Law

McCutcheon, the Next Victory for the 1 Percent

AP Photo/Susan Walsh
(AP Photo/J. David Ake) S tarting with Buckley v. Valeo in 1976 and continuing up to the Citizens United decision in 2010, the Supreme Court has repeatedly found that attempts by Congress to restrict campaign finance violate the Constitution. In 2011, a bare majority of the Court found that a public-finance law that didn't suppress speech violated the First Amendment . Based on today's oral argument in McCutcheon v. Federal Election Commission, it is overwhelmingly likely that the Supreme Court will further restrict the ability of Congress to pass campaign-finance restrictions. McCutcheon is a potentially new frontier in constitutional law because it involves campaign donations. In Buckley , the Court held that restrictions on campaign spending faced a high level of First Amendment scrutiny, but legislatures had more leeway to regulate campaign donations . Congress has limited both the size of individual donations (with $2,600 being the current maximum) and the aggregate amount of...

No, Really, Blame John Roberts on Medicaid

The Prospect 's Paul Waldman has a terrific piece noting the terrible effects of states refusing the Medicaid expansion contained in the Affordable Care Act. Slate 's Matt Yglesias notes who should get the blame for this: John Roberts and the other conservative Republican justices who—in an unprecedented decision—ruled that making existing Medicaid money from the federal government contingent on accepting the expansion was unconstitutional. Kevin Drum of Mother Jones , however, argues that we shouldn't blame John Roberts because he was right : I think this is unfair. In fact, there were only two justices who upheld the Medicaid expansion (Ginsburg and Sotomayor). All the rest, including the liberals Breyer and Kagan, struck it down. So it wasn't even a close call. The vote against the Medicaid provision was 7-2. And as much as I dislike the result, I can't find a lot of fault with this. The basic holding was simple: given our federalist structure, states can't be forced to help fund...

The New Pornographers

AP Images/Rich Pedroncelli
C alifornia passed a law last month to prevent a form of online harassment known as “revenge porn”—explicit images almost exclusively of women posted online by their former partners. The victims of revenge porn are often left without recourse, ignored or extorted by website hosts, and discounted by local authorities who either lack awareness of federal cyber stalking and harassment laws or see little point in pressing charges. Frustrated by lack of recourse, campaigns such as End Revenge Porn have started fighting for state legislation to criminalize the practice. Until the passage of California’s law, New Jersey was the only state that had criminalized revenge porn, and a New York legislator just announced his plan to propose similar legislation last week. Revenge porn is only one form of online harassment that disproportionately affects women and often goes unreported. The attacks can range from threatening and degrading messages to the posting of personal information like home...

Restorative Justice's After-School Special

“Education was where my heart was,” says Tyrone Sinclair in Growing Fairness , a documentary showcasing the impact restorative-justice programs can have in our nation's schools. Sinclair says he was expelled from school at 16, became homeless, and then ended up in jail. Now, he organizes young people in Los Angeles. “I knew that wasn’t the place for me,” he says of prison. “I love to learn every day.” Growing Fairness was screened at the Thurgood Marshall Center in Washington, D.C., this Wednesday, at an event hosted by Critical Exposure, a local youth group that trains high-school students in photography so they can document problems in their communities. The audience included mostly high-school students and people in their 20s, most of whom were interested in or researched education reform, though a few older community members and attorneys for civil-rights organizations were also present. The event was part of the fourth annual Week of Action organized by the Dignity in Schools...

McCutcheon Money: How Citizens United 2 Could Increase the Power of Elite Donors

Next Tuesday, October 8, the Supreme Court is scheduled (pending shutdown nonsense) to hear oral arguments on McCutcheon v. FEC , a challenge to the total cap on the amount of money one wealthy individual is permitted to contribute to all federal candidates, parties, and PACs. The current “aggregate contribution limit” is $123,200—twice the median household income in the U.S. As you might imagine, this cap affects very few people; just 1,219 people were at, over, or within 10 percent of the limit for the 2012 election cycle. I’m guessing you are not sitting on $150,000 you’d like put into politics next year—so, why should you care? Here’s why: This tiny group of people already has substantial sway in our election system, and a bad ruling in McCutcheon would give them even more. Demos and U.S. PIRG have worked together to project that striking aggregate contribution limits would bring more than $1 billion in additional campaign contributions from elite donors through the 2020 elections...

