September 6, 2012
Eighth Circuit Strikes Corporate Campaign Spending Law, Tees Up Corporate Contribution Ban
A sharply divided Eighth Circuit ruled in Minnesota Citizens Concerned for Life, Inc. v. Swanson that Minnesota's requirement that corporations and associations establish a "political fund" for independent campaign expenditures violated the First Amendment.
The court also upheld the state's ban on corporate contributions to political parties and candidates for the purpose of promoting a candidate, based on the Supreme Court's long-standing distinction between how it treats restrictions on contributions (more deferentially, with a lower level of scrutiny, more likely to be upheld by the courts) and how it treats restrictions on expenditures (far less deferentially, with strict scrutiny, and thus overturned by the courts).
But the court also suggested that this distinction hangs by a thread, and that the Supreme Court may be ready to revisit it--likely subjecting all restrictions on contributions and expenditures to strict scrutiny. If so, this case could take down restrictions on corporate contributions to parties and candidates. After Citizens United struck restrictions on independent corporate spending, this would remove the last meaningful restriction in state and federal law on corporate participation in electioneering.
Keep an eye on this one. If, as the Eighth Circuit seemed to suggest, the Supreme Court is ready to reconsider this mainstay of First Amendment campaign finance jurisprudence--the distinction between contributions and expenditures--this may be the case.
The case involved two Minnesota laws. The first required corporations and associations--even just two people getting together--to create a "political fund" for independent electioneering expenditures. State law also required political funds to file all manner of reports on contributions and expenditures with the state--even when the corporation stopped spending. The requirements thus looked like contributor-disclosure requirement (in the spirit of the DISCLOSE Act). If so, as the state and dissent said, the requirements would be subject to the lower level of scrutiny for disclosure laws--the easier-to-meet exacting scrutiny (and not strict scrutiny).
The majority said that the political fund requirement looked more like the PAC requirement struck down in Citizens United. But even if the lower level of scrutiny applied, it said, the state didn't articulate a sufficiently weighty interest to justify the burdensome reporting requirements. (The dissent disagreed; it said there were four: informing the public of corporate contributors; informing the corporate shareholders how the corporation spends money; preventing "improper and suspect relationships" between elected officials and those who support them; and gathering data to detect violations of campaign finance laws.) The majority thus struck the political fund requirement.
The second law bans corporate contributions to political parties and candidates for advocacy for or against a candidate. The court upheld the law under the long-standing distinction between the treatment of restrictions on contributions and restrictions on expenditures. (As above, the courts apply strict scrutiny to restrictions on corporate expenditures and overturn them (as in Citizens United). In contrast, courts apply lower scrutiny to restrictions on contributions, giving those restrictions more breathing room.)
But the court also suggested that this distinction is on shaky ground, and that the Supreme Court might be ready to revisit it. In footnote 14, it quoted Justice Thomas's dissent in Beaumont: "explaining his belief that all campaign finance laws are subject to strict scrutiny and the federal ban on corporate contributions was 'not narrowly tailored to meet any relevant compelling interest.'"
More importantly (if we're counting heads on the Court), the Eighth Circuit also quoted Justice Kennedy's concurrence in that same case:
Were we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review, I might join Justice Thomas' dissent.
Op. at 24, fn 12.
If so, and if the two could get three more votes, this case could mark the end of the last meaningful restriction on corporate campaign spending--the long-standing state and federal bans on corporate contributions to political parties and candidates.
Court Orders FEC to Reconsider Ruling on Access to Debates
Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence. Judge Contreras sent the case back to the FEC for further consideration.
La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio. He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs. The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs. La Botz sued.
Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review). Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.
The ruling means that the FEC will have another crack at it. But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run. At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around.
For an irreverent view of the Court . . . from The Onion
Look carefully at the photo: The Supreme Court "line-up" includes a new talent agent according to The Onion.
The irreverent and predicatably off-color "story" is worth a read, especially as the Court considers new petitions for certiorari.
Is this a prediction that the Court will hear the "Prop 8" same-sex marriage case, Hollingsworth v. Perry?
Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision
Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June.
Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict. While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.
Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.
However, the challengers also raised Equal Protection and Fourth Amendment challenges. Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause. She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis. Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments).
Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.
