Tuesday, October 8, 2013
The Supreme Court today heard oral arguments in McCutcheon v. FEC, the case testing whether aggregate campaign contribution limits violate the First Amendment.
Aggregate limits, established under the Bipartisan Campaign Reform Act, or BCRA, cap the total amount that a contributor can give to candidates, political parties, and political committees. Aggregate limits supplement base limits, also in the BCRA, which cap the amount that a contributor can give to a particular candidate. Aggregate limits are designed to prevent a contributor from circumventing the base limits (and thus to prevent corruption and the appearance of corruption) by funneling total contributions in excess of the base limits through a variety of different recipients and to a particular candidate.
Here's how it would work: Suppose Congress capped campaign contributions at $5,000 per candidate per cycle, so that a contributor could give only $5,000 to his or her preferred candidate. Without more, that contributor could easily bypass that base limit by simply contributing $5,000 to a number of different organizations that could, in turn, support or contribute to the contributor's preferred candidate. The contributor could thus effectively circumvent the base limit and corrupt his or her preferred candidate by funneling contributions through intermediaries.
Congress recognized this circumvention problem and imposed a cap on aggregate contributions in order to avoid it. The Court in Buckley v. Valeo (1976) upheld both the base contribution limit and an aggregate contribution limit, holding that they work to prevent actual and apparent corruption and circumvention. Later, in BCRA, Congress restructured and increased previous base and aggregate contribution limits and provided for automatic adjustments for inflation.
McCutcheon, a wealthy contributor, challenged the aggregate limits as violating the First Amendment. (For more on the background, my ABA Preview piece is here.)
The arguments today focused on whether the current aggregate contribution limits continue to do any work with regard to corruption or circumvention. The RNC and McCutcheon argued that they don't. They said that other features of the law already prevent circumvention and corruption, and that the aggregate limits therefore only serve to limit free speech and association. The FEC, on the other hand, said that they do--that they are necessary to close circumvention opportunities even with the other protective features of federal law, and that they prevent corruption.
The right answer, of course, turns on how money can flow in politics. There were plenty of hypotheticals today (and in the briefing) designed to illustrate how aggregate limits work to prevent corruption and circumvention (and counter-points on why they don't). Justices Breyer and Kagan led the charge with hypos showing why aggregate limits were necessary; Justice Kennedy expressed interest, as well. But for every hypo, the petitioners had an explanation why current law already solved the corruption and circumvention problem, even without aggregate limits. The lack of context and record on this point led Justices Breyer and Sotomayor to wonder whether the case might benefit from further development at the lower court. (Don't bet on this outcome.)
Justice Alito turned this line of questions on the government and asked SG Verrilli why other features of federal law don't already solve the corruption and circumvention problems. SG Verrilli seemed to back away from the circumvention interest and answered that a single contributor's very large contribution, dispersed across like-minded candidates and organizations, is itself a corruption problem, and that aggregate limits address this. The answer didn't seem to satisfy.
Chief Justice Roberts had a different concern: how the aggregate limits affect a contributor's ability to give the maximum amount to as many candidates as he or she wants--and how this limits a contributor's speech and association rights with regard to, say, the tenth candidate that the contributor wants to support. He also wondered whether there weren't less speech- and association-infringing ways to prevent corruption and circumvention.
In short, both the Chief Justice and Justice Alito, who together may well control the outcome of this case, seemed accutely concerned that the aggregate limits weren't the best-tailored way for the government to achieve its interests in preventing corruption and circumvention. At the same time, though, neither Chief Justice nor Justice Alito (nor anybody else today) directly took on Buckley's holding on base and aggregate contribution limits. (Justices Kennedy, Scalia, and Thomas are all on record against Buckley's holding that the government can regulate contributions in the interest of preventing corruption.) Instead, the arguments focused on whether the non-aggregate-limiting features of BCRA can do the work of preventing corruption and circumvention--and therefore whether the aggregate limits only serve to infringe the First Amendment. So if the arguments today are any indication, we may see a 5-4 Court striking the aggregate limits because they're not sufficiently tailored to prevent corruption or circumvention--and because they limit too much speech and association.