Eric Holder's Big Voting-Rights Gamble

AP Images/Manuel Balce Ceneta
J ust about everyone who goes through a musical-theater phase at some point falls in love with Sky Masterson of Guys and Dolls . In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl. Going all in may be what you’d expect in a fictional singing crapshooter, but it’s a bit more surprising in a U.S. attorney general. Eric Holder’s announcement Monday that the Justice Department was going to bring a lawsuit against North Carolina’s new and wide-sweeping election law , which includes a laundry list of voter restrictions and changes making it harder to vote, showcases just how high he’s willing to make the stakes when it comes to voting rights. His department is now going to be litigating two high-profile cases—one against a voter-ID law in Texas, and the other against the omnibus bill in North Carolina. The DOJ is also involved in a case to show that Texas’s...

How the Shutdown Will Affect the Federal Courts

The government shutdown that began on Monday will have substantial effects on our country's justice system that will escalate over time. For the most part, the basic functions of the federal judiciary will continue during the Republican crusade against affordable health insurance. The Antideficiency Act permits the government's "essential services" to be funded during a shutdown. The Supreme Court, which accepted eight new cases this week, will remain open barring unforeseen circumstances. Since criminal justice is generally considered an essential service, circuit and district courts will remain open and continue to hear criminal cases as well. (The Sixth Amendment's requirement that defendants be given a "speedy and public trial" would mean serious potential problems should the prosecution of criminal cases be suspended for any significant length of time.) So federal judges will generally maintain employment, and courthouse doors will remain open. With respect to other basic...

Daddy's Home!

AP Images/Edmond Terakopian
AP Images/Edmond Terakopian M any mornings this year Matt Nuttall and his friend Ryan Faulkner met up in one of several neighborhood parks located between their houses in Pleasant Hill, California. While they changed diapers, dispensed snacks, and made sure their little ones didn’t fall off the playground equipment, the dads “talked to each other in adult,” as Nuttall puts it. Before too long, their children would begin to fade, and they’d head back to their respective houses to prepare lunch and oversee afternoon naps. “We didn’t do much, just sat around and kept the kids and ourselves from going crazy,” says Nuttall, who teaches ninth- and tenth-grade English at Sacred Heart Cathedral Preparatory in San Francisco. After his wife returned to her job, Nuttall took 12 weeks off from his. For half of that time, he received $945 a week through California’s Paid Family Leave program. The program, which has been in existence since 2004, offers workers up to six weeks off with maximum pay...

Have Too Many Cooks Spoiled Obamacare?

AP Images/J. Scott Applewhite
It's safe to say that if Americans don't understand the Affordable Care Act (ACA) by now—and they don't —they never will. The slightly better news is that consumers don't have to understand it in order to benefit from it, but even so, almost all the problems the ACA has encountered or will encounter are a result of the law's enormous complexity. That complexity grew out of early decisions made by Barack Obama, but along the way Congress added their own layers of complexity in order to pass it, then conservatives on the Supreme Court added some more. There were reasons, most of them perfectly good, for each of these decisions; everyone thought they were responding to reality or doing what was in the best interests of the country. But as full implementation of the law is upon us, we should acknowledge how much damage has been done by all this complexity. In a recent article in National Affairs , Johns Hopkins political scientist Steven Teles bemoans the rise of "Kludgeocracy." The term...

I Was Wrong about Elena Kagan

AP Photo/Alex Brandon, File
AP Photo/Susan Walsh O ne of the central arguments made by In the Balance , Mark Tushnet's terrific new book about the current Supreme Court bench ( reviewed here by Garrett Epps ), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with. When I say "many liberals," I include myself . My skepticism about the nomination, I should clarify, was not because I thought Kagan was a bad or unqualified nominee, or because I thought she was a closet reactionary. In the context in which Democrats had a...

