Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 11, 2012
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.
Friday, November 18, 2011
The latest installment in the continuing saga of the quest for anonymity by "Protect Marriage" members and supporters is the Ninth Circuit's denial of the emergency appeal.
As we most recently discussed, on a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
In this latest round, the John Doe plaintiffs sought to "enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order."
In its brief opinion, over one dissent, the Ninth Circuit panel stated it "preliminarily believes that the appeal is moot due to the release of R-71 petitions" and thus held that the plaintiff/ appellants’ "renewed emergency motion for an injunction pending appeal is denied."
Tuesday, October 25, 2011
The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office. The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.
The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."
But Brown didn't even get that far. Instead, the case turned on whether patronage was even a motivating factor. Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:
If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .
To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance. If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago." There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.
Op. at 2-3.
The problem here: Brown had no evidence. None. And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case. The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.
Thursday, October 13, 2011
Occupy Switzerland?: European Court of Human Rights Finds A Violation of Free Association Rights of RHINO
RHINO - - - an acronym for two alternative French slogans, translated as “Vacant buildings inhabited again” and “Let’s carry on living in the buildings we occupy” - - - was an association established in Geneva, Switzerland in 1988.
After years of activities consistent with its slogans, including squatting in a building with its famous "red horn" (pictured left), legal action terminated not only the possession but the organization itself. Owners of the occupied properties sought a dissolution of the RHINO association "on the grounds that its aims were unlawful." The Swiss courts agreed to dissolve the association.
The European Court of Human Rights, however, has held that the dissolution violated Article 11, "freedom of association," of the European Convention on Human Rights. The dissolution of the association was not proportionate and necessary in a democratic society, and there was no showing that alternative less restrictive measures were available to prevent "disorder." The Court therefore ordered money damages (65,651 euros) and costs to be paid by Switzerland to RHINO.
There were also related eviction proceedings in the Swiss courts; these are also before the European Court of Human Rights.
Monday, September 26, 2011
Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues.
Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."
The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.
More information, including registration information is here. The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18.
September 26, 2011 in Affirmative Action, Association, Conferences, Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Privacy, Race, Recent Cases, Scholarship, Speech, Supreme Court (US), Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 1, 2011
In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.
The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.
Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.
First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”
As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.
Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.
Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:
Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.
August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack (0)
Monday, June 13, 2011
The Supreme Court ruled today in Nevada Commission on Ethics v. Carrigan that a legislative vote is not protected speech under the First Amendment and that a state recusal statute therefore did not violate the Constitution.
The ruling leaves untouched the widespread practice in states and Congress to require legislators to recuse themselves from voting when they have a conflict of interest. The Nevada law at issue here reached farther than most--perhaps any--other recusal law. And so the ruling, unanimous on the core holding that recusal laws do not violate the First Amendment, gives wide latitude to states and Congress in their efforts to enact and enforce aggressive and expansive recusal laws.
The case involved Nevada's Ethics in Government Law, which requires public officials to recuse themselves from voting on, or advocating the passage of or failure of, "a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others." Under the Law, such commitment includes, e.g., a member of the officer's household or the officer's relative and--at issue here--"[a]ny other commitment or relationship that is substantially similar."
Petitioner Michael Carrigan was an elected member of the Sparks City Council. As a Commissioner, Carrigan voted to approve an application for a hotel and casino project, the "Lazy 8." But, as it turned out, Carrigan's long-time friend and campaign manager, Carlos Vasquez, was a paid consultant for the Red Hawk Land Company, which proposed the Lazy 8 project and would benefit from it. Thus the conflict.
Before the vote, Carrigan consulted with the City Attorney, who advised him that disclosing the relationship would satisfy his obligations under the Law and that he could go ahead and vote on the measure. But after Carrigan voted, the Nevada Commission on Ethics initiated an investigation and found that Carrigan violated the Law.
Carrigan sued in state court, arguing that the Law violate the First Amendment. A divided Nevada Supreme Court agreed, applied strict scrutiny, and ruled the Law unconstitutionally overbroad.
The Supreme Court reversed. In a unanimous opinion by Justice Scalia, the Court held that the Law did not violate the Speech Clause in the First Amendment. All but Justice Alito joined Justice Scalia's opinion that Carrigan's legislative vote wasn't even protected speech; Justice Alito concurred in part and concurred in the judgment, but wrote that Carrigan's legislative vote was speech (but that the Law did not violate the First Amendment).