September 6, 2012 in Courts and Judging, Criminal Procedure, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack
September 4, 2012
Forida Federal Judge: State Tuition Differential for Students of Immigrant Parents Denies Equal Protection
U.S. District Judge K. Michael Moore held unconstitutional Florida regulations that classify U.S. citizen students who reside in Florida as "out of state" residents according to their parents' undocumented federal immigration status in the opinion in Ruiz v. Robinson. (Additional documents are available from Southern Poverty Law Center).
Applying established Equal Protection doctrine, Judge Moore concluded that such regulations do not "advance any legitimate State interest, much less the State's important interest in furthering educational opportunities for its own residents." In the relatively brief opinion, Judge Moore extensively discussed Plyler v. Doe, 457 U.S. 202 (1982), distinguishing it because it involved primary education (although university education was more essential than it was twenty years ago), and because the plaintiffs in Plyler were undocumented immigrants while the plaintiffs in Ruiz are themselves citizens. Judge Moore applied heightened scrutiny under the Equal Protection Clause - - - requiring the classification to be "substantially related" to "important governmental objectives" - - - because "in a very real way the regulations punish the citizen children for the acts of their parents."
According to Judge Moore, essentially the Florida regulations "classify U.S. citizens as aliens, and in doing so, create a second-tier of U.S. citizenship that depreciates the historic values of Plaintiffs' citizenship by affording Plaintiffs some of the benefits that other similarly situated U.S. citizens enjoy but not all of the benefits." Judge Moore rejected Florida's proffered cost interest by observing that Florida mistakenly argued that by offering in-state tuition to Florida residents with undocumented parents it would be forced to offer in-state tuition to non-Florida residents. Moore made this clear in the opinion:
Indeed, nothing herein should be construed so as to preclude the State of Florida from requiring proof of Florida residency from a dependent U.S. citizen student and the student's parents in order to classify the student as a resident or non-resident for tuition and other related purposes, only that a U.S. citizen student who resides in, and whose parent resides in Florida cannot be denied in-state residency based on a parent's inability to provide proof of his or her federal immigration status.
In an apropos use of student scholarship, Judge Moore cites Michelle J. Seo, Note, Uncertainty of Access: U.S. Citizen Children of Undocumented Immigrant Parents and In-State Tuition for Higher Education, 44 COLUM. J.L. & Soc. PROBS. 311, 316 (2011).
[image: Miami-Dade College opening, circa 1970, via]
Fifth Circuit: Challengers Have Standing in One-Person-One-Vote Suit, Remand for Mootness
The Fifth Circuit ruled last week in Hancock County Board of Supervisors v. Ruhr that the NAACP and individual plaintiffs had standing to challenge Mississippi county Board of Supervisor districts as violating one-person-one-vote and remanded the case to the district court to determine whether the case is moot.
The ruling means that the case goes back to the district court to determine whether it's moot--and, in particular, whether it's capable of repetition, yet evading review, given that (1) Board of Supervisors elections already happened but (2) the counties may run into this same problem ten years from now, when the 2020 census comes out.
The plaintiffs--individuals and the NAACP--sued Mississippi counties, claiming that county Board of Supervisor districts failed the one-person-one-vote rule in light of the 2010 census results. The district court dismissed some of the claims for lack of standing, and the plaintiffs appealed.
The Fifth Circuit ruled that the plaintiffs had individual and associational standing. But the court also wondered whether the case was moot--because the elections are over. Here's the court:
Based on the record before us, however, we are unable to determine whether this controversy is live. To illustrate, because the district court has not evaluated mootness in the first instance, we lack access to factual findings with which to determine whether the "capable of repetition, yet evading review" exception to mootness is applicable to this case. Although we could assume that this controversy will reoccur every twenty years when the election cycle and census publication coincide, we decline the invitation to engage in such speculation.
The Power of "Dissentals"
A "dissental" is not the mistake of a first year law student, but the increasingly popular term for an opinion dissenting from a rehearing en banc, with its opposing opinion known as a concurral.
Ninth Circuit Judge Kozinski, himself the author of a fair number of these, has a good discussion of the practice on Yale Law Journal Online (take a look at the pdf of the article for some enlightening charts and statistics). The Ninth Circuit's practice continues to be spotlighted, including the dissentals and concurrals by Ninth Circuit Judges regarding the rehearing en banc of the panel's divided opinion in United States v. Alvarez on the constitutionality of a provision of the "Stolen Valor" Act. Recall that the United States Supreme Court ultimately affirmed the Ninth Circuit.
