After weeks of uncertainty and a highly publicized fight in the Senate, President Obama signed an emergency six-month extension of unemployment benefits into law last Thursday. The law extends unemployment insurance benefits for about 2.5 million unemployed individuals since the last extension expired on June 2. The new emergency extension applies to people who have been unemployed for 26 weeks, which is approximately half of all the unemployed in the country. Benefits will be extended for up to 99 weeks, with the precise length of the extension varying by state in accordance with statewide unemployment rates. In states like Nebraska, with a relatively low unemployment rate of 5%, the extension will expire after 60 weeks, whereas in states like Michigan, with unemployment hovering around 13%, residents will be eligible to receive the full 99 week extension. [1] [2] States pay for the first 26 weeks of unemployment benefits, and legislation passed last week renews a federal program that funds the additional benefits for states mired in high unemployment.

Arguments for and against passing the latest unemployment insurance extension fell along predictable partisan lines. Most Democrats, with the exception of the usual suspects balking at caucus priorities, argued that benefits provide critical support for unemployed individuals as well as important stimulus to a still struggling economy. In terms of bang-for-your-buck, they argued, unemployment benefits produce the most economic boost of any proposed stimulus measures.

Republicans, claiming they supported the extension while filibustering the vote, believed that an emergency extension was too costly, with some also contending that unemployment benefits offer an incentive for people not to find jobs.

Unemployment insurance is intended to serve as an emergency measure to get people through financially challenging times. Because of its very nature, many economists agree that unemployment insurance does have a stimulative effect on the economy. While pushing to extend benefits, Speaker Pelosi voiced this opinion, stating that, “This is one of the biggest stimuli to our economy. Economists will tell you this money is spent quickly. It injects demand into the economy and is job creating.” Voices on the right immediately criticized Pelosi as being wholly out of touch with reality, comparing her statement to outright lunacy that should be considered a “cry for help.” [3]

Numbers from the Congressional Budget Office back the assertion that policies aimed at helping people with limited incomes actually help the economy and the job market. According to the CBO, aid to the unemployed has the largest effect on the GDP per dollar spent and the second

Estimated Effects of Policy Options on Output and Employment – Congressional Budget Office

highest effect on employment of any of the policies currently under consideration. [4] Calculations by the Council of Economic Advisers show that every $1 spent on unemployment benefits increases economic output by $1.60, with Moody’s chief economist Mark Zandi placing the number at $1.61. [5] A recently released study by the Economic Policy Institute found that 1.7 million jobs have been supported or created since 2007 as a result of the expansion of unemployment insurance benefits. [6]

Consumer spending accounts for over two-thirds of the nations’ economic output. Middle and especially low-income consumers are the best kind of consumer because they are less likely to save and immediately spend their paychecks right back into the economy. Unemployment benefits, at best a stopgap measure to prevent spending power from reaching zero, are immediately spent on groceries, housing and other necessities. Without the ability of the consumer to spend, the economy slows, causing further drops in employment and a continued downward spiral.

The claim that unemployment benefits create an incentive for people not to work makes several assumptions: that the benefits are significant, that those receiving benefits get them for nothing, and that there are actually jobs to be had. The average unemployment benefit is around $300 per week. Although benefit amounts vary by state, an unemployment check generally amounts to about one third of the unemployed person’s previous earnings. [1] It is difficult to imagine a family happily living off of one third or less of its normal income and just frittering away the time as their savings are depleted. Even if living off of an extremely limited income were an attractive alternative, looking for work and submitting proof of a job search is a requirement for receiving unemployment benefits.

Finally, there is the issue of the availability of the jobs themselves. Last month, private sector employers added only 41,000 jobs; 72,000 fewer than are needed just to keep up with the number of new workers entering the job market. [7] There is some evidence to suggest that the rate of individuals returning to the ranks of the employed is greater during the final weeks of benefit availability. But, economists argue, this behavior does not apply during prolonged periods of low job availability. Also, much of that data was acquired during the 70s and early 80s, when companies would time temporary layoffs to coincide with the expiration of unemployment benefits.

According to Andrew Stettner, deputy director of the National Employment Law Project, with five people trying to find work for every one available job, the incentive argument does not hold water.

Speaking on NPRs Talk of the Nation, Stettner said, “Alan Greenspan, you know, in 2003, when the economy wasn’t this bad, said that he understood that there was that research, but that research about extending unemployment benefits doesn’t apply during periods of high unemployment. And he’s no rabid liberal.” [8]

Talking points are funny things, with the ability to grow legs and run a marathon through the media regardless of their connection to reality and the workings of the world in which we actually live. And for seven weeks, while politicians postured, 2.5 million people wondered how they would make ends meet in an economy still offering few job possibilities. With the economy looking to remain weak in the coming months, these debates, about the nature and effectiveness of various types of deficit spending, are likely to continue to take center stage in Congress.

Deficit Amounts in Trillions by Cause – cbpp.org

The debate over whether or not to extend unemployment benefits is illustrative of a larger issue confronting policy makers: the need to create jobs and continue to stimulate the economy. And the rhetoric of the debate also brought to the spotlight some intentional distortions of facts about short-term deficit spending and long-term budgetary concerns, as lawmakers played on the fears of an already weary populace by presenting the rising specter of an imminently bankrupt country.

The last six months has seen a rise in prominence of so-called deficit hawks, and Republican attempts to slow or stop all Democratic initiatives have consistently evoked a newfound concern about deficit spending. An interesting position considering that, according to a Center on Budget and Policy Priorities analysis of Congressional Budget Office data, the single largest contributor to long-term deficits is the Bush tax cuts, followed closely by the wars in Iraq and Afghanistan, policies many of these same Congresspeople happily supported. [9]

These recently formed anti-deficit contingencies ignore the distinction between different types of deficit spending and the impact this spending has on the overall economic health of the country. In part, this is somewhat understandable. The sound bite, he said/she said oriented media environment does not lend itself to the thorough explanation of nuanced policy. But, more often, arguments are misleading and facts are distorted because concerns being raised about deficits are politically motivated rather than based on any real analysis of solutions for a stagnant jobs market and a shaky recovery.

