U.S. Legal Blog » Supreme Court

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.

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.

Heller Got His Gun: An Individual Right to Keep and Bear Arms

Bryan Lieb — Mon, 30 Jun 2008 19:40:57 +0000

District of Columbia vs. Heller (opinion) is in the books, and the Second Amendment now protects a elementary individual right to keep and bear ordinary firearms for self defense without federal interference. The decision leaves open the question of whether the Second Amendment is “incorporated against the states” (DC being a federal enclave). I logged some background earlier, here and here.

DC’s gun ban permitted no hand guns (pistols) in the District, nor any “long guns” (rifles, shotguns) unless kept disassembled and unloaded or trigger-locked. The 5-4 decision in Heller threw out these restrictions as violative of the Second Amendment’s command that:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Justice Scalia wrote for the majority, joined by crucial swing voter Kennedy and fellow conservatives Alito, Thomas and Chief Justice Roberts. Opposed were the more liberal Justices Stevens, Breyer, Ginsburg and Souter, with Stevens and Breyer writing separate dissenting opinions joined in by all dissenters.

The opinions are exquisitely lawyered arguments. Both sides go into minute detail crafting their justifications and expend considerable ink refuting the opposing position and rebutting those refutations. This isn’t necessarily unusual in Supreme Court opinions, but in reading these I was struck that this must be the finest example of the genre. I was left with the strong impression that it’s impossible, objectively, to tell who is right.

Scalia treats the “Militia” portion (the first half) as an irrelevant ”preamble”:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

…

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’

…

[I]n America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

Then he argues that according to the documents of the time, “people” meant all able men. And ”Timothy Cunningham’s important 1771 legal dictionary defined “arms” as”:

“any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

“Useth in wrath.” Gotta love that.

Scalia dwelt at length upon what seems to me to be the very Lockean, liberal (rather than Hobbesian ultra-conservative, subjection to sovereign authority, rejection of checks and balances, tolerance of abuses of power) idea (ideal?) of armed rebellion against government tyranny quoting many fine thoughts:

“This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

…

It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

…

There are many reasons why the militia [ie: an armed populace, according to Scalia's view] was thought to be “necessary to the security of a free state” … when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

An interesting choice of support by this particular Justice in the current political climate. In a hypothetical scenario one wonders if millions of armed citizens marching on Washington D.C. to “resist tyranny” would be hailed by Scalia as heroes or snubbed as traitors. Sign Scalia up for the rebellion!

Of course, the idea of widespread armed rebellion in the United States is so far beyond the pale as to be laughable – which begs the question as to why Scalia repeatedly cites it. The answer is his reliance on “originalism” as his chief interpretation tool. Trying to give effect to what the Founders meant at the time, regardless of changes wrought in the following 2+ centuries. However, Justice Stevens also takes an originalist approach in his opinion, and comes to an opposite conclusion. In the vast amount of heady commentary written on Heller at Balkinization, I noted one scholar’s opinion that Stevens did this on purpose to contest Scalia’s philosophy that only originalism could lead to a correct view of our Constitution.

It’s funny to me that the Ninth Amendment isn’t specifically used to support an individual right to self defense:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia repeats several times that self defense is a right that predates the Constitution. I agree, and I think the right of self defense is the most basic and fundamental human right – a natural right from which all other rights flow. Arms are necessary for self defense because without adequate arms, we would be at the mercy of the physically strong in a confrontation. Our minds have been the key to our success as a species, and the technology (firearms) that is a product of our minds and extension of ourselves ought to be reasonably available to anyone in order to “level the playing-field” when self defense is necessary.

So I agree with the decision, but on Ninth Amendment rather than Second Amendment grounds. It still bears repeating (because it’s funny) that the late Mr. Conservative Strict Constructionist Chief Justice Burger said of an “individual right to bear arms”:

In 1991, former Chief Justice Warren Burger even described the “individual rights” view of the Second Amendment as “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups [the National Rifle Association] that I have ever seen in my lifetime.”

Must be the ”living Constitution” in action, the strict constructionists of today seeing things so differently. I can enjoy the irony while appreciating that the conservative justices ”discovered” a “new right” for us that I approve of. They will of course protest that the right has been there all along. But Burger would disagree.