Next month, the Court will hear University of Texas v. Fisher, featuring a dissental from controversial Fifth Circuit Judge Edith Jones, whose opinion outlines the ways in which she believes the panel opinion deviates from Grutter v. Bollinger.
Whether or not "dissentals" contribute to grants of certiorari by the United States Supreme Court is uncertain. Of course, there is a correlation, but that should be expected if the case is sufficiently important, if statutes are being declared unconstitutional, and if precedent is being cast into doubt. Yet there are certainly a number of counter-examples.
Perhaps more certain is the manner in which "dissentals" or "concurrals" can sharpen the issues. However, they also risk providing more rhetoric than cogent analysis.
Judge Kozinski also argues that they can also serve to insulate the panel opinion from review, with the "threat" of a dissental prompting a revised panel opinion.
September 3, 2012
Labor Day Scholarship Pick: "Labor and Racial Solidarity"In their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived: "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”
ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research." They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry. Their first section takes on four pieces of conventional wisdom:
- Interests of White and Non-White Workers Are Fundamentally Opposed
- Unions Benefit Only White Workers
- Unions Lack Racial Empathy
- Unions Don’t Care About Communities of Color
These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements. In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.
The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.
[image: Martin Luther King, 1964, via]
September 2, 2012
Western District of Texas Keeps Court-Drawn Maps in Place for Election
Following an earlier ruling last week by a three-judge panel of the D.C. District denying Section 5 preclearance to Texas legislature's redistricting plans, a Western District of Texas panel ruled on Friday that the most recent court-drawn plans will remain in place for the upcoming elections.
The ruling means that the court-drawn plans will govern the upcoming elections--even though at least one of those plans, the congressional district plan, was based closely on the Texas legislature's original plan that was denied preclearance earlier in the week.
This can all seem confusing, so let's sort it out from the beginning. The Texas legislature redrew maps for its congressional, state senate, and state house seats in response to its ballooning and shifting population in the 2010 census and to maintain one-person-one-vote in its districts. But Texas was required to gain preclearance under Section 5 of the VRA before it implemented those plans. So it sought preclearance from a three-judge panel of the U.S. District Court for the District of Columbia. (It could have alternatively sought preclearance from DOJ, but it didn't.)
While the Section 5 case was pending, plaintiffs challenged the plans in the United States District Court for the Western District of Texas, alleging that the plans violated Section 2 of the VRA. The Texas court, recognizing that the Section 5 case was pending but that the D.C. court had not yet ruled, ruled in favor of the plaintiffs and redrew the maps. Texas appealed to the Supreme Court, and the Court invalidated the maps, in Perry v. Perez.
The Texas court went back to the drawing board and came up with new court-drawn maps, more closely based on the Texas legislature's original maps. (The original maps were still pending Section 5 preclearance in the D.C. court.) Nobody challenged the newly redrawn maps by the Western District court--at least not yet.
Earlier last week, the D.C. District finally ruled that the Texas legislature's original redistricting maps did not merit preclearance under Section 5 of the VRA. The ruling didn't touch the most recent court-drawn maps by the Western District, however. Those maps seemed to stay in place. (Texas announced later last week that it would appeal the Section 5 ruling to the Supreme Court. That announcement doesn't affect the Western District's maps--at least until the Supreme Court rules.)
After the D.C. court ruling last week, the Western District set a status conference for Friday to sort it all out. According to the order, the court preliminarily assumed that its own most recent maps would govern the 2012 elections, but it offered parties an opportunity to argue otherwise. Only one plaintiff in the original Section 2 case argued that the most recent court-drawn maps shouldn't govern: the League of United Latin American Citizens argued that the court's congressional map was invalid, because it was based too closely on the Texas legislature's original congressional map, which failed preclearance earlier in the week.
The Western District rejected that argument and ruled from the bench that its own redrawn maps would govern the 2012 elections. It also asked the parties for proposals by December 1 on how to move forward.
Unless there are any surprise moves--and they'd have to be a real surprise, and real quick, given the timing--the latest court-drawn plans will govern the upcoming elections.
Meanwhile, the Texas legislature's plans may go to the Supreme Court. But even if they do, the application of Section 5 will hardly be the most interesting issue related to the VRA before the Court. That's because the Court is almost certain to grant cert. to a challenge to the constitutionality of Section 5. If so, and if the Court, as expected, overturns Section 5, the Texas legislature's original plans may go back into place--but only after the 2012 elections.
September 2, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack