Saturday, April 2, 2011

Footnote of the Day: Supreme Court Footnote not in English

Here's the footnote:

‘Si le preneur est expulsé par le fait du prince, par une force majeure, ou par quelque autre cas fortuit, ou si l'héritage périt par un débordement, par un tremblement de terre, on autre événement, le bailleur, qui était tenu de donner le fonds, ne pourra prétendre le prix du bail, et sera tenu de rendre ce qu'il en avait re cu, mais sans aucun autre dédommagement; car personne ne doit répondre des cas fortuits.’

Viterbo v. Friedlander, 120 U.S. 707, 714n.1 (1887).  One of the first [numbered?]* footnotes to appear in a United States Supreme Court opinion is in French, in a case in which the Court's task was resolving a dispute between a citizen of France and a citizen of Louisiana regarding annuling a lease of a sugar plantation because of the "extraordinary rise of the Mississippi River."    


Justice Gray, writing for the Court began the Opinion by acknowledging that civil law and common law are different, and then delves into the Louisiana law:

It is to be remembered that the Louisiana Code, as it was originally enacted in 1808, and as it was again promulgated in 1825, and remained in force until 1870, was in French as well as in English. The Code of 1808, enacted before the admission of the State of Louisiana into the union, was entitled "A Digest of the civil laws now in force in the Territory of Orleans, with alterations and amendments adapted to its present system of government," and the Act of March 31, 1808, c. 29, declaring and proclaiming it to be in force in that territory, was published in both languages, and provided that  "if, in any of the dispositions contained in the said digest, there should be found any obscurity or ambiguity, fault or omission, both the English and French texts shall be consulted, and shall mutually serve to the interpretation of [the] one and the other."

Thus, the need for that first footnote.  The next footnotes are also French text, but then, on page 717 of the opinion citation footnotes make their first appearance:

Louisiana Code of 1808, lib. 3, tit. 8, arts. 2, 6, 17–19, 26, 30, 31, 35, 40.

Code Napoleon, arts. 1709, 1719–1721, 1728, 1754, 1755.

These footnotes are numbered 1 and 2, respectively, because the numbers began anew on each page of the United States Reports. (Reading the opinion in any other format than the original US Reports is therefore quite confusing).  The Opinion returns in its footnotes to French passages, but then adds a bevy of citations (six on page 727 and seven on page 728), before discontinuing its use of footnotes for the final nine pages.

The total footnote count: 25.

And the outcome?    The "lease being of a sugar plantation for the purpose of being used to cultivate sugar-cane" and the land ceasing to be fit for that purpose, under the civil codes of Louisiana, the French citizen was entitled to have the lease annulled.

UPDATE/CORRECTION: Thanks to a reader's comments, the footnote in Viterbo v. Friedlander, 120 U.S. 707, 714n.1 (1887) has been convincing shown not to be the very first.  But it seems to be the first numbered footnote?


[image: WWI poster promoting Louisiana cane sugar syrup, via]

April 2, 2011 in Courts and Judging, History, Supreme Court (US) | Permalink | Comments (4) | TrackBack (0)

Friday, April 1, 2011

Cardozo Conference on Public Secrets

Cardozo School of Law's Floersheimer Center for Constitutional Democracy is hosting a symposium on Tuesday, April 12, 2011, on Public Secrets: From the Pentagon Papers to WikiLeaks.  The program will run from 6:00 to 8:30 p.m. in the Jacob Burns Moot Court Room, Cardozo, 55 Fifth Avenue (at 12th Street), New York.  From the announcement:

This symposium will bring together panelists with experience in the situation room, the newsroom and the courtroom to explore the competing claims of national security and the public interest in the disclosure of confidential national security information. . . .

The framework for the discussion will be Cardozo Professor David Rudenstine's seminal work The Day the Presses Stopped, A History of the Pentagon Papers Case.  Attendees will also hear excerpts of previously unreleased interviews with Robert McNamara, John Mitchell, William H. Rehnquist, and Arthur Ochs Sulzberger.

The line-up is quite impressive:

  • Floyd Abrams, Cahill Gordon & Reindel LLP
  • John B. Bellinger III, Arnold & Porter LLP
  • Leslie Gelb, Council on Foreign Relations
  • Adam Liptak, The New York Times
  • The Honorable Michael Mukasey, Debevoise & Plimpton LLP
  • David Rudenstine, Cardozo Law School
  • Steven R. Shapiro, ACLU

To attend, e-mail, or call 212.790.0200 x6700.