In terms of economic actuality, there are a limited number of things that can boost GDP and fuel a more robust recovery. Consumers can spend money, businesses can spend money, investments can produce payoffs or the government can spend money. Consumers, fearful about high unemployment and faced with decades of stagnant wages and accumulated debt, are holding back on spending. Businesses, cautious due to lackluster consumer spending, are holding off on hiring and other forms of consumption. Investments, although recovered somewhat, still remain relatively flat. That leaves government spending. Choosing this moment to start using deficits as a political tool works against the one variable that can still be employed quickly to give the economy the capital it needs to recover.

Because of this economic picture, pundits and economists have begun to encourage President Obama to run higher deficits in the short term to boost GDP, reduce unemployment and raise revenues in longer-term outlooks. If deficits are a real concern, returning the economy to good health should be a top priority, even if that requires short-term deficit spending. Berkeley Economist Brad DeLong argues, “We really need to reduce the deficit after 2030. We really need to have more government purchases now. So raise spending now, and raise taxes and impose spending caps starting in 2013 […] And we solve both our current near-depression problem and our post-2030 structural deficit problem.” [10]

President Obama has to some extent tried to take this advice. The legislation to extend unemployment benefits was originally a $200 billion package that included emergency aid to states and health subsidies. That was slowly pared down over the two-month debate, leaving only the $34 billion dollar unemployment insurance extension in the final bill. [11]

Talk of deficit spending has raised concerns about inflation, but these concerns have yet to be borne out. The monthly inflation rate in June of 2008, pre crash, pre TARP and pre American Recovery and Reinvestment Act was 5.02%. The rate for June of 2010 was 1.05%. Similarly, for the first time since the 1950s, interest rates on government bonds (yields) are declining during a period of expansion. The fact that two-year bond yields are at historic lows and inflation is hovering between 1 and 3 percent shows that the market is more concerned with recovery than it is with government spending. [12] [13]

Economist Paul Krugman compares the recent deficit “hysteria” to “groupthink” during the run up to the Iraq war. In a February New York Times Op-Ed, Krugman stated, “Now, as then, dubious allegations, not backed by hard evidence, are being reported as if they have been established beyond a shadow of a doubt. Now, as then, much of the political and media establishments have bought into the notion that we must take drastic action quickly, even though there hasn’t been any new information to justify this sudden urgency. Now, as then, those who challenge the prevailing narrative, no matter how strong their case and no matter how solid their background, are being marginalized.” [14]

The debate over whether or not to spend $34 billion, or 3% of the fiscal year 2010 deficit, on an extension of unemployment benefits is a precursor to a looming fight over a different type of deficit spending: whether or not to extend the Bush tax cuts. Interestingly, those yelling the loudest about the effect of unemployment insurance legislation on the deficit seem much less concerned about the long-term effect of extending the tax cuts that are set to expire in January of 2011. In 2010, the cost of the tax cuts themselves is $450 billion, plus the cost of the interest on the debt used to fund those cuts. [7] If these cuts are extended, they are estimated, within two years, to become the single largest factor contributing to the budget deficit. This stands in opposition to short-term stimulus spending, the effects of which diminish or even become negative over time. [9]

Treasury Secretary Timothy Geithner said in an interview on Sunday that the administration plans to let the tax cuts on individuals making over $250,000 expire. According to Geithner, allowing tax cuts on the highest earners expire is the responsible thing to do, “because we need to make sure we can show the world that they’re willing as a country to start to make some progress bringing down our long-term deficits.” The Secretary disagreed with former Fed Chair Alan Greenspan, saying that the limited tax increase, affecting the top two to three percent of wage earners, would not slow growth. [15]

As stimulus money gets pared down and job bills shrink, the economy continues to be held hostage to political calculations. Democrats might not be willing to counter the recently discovered anti-deficit fervor with a call for more short-term stimulus spending, fearful of being labeled as deficit creating, free spending liberals. But if they do nothing, and the economy remains stagnant and unemployment high, they will be faced with electoral defeats and an inability to implement any new initiatives. A “jobless” recovery and weak consumer spending will keep tax receipts low and deficits high, thwarting future projects.

Republicans, who would like to keep cutting taxes and funding wars (yes, the Democrats are culpable here, too) may find that they have created an anti-deficit movement that undermines popular support for extending the Bush tax cuts and continue emergency appropriations for military expenditures. And, even if they do succeed in extending the cuts, they will be responsible for increasing long-term deficits.

No matter what the ideology behind the politics, a failure to seriously address unemployment and to work for stronger economic growth is dangerous to everyone. We all need an end to disingenuous arguments and fear mongering and a real look at how we can seriously address economic and deficit challenges.

Recommended Reading

Sources

1. http://www.csmonitor.com/From-the-news-wires/2010/0722/Unemployment-benefits-extension-approved-by-House-now-headed-for-President-s-desk, The Christian Science Monitor

2. http://www.bls.gov/web/laus/lauhsthl.htm, Bureau of Labor Statistics

3. http://mediamatters.org/research/201007020030, Media Matters

4. CBO Report, Policies for Increasing Economic Growth and Employment in 2010 and 2011, January 2010

5. http://www.usatoday.com/money/economy/employment/2010-07-15-unemployment15_CV_N.htm, USA Today

6. http://www.epi.org/publications/entry/two_for_the_price_of_one/, The Economic Policy Institute

7. http://www.sj-r.com/opinions/x1876471793/Ralph-Martire-Deficit-hawks-wrong-to-nix-jobless-benefits-extension, The State Journal Register, Springfield Illinois

8. http://www.npr.org/templates/story/story.php?storyId=128696646, NPR transcript

9. http://www.cbpp.org/cms/index.cfm?fa=view&id=3036, Center on Budget and Policy Priorities

10. http://www.theatlanticwire.com/opinions/view/opinion/How-to-Reduce-the-National-Debt-and-Prevent-a-Double-Dip-1663, The Atlantic Wire

11. http://www.washingtonpost.com/wp-dyn/content/article/2010/07/22/AR2010072203825.html?hpid=topnews, The Washington Post

12. http://inflationdata.com/inflation/inflation_rate/CurrentInflation.asp

13. http://www.bloomberg.com/news/2010-07-26/deficits-don-t-matter-as-geithner-gets-record-low-yields-during-expansion.html, Bloomberg

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Senate Democrats are causing as many headaches for themselves in the debate over climate change legislation as is their Republican opposition.

President Obama hopes to reinvigorate the push for comprehensive climate change legislation in a meeting with Senate lawmakers today.