If so, we'll likely see more total money going directly to candidates, political parties, and committees. But remember that under Citizens United individuals can already spend as much as they want on "independent" electioneering. This case won't change that, even if it directs some of that "independent" money to candidates, political parties, and committees for better coordinated expenditures. (Justice Scalia argued today that the anti-corruption purpose of aggregate limits seems as weak as, or weaker than, an anti-corruption purpose for the independent expenditure restrictions that the Court struck in Citizens United.) At the same time, this case probably won't upset Buckley's holding that the government can cap base contributions in the interest of preventing actual or apparent corruption. Indeed, it may not even upset Buckley's holding on aggregate contributions. Instead, it may only say that under BCRA aggregate limits aren't doing the anti-corruption and anti-circumvention work that they were designed to do, and that they're unduly infringing on the First Amendment.
Wednesday, October 2, 2013
The Supreme Court today agreed to hear a case pitting mandatory union fees for non-members against non-members' free speech and free association rights. The case, Harris v. Quinn, is the second time in recent years that the Court will consider the issue. (Our original post on Harris is here.) And if the signals from its first case, Knox v. SEIU, are any indication, we can expect that the Court will continue to chip away at, even eviscerate, public-sector union power.
Harris involves an Illinois law that requires home-health-care personal assistants who are not members of the assistants' designated union to pay union dues for union activies such as collective bargaining (but not for politics and other non-union activities). The Supreme Court has long allowed this kind of mandatory fee for non-members of public sector unions (going back to Abood v. Detroit Board of Education) in the interest of preventing free riding by non-members. (If non-members could get by without paying union-related fees for activities like collective bargaining, then nobody would become a member. Why? Because non-members could enjoy the benefits of the union without paying any fees. But if that happened, then the union's funding stream would dry up, and the union would cease to exist. Thus the rule makes sense for union-related activities. But the Court drew the line at non-union-related activities, like politics, where mandatory fees for non-members would compel a political association to which they objected.) Because the Supreme Court has long allowed this kind of mandatory fee, the Seventh Circuit upheld the fee in Harris. (There was just one twist: personal assistants look a little like state employees and a little like personal employees of the patients they serve, or state contractors. The Seventh Circuit ruled that they were state employees.)
The Court now will review that ruling. But it doesn't start from scratch. That's because the Court ruled in Knox in 2012--after the Seventh Circuit handed down Harris--that a public union couldn't use an opt-out procedure for special assessment fees for non-members for non-union activities; instead, the Court said it had to use an opt-in procedure. In other words, the Court ruled that the state couldn't require non-members to pay the special assessment for non-activities but opt out; instead, the state could only allow non-members to opt in.
Knox dealt with a seemingly narrow issue--opt-out or opt-in for special assessments for non-union activities. But by requiring opt-in, and thus setting the baseline as no fee assessments for non-union activities for non-members, the case was a blow to union power.
But more: the Knox opinion (penned by Justice Alito) included strong language suggesting that the broader Abood rule violated free speech and free association. That is, Knox comes very close to saying that states can't require non-members to pay even for union activities--even though that question wasn't before the Court.
In other words, the Court in Knox sounded like it was just waiting for a case to give it a chance to overturn the Abood rule that non-members can be assessed fees for union activities.
Harris might just be that case. If so, Harris could represent a big blow to public union power. Indeed, depending on how the Court might rule, it could mark the beginning of the end of public unions (if the beginning hasn't already happened). That's because a rule that allows non-members to dodge fees for collective bargaining and other union activities--that is, to free ride on the union--would give a strong incentive for everyone to bail out of the union.
The Court could rule differently, though--on Abood's application to independent contractors and even to the private sector--and that's where the facts matter. Remember that the Seventh Circuit said that personal assistants were state employees, but that they also look a little like private employees. Abood applies to public employees, and the Seventh Circuit was clear that "we do not consider whether Abood would still control if the personal assistants were properly labeled independent contractors rather than employees." "And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear." Op. at 15. This kind of ruling could represent a significant blow to union power, too.
Either way, Knox put the handwritting on the wall. Harris may just be the case to take on the long-standing rule that states can require non-members to pay union dues for union activities in order to avoid free riders. If the Court reverses this rule, or even just chips away at it, the case will be a significant blow to unions.
There's another question in Harris. One group of personal assistants in Illinois, operated under a different state department, voted not to organize; they therefore do not have to pay any fees. The Seventh Circuit ruled that their claim wasn't yet ripe. This, too, is before the Court.
Wednesday, July 17, 2013
The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved. The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.
We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.