Suit has been filed in Chicago to overturn that city’s gun regulations similar to the ones thrown out in Heller. This will be the next big battleground in the ongoing Second Amendment litigation. Will watch this one and update as information comes out.

D.C. Handgun Ban to Supreme Court?

Bryan Lieb — Wed, 05 Sep 2007 16:55:50 +0000

The District of Columbia is appealing the cancellation of its handgun ban by the D.C. Circuit Court of Appeals (opinion, background). If the Supreme Court agrees to hear the case (deemed likely), it will be the High Court’s first statement on the Second Amendment since 1939, the Washington Post reports.

The Second Amendment states:

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

A split in interpreting the Amendment’s meaning has developed among the federal Circuit Courts of Appeal, with the 5th Circuit, and now the D.C. Circuit focusing on the second clause (right of the People to keep and bear arms) and various other Circuits focusing on the first clause (well regulated militia). This conflict among the Circuits makes it more likely that the Supremes will take the case.

We may know by next summer whether the government (the Feds, at least) may ban the possession of certain “arms” by citizens. It is interesting to note that per a 1876 Supreme Court decision (U.S. v. Cruikshank - opinion text), the Second Amendment was not “incorporated against the States” by the Fourteenth Amendment – a matter of some debate in Constitutional Law circles. There is a good summary of this interesting case at BillofRightsInstitute.org:

In Cruikshank, the Court acknowledged the right to keep and bear arms, and explained that the right was older than the Constitution. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

However, the Court declined to force Louisiana to protect that right to keep and bear arms, because the Bill of Rights only served to limit the actions of the federal government and not the state government. Although the Fourteenth Amendment has been interpreted many times since its passage to apply parts of the Bill of Rights to actions of state governments, Cruikshank did not make this determination. In fact, the Second Amendment remains one of the few portions of the Bill of Rights that the Supreme Court has not applied (or “incorporated”) to state governments.

Will be watching this case, hoping SCOTUS grants cert.

Supreme Court to 11th Circuit: We are reasonable, you are not. (Scott v. Harris)

Bryan Lieb — Thu, 03 May 2007 21:47:02 +0000

Thoughts on police-chase case Scott v. Harris. Watch the police videos here.

The crucial question is whether the Deputy Scott’s act (running Harris off the road) was a reasonable seizure under the 4th Amendment, or whether it was unreasonable and therefore violated Harris’s 4th Amendment rights. The case is a short education on “summary judgment” – which the Supreme Court majority renders in favor of Scott by reversing the judgment of a three judge panel of the 11th Circuit and the original District Court Judge, all of whom denied summary judgment.

The reasonableness of an act is a question of fact for the jury - until a judge takes the determination out of the jury’s hands by deeming that “no reasonable jury” could find the act reasonable/unreasonable. When a judge makes that determination, he is deeming the act reasonable/unreasonable as a matter of law.

This is the only way to win by summary judgment – the evidence viewed in the light (with the inferences) most favorable to the nonmoving party must be such that no reasonable jury could find in favor of the nonmoving party. Thus, there being no genuine issue (relevant disputed fact) for trial, summary judgment is appropriate.

Justice Scalia concludes his summary judgment discussion, writing:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record [the video], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Slip Opinion, Opinion of the Court @ 7.

But whether a party’s “story” is “blatantly contradicted by the record” is a determination of fact – Scalia’s own determination of fact. Disagreeing with Scalia’s decisive personal feelings about the facts are the District Court Judge, the Eleventh Circuit’s three judge panel, and Justice Stevens. Based on their differing view, these judges conclude that summary judgment is inappropriate and the jury should decide the case.

Justice Stevens, in his solo dissent, skewers Scalia and the majority perfectly, writing:

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Slip Opinion, Dissent @ 8.

The majority Justices seem too comfortable with their own fact-finding prowess, branding fellow sitting judges and potential jurors unreasonable for their actual and potential disagreement. You are unreasonable, I am not.

Isn’t this is exactly the sort of disagreement of perception that should make denial of summary judgment automatic: eminently reasonable people steeped in the law have already disagreed in interpreting the facts?

What’s your opinion?

Deconstructing Justice Anthony Kennedy

Bryan Lieb — Sun, 29 Apr 2007 01:53:20 +0000

Dissociative identity disorder or pattern of parens patriae?

Garrett Epps and Dahlia Lithwick speculate.

An interesting read.