April 1, 2011 in Conferences, First Amendment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Balanced Budget Constitutional Amendment Proposal

A Joint Resolution proposing an amendment to the United States Constitution seeks to impose caps and super-majorities for deviating from such caps in certain instances: 

SECTION 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two -thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote.
SECTION 2. Total outlays for any fiscal year shall not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 18 percent by a roll call vote.
 SECTION 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which—
SECTION 4. Any bill that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue may pass only by a two-thirds majority of the duly chosen and sworn Members of each House of Congress by a roll call vote. For the purpose of determining any increase in revenue under this section, there shall be excluded any increase resulting from the lowering of the statutory rate of any tax.
SECTION 5. The limit on the debt of the United States shall not be increased, unless three-fifths of the duly chosen and sworn Members of each House of Congress shall provide for such an increase by a roll call vote.


Bruce Bartlett has an extensive critique of the proposal, including a discussion of the "gross domestic product" notion as becoming constitutionalized:

The gross domestic product is not a concept defined in law and is revised constantly; from time to time, the Bureau of Economic Analysis revises the GDP data all the way back to 1929. And of course, the 18 percent figure is totally arbitrary; the proposal effectively assumes that all federal outlays consist of funds that are appropriated annually, rather than consisting primarily of mandatory programs such as Social Security, Medicare and interest on the debt.


April 1, 2011 in Current Affairs, News | Permalink | Comments (0) | TrackBack (0)

Constitutional Footnotes: A Month of Footnotes Starting with the Most Famous Footnote

April is "National Poetry Month," and here at Constitutional Law Professors Blog we are celebrating not with a poem a day, but with a footnote a day. 

Although there certainly are some poems about and in constitutional law, arguably (or so I have long thought) footnotes are the next closest creature to "poetry" in Constitutional Law.

It seems fitting to start with what has been called the most famous footnote in law:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.


MILK At issue in United States v. Carolene Products Company, 304 U.S. 144 (1938)  was a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).  The challenges to the law were based on a lack of commerce clause power and a due process violation.  The case did not involve equal protection - - - which perhaps explains the relegation of the now-famous language to a footnote.

For purists, here's the famous footnote four, complete with citations, from Carolene Products.

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369; Fiske v. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 274 U. S. 373-378; Herndon v. Lowry, 301 U. S. 242, and see Holmes, J., in Gitlow v. New York, 268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 303 U. S. 184, n 2, and cases cited.

 United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n.4 (1938).


[image via]

April 1, 2011 in Cases and Case Materials, Commerce Clause, Games, Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, March 31, 2011

Conference "Beyond Rights" May 6 & 7 at Smith College, organized by the Feminism and Legal Theory project.

  FLT conference

More information and registration information here.


March 31, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wisconsin Collective Bargaining Update (2)

The litigation surrounding the Wisconsin collective bargaining law continues.    800px-2011_Wisconsin_Budget_Protests_1_JO

Since our last update, Judge Maryann Sumi has issued her brief written order enjoinging the enforcement of the 2011 Wisconsin Act 10 and declaring that 2011 Wisconsin Act 10 has not been published within the meaning of the Wisconsin statutes and is therefore not in effect.


[image: Madison, Wi, 2011 via]


March 31, 2011 in Current Affairs, Separation of Powers, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 30, 2011

Loyola Conference: Hate Speech, Incitement & Genocide

The Loyola University Chicago Law Review is hosting a conference next Friday, April 8, titled Hate Speech, Incitement & Genocide.


The line-up is terrific, with panels on Developing the Structure of Genocide Law, Hate Speech and Genocide in Africa and the Middle East, and Free Speech and Equality in the Internet Age.  The lunch-time speaker is Irwin Cotler, Professor Emeritus at McGill and former Attorney General and Member of the Canadian Parliament for Mount Royal.

The conference runs from 8:45 a.m. to 4:00 p.m., Friday, April 8, at the Philip H. Corboy Law Center, Power Rogers & Smith Ceremonial Courtroom, 25 East Pearson Street, 10th Floor, Chicago.  Get more information here; download a conference brochure here.

For advance registration and information, please contact Conference Editor Craig Beaker at, or tel. 312.915.7183.


March 30, 2011 in Conferences, First Amendment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Arizona Abortion Law: Requiring an Affidavit Excluding Race or Sex as Reasons

Race-selective and Sex-selection abortions are the subject of a new statute in Arizona.  According to the Arizona legislature:

Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman's health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child's sex or race by prohibiting sex-selection or race-selection abortions.