Sunday, May 19, 2013
Associated Press CEO (and former First Amendment lawyer for McClatchy newspapers) Gary Pruitt gave his first television interview today to Bob Schieffer on Face the Nation and blasted the Justice Department seizure of AP phone records as violating the First Amendment.
Pruitt's complaints grow out of the Justice Department secret subpoena for phone records of 20 AP phone lines as part of the Department's investigation into an AP article that reported that the CIA foiled a terrorist plot to bomb a US airliner. The Department obtained the records directly from the phone company, without prior notice to AP.
Pruitt argued that the Department's efforts swept far too broadly and violated its own rules relating to phone records.
Pruitt's appearance follows his May 13, 2013, letter to AG Holder, objecting to the Department's investigation. Deputy AG James Cole wrote back on May 14, 2013, arguing that the Department's subpoenas were sufficiently narrow.
Glenn Greenwald wrote about the issue last week in the Guardian (with links to others raising objections). The Washington Post just posted a story on aggressive government tactics in leak investigations, focusing on the Stephen Jin-Woo Kim case.
Friday, January 11, 2013
Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law.
Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.
For anyone interested in the First Amendment, this is a must read.
Sunday, December 23, 2012
A divided three-judge panel of the Sixth Circuit ruled this week in Dye v. Office of the Racing Comm'n that government employees' First Amendment political retaliation claims could be based on their perceived political affiliation, and not just their actual political affiliation. The case deepens a circuit split on the question, with the First and Tenth Circuits ruling that such claims can be based on perceived affiliation and the Third Circuit requiring actual affiliation.
The case arose when employees of the Michigan Office of the Racing Commissioner, the Michigan department that regulates horseracing in the state, claimed that their politically-appointed supervisors retaliated against them for their protected speech and their perceived political affiliation. (The employees claimed that their superiors, Democrats, thought that they were Republicans.) The district court granted the defendants' motion for summary judgment, ruling that the plaintiffs failed to allege that the defendants retaliated based on their actual, not just their perceived, political affiliation.
Judges Moore and Merritt agreed that the plaintiffs' claim didn't require them to allege that they were actually Republicans. They borrowed from Waters v. Churchill--a speech case (not an affiliation case), holding that the Connick v. Myers test for government employee speech should be applied to what the government reasonable thought was said, and not what the trier of fact ultimately determines to have been said--and wrote that "[g]iven the plain meaning of Waters, along with our prior interpretation of its holding," op. at 14, the plaintiffs' affiliation claim should be judged by the plaintiffs' perceived affiliation, and not their actual affiliation.
Judge McKeague disagreed:
The majority's reading of Waters is troubling for two reasons. First, by allowing a perceived affiliation claim such as the one here to go forward, the Court is essentially providing more First Amendment protection to government employees who have not even engaged in any actual conduct or speech. . . .
Second, the majority does not explain why Waters, a protected speech case, should apply with equal force to a political affiliation case such as this one. In my view, even though this is not a political patronage case, any decision on the perceived affiliation issue should certainly take into account the governing principles in the Supreme Court's political patronage dismissal cases . . . (rather than protected speech cases such as Waters). Those cases deal directly with First Amendment protection of the right to political affiliation, and are thus a window into how the Court views such claims.
Op. at 37.
Sunday, December 16, 2012
Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act. The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.
We covered the district court case and ruling here.
Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment. That Section provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
We covered the NDAA here.
The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.
Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September. But the Second Circuit stayed that injunction in October and ordered expedited review.
On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay. She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act. Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.
Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits. Instead, she appears to be letting the case run its course at the Second Circuit. She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."
Wednesday, November 28, 2012
The Seventh Circuit ruled this week in Embry v. City of Calumet that city aldermen did not violate free speech when they vowed not to ratify the mayor's nominee to be city department commissioner based on the nominee's support of the mayor in the prior election.
The case arose when Embry, the Commissioner for the Department of Streets and Alleys in Calumet City, a position appointed by the mayor, supported the mayor and a group of aldermen running as a team in the city's election. The aldermen defected from the team of candidates, however, and pressured Embry to support a rival candidate for another alderman slot. After Embry declined, the aldermen said they'd oppose ratification of Embry's appointment as Commissioner of a new, consolidated city department (that included Embry's old Department of Streets and Alleys). The mayor then nominated someone else, the council approved, and Embry lost the job.
Embry sued the aldermen, arguing that their opposition to his appointment violated free speech. He claimed that his case was governed by the public-employee speech rule in Connick v. Myers and Pickering v. Board of Education.
