Sen. Schumer Leads Opposition to Citizens United V. FEC With New Proposal

As most of you probably know by now, Citizens United V. FEC was the biggest SCOTUS decision this year, and arguably for awhile.  The 5-4 decision supposedly ended a limit on corporations first amendment rights, according to some of the advocates for the decision. 

I personally enjoyed Slate writer Dahlia Lithwick's take on the decision, saying that it creates a "Pinnochio Project" in which the Court transforms "a corporation into a real live boy."

McCain-Feingold advocates most likely wanted to beat their heads against a wall once they caught wind of this decision, because it was a proverbial slap in the face.  

Public opinion of what currently stands is overwhelmingly negative. A Washington Post poll taken after the ruling this February showed 8 of 10 respondents were opposed with 65% of polltakers being “strongly opposed” to the ruling. There isn’t even much of a partisan divide when it comes to opposition of this ruling. Bipartisan opposition of this ruling continues, and Congressional Democrats have a lot on their plates when they try curtail some of what the ruling set in place.  

Democrats plan to introduce legislation next week that would sharply limit the ability of foreign-connected companies to participate in U.S. politics and require greater transparency from corporations, unions and nonprofit groups that pay for political advertising, according to a confidential summary of the bill.

Source: Washington Post

The legislation being proposed wouldn’t fully negate the decision made by the Supreme Court by any means. The crux of the bill would address would require greater transparency from corporation, unions, etc. who finance political advertising while limiting non-domestic companies participation in American elections. Other facets of the bill would include executives or group leaders to include their names on ads that they fund, much like McCain-Feingold’s “Stand by your ad” provision

According to the summary, obtained by The Washington Post, the legislation would require corporate chief executives or group leaders to publicly attach their names to ads, much like political candidates are required to do. It would also mandate disclosure of major donors whose money is used for "campaign-related activity."

Many Republicans are in opposition to the plan constructed by Schumer and Rep. Chris Van Hollen (D-MD). <Insert collective gasp of disbelief here>  

Campaign finance reform, has been a controversial issue in American politics for a long time and will continue to be. The McCain-Feingold Act (Bipartisan Campaign Reform Act) was the first type of legislation in any form to amend/change the Federal Election Act of 1971.  The law was passed in 2002, meaning for 30 years the same election standards were in place. Even at that, Russ Feingold and John McCain had been working on getting this through Congress for almost 8 years.

The act faced opposition by everyone's favorite Senator, Mitch McConnell, and eventually led to a Supreme Court case.  McConnell V. FEC challenged the Constitutionality of McCain-Feingold.  

Schumer and crew hope they can rally some support from Republicans to help pass legislation for this, but only time will tell if that plan comes to fruition.

New Supreme Court nominee speculation thread

MSNBC's First Read reported today:

Per NBC’s Pete Williams and Savannah Guthrie, administration officials say at least eight names are on President Obama’s list of potential Supreme Court nominees. Six are women and two men. The names: U.S. Solicitor General Elena Kagan, Diane Wood of the 7th Circuit Court of Appeals, Merrick Garland of the DC Court of Appeals, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, former George Supreme Court Chief Judge Leah Ward Sears, Sidney Thomas of the 9th Circuit, and Harvard Law School Dean Martha Minow. Of these names, people outside the government but familiar with White House thinking say the serious contenders are Kagan, Wood, Garland, Napolitano, and Granholm. Guthrie adds that Obama is likely to meet next week with key senators to discuss the vacancy. Many of the new additions are about interest group appeasement. And note the growing concern in the liberal/progressive blogosphere about Kagan.

One person who doesn't sound concerned about Kagan is Republican Senator Lindsey Graham of South Carolina:

“I like her,” he said, quickly adding, “and that might hurt her chances.”

Graham, whose support for Justice Sonia Sotomayor last summer was a turning point in her confirmation process, said he liked Kagan’s answers about national security and the president’s broad authority to detain enemy combatants when she was going through her own Senate confirmation.

Both of President Bill Clinton's Supreme Court nominees had received a private stamp of approval from key Republican Senator Orrin Hatch. My hunch is that Graham's kind words for Kagan help her chances with President Obama. He loves to position himself as a moderate between the left and the right.

What do you think?

