenced – we’re forced to take his word for it.

A bare majority of the Supreme Court agreed, reversing the decision of the West Virginia court. In an opinion by pivotal swing-voter Justice Kennedy, five Supremes (Kennedy plus the liberal wing: Stevens, Souter, Ginsburg and Breyer) agreed that Benjamin had used an improper standard when considering whether to recuse himself. Kennedy states the correct standard in approximately three similar iterations (bold added by me):

(1) whether, under the totality of the circumstances, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

(2) “not whether the judge is actually biased, but whether … there is an unconstitutional potential for bias.”

Most elaborately, Kennedy states (3a) the Court’s extant rule for treatment of Due Process issues, and then (3b) applies it to the case at hand, resulting in yet a third enunciation of the relevant test:

(3a) “[T]he Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

(3b) “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election— had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

The inquiry focuses on the appearance, the probability, the potential for bias under the circumstances – not on the presence or absence of actual bias (which only a mind-reader could know, if indeed the biased judge was aware of his or her own bias – for biases can be subtle and difficult to detect and acknowledge even within ourselves). Justice Kennedy observes that Caperton is an extreme case, and falls beyond the Constitution’s pale, even if it’s impossible to draw a bright line rule under which to precisely (objectively?) analyze future cases: “This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that ‘cannot be defined with precision.’”

What gives me pause is Kennedy’s insistence on applying the lable “objective” to his construction: “objective standard,” “objective inquiry,” as I highlighted above. Yes, items of evidence are examined: the election was close, the campaign contribution was disproportionate, etc. – and no, there is no “subjective” attempt to determine if Justice Benjamin was actually biased. But in Kennedy’s (3b) test (above), doesn’t the objective/subjective distinction blur almost beyond recognition? In determining whether “all the circumstances would offer a possible temptation to the average judge,” don’t we have to know, or presume to know, quite a lot about the inner workings of the mind of an “average judge”? Even defining an “average judge” implies the accurate construction of a composite, median mindset.

Justice Roberts’ dissent (joined by conservatives Scalia, Thomas and Alito) elaborates on a related concern:

The majority’s analysis is “objective” in that it does not inquire into Justice Benjamin’s motives or decisionmaking process. But the standard the majority articulates—“probability of bias”—fails to provide clear, workable guidance for future cases.

Roberts proceeds to pose forty questions, attempting to make the case that the devil is in the details and the majority’s opinion gives no guidance on dealing with a variety of details that could occur in future cases. Roberts concludes:

The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Though I believe at least some subjective analysis is required to complete Kennedy’s inquiry, and I acknowledge it does not produce a bright-line rule, I could not disagree more with Roberts’ dissent. The Supreme Court was the last chance for justice to be done in this case. For justice to be done, Justice Benjamin could NOT be allowed to decide the case in favor of the company which had massively funded his election campaign (knowing that Benjamin would judge the case). For the Supreme Court to allow Benjamin’s participation would send a message to the public that justice can be bought – because that is the appearance, regardless of the reality (which we cannot know). If, in the absence of a bright-line rule, future cases must be decided on a case-by-case basis, so be it. Allowing Benjamin’s judgment to stand would have undermined public faith in judicial fairness.

Incidentally, Roberts’ forty questions (see the opion, linked above) invite perusal and, of course, answers. I started to go through them myself, and answers seemed obvious enough to me – so much so that I began to see the questions as an expression of petulance rather than an exercise in intellectual honesty. At least one Arizona lawyer, Keith Swisher, agrees. Swisher answered every question, concluding that only two or three of the forty qualified as legitimate. I tend to agree.

So was your faith in our judicial system preserved or eroded by Caperton v. Massey? If you enjoyed this article or have thoughts, feel free to leave a comment.

Understanding the California Supreme Court’s Prop 8 Ruling

Bryan Lieb — Fri, 29 May 2009 20:46:16 +0000

On May 26, the California Supreme Court issued it’s “Proposition 8″ (Prop 8) consolidated ruling on cases contesting the constitutionality under the California Constitution of the Prop 8 California ballot referendum. This referendum purported to ban same-sex marriage in California and had passed by a 52% to 48% vote on election day in November, 2008. Prop 8 had been a reaction to the California Supreme Court’s deeming same-sex marriage a fundamental constitutional right in an earlier 2008 decision (In re Marriage Cases).

Following passage of the referendum, opponents of Prop 8 immediately sued, arguing that a fundamental constitutional right (in reliance upon which 18,000 same-sex couples had already been married) could not be revoked by a majority vote. To allow such would put in jeopardy any minority right protected by the California Constitution.

In Tuesday’s ruling, the Court allowed Prop 8 to stand, but only by limiting its effect to mere symbolism. The important issue was whether Prop 8 embodied a constitutional revision (a substantial change – not allowed outside of a constitutional convention) or a constitutional amendment (a minor change properly the subject of a referendum).