The Seventh Circuit disagreed. The court ruled that Embry's position was a policy-making position, subject to the Elrod-Branti rule that says that for policy-making jobs the "government employer's need for political allegiance . . . outweighs the employee's freedom of expression[.]" Op. at 4 (quoting Bonds v. Milwaukee Cnty., 207 F.3d 969 (7th Cir. 2000). In other words: political appointees can be removed for political reasons.
Moreover, the court said that Embry failed to allege any particular speech unconnected to political affiliation or policy views that led to his non-confirmation. Embry only alleged that he publicly supported the team, and that he was fired "based on [his] political allegiance to [the mayor]."
The ruling is consistent with rulings in other circuits and likely ends this case.
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, September 17, 2012
Why should courts deciding constitutional questions give deference to a bunch of professors?
ConLawProf Steve Sanders (pictured) poses this query with reference to the Court's decisionmaking in Fisher v. University of Texas in his brief essay over at SCOTUSBlog (part of SCOTUSBlog's terrific Fisher Symposium).
The best answer, Sanders tells us, "is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things."
An interesting take on academic freedom in the context of affirmative action.
Friday, September 14, 2012
A state judge has declared sections of the controversial 2011 Wisconsin Act 10 unconstitutional as violative of state constitutional provisions. This follows a federal district judge also declaring portions of Act 10 unconstitutional in March.
In today's 27 page opinion in Madison Teachers Inc. v. Walker by state judge Juan Colas rejected the challenges based on the state constitutional provision limiting special sessions and the takings clause, as well as arguments that the controversy was nonjusticiable.
However, the judge found Act 10 violated the free speech, free association, and equal protection state constitutional protections, construing them as consistent with federal interpretations of the First and Fourteenth Amendments. Much of the judge's reasoning stressed that Wisconsin did not come forward with any arguments. The judge also found that there was a violation of the Wisconsin constitutional provision guaranteeing Milwaukee home rule.
[image: protests of Act 10 via]
Saturday, July 28, 2012
As the 2012 Olympics get under way in London, participants, attendees and viewers may think they are watching a modern re-enactment of the Greek classical practice also known as the Olympics. The United States Supreme Court, in its majority opinion by Justice Powell in the 1987 case of San Francisco Arts and Athletics v. U.S. Olympic Committee, pointed out the differences:
The ancient Olympic Games lasted 5 days, whereas the modern Olympics last for 10 days. The ancient Games always took place in Olympia in southern Greece; the modern Olympic Games normally move from city to city every four years. (As an effort to reduce nationalism, cities, as opposed to countries, host the modern Olympic Games.) In ancient Greece there may have been a burning fire for religious sacrifice, since the Olympic Games were part of a religious festival. The torch relay, however, was an innovation of the modern Olympic Committee. The closest parallel to the modern opening parade was the opening of the ancient Games with the chariot race. As the chariots entered the arena and passed the judges, a herald called out the names of the owner, his father, and his city. There was no general parade of athletes by locality, as in the modern Games, and the athletes were naked, not uniformed. Athletes were eligible only if they were male, freeborn Greeks. There is no indication that the ancient Olympics included an “Olympic anthem” or were organized by an entity called an “Olympic Committee.” The awards in ancient Greece were wreaths of wild olive, rather than the gold, silver, and bronze medals presented at the modern Olympics.
Olympics, 483 U.S. at 541 n.18.
The purpose of these distinctions was to support the claim that "Olympics" was not an ancient and now generic term that could be adopted by others, but a specific term owned by the United States Olympic Committee, established by Congressional statute in 1896. The Committee had brought suit against the "Gay Olympics" for using the term. Interestingly, according to the Gay Olympics Brief, the US Olympic Committee did not seek to similarly prohibit other groups that used the term "Olympics" such as the International Police Olympics; Armenian Olympics; Olympic of Ballet; Olympics of the Mind; Senior Olympics; Golden Olympics; Firemen's Olympics; United States Skill Olympics; Virginia Golden Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; WackyOlympics; Xerox Olympics; Alcoholic Olympics.
The Court thus rejected the Gay Olympics First Amendment argument, with Justices O'Connor dissenting in part, and Brennan and Marshall dissenting.
I discuss the case and the use of the term "Olympics" as well as other ancient Greek terms such as "democracy," in an article available on sssrn.