UPDATE: Chris Bowers made the case for Sears here.

Justice Stevens confirms plans to retire this year

Supreme Court Justice John Paul Stevens will retire this June, as court observers have anticipated for some time. According to the Washington Post,

Aides and Democrats close to the process named three people as likely front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post, and two appellate court judges, Diane Wood of Chicago and Merrick Garland of Washington.

I'm relieved to know that the Senate will be able to confirm a successor while Democrats still have a sizable majority. We are likely to lose 3-8 Senate seats this November. Any comments or predictions about the upcoming SCOTUS nomination are welcome in this thread.

There's more...

John Paul Stevens Announces Forthcoming Retirement

Not a complete surprise, but somehow a bit surprising nonetheless. Here's The Times:

Associate Justice John Paul Stevens, the leader of the liberals on the Supreme Court, announced on Friday that he will retire at the end of this term, setting up a confirmation battle over his replacement that could dominate the political scene this summer.

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

I would assume that Barack Obama has already made his selection for this seat -- or he's close to a final decision -- having more than a year to contemplate the possibility of a Stevens retirement. Also despite the fact that the Republicans hold a sufficiently sizable minority in the Senate to block an Obama nominee should they choose to filibuster, it is exceedingly difficult to imagine this level of obstruction, particularly given the bloc of Lugar/Snowe/Collins/Voinovich/Gregg/Hatch/Bond who tend to be deferential to Presidents -- even ones hailing from the Democratic Party -- on Supreme Court nominations. This isn't to say that there isn't going to be a fight, because the Republicans fight everything these days. But I would expect a fairly uneventful confirmation process, one with minor blowups that are treated like major ones, but one that finds a nominee being confirmed relatively quickly and easily.

Scalia is Originalist... Except When He's Not

One of the lingering questions I have had since the NAMUDNO decision was handed down over the summer is just how the self-professed "originalists" on the Court could square their skeptical views on the constitutionality of the Voting Rights Act with the very plain intention of the framers of the 15th Amendment that Congress, rather than the Court, should have the power to enforce Americans' right to vote. When the amendment was drafted in the years following the Civil War, the context was clear: the Supreme Court, whose disastrous Dred Scott decision not only was one of the impetuses for the war but also served to enshrine the institution of slavery, was not to be trusted; instead, faith would be placed in the Congress, which was then firmly under the control of the progressive (particularly on racial issues, but also on many economic ones as well) Radical Republicans. With that original intent fairly clear, how could an "originalist" sitting in a Court more than a century later, rule to limit Congress' power in this area?

It looks like I'm not the only one wondering whether the fealty shown by these so-called "originalists" to the original intent behind the Constitution is genuine or rather a rhetorical device to be thrown out when inconvenient. Here's the not-so-liberal Wall Street Journal's Law Blog:

In Wednesday’s WSJ, however, Georgetown Law Professor Randy Barnett takes serious issue with the court’s hesitation [to use the "Privileges or Immunities" clause of the Fourteenth Amendment as the basis for finding that the Second Amendment applies to the states] — specifically at those justices, like Justice Scalia, who claim to be “originalists,” or guided by the Constitution’s “original” meaning. Barnett writes that a glance at the original meanings behind the PorI Clause and the Due Process clause lead to one conclusion: that PorI is the proper vehicle for Second Amendment incorporation.
But what about the clause protecting the “privileges or immunities of citizens of the United States”? . . . Actually, the right to keep and bear arms was among the most frequently mentioned privilege of citizens when the amendment was being considered in Congress.

The evidence is clear that the privileges or immunities of citizens included those rights in the Bill of Rights. As Michigan’s Sen. Jacob Howard explained to the Senate, these privileges or immunities included, among others, “the personal rights guarantied and secured by the first eight amendments of the Constitution; such as . . . the right to keep and to bear arms.”

In contrast, no one thought the language of the Due Process Clause included a right to arms. On this point there is consensus among constitutional scholars whether left, right or libertarian.

According to SCOTUSblog, Justice Antonin Scalia, who fancies himself to be an "originalist," had the following to say about the invocation of the "Privileges or Immunities" clause:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate”...

I'd recommend you read the whole WSJ post, because it's interesting and gets to the heart of this very key question: Just how much do the "originalists" actually care about original intent?


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