Arizona HB-2443 signed into law by Governor Jan Brewer (pictured)  506px-Jan_Brewer
today, requires an affidavit by the person performing the abortion stating "that the person making the affidavit is not aborting the child because of the child's sex or race and has no knowledge that the child to be aborted is being aborted because of the child's sex or race."  The law criminalizes the abortion provider who knows that the "abortion is sought based on the sex or race of that child or the race of a parent of that child,"  immunizes the pregnant woman, and provides that a woman's husband or her parents if she is a minor, may file a suit for civil damages, including an award of attorneys fees.

Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010.  For example, the Oklahoma statute provides:

No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.

 Okla. Stat. tit. 63, § 1-731.2.B (2010).

Professor April Cherry's article on this issue - - -  A Feminist Understanding of Sex-Selective Abortion: Solely A Matter of Choice?, 10 WIS. WOMEN’S L.J. 161, 164 - - - published in 1995 is still one of the best pieces of scholarship on this issue.

A Georgia bill, SB 529, which would have criminalized sex-selection and race-selection as rationales for abortion did not pass


[image: Jan Brewer via]

March 30, 2011 in Abortion, Family, Fourteenth Amendment, Gender, Race, Sexuality | Permalink | Comments (4) | TrackBack (0)

Tuesday, March 29, 2011

Wisconsin Collective Bargaining Law Enjoined Again and Other Updates

A separation of powers problem under the Wisconsin state constitution is continuing with a state judge again enjoing implementation of the anti-collective bargaining law and a member of the state executive again disputing the injunction's validity.

Wisconsin protest According to reporters Patrick Marley and Bill Glauber in their excellent article in the Milwaukee-Wisconsin Journal Sentinel, after a hearing today Dane County Judge Maryann Sumi announced: "Further implementation of the act is enjoined." The report continues:

Sumi noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.

An appeal of Judge Sumi's original restraining order reached the Fourth District Court of Appeals by way of a motion on behalf of the Secretary of State to withdraw the appeal.  La Follette, the Secretary of State, argued that the appeal was moot because of the publication of the law by the Legislative Reference Bureau on March 25.  In an order today, the appellate panel declined jurisdiction to entertain the motion to wothdraw because it had already certified the matter to the state's Supreme Court, although the Wisconsin Supreme Court has not yet accepted the certitification.

Meanwhile, the GOP request for University of Wisconsin Professor Cronin's emails including words such as "collective bargaining" or "union" which we originally discussed here, has attracted a great deal of attention including a NYT Editorial which Cronin collects here.


[image: Protesters outside Wisconsin State Capitol, March 2011, via]

March 29, 2011 in Courts and Judging, Current Affairs, Executive Authority, First Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Rejects Challenge to Qui Tam Seal Provision

A divided three-judge panel of the Fourth Circuit on Monday rejected the ACLU's First Amendment challenge to the False Claims Act requirement that qui tam complaints be sealed for 60 days (or more), until the United States decides to intervene.

The FCA allows private citizens (known as qui tam relators) to file suit on behalf of the United States and to share in any recovery from defendants who committed fraud on the government.  But qui tam complaints go under seal for 60 days (or more) while the government decides whether to intervene in the case, and qui tam relators are gagged from discussing their complaint (but not the underlying alleged fraud).

The ACLU, OMB Watch, and the Government Accountability Project all brought suit against AG Eric Holder, alleging that the qui tam seal requirement violated the public's First Amendment right of access to judicial proceedings, violated the First Amendment by gagging qui tam relators from speaking about their complaints, and violated separation of powers by infringing upon the courts' inherent authority to decide on a case-by-case basis whether to seal qui tam complaints.

The majority disagreed.  Judge Dever (E.D.N.C.), sitting by designation, wrote that the government has a compelling interest in the integrity of ongoing fraud investigations, and that the seal requirement is narrowly tailored to serve that interest because (1) the seal requirement is time-limited to balance the government's investigatory needs against the need for public access to court documents, (2) the seal provision mandates judicial review after 60 days, and (3) the seal requirement limits the qui tam relator only from discussing the complaint, not the underlying fraud.

Judge Dever wrote that the plaintiffs lacked standing as "willing listeners" to challenge the gag rule, and that the seal provision does not violate separation of powers because it's an appropriate subject of congressional legislation and doesn't intrude on the constitutional role of the judiciary.

Judge Gregory argued in dissent that the overly rigid 60-day seal requirement interferes with the "transparency [that] remains central to combating waste and fraud."  Op. at 23.  Judge Gregory argued that the requirement neither served a compelling government interest nor was narrowly tailored.