[image: Olympic Rings hanging from London Bridge, 2012, via]
Thursday, June 21, 2012
The usual First Amendment rule for public-sector union fee assessments for non-members is that unions have to provide notice and an opportunity to opt out of those portions of the fees that go to non-bargaining, political activities. These are called "non-chargeable" expenses. (Non-union members can't opt out of that portion of the fees that goes to collective bargaining activities--the "chargeable" expenses. This rule prevents non-members from free-riding on the union's regular, collective-bargaining activities.) The Court crafted the rule in Teachers v. Hudson.
The case today, Knox v. SEIU, however, dealt with a special assessment--not a regular, annual assessment--that the union initially said would go entirely to non-chargeable expenses, that is, the union's political opposition to California's proposed measures to clamp down on unions. The case thus tested Hudson's applicability to special assessments.
Justice Alito's majority opinion said that the First Amendment requires that unions provide notice and an opportunity to opt in to special union assessments that are used for non-bargaining, political purposes. Relative to the Hudson opt-out rule, the holding puts a thumb on the scale against unions in collecting special assessments--because it means that non-members have to affirmatively elect to pay for special assessments, rather than allowing the unions to issue notice and opportunity to opt out. This was a significant, if narrow, holding.
But Justice Alito's opinion did much more. In particular, it took direct aim at the traditional rule for regular, annual assessments, the Hudson rule, that unions have to provide notice and an opportunity to opt out. The opinion all but said that this rule violated the First Amendment.
If so, this would deal a significant blow to public-sector unions in agency shops and their non-bargaining activities.
Justice Alito's opinion is rife with references to the "extraordinary" benefit that unions get under the Hudson rule at the expense of non-members' associational rights, strongly suggesting that the rule is unconstitutional--and that five on the Court are ready to revisit it.
For example, Justice Alito writes that "Our cases to date have tolerated this "impingement," [the Hudson process] and we do not revisit today whether the Court's former cases have given adequate recognition to the critical First Amendment rights at stake." Op. at 10. More: "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate." Op. at 14. And:
Acceptance of the free-rider argument as justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly--one that we have found to be justified by the interest in furthering "labor peace." But it is an anomaly nevertheless.
Op. at 11.
In the context of special assessments, but with reasoning that would seem to apply equally to regular assessments, Justice Alito wrote:
Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers? And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. . . . .
Op. at 11 to 12.
In short, the opinion seems to tee up the next case, dealing with the regular assessment, Hudson process--and similarly putting a thumb on the scale against the unions there.
Justice Sotomayor wrote a concurrence, joined by Justice Ginsberg, that called the majority on its overreach with regard to the regular assessment Hudson rule. Justice Sotomayor also called the Court on its creation of the new opt-in rule for special assessments.
The concurrence underscores the fact that there was a way to rule against the union special assessment here, while still stopping short of the sweeping majority approach and taking aim at the long-settled Hudson rule.
In other words, the availability of Justice Sotomayor's narrower approach tells us that each of the five in the majority could have elected to rule more narrowly. But they didn't. In other words, each of the five in the majority seems to be on board with the strong signal that the Hudson rule itself is unconstitutional.
Justice Breyer wrote a dissent, joined by Justice Kagan. Justice Breyer wrote that the process in this case complied with Hudson. That is, the union provided adequate notice and opportunity to opt-out under the circumstances--even if that opportunity came late. In other words, given the variances in union spending from year-to-year, unions can only estimate future assessments based on past expenditures. (This system ensures that objecting nonmembers can recoup the offending expenditures over time.) Thus in the next regular assessment--the one immediately after the special assessment--the union has to estimate expenditures based on total prior year expenditures (including the special assessment). The notice and opportunity to opt out in the next year covers those nonmembers who objected to the special assessment. And in this case, that worked out to their benefit; they even got a little windfall. Justice Breyer said that this process, while "imperfect," satisfied Hudson and satisfied the First Amendment.
A divided Supreme Court today ruled in Knox v. SEIU that a union must provide notice and opt-in for a proposed special assessment in a public-sector agency shop. We covered the background and oral arguments here.
The majority opinion leaves long-standing rules about union assessments for public-sector agency shops hanging by a thread. In addition to its ruling on special assessments--a question that was open before this case--the ruling takes sharp issue with the idea that the First Amendment permits a public-sector union to provide notice and opt-out for its regular, annual assessments.