Climate change legislation has succumbed to the familiar fate of many recent Democratic measures: a perceived failure to be able to hit the 60-vote threshold needed to overcome a Republican filibuster in the Senate. While the House answered Obama’s call for climate chance legislation in 2009 with the passage of the House American Clean Energy and Security Act, the conventional wisdom moving into the summer of 2010 is that climate change legislation in the Senate is now dead on arrival. Several bills are competing for primacy, none of which seem to have the support they need to pass anytime soon.

In an apparent attempt to prove cliché that (recent) history is destined to repeat itself, Senate Democrats are causing as many headaches for themselves in the debate over climate change legislation as is their Republican opposition. Two Democratic bills, the Kerry-Lieberman American Power Act and the Cantwell-Collins CLEAR Act offer competing views on how emissions should be regulated. Liberal-leaning Senators, having already been snubbed on the issues of the public option in Health Insurance Reform and tougher regulation of banks and financial institutions during the financial reform debate, are threatening to walk and pull support for any bill that does not include strong incentives to limit carbon emissions. [1] And, Senator Jay Rockefeller (D-W.Va.), has gone so far as to call for the Senate to abandon efforts to enact comprehensive climate change legislation altogether, urging lawmakers instead to focus on preventing the EPA from regulating greenhouse gases. [2]

Democrats are currently trying to regroup and produce a new summer strategy that reconciles some of the opposing viewpoints within the caucus. But efforts to enact energy and climate legislation did not have such a muddled beginning.

President Obama introduced his New Energy for America plan during the campaign in 2008. The plan laid out several initiatives, including an increase in fuel economy standards, ensuring that 25 percent of U.S. electricity comes from renewable sources by 2025, the development of green jobs through investment and, notably, an economy wide cap and trade program. The cap and trade program proposed in then candidate Obama’s initial plan aimed to reduce greenhouse gas emissions 80 percent by 2050. [3]

In his inaugural address, President Obama reasserted his goals of increasing the use of renewable energy, and, immediately upon taking office in January of 2009, the President issued two memorandum addressing energy policy: one calling for an increase in fuel economy standards beginning in model year 2011, and one asking the EPA to revisit California’s request that the state be able to implement their own fuel economy standards. (The request that was initially declined by the EPA would have set California’s fuel economy standards higher than national standards). The President also praised cap and trade in his first budget proposal. [4]

The House took up the subject shortly after passing its version of Health Insurance Reform, narrowly passing the Clean Energy and Security Act with a vote of 219-212 in June of 2009. It was unclear up to the time of voting how the critical “yeas” and “nays” would be cast, but pressure from the Obama Administration and House leadership managed to keep Democrats united enough to pass the bill. The legislation puts forth some of the most sweeping changes in energy policy in decades, and would significantly change the way the U.S. handles regulation of carbon emissions. The centerpiece of the bill is a new economy wide cap and trade system aimed at cutting carbon emissions 17 percent by 2020 and 83 percent by 2050. [5]

In the Senate, however, June of 2009 was only the beginning of the infamous summer of Health Insurance Reform, with heated town hall meetings across the country and a more in-depth look at the painful sausage making process that is emblematic of the creation of complex legislation than some care to remember. Instead of leading on the issue, President Obama let Congress set the terms of the debate, which soon blossomed out of control, taking the focus off of all other legislative priorities.

The President appears to be taking the same cautious approach to climate change legislation; even after the BP gulf oil spill thrust the stark need for concrete action on energy policy back into the spotlight. In a prime time speech last Tuesday that has been widely criticized as short on actual policy suggestions, President Obama failed to call for any big changes to current energy strategy. While he did stress the need to double down on efforts to pass climate change legislation in the Senate, the President did not mention cap and trade at all, a move that is being considered a political blow to the idea and an indication that he may be backing away from support for the program. [6]

In response to the President’s most recent call for a “national mission” to find alternative sources of energy, Senate Democrats met last Thursday in an attempt to solidify thinking on several climate change bills that are currently languishing on the Senate floor. Senate Majority Leader Harry Reid (D-NV) emerged from the meeting without having achieved a consensus within his caucus, but still voiced his goal of voting on an energy bill that addresses greenhouse gas emissions and the BP oil spill before the August recess. Reid stated, “One of the many lessons of the BP disaster is we can’t afford to continue business as usual,” and added that “stalling for political purposes” will not be tolerated. [7]

Senator Reid has his work cut out for him with several competing proposals already vying for support. Senators Kerry (D-MA) and Lieberman (I-CT) have introduced the American Power Act. The Kerry-Lieberman proposal, initially supported by Senator Graham, is the most aggressive measure under consideration. It would place a cap on carbon emissions and set up a market-based system for buying and selling credits.

Senator Cantwell (D-Wash.) with support from Senator Collins (R-Maine) is promoting her CLEAR (Carbon Limits and Energy for America’s Renewal) Act, which establishes a “cap and dividend” system for regulating carbon emissions. Under this system, permits would be auctioned (not granted) to polluters and 75 percent of any profits gleaned from the system would be returned directly to consumers.

A bill introduced by Senator Bingaman (D-N.M.) last year, which cleared the Energy and Natural Resources Committee 15-8, is getting little attention. It would establish a new national renewable energy standard but does not address cap and trade.

Republicans have also thrown their hat in the ring with a bill brought to the floor by Senator Lugar (R-IN) that offers loan guarantees as incentives for new nuclear energy production, new standards for energy-efficient building construction and expands domestic oil production. The bill also does not mention cap and trade.

Cap and trade is arguably the most contentious aspect of President Obama’s original energy plan, and it is considered to be a critical part of any new energy strategy by many environmental groups and Democrats. The idea of cap and trade is not new to American political thought, nor is it something originally envisioned by liberals or even Democrats. The policy originally gained favor in the 1980s under the first Bush administration in order to control the pollutants primarily responsible for acid rain. [8]

According to supporters of a cap and trade system, two important ideas factor into the working of a market based emissions regulation system. First, pollutants have a “cost” that is not being factored into the cost of doing business. Polluters get to release pollutants for free, the cost of which is then absorbed by the public in the form of externalities like rising health care costs due to pollution based illnesses. A market based system places these costs onto the market players who are actually producing the pollution, in effect forcing the market to realize the full cost of pollutants.