March 29, 2011 in First Amendment, Fundamental Rights, News, Opinion Analysis, Recent Cases, Separation of Powers, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

No "Constitutional Tort" for Brady Violation by Prosecutors in Connick's New Orleans Office: Connick v. Thompson Opinion Analysis

What are the consequences of a violation of Brady v. Maryland, 373 U. S. 83, 87 (1963), which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment?    ANGOLA PRISON If it comes to light while the case is on direct appeal, it may require reversal of a conviction.  If it comes to light later, it may be the subject of a post-conviction relief.   And if it comes to light much later, after a person has spent 18 years incarcerated of which 14 years are on death row it does not merit civil damages.

In a 5-4 opinion reversing the Fifth Circuit and authored by Justice Thomas, the Court in Connick v. Thompson held that the state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training."  Opinion at 7.  Although Connick conceded that there was a Brady violation and the jury found a lack of training on Brady, the Court essentially concluded that there must be a pattern or practice of Brady violations before such training would be warranted under a constitutional "deliberate indifference" standard.  The Court distinguished the role of attorneys from those of law enforcement officers who must make "split-second decisions with life-or-death consequences" as in Canton v. Harris, 489 U. S. 378 (1989).


Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority ofjurisdictions must do both. [citations to Louisiana bar requirements omitted].  These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex). Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements.

The dissenting opinion, authored by Justice Ginsburg and joined by Breyer, Sotomayor and Kagan, provides a different picture:

 From the top down, the evidence showed, members of the the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and there-fore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting himfor armed robbery and murder hid from the defense and the court exculpatory information Thompson requestedand had a constitutional right to receive. The prosecutorsdid so despite multiple opportunities, spanning nearly twodecades, to set the record straight. Based on the prosecu-tors’ conduct relating to Thompson’s trials, a fact triercould reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The case seems to set a new standard for recovery for Brady violations - - - and perhaps other constitutional violations - - - by prosecutors. 

Connick, the district attorney of New Orleans from 1973 - 2003, is no stranger to important constitutional cases.  This is the same Harry Connick of Connick v. Myers, in which assistant district attorney Sheila Myers, complained about morale in the office, was terminated, and brought a First Amendment claim. 

And this is Harry Connick, Sr.  It is his son, Harry Connick, Jr. who is the singer, although Sr. also did his share of entertainment.


[image: entrance to Louisiana State Penitentiary, Angola, via]

March 29, 2011 in Criminal Procedure, First Amendment, Habeas Corpus, Music, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, March 28, 2011

Conference on Race, Law, and History at Michigan Law, April 1-2

"We Must First Take Account" is a conference the end of this week at Michigan Law on Race, Law, and History. 

As the organizers explain: Screen shot 2011-03-28 at 10.10.12 PM

“To get beyond racism, we must first take account of race,” is the well-remembered phrase from Justice Harry Blackmun’s opinion in the 1978 Bakke decision. Blackmun’s view may remain controversial in debates about constitutional jurisprudence. But for historians of law it is axiomatic. In the generation since Bakke, scholars have indeed taken account, mining legal culture’s archives to explain the origins and endurance of race. Today race is at the core of interpreting the history of law in the Americas. Understood as a set of ideas that
rely upon religion, culture, labor, biology, and politics, race has organized profound inequality and galvanized movements for social justice.

More information and the program is available here.   A stellar line-up of speakers!



March 28, 2011 in Conferences, Equal Protection, Family, Fourteenth Amendment, Gender, History, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Strip Searches Don't Violate Clearly Established Rights, D.C. Circuit Rules

A sharply split panel of the D.C. Circuit ruled on Friday that strip searches of persons arrested for non-violent, non-drug-related misdemeanors did not violate clearly established Fourth Amendment rights in 2002, even absent particularized suspicion that the arrestee was concealing contraband or weapons.  The ruling in Bame v. Dilland means that the defendant, a former U.S. Marshal whose deputies conducted the searches, enjoys qualified immunity against the plaintiffs' Bivens action against him.

Plaintiffs were protestors at the 2002 meeting of the IMF and World Bank in D.C.  Each was charged with either "incommoding traffic" or "failure to obey" a law enforcement officer, both misdemeanors.  Deputy Marshals strip searched them in a receiving cell before placing them in a holding cell to await disposition of the charges.

Judge Ginsburg wrote for himself and Judge Williams that the case was governed by Bell v. Wolfish (1979), in which the Supreme Court ruled that strip searches, without particularized suspicion, of pretrial detainees and convicted inmates in a "short-term custodial facility" did not violate the detainees' clearly established rights.  Judge Ginsburg ruled that later cases from the Eleventh and Ninth Circuits--cases decided after 2002, when the strip searches occurred here--affirmed his understanding of Bell that strip searches did not violate clearly established rights.