The ruling is a blow to unions' ability to collect special assessments. It says that the First Amendment requires notice and opt-in for those. But the ruling also signals the majority's discontent with the long-standing rules on regular assessments. The ruling all but held those rules--notice and opt-out--unconstitutional. (Those rules, of course, were well beyond the scope of the case. But the majority sent a strong signal that it would consider their constitutionality, if not outright rule them unconstitutional, if given even half a chance.)
Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justices Sotomayor and Ginsburg concurred in the judgment, and argued that the majority's ruling--requiring notice and opt-in--went far afield of the arguments and briefing. Justices Breyer and Kagan dissented.
We'll provide more analysis shortly.
Friday, June 8, 2012
A three-judge panel of the D.C. Circuit ruled today in Libertarian Party v. D.C. Board of Elections and Ethics that the Board did not violate the Libertarian Party's First Amendment speech and association rights and its Fifth Amendment equal protection rights by declining to produce an exact count of the votes received by Bob Barr, the Libertarian candidate in the 2008 presidential election.
The Libertarians claimed that the Board's failure to provide an exact count of votes received meant that they couldn't tell how much support they had in D.C. and that they couldn't determine whether they met the 5 percent national threshold to qualify for public funding in the next election. Here's the gist:
[A] voter who casts a valid write-in ballot for a declared candidate like Barr is entitled to know whether she has acted in concert with other like-minded voters or whether her vote is a lone statement in the political wilderness. The voting public is entitled to know how Barr fared at the polls. The Libertarian Party is entitled to know whether its stature has grown or been diminished by the votes cast for Barr. None of this vital information, laden with associative and communicative value, is available if the Board fails to count and report the Barr vote.
The court rejected the claims. It ruled that the Board's failure to provide an exact count was a reasonable, nondiscriminatory restriction on the constitutional rights of voters and therefore valid with only an "important regulatory interest." The court said that the Board had a sufficient interest in saving money by not counting votes of a candidate for reasons other than determining the winner of an election. Moreover, the court said that the Libertarians could always get the ballots via the FOIA, and count them themselves.
Monday, April 30, 2012
In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.
The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."
The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.
Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
Tuesday, April 17, 2012
Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections.
The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech. The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA). They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.
Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.
Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest. As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors." As to "closely drawn," Judge Boasberg looked to the history of the ban:
When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption. As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business. In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors. Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure citizens that its politicians are acting on their behalf and not on behalf of the highest bidder." Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .
An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed. It could simply be an indication that the ban is working.
Op. at 11-12. Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end. (Note that the ban allows contracting corporations to donate by way of their PAC.)
As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute. Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).
Saturday, March 31, 2012
Wisconsin's controversial Act 10 has been declared unconstitutional in part by federal district judge William Conley in a summary judgment opinion in Wisconsin Education Association Council v. Walker.
Judge Conley ruled against the plaintiffs' equal protection challenge to Act 10's classification between emergency public employees and "general" public employees. However, Judge Conley held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarentees and Act 10's prohibition of dues withholding for general employees violated the first amendment.
In considering the dues witholding provision, Judge Conley noted that
Act 10 was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance.
The "maelstrom" to which Judge Conley referred is ongoing. The state Government Accountability Board has just unanimously ordered a recall election for Governor Scott Walker (pictured above) who spearheaded Act 10. Earlier this month, a state judge held Wisconsin's voter identification law unconstitutional under the state constitution, a ruling that is being appealed to Wisconsin's troubled Supreme Court.
Judge Conley's order required "a return to automatic dues deductions for all members of public unions no later than May 31, 2012," in order to "give sufficient time for the defendants to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for government entities to adopt a workable procedure to return to automatic deductions should the Seventh Circuit deny a stay, while balancing the plaintiffs’ and their now-voluntary members’ rights to a return to payroll deductions."
[image: Scott Walker via]
Saturday, January 21, 2012
A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).
Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees. It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.
The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse. The Supreme Court upheld I-872 against the facial challenge in 2008. But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.
The Ninth Circuit answered that question on Thursday. The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion. These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate. The panel also held that the plaintiffs failed to produce evidence of actual voter confusion. Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.
The court also rejected the Libertarian Party's ballot access claim. The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election. The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See Cal. Democratic Party v. Jones (2000)." (Citation omitted.)
Sunday, January 15, 2012
Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction.
In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.
[image: Governor Rick Perry, 2006, via]