The Court held that Prop 8 was a proper amendment, but (because) it did not alter any substantive rights of same-sex couples (to equal treatment and protection under the law). Prop 8’s only accomplishment was “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state and constitutional law.“

So it’s semantics. Despite Prop 8, same-sex couples can obtain all the rights and privileges under the law as opposite-sex couples, but the certificate issued by California to commemorate their union will say “Domestic Partnership” or “Civil Union” at the top, rather than “Marriage.” Nothing else – at all – is changed. And the 18,000 couples married prior to this decision? They keep the designation of “Marriage.”

If it walks, talks and looks like a duck … it’s a duck. Distinctions without a difference don’t tend to last, and (considering demographic trends) this distinction probably won’t survive future referenda aimed at eliminating it.

Ninth Circuit Quashes Bush/Obama ‘State Secrets’ Expansion

Bryan Lieb — Tue, 28 Apr 2009 20:58:23 +0000

Before the Bush administration, the ’state secrets’ doctrine was used to exclude certain bits of evidence from trials if the judge agreed with the Executive Branch that damage to national security could result.

The Bush administration attempted to expand the doctrine so that whole lawsuits could be dismissed on the Executive’s motion, with the Executive as the sole arbiter of whether national security was at risk – even when the complaint was that the Executive’s conduct was illegal.

To the surprise of many, the Obama administration maintained the Bush position in pending lawsuits wherein the state secrets doctrine was at issue.

A three judge panel of the Ninth Circuit today unanimously reversed a District Court’s agreement with the Bush/Obama expansion of the state secrets doctrine – a result cheered by civil libertarians and proponents of open government.

The court’s opinion is available here.

Glenn Greenwald has detailed coverage and an interview with the plaintiff’s lead council at Salon.com.

Obama Releases Four Bush-OLC Torture Memos

Bryan Lieb — Fri, 17 Apr 2009 20:54:10 +0000

On April 16, in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union, President Obama ordered the release of four Bush-era Office of Legal Council memos dealing heavily with the techniques and attempted legal rationalization of the “enhanced interrogation program” established by the Bush administration and used on “high value detainees.”

Some high-ranking members of the nation’s intelligence services lobbied Obama not to release the memos, or to do so in heavily redacted form. Obama released the memos almost entirely unredacted, but promised that CIA personnel who had in good faith relied on the executive branch Office of Legal Council’s advice that the techniques were legal, would not be prosecuted. This is widely regarded not to rule out prosecution of those who authorized and ordered the use of the techniques.

The recently leaked International Committee of the Red Cross torture report (complied by cross-confirmation of prisoner interviews, and portrayed by some critics as prisoners’ tall tales) was confirmed nearly line for line by the Bush OLC memos.

The four memos are available for download (pdf) here.

Many reactions from political and legal commentators on the left and right are collected by The Atlantic’s Andrew Sullivan, here (pt 1) (pt 2) (pt 3):

The redaction (blacking-out) of the memos, where present, is sometimes poorly executed. As I read over the memos last night, i noticed several instances of a year being blacked out, followed immediately by the year being visible in a reference to the same document.

Dafna Linzer at ProPublica spotted a more significant error (or intentional slip?) in the redactions, where the name of ‘ghost detainee’ Hassan Ghul, was inadvertently left visible. Ghul’s whereabouts are unknown since 2004. He was not transferred to Guantanamo Bay with 14 “high value” detainees in 2007 as expected by humanitarian groups.

Read Linzer’s article here.

Clearly, this is a huge legal event, and a political firestorm in the making.

Iowa Supreme Court Rules On Same-Sex Marriage

Bryan Lieb — Fri, 03 Apr 2009 16:57:41 +0000

CNN is reporting a unanimous decision by the Iowa Supreme Court, holding that a state law prohibiting same-sex marriage violates the equal protection clause of the Iowa Constitution. Iowa joins Massachusetts and Connecticut in allowing same-sex marriages. Read the court’s opinion, here. On page 63 of the opinion, the Court takes the unusual step of addressing an argument “left unspoken” by the government, that being religious opposition to same-sex marriage.

Cali Justices Unreceptive to Prop 8 Reversal

Bryan Lieb — Fri, 06 Mar 2009 21:53:57 +0000

The LA Times reports on yesterday’s Prop 8 oral arguments before the California Supreme Court:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Court-watchers gleaned the above prediction from the attitudes, questions and statements of the Justices as they interacted with lawyers at the hearing.

The court’s written opinion is expected within 90 days.

Prop 8 On Trial in California

Bryan Lieb — Thu, 05 Mar 2009 17:27:48 +0000

Good report at Hullabaloo.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Oral arguments are in progress this morning.