Second, the best way to regulate emissions is through an economy-wide approach rather than regulation of individual polluters on a plant-by-plant basis. To this end, an overall cap is set for emissions across the board that declines slowly over time, forcing polluters to find the most cost effective means of lowering emissions to meet the lower market cap. [9]

A provision of the 1990 Clean Air Act aimed at reducing acid rain established such a market system with a decreasing cap placed on sulfur dioxide emissions. The provision also gave utility companies the ability to buy and sell permits in order to comply with the new caps. The EPA, environmental groups and economists have recognized the program as a success; hailing it as one of the most effective pollution control measures enacted in the U.S. to date. According to the Pacific Research institute, emissions of sulfur dioxide in 2007 were down 40 percent from 1990 levels. [8]

The current arguments against an economy wide cap and trade market for carbon emissions are taking the same shape as those voiced in the 1980s preceding the enactment of the Acid Rain Program: the system will kill jobs and crash the economy. The White House Chief of Staff at the time, John Sununu insisted the cap on emissions “was going to shut the economy down,” an eventuality that did not come to be. Even in the face of such opposition from within his own White House, President Bush still pushed for a cap and trade program with a strong ten million-ton cut in acid rain emissions favored by environmentalists. [10]

Republicans have also expressed recent bipartisan support for a cap and trade program to regulate greenhouse gas emissions. Senator Lindsey Graham (R-S.C.) supported the idea before he opposed it. Newt Gingrich, who, as a potential Republican presidential candidate has taken the obligatory anti-cap and trade stance, said in 2007, “I think if you have mandatory carbon caps combined with a trading system, much like we did with sulfur, and if you have a tax-incentive program for investing in the solutions, that there’s a package there that’s very, very good. And frankly, it’s something I would strongly support.” And in 2008, now California Senate candidate and cap and trade opponent Carly Fiorina said that such a system would “both create jobs and lower the cost of energy.” [9]

How did the push for comprehensive climate change legislation, and in particular cap and trade, fall from favor? Like many ideas that have to meet the approval of a diverse group of interests, some of President Obama’s original goals predictably ran into a wall of opposition from entrenched industries. Regardless of historical bipartisan support, groups opposed to cap and trade systems have successfully demonized the approach as a “tax” rather than a comprehensive market based strategy.

Fred Krupp, president of the Environmental Defense Fund, says that the decline is typical of the current political climate. “Economywide cap and trade died of what amounts to natural causes in Washington,” he said, continuing, “The term itself became too polarizing and too paralyzing in the effort to win over conservative Democrats and moderate Republicans to try to do something about climate change and our oil dependency.” [6]

Democrats floated a trial balloon on Monday in advance of today’s meeting, calling for a cap and trade system limited exclusively to electric utility companies. Manufacturing and transportation sectors would not be subject to caps, kicking the controversial economy wide emissions caps down the road to be dealt with by some future Congress.

The response to such an idea has been mixed. Both the White House and Senator Leiberman have indicated they could consider such a compromise. Other Senate Democrats and some Environmental groups worry that a limited power plant only approach would not come close to addressing the daunting problem of carbon emissions and climate change. Power companies are split with some, including Duke Energy Corp. and Constellation Energy, expressing tentative support for the idea as a last resort and others, like American Electric Power Corp., expressing support for an economy wide cap and trade program but objecting to being singled out for unique regulation. [11]

President Obama will once again try to conjure up bipartisan support for some sort of climate change legislation in his meeting with senators today. Members from both parties have been invited. Regardless of the outcome, Senate Democrats must come together behind one strategy if they hope to meet the ambitious goal of passing climate change legislation before the August recess. Lawmakers have a chance to address the challenges of climate change and continued dependence on fossil fuels with real change and new thinking, as Republicans did under the first Bush administration in the 1990s. Polls indicate that the country is ready for new energy policy. [12] Congress may or may not catch up to such thinking this year.

Recommended Reading

Sources

1. http://thehill.com/homenews/senate/104053-senate-liberals-threaten-rebellion-on-energy-bill

2. http://thehill.com/blogs/e2-wire/677-e2-wire/104005-rockefeller-abandon-far-reaching-climate-plans-for-now

3. http://energypriorities.com/entries/2009/01/obama_energy_plan.php

4. http://en.wikipedia.org/wiki/New_Energy_for_America#cite_note-1

5. http://www.opencongress.org/bill/111-s1733/show

6. http://www.nytimes.com/2010/03/26/science/earth/26climate.html

7. http://edition.cnn.com/2010/POLITICS/06/17/senate.dems.climate.change/

8. http://en.wikipedia.org/wiki/Acid_Rain_Program

9.http://www.salon.com/news/opinion/feature/2010/06/21/everley_roberts_climate_change_debate/

10. http://www.smithsonianmag.com/science-nature/Presence-of-Mind-Blue-Sky-Thinking.html?c=y&page=1

11. http://www.politico.com/news/stories/0610/38821.html

12. http://www.latimes.com/news/opinion/la-ed-climate-20100621,0,794368.story?track=rss

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The case involves the conviction of death row inmate Henry Skinner and his demands for additional DNA testing.

The Supreme Court will consider whether death row inmates can use a civil rights law to require the State to provide access to post-conviction DNA evidence. The case will determine whether convicted inmates have a federal right to demand access to DNA testing that could prove their innocence.

The case involves the conviction of death row inmate Henry Skinner and his demands for additional DNA testing. The Court stayed Skinner’s execution on March 24, an hour before he was scheduled to be executed, in order to allow more time to decide whether to hear arguments in his case. On Monday, the Court issued an order announcing the decision to review the case with no further comment.

Henry Skinner was convicted and sentenced to death in 1995 for the 1993 murders of his girlfriend and her two adult children in Pampa, Texas. Skinner maintained his innocence throughout the trial and has claimed that DNA found at the crime scene but never tested would exonerate him and point to the actual killer. The attorney who represented Skinner during his initial trial did not request the tests. However, attorneys handling appeals in his case have been attempting to get the additional materials, including bloody knives and a rape kit sample, tested for 10 years. [1]

According to Brandi Grissom, a reporter for The Texas Tribune, the question of whether Skinner himself wanted the evidence tested is unclear. In an interview on Larry King Live, Grissom said, “There’s some dispute there about whether or not he did ask for the testing at the time. Skinner says that he did. His attorneys have a different answer. And they say that they — that he agreed with them at the time that the testing shouldn’t be done. So there’s some dispute there about whether or not that testing was asked for at the time of the trial.” [2]

State prosecutors have argued that there is more than enough evidence in absence of additional DNA tests to convict Henry Skinner. However, Skinner has repeatedly claimed that at the time of the murder he was too intoxicated to be physically capable of committing the crimes. He has also argued that evidence presented at the trial implicates an uncle of the victim as her killer.