Justice Scalia wrote that early congressional recusal laws and rules--including laws and rules that were in place when Congress voted on the First Amendment--along with the absence of any objection to such laws on speech grounds suggest that recusal laws are consistent with the First Amendment. Moreover, states have a long tradition of enacting recusal laws.
Justice Scalia wrote that Carrigan's vote wasn't speech, because he was simply channeling the will of his constituents (and not engaging in an independent expressive act):
[A] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . . In this respect, voting by a legislator is different from voting by a citizen. While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.
Op. at 8.
Justice Alito concurred in the judgment, but disagreed that a legislative vote isn't speech. Referencing Doe v. Reed (2010), holding that disclosure of signatures on referendum petitions does not violate the First Amendment, Justice Alito wrote,
Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect. If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech. If a member of the legislative body chooses to vote in the same straw poll, the legislator's act is no less expressive than that of an ordinary citizen. And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.
Op. at 3 (op. of Justice Alito). But Justice Alito came to the same result as the others--that the recusal law did not violate the First Amendment--because of Justice Scalia's evidence from early Congresses and from state practices.
Justice Kennedy concurred with Justice Scalia's opinion but wrote separately to warn that the Nevada Law could be applied to restrict or to chill protected speech and association. But the problems he raised were not before the Court.
[Image: Sparks City Hall, City of Sparks web-site]
Thursday, May 12, 2011
President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.
The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer." This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress. (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)
But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.
Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?" The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business. The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations." The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).
At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.
There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.
Wednesday, April 13, 2011
The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United."
The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections. The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation. The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.
According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:
But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.
Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general. But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general. And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).
The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.
Tuesday, November 30, 2010
Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation. The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.
Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform. The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague. Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.
On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate. Judge Moon wrote that
The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison. Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . . Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.
Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform). Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:
As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .
The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.
Op. at 31.
As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).
As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson. The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.
As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices. "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered." Op. at 43.
Judge Moon ruled that the religious exemptions also did not violate equal protection. "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review." Op. at 46. The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.
As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association. "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services." Op. at 49. Any required association is minimal. And the federal act does not require the plaintiffs to speak on, or to support, abortion.
As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce." Op. at 52 (quoting Head Money Cases.)
Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people. "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process." Op. at 53.
November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, September 20, 2010
The Department of Justice Office of the Inspector General released a report today concluding that the FBI did not target five domestic advocacy groups and one individual on the basis of their protected First Amendment activities between January 2001 and December 2006. But the report also concluded that the FBI opened some investigations with a weak factual predication, unnecessarily labeled some activities as domestic terrorism, and maintained irrelevant information about targets' protected First Amendment activities too long.
While the OIG concluded that the FBI did not target groups for their protected activities, it noted that the investigations and classifications did have "practical impacts":
However, in some cases, we found that the FBI extended the duration of investigations involving advocacy groups or their members without sufficient basis. This had practice impacts on subjects, whose names were maintained on watchlists as a result and whose travels and interactions with law enforcement were tracked. For example, the FBI continued to collect information about the international travel of two subjects of a PETA-related investigation after the point that the underlying justification for the case ceased to exist.
. . .
The domestic terrorism classification had impact beyond any stigma resulting from the public release of the documents under FOIA. For example, persons who are subjects of domestic terrorism investigations are normally placed on watchlists, and their travels and interactions with law enforcement may be tracked.
The OIG concluded that the FBI's activities by and large did not violate the Attorney General's Guidelines for Domestic FBI Operations. (There was an exception: The FBI violated the Guidelines when it sent an agent "to look for terrorism subjects at an anti-war rally." The OIG called this an "ill-conceived project on a slow work day.") But it also noted that the 2008 Guidelines loosened the standard for retention of information related to attendance at public events. (The report recommended tightening them back up.)
The report included six recommendations, two of which addressed the "inconsistent and erroneous" statements about the Pittsburgh Field Division's surveillance of a Merton Center anti-war rally. The report also recommended requiring identification of a federal crime as part of the predication that triggers an investigation, revising the Guidelines to prohibit the retention of irrelevant "First Amendment material" from public events, clarifying when "First Amendment cases" should be classified as terrorism cases, and conducting a review of recent domestic terrorism cases out of the Pittsburgh Division.
The report examined FBI activities related to six different organizations and individuals: The Thomas Merton Center of Pittsburgh; PETA; Greenpeace USA; The Catholic Worker; Glen Milner (an individual); and The Religious Society of Friends.