Judge Rogers, dissenting, argued that every one of the ten circuits to rule on the issue by 2002 ruled that under Bell suspicionless strip searches of pre-trial arrestees charged with non-violent minor offenses was unreasonable and thus unconstitutional.  Any subsequent cases do not impact the constitutionality of the searches in 2002: "A decrease in clarity of the law after 2002 would not make a strip search in 2002 more reasonable."  Dissent at 17.  In conclusion:

As troubling as the majority's low opinion is of what "a reasoanbly competent public official" ought to know of the law under Harlow and its progeny, more troubling are the implications of the majority opinion for the protection of Constitutional rights. . . . .  The majority's approach means that there are no objective limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements of the Constitution. . . . .


March 28, 2011 in Fourth Amendment, News, Opinion Analysis, Recent Cases | Permalink | Comments (3) | TrackBack (0)

Arizona's Campaign Finance Law and Matching Funds: Oral Argument Analysis

Arizona Free Enterprise Club v. Bennett and McComish v. Bennett, consolidated cases challenging Arizona’s statutory system of public campaign financing, were before the Supreme Court today for oral argument.

According to William Maurer, attorney for the Petitioners challenging the law, the issue before the Court is “whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. . . .whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”

On the other hand, Bradley Phillips, arguing for Arizona and the named Respondent, Ken Bennett, Arizona’s Secretary of State, contended that “public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in  combating real and apparent corruption in politics.”

The Arizona scheme, The Arizona Citizens Clean Elections Act, Ariz.Rev. Stat. §§ 16-940 et seq. (2010) includes a “Matching Funds Provision,” which is triggered when the spending of groups making independent expenditures, combined with the spending or fundraising of privately financed candidates, is more than the amount a publicly financed candidate may spend under the Act’s expenditure limits for participating candidates.

The challengers characterize such a provision as a restriction and a penalty on groups making independent expenditures and privately financed candidates.  The state argues that the provision is a subsidy.

The goal and practical effect of the scheme was subject to much disagreement. As Justice Kagan phrased it, the law would seemingly result in “more speech all the way around.” Justice Kennedy asked Maurer if it “would be a  fair characterization of this law to say that its purpose and its effect are to produce less speech in  political campaigns?,”  to which Maurer obviously agreed.  Later, Kennedy asked Phillips a question intended, he explicitly stated, “to probe this idea that this somehow does not deter independent expenditures. I frankly am tempted to believe the opposite view, so you can tell me about that.”  Phillips attempt to analogize to the deterrence that might occur when disclosure was mandated was quickly rejected by Justice Kennedy because of the longstanding different First Amendment standards regarding expenditures and disclosures.

As for the governmental purpose, Chief Justice Roberts asked William Jay, arguing for the Solicitor General in support of Respondents to agree that “under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Jay agreed, and Roberts revealed his research abilities:

Azgov Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote,"level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?

Earlier, Justice Kagan was less enthusiastic about whether the government purpose was the impermissible "level the playing field" or the more acceptable "prevent corruption":

JUSTICE KAGAN: I think the purpose of this  law is to prevent corruption. That’s what the purpose  of all public financing systems are.

MR. MAURER: Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the  executive director of the Clean Elections Commission who said that: “It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field."

JUSTICE KAGAN: Well, Mr. Maurer, some people may use certain buzz words and other people don’t  use those buzz words, but isn’t it true that for years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various  people who are giving that money and make actions based on how much they receive from those people, and that’s the idea of a public financing system is to try to prevent that?

Another deeply problematic issue was whether the Arizona provision was content-neutral or discriminated against certain types of speech.   Answering Kennedy's query as to whether the law was content-neutral, Maurer argued that

the only thing that will trigger matching funds, particularly for  independent expenditure groups, is the content of the  message. If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds. If they speak against a  publicly financed candidate, they will trigger matching  funds. That not is only content-based; it is also a  rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a  speaker.

In response to a similar query during his argument, Phillips later stated,

the  discrimination, if you want to -- if you call it  discrimination or different treatment, is based on the  initial choices of the candidates as to how they're going to finance their campaigns. It's not based on the  content of the speech.  There's -- matching funds do not turn in any way on the ideas or the messages or the viewpoints or the subject matter of the candidate or the independent group's speech or on the identity of the speaker. It turns entirely on what choice the candidate made at the  outset. 

If the questions of the Justices are predictive, a divided Court seems likely to find Arizona's matching funds provision unconstitutional.

UPDATES: Lyle Denniston over at SCOTUSblog focuses on Justice Kennedy's comments, finding them predictive.

Howard Bashman at How Appealing collects today's commentary on the arguments.


March 28, 2011 in Campaign Finance, Elections and Voting, First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)