Boom Times for the NRA

Flickr/Sea Grape
There's a lot happening at the moment—government shutdown, war in Syria, Iranian president sort of maybe not denying the Holocaust—so there was very little attention given to the fact that yesterday, the United States government signed the United Nations Arms Trade Treaty (ATT), commonly known as the small-arms treaty. It's meant to prevent the arming of human-rights abusers—potential perpetrators of genocide, and the like—by obligating states not to sell conventional weapons, from small arms up to tanks and helicopters, to foreign governments or entities that are going to use them to commit war crimes and massacre civilians. When it was voted on by the UN, the only countries that voted against it were Syria, Iran, and North Korea. And today, the National Rifle Association is celebrating. That might strike you as odd, but the ATT is political gold for them. It's the international equivalent of a failed gun control effort in Congress, which is far, far better than no gun control effort...

Life Takes Visa—Except If You Want to Buy Pot

AP Images/Marcio Jose Sanchez
AP Images/Marcio Jose Sanchez E arlier this summer, Elliott Klug had a plumbing problem on his hands. There was a leak in the drainage line between his marijuana dispensary, Pink House Blooms in Denver, Colorado, and the street. It was a relatively simple fix, but when it came time to pay the plumber, things got more complicated. Because of federal regulations that restrict marijuana business owners’ access to financial services like banking, Klug had no choice but to hand the plumber an envelope with $25,000 in cash. When the plumber tried to deposit the payment, the cash was held in limbo until the bank could count all of the money and verify that it wasn’t laundered—standard operating procedure for such a large cash deposit. Klug says it’s just another daily hassle for marijuana dispensaries, which occupy a strange legal gray area. Under Colorado law, Pink House Blooms is just one more small business, but in the eyes of the federal government, Klug is illegally trafficking one of...

It's Not about the Video Games

No, these are not mass murderers in training. (Flickr/Abraxas3d)
The pattern has become familiar: There's a mass shooting, and while some liberals try to raise the issue of the fact that our society is drowning in guns, more "realistic" commentators quickly turn the discussion away to some of different questions. Did the mental health system fail? And what about those violent video games? Aren't they a big part of the problem? That's what people are asking now about Aaron Alexis. The answer is simple: No, video games aren't part of the problem of gun violence in America. Or more specifically, even if they're part of the problem, they're such an infinitesimally small part of the problem that blaming them for the endless gun slaughter in America is like blaming one of the leaves on the tree that fell on your house for all the damage to the roof. This shouldn't be difficult to wrap your head around. Think about it this way. Could an early intervention by mental health workers and authorities have helped Aaron Alexis before he turned murderous? Perhaps...

Secular Corporations Cannot Exercise Religion, My Friend

AP Photo/Matty Zimmerman
Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was " substan tially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues. To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom...

The Carnage Continues

Just another of the dozens of mass shooting sites in America. (Flickr/NCinDC)
Here are some names that have been in the news in the last year; see if you can remember any of them: Andrew Engeldinger. Kurt Myers. Dennis Clark. John Zawahri. Pedro Vargas. Ring any bells? In another country, each of these men would be nationally famous. But not here; they were in the news for a couple of days, and then quickly forgotten. Each of them committed a mass shooting in 2013. We have so many mass shootings— over 50 in the last two decades alone—we don't even bother to recall the perpetrators' names. And guess what: yesterday's horrific shooting at the Navy Yard in Washington will be forgotten pretty quickly, too. In this morning's New York Times , the Navy Yard shooting merited a one-column headline, along with "U.N. Implicates Syria in Using Chemical Arms" and "Push for Yellen To Lead at Fed Gathers Steam." My guess is that for most national news outlets, this will be a three-day story: yesterday was the first day ("This is happening"), today is the second day ("This...

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