Tuesday, September 7, 2010
An Orlando, Florida Ordinance requires a permit for a "large group feeding" in a public park, and further provides that:
The Director of Families, Parks and Recreation or his/her designee shall issue a Large Group Feeding Permit upon application and payment of the application fee as established by the City. Not more than two (2) Large Group Feeding Permits shall be issued to the same person, group, or organization for large group feedings for the same park in the GDPD in a twelve (12) consecutive month period.
The Ordinance was challenged by the First Vagabonds Church of God and the nonprofit group Food Not Bombs, with the district court ruling in favor of the Church on its free exercise claim, in favor of Food Not Bombs on its as-applied free speech claim, and permanently enjoined the Orlando from enforcing the Ordinance against Plaintiffs. The Eleventh Circuit reversed in an Opinion entered in early July, over a vigorous dissent by Judge Rosemary Barkett.
The members of Orlando Food Not Bombs (“Food Not Bombs”) began conducting weekly demonstrations in 2005 at a public park located in the heart of downtown Orlando in order to draw attention to society’s failure to provide food to all and express their opposition to war. They did so by displaying signs and wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war messages while simultaneously distributing free food to hungry and homeless persons. . . . . this conduct constitutes expressive conduct entitled to First Amendment protection . . . .
Barkett distinguished Rumsfeld v. FAIR, on which the majority relied, and also considered the actions as a whole of Food Not Bombs rather than merely the handing out of food. Barkett argued that a reasonable person viewing Food Not Bombs’ demonstrations would observe that they
- take place every week,
- at a centrally located public park,
- in an affluent neighborhood,
- are visibly run by a group whose name itself, Food Not Bombs, conveys an unmistakable message,
- include activists holding signs or banners and wearing t-shirts and buttons to reinforce the group’s central Food Not Bombs message, and
- involve the distribution of food to the hungry and homeless in accordance with Food Not Bombs’ purpose.
A majority of the Eleventh Circuit judges have voted to grant en banc review, indicating that Judge Barkett's views will be seriously entertained by the full court.
Sunday, August 15, 2010
Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court can schedule a hearing and rule on the merits. Washington's domestic partnership law extends the benefits of marriage to state-registered domestic partners, including same-sex domestic partners.
The case is a continuation of the Supreme Court case Doe v. Reed issued earlier this summer. In that case, the R-71 petition sponsor and certain signers argued that the Washington Public Records Act, which compelled disclosure of signers' names and addresses, violated the First Amendment for all referendum petitions (and not just the R-71 petition). Plaintiffs alleged that petition signers would be subject to threats and harassment from supporters of Washington's domestic partnership law if their names and address were released. The Supreme Court treated the claim as a facial challenge and rejected it. The Court held that Washington had a sufficient interest in preserving the integrity of the electoral process, and that disclosure was sufficiently related to that interest because it complemented the Secretary's own signature verification process and thus helped to root out fraud and mistakes. The Washington PRA thus satisfied the "exacting scrutiny" standard, requiring a substantial relation between the disclosure requirement and a sufficiently important government interest, in general.
The Court declined to rule on a second issue, whether the disclosure requirement violated the First Amendment as applied in this case. (Plaintiffs raised this second issue in their original complaint, but the lower courts did not rule on it.) The Supreme Court expressly noted that its ruling in Doe v. Reed did not foreclose success on this "as applied" challenge still pending at the district court.
After the district court reopened the plaintiffs' "as applied" challenge, plaintiffs moved for a TRO, alleging that threats and harassment directed toward supporters of Prop 8 in California would spill over into Washington and that some R-71 supporters received threats because of their opposition to Washington's domestic partnership law. After briefing and argument, the district court granted the TRO, restraining the Secretary of State from releasing names and addresses of R-71 signers.
While the case still has to go to hearing, it's quite likely that the district court will rule in favor of the plaintiffs on the merits and bar the release of their personal information under the PRA: Judge Settle had to conclude that plaintiffs were likely to succeed on the merits as part of his TRO ruling (although the 2-page ruling doesn't contain this analysis), and he previously ruled that disclosure likely violated the First Amendment for all petitions in his preliminary injunction ruling that ultimately led to Doe v. Reed at the Supreme Court.
But however the case comes out on the merits, look for it to head next to the Ninth Circuit and perhaps again to the Supreme Court.
The Washington Secretary of State collects all the documents in this case, going back to the original complaint, here.
August 15, 2010 in Association, Due Process (Substantive), Equal Protection, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)