Opponents of the death penalty have been closely watching Henry Skinner’s case, and one high profile organization, the Innocence Project, has been working on behalf of Mr. Skinner. The Innocence Project is a group that investigates death row cases and represents individuals on death row.

According to the Innocence Project, more than 250 people have been exonerated by post-conviction DNA evidence. The group argues that if such evidence may exist, those who have been convicted of a crime must have access to DNA testing. Texas Governor Rick Perry has reportedly received over 8000 letters calling for a new trial as a result of Innocence Project letter writing campaigns. [3]

Texas is one of many states that have laws on the books that cover access to post-conviction DNA testing. In court documents, Texas Prosecutors argue that Henry Skinner did not meet the requirements to be eligible for additional testing under Texas law. As a rebuff to the claims made by the Innocence Project, the documents state that Texas law “contains all of the key elements that the Innocence Project recommends should be in a good DNA access law.” [4]

Mr. Skinner is petitioning the Court under Section 1983, a federal law that allows individuals to sue over violations to their Constitutional rights by either state or federal officials. Specifically, lawyers for Mr. Skinner argue that his civil rights are being violated by the State’s refusal to allow access to additional DNA evidence.

Rob Owen, an attorney representing Mr. Skinner and co-director of the University of Texas at Austin’s Capital Punishment Clinic, reacted to the news by saying, “We look forward to the opportunity to persuade the court that if a state official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit.” [5]

The Court’s decision to hear the case is significant because the ruling could help clear up disagreements among lower courts over what law may be used to petition for access to post-conviction DNA evidence. The Court will not be deciding whether the additional DNA testing should or should not be allowed. Rather, it will determine whether Mr. Skinner has a federal civil right to post-conviction DNA testing and the subsequent right to bring suit in federal court to gain access to DNA testing.

Federal courts are split on the issue of whether civil rights claims can be brought in post-conviction death row cases where inmates are demanding access to DNA testing. The 5th Circuit Court of Appeals denied Skinner’s request for additional DNA tests, ruling that the case must brought as a federal habeas challenge. Overall, two federal appeals courts, including the 5th Circuit, do not allow civil rights claims, five have not ruled or are undecided on the issue, and five allow civil rights claims in such cases. [6]

The 5th Circuit, in denying Skinner’s request, ruled from the assumption that since the request for additional testing was intended to exonerate him, it should be considered the equivalent of a petition for release. As such, it could not be heard as a civil rights case but must be brought as a habeas petition. Other courts have found that a request for additional DNA testing is a request in and of itself, separate from a petition for release, and therefore can be considered as a civil rights case.

Habeas corpus petitions are allowed under U.S. law as redress for unlawful imprisonment. Individuals may file habeas claims to appeal for release from state or federal institutions on the grounds that they are innocent and are therefore being wrongfully held. The U.S. Constitution guarantees the right federally, and the right was applied to states after the Civil War. [7]

The Supreme Court ruled in 2009 that access to DNA testing is not guaranteed by the Constitution. In the case, District Attorney’s Office v. Osborne, the Court ruled 5-4 that even if a convicted inmate could gain irrefutable proof of innocence through additional testing, access to that testing is not a Constitutional right. The majority for the case relied heavily on the fact that most states (46 at the time and 47 currently) already have laws covering access to post-conviction DNA testing. Justice Alito, writing in a concurring opinion, also stated that giving individuals the ability to forgo DNA evidence at trial then demand it post-conviction, “would allow prisoners to play games with the criminal justice system.” [8]

However Justice Stevens, dissenting, wrote that the Constitution’s due process clause guarantees access to DNA testing. Since the Court will most likely hear arguments in their session starting in October, Justice Stevens will not be involved in deciding Henry Skinner’s case. [8]

Although the Court ruled in Osborne against a Constitutional, “free-standing” right to DNA testing, it left the door open to just such a civil rights challenge.

The Supreme Court case is Skinner v. Switzer (09-9000).

Sources

1. http://www.reuters.com/article/idUSTRE64N3BD20100524?type=domesticNews, Reuters
2. http://transcripts.cnn.com/TRANSCRIPTS/1003/24/lkl.01.html, CNN Transcript
3. http://news.blogs.cnn.com/2010/05/24/u-s-supreme-court-to-hear-texas-death-row-case/, CNN
4. http://www.businessweek.com/news/2010-05-24/u-s-high-court-to-consider-dna-access-in-texas-execution-case.html, Businessweek.com
5. http://www.texastribune.org/blogs/post/2010/may/24/tribblog-supremes-will-hear-hank-skinner-dna-case/, The Texas Tribune
6. http://www.chron.com/disp/story.mpl/metropolitan/7019528.html, The Houston Chronicle
7. http://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States
8. http://www.nytimes.com/2009/06/19/us/19scotus.html, The New York Times

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The Supreme Court heard arguments on Tuesday regarding Monsanto Co. v. Geertson Seed Farms.

The Court’s decision in the case Monsanto Co. v. Geertson Seed Farms could have an impact on the threshold for challenges under the National Environmental Policy Act (NEPA).

The Supreme Court heard arguments on Tuesday in a case involving genetically modified crops that set the stage for the Court’s first ever ruling on the subject. The case centers around a judge’s injunction preventing the use of a type of herbicidal resistant alfalfa, known as Roundup Ready, produced by the agriculture and biotech company, Monsanto (NYSE: MON). Monsanto produces both the herbicide Roundup and the breed of resistant alfalfa in question.

In the case, the Court is considering the environmental impact of genetically modified crops, not their safety. The decision is not predicted to be a sweeping or broad ranging statement on the ability of government to regulate genetically modified foods or on the merits of doing so. But, it could affect the viability of future challenges under the NEPA because it is expected the Court will dictate a new standard for those bringing claims.

According to the 2000 Plant Protection Act, the USDA’s Animal and Plant Health Inspection Service (APHIS) is charged with promoting regulations that prevent the “introduction of plant pests into the United States or the dissemination of plant pests within the United States.” ^[1] This includes the regulation of genetically modified organisms and plants, and APHIS has issued some regulations governing such organisms. Monsanto petitioned APHIS in 2004, claiming that their pest resistant alfalfa was not subject to regulations under the Plant Protection Act.

As was required, APHIS prepared an Environmental Assessment (EA), and approved Roundup Ready alfalfa for use in 2005. Some farmers began planting the crop. In 2006, a group of organic farmers, conventional farmers and environmental groups, led by Phillip Geertson of Geertson Seed Farms, sued, claiming that the initial government review was insufficient. AHPIS, they claim, should have produced an Environmental Impact Statement (EIS) in response to Monsanto’s petition. Geertson also argued that the agency’s Environmental Assessment was lacking and that the use of herbicide resistant alfalfa could result in the cross-contamination of non-genetically modified crops, hindering the farmers’ ability to sell their products domestically and abroad. ^{[2] [3]}

A judge agreed with the plaintiffs and ordered an injunction preventing the nationwide use of Roundup Ready alfalfa. Monsanto appealed to the 9^th Circuit Court of Appeals, where the injunction was upheld.

U.S. District Judge Charles Breyer wrote in his 2007 decision upholding the injunction that, while the Court accepted the government’s assertion that the crop has no adverse health effects on humans or livestock, health issues are only one of the potential causes of harm that must be addressed. Judge Breyer wrote, “A federal action that eliminates a farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat non-genetically engineered food, is an undesirable consequence: another NEPA goal is to maintain, wherever possible, an environment which supports diversity and variety of individual choice.” ^[4]

In its brief to the Court, Monsanto argued that the injunction preventing the use of their alfalfa seed was overbroad, and that the standard the lower courts used in determining harm was too low. According to Monsanto, the possibility that their breed of alfalfa could infiltrate organic and conventional crops belongs in the realm of “science fiction.” ^[3] They also contend that the use of a lower standard of harm “virtually requires a federal court to grant an injunction against proposed federal action” in any cases brought under the NEPA. ^[5]

Instead, Monsanto wants the Supreme Court to determine that plaintiffs in cases brought under the NEPA must show a “likelihood of irreparable harm” in order to win an injunction.

Supporters of Geertson believe that the ability of states to protect natural resources and the ability of citizens to obtain complete information regarding the impact of federal actions will be dangerously hindered if Monsanto prevails in its suit.

Environmental groups also claim that the ability of citizens to challenge the actions of the government on environmental grounds is critical to a functioning democracy. Union of Concerned Scientists member Doug Gurian-Sherman said of the case, “If the court moves towards choking off some of those checks and balances in the form of the public’s ability to challenge an agency, I think that would have some chilling effect on the operation of science in our democracy.” The Union of Concerned Scientists has filed a brief in support of Geertson. ^[6]

Members of the organic food industry, environmental groups, including Defenders of Wildlife and the National Resources Defense Council, as well as some State Attorneys General have also filed briefs in support of the defendants. Business groups, including the US Chamber of Commerce, The American Petroleum Institute and the National Association of Homebuilders as well as some biotech and agricultural groups have filed briefs on behalf of the plaintiffs. ^[7]

The USDA has been continuing its work on the required Environmental Impact Statement as the case has made its way through the lower courts and onto the Supreme Court docket. The ban on the use of Monsanto’s seeds would end once the agency completes its review, essentially rendering one aspect of the Court’s decision moot.  However, the issue before the court that has environmental, agricultural and business groups paying attention is what standard of harm the Court will uphold for cases filed under the NEPA.

Lower courts have repeatedly ruled that plaintiffs are exempt from showing a “likelihood of irreparable harm” in such cases, and must simply show a “possibility of irreparable harm.” The “possibility” of harm standard was used by the 9^th Circuit Court as part of the finding for upholding the injunction. ^[4]

If the Court finds for Monsanto, the burden on the government to provide thorough public Environmental Impact Statements will be reduced. If it finds for Geertson, it will affirm the position that the law requires full disclosure from the government in cases where potential environmental harm could result from the deregulation of a product.

The Supreme Court has decided one case involving the “likelihood of irreparable harm” standard, Winter v. NRDC in 2008. Monsanto’s arguments rely heavily on the Court’s decision in this case.

The issue under consideration in Winter was the legality of the use of sonar in Navy training activities. Environmental groups protested the use of sonar, arguing that it was known to cause harm to marine life. The Navy issued an Environmental Assessment but did not release an Environmental Impact Statement. The National Resources Defense Council sued in an attempt to halt the exercises, but a district court allowed the Navy to proceed with some added restrictions. The case made its way to the Supreme Court, with the Navy making a very similar argument: that the lower courts had relied only on the mere “possibility” of environmental harm when making rulings. ^[8]

In a decision, written by Chief Justice Roberts, the Court found in favor of the Navy, stating that harm must be “likely” and that an injunction is an “extraordinary remedy” requiring a “clear showing” of the success of a plaintiff’s argument. ^[8]

Given the decision in Winter, the Court’s history regarding environmental decisions handed down by the 9^th Circuit Court, and the tone of the Justice’s questioning during oral arguments, it appears likely that the Circuit Court’s decision will be overturned. Of the five decisions favoring environmentalists the Supreme Court overturned last year, four of them came from the 9^th Circuit. ^[3]

During arguments, the Justices seemed critical of the respondent’s claims that the genetically modified crops would cause harm. They also appeared unconvinced of the lower court’s authority to enforce a complete ban, with Chief Justice Roberts questioning why the injunction was issued at all. When reflecting on the potential impact of the genetically modified crop, Justice Antonin Scalia said, “This isn’t the contamination of the New York City water supply. This isn’t the end of the world, it really isn’t.” ^[9]

Justice Breyer, who is considered to be a member of the “liberal” wing of the Court, is not involved in the case since his brother wrote the decision under consideration. Environmental advocacy groups urged Justice Thomas to recuse himself on the grounds that he worked as an attorney for Monsanto in the 1970s and wrote the decision in a 2001 case that provided the legal grounds for companies like Monsanto to be able to patent seeds. ^[10] These efforts were unsuccessful.

A decision is expected in late June or July.

Sources

1. http://www.sustainablebusiness.com/index.cfm/go/news.display/id/20206
2. http://www.nytimes.com/gwire/2010/04/22/22greenwire-supreme-court-to-take-first-look-at-genetically-4425.html?pagewanted=1
3. Decision, United States District Court For the Northern District of California
4. http://www.wlf.org/litigating/case_detail.asp?id=600
5. news/american-life/US-Supreme-Court-Considers-Genetically-Modified-Crops–92168999.html” target=”_blank”>http://www1.voanews.com/english/news/american-life/US-Supreme-Court-Considers-Genetically-Modified-Crops–92168999.html
6. http://minnesotaindependent.com/58024/u-s-supreme-court-to-hear-arguments-in-monsanto-case-tuesday
7. http://www.scotuswiki.com/index.php?title=Winter%2C_et_al._v._Natural_Resources_Defense_Council%2C_Inc.%2C_et_al.
8. http://www.google.com/hostednews/ap/article/ALeqM5isgbi9DSGVLOvoyTQ3f8M–Aw4sQD9FBGO1O0, The Associated Press
9. http://iowaindependent.com/32870/justice-with-past-monsanto-ties-should-recuse-himself-environmentalists-say

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Democrats are vowing to bring financial reform to the forefront of the current legislative agenda, with President Obama pushing for a completed bill to be on his desk by the Memorial Day break. The President announced on Monday that he would actively push for tougher regulation as the Dodd bill makes its way to the Senate floor. [1] Financial reform legislation has already seen its share of ups and downs, having been declared dead and been brought back to life on more than one occasion. Then again, mere months ago health insurance reform was considered dead and unable to be revived by Washington insiders, following the election of Massachusetts Senator Scott Brown. Democrats managed to revive, pass and get that reform signed into law, and are now turning their newfound power to win victories with their Congressional majorities, in effort to pass financial and banking regulation. Many Beltway insiders are beginning to treat the passage of a financial reform package as inevitable. Even Republican Senator Judd Gregg has stated that the chance of a bill passing the Senate is “100%”. [2] While momentum may be turning toward the passage of some sort of financial reform, the final shape it may take is far from settled.

In a broad sense, financial regulation and reform aims to strengthen and simplify what is currently a patchwork of regulations overseen by a variety of agencies, and to fix a system that essentially allows banks and financial institutions to shop around for a regulator that they like.

Three different plans for the shape of financial regulation have emerged as the legislative process crept forward over the past year: the recommendations of President Obama, a bill passed by the House in 2009, and the revised Dodd bill which passed the Senate Banking Committee last month. Both the House bill and the Dodd bill passed without any Republican support, and neither bill is as tough as the original recommendations of the President. Critics, and some economists are accusing the Senate bill of having the fewest regulatory teeth of the three proposals. [3]

Each plan attempts to address a variety of systemic problems with the current banking and financial system responsible for contributing to the 2008 financial crisis that consumers and employers are still feeling the effects of today.

For example, remember a time over a year ago when everyone realized how much money banking executives were taking home, even as taxpayers and shareholders were left paying the price for their critical mistakes? Compensation structures allowed traders, bankers and brokers to reap the benefits of enormous profits while taxpayers and shareholders paid for the losses and took on all the risk. President Obama proposed limiting executive salaries and bonuses at the time, with banks unanimously crying foul, but to date nothing has been done to address the issue of compensation. General outrage at the policies has continued unabated.

Both the Dodd bill and the House bill take a stab at executive compensation, but the proposals are weak in terms of the real effect they may have on compensation policies. Each bill gives shareholders a non-binding vote on executive compensation, and the Dodd bill requires executives to return compensation that was based on inaccurate or non-compliant financial statements. Even the Federal Reserve has gone farther than that with a proposal to give itself the power to oversee the compensation policies of the nation’s largest banks. [4] [5]

Another aspect of the regulation that is drawing a lot of heat for being riddled with loopholes is that which deals with derivatives and other “exotic” financial instruments – in particular over-the-counter derivatives. Most economists agree that derivates do serve a useful purpose, allowing people like farmers or industries like airlines to protect themselves from fluctuations in prices of, for example, corn or fuel. But over-the-counter derivatives are completely unregulated and out of the public view. No one really knows, and not many people can explain, what is actually happening in the derivatives market. The unregulated black hole of over-the-counter derivatives is often cited as one of the major culprits behind the failures and bailouts of 2008. [6]

President Obama has pushed to bring the derivatives market into the open and into a regulatory framework in order to prevent the type of speculation that was seen in the run up to the financial meltdown. Both the House bill and the Dodd bill propose bringing derivatives into exchanges that could be monitored, but most analysts agree that the bills will essentially allow business to go on as usual. According to Rob Johnson, Director of the Roosevelt Institute’s Global Finance Project, “Most of it is just codifying current behavior through loopholes.” [5]

Financial reform efforts will also attempt to create the legal authority for an agency to monitor and oversee an orderly dismantling of failing financial institutions and to address the problem of banks becoming too big to fail. Again, the solutions offered to these problems are drawing criticism. Republicans, perhaps realizing that opposition to financial reform is politically risky, have already indicated that this is the tack they are going to take to oppose the legislation. In a floor speech on Tuesday, Senate Minority Leader Mitch McConnell claimed that the Dodd bill “institutionalizes” taxpayer funded bailouts. [7]

This sentiment has been echoed in the House, with Republican Representative Spencer Bachus claiming, “Instead of real reform, the Democrats’ proposals would write into law the ad hoc government response to the economic crisis that put taxpayers on the hook for bailouts, rewarded Wall Street’s failures and froze capital needed to create jobs.” [8]

Both McConnell and Bachus argue that banks should simply be allowed to fail, with Bachus’ own plan calling for banks to solve their problems by filing for bankruptcy.

But, does this rhetoric match the actual language of the bills? Both bills do deal with the issue of a resolution authority – an organized process by which failing firms agree to shut down. In each of the bills, institutions with at least $10 billion in assets will be required to draw up a “living will” that will govern the shutting down or breaking up of the institution should the need arise. According to the House bill, the process would be funded by a before the fact fee on the institutions themselves. The Dodd bill would fund the resolution with an after the fact assessment.

Both bills also give regulators the legal authority to break up banks and institutions should they become “too big to fail.” The Dodd bill would form a nine member Financial Stability Oversight Council, led by the Treasury Secretary, charged with identifying institutions or products that pose a systemic risk. The Council could vote to give the Federal Reserve the authority to regulate non-banks that it sees as unnecessarily risky. Similarly, the House bill authorizes a systemic risk council whose decisions would be enforced by the Federal Reserve. [9]

According to supporters of the Dodd bill, crafting a plan for shutting down risky and unstable banks and financial institutions would prevent precisely the type of ad hoc, ‘bail out some and let others fail’ approach that led to the taxpayer-funded Wall Street bailouts McConnell claims the bill would reinforce. And, providing a funding mechanism that relies on fees levied on the financial institutions themselves is an effort to prevent taxpayers from again having to foot the bill. However, critics who fear the bill does not go far enough worry that, while an orderly process of shutting companies down may prevent another meltdown, the bill does little to address preventing banks and financial corporations from becoming too big to fail in the first place.

Although the argument that the Dodd bill codifies taxpayer-funded bailouts is disingenuous at best, it may be the most powerful argument Republicans have come up with so far to oppose the legislation. The standard talking point over the last year of political posturing and failed negotiations has been that banks actually need less regulation in order to prevent future crises. While this may be in line with the political ideology of deregulation, it does not go over well with a public that already feels repeatedly cheated by large banks and financial institutions.

Perhaps the most contentious aspect of the financial reform overhaul is that of the Consumer Financial Protection Agency. President Obama originally proposed an independent agency that would oversee financial products like credit cards and home mortgages and protect consumers from predatory practices. There is currently no regulatory body in charge of monitoring financial abuses and protecting consumers. Elizabeth Warren, chair of the Congressional Oversight Panel for the TARP bailout, has also argued passionately for such an agency. Warren argues, “The CFPA is the best indicator of whether Congress will reform Wall Street or whether it will continue to give Wall Street whatever it wants.” [10] Warren argues that consumers must be protected from banks that wish to profit from muddled, difficult to understand and inconsistent rules.

The House Bill does establish an independent, freestanding Consumer Financial Protection Agency. The agency would have an independent director appointed by the President and would have the power to both write rules and to enforce them. The Dodd bill does not go quite as far as an independent agency, instead creating a Consumer Financial Protection Bureau that is housed within and financed by the Federal Reserve. The Bureau would also have an “independent” director appointed by the President with rule making authority but some limits on the ability to enforce those rules. The Bureau would only be able to regulate banks with at least $10 billion in assets, as well as some of the largest financial companies and loan originators. [11]

Proponents of the Consumer Financial Protection Agency worry that it will become further watered down once the Dodd bill reaches the Senate floor for debate. John Taylor, president of the National Community Reinvestment Coalition, says of the bill in its current form, “It’s the consumer abuse and the lack of accountability and the lack of oversight of the lenders that got us into this mess. Unfortunately, it looks like this agency is independent in name only.” [3]

Republicans have already promised to offer amendments to the Dodd bill in a process reminiscent of the recent health insurance reform battle. While claiming that the security of the financial system is of paramount importance, the strategy here is to make as many changes to the bill as possible and ultimately vote “no” regardless. Democrats believe that they can draw some Republicans over to their side of the aisle because of the political popularity of financial reform, and are in some cases practically daring Republicans to vote “no.” But, recent history has revealed unwillingness on the part of the Republican caucus to support even the parts of legislation that they themselves have written, so certainly no aisle crossing is guaranteed.

Timothy Geitner, in an editorial in the Washington Post on Tuesday, claimed that regardless of opposition, now is the time to pass reform. Geitner wrote, “This is a defining moment for financial reform. We have to get it right. We cannot build a system that relies solely on the wisdom and judgment of future regulators.” [12]

Already, some Democrats, frustrated by the tendency of legislation to be rendered less effective as debate wears on, are pushing the argument that some of the reforms in the bill should be made stronger. According to Senator Byron Dorgan, “Given that [large financial firms] steered this country into the ditch, it’s going to be very hard to stand up on the floor and say don’t do financial reform or do it without teeth.” He continues, “There are a number of people in our caucus who feel like there are things that can be done to strengthen it.” [13]

President Obama met with the leadership of both parties at the White House on Wednesday to emphasize the need to move quickly on reform. Speaking about the need to modernize the system to better deal with current challenges, the President said, “An unfettered market where people are taking huge risks and expecting taxpayers to bail them out when things turn sour is simply not acceptable.” [14] Although the meeting may have been an effort to stem the partisan rancor over financial reform as the debate heats up, Senator McConnell left the meeting indicating that little in his opinion had changed, claiming, “If you look at it carefully it will lead to endless taxpayer bailouts of Wall Street banks.” [14]

The true test of this resolve is whether or not Democrats and President Obama will take their newfound sense of boldness (or at least of semi-boldness) and apply it to the art of legislating. The Dodd bill still has to face debate on the Senate floor and must be reconciled with the bill already passed by the House in December. We have seen a lot of sausage making in the last year, particularly with the in again, out again public option saga in the healthcare debate. Will the process dilute financial reform as well?

The Dodd bill and to a slightly lesser extent, the House bill, face opposition from both the right and the left. It is often said that the best sign of a good compromise is that neither side comes out of the process happy. And President Obama has made bi-partisan compromise a key element of his political philosophy. But the best test of legislation is not who is happy and who is not or whether bi-partisanship ruled the day. The true test of legislation is whether or not it works; in this case whether it protects consumers and financial markets. We have learned some hard lessons about financial markets in the past two years. When the Senate takes up financial reform this session, hopefully it will keep the right goals in mind.

Sources

1. http://www.reuters.com/article/idUSN131485120100413?type=marketsNews, Reuters

2. http://www.time.com/time/nation/article/0,8599,1977987,00.html, TIME, Financial Reform: Far from a Done Deal in Congress

3. http://www.msnbc.msn.com/id/36001671/ns/business-eye_on_the_economy/page/2/,

4. http://www.financialreformwatch.com/tags/restoring-american-financial-s/, Financial Reform Watch, Dodd Gets the Ball Rolling on Financial Overhaul; Unveils Sweeping Legislation

5. http://www.usatoday.com/money/companies/regulation/2010-03-15-financial-reform-cover_N.htm, USA Today, Dodd’s 2nd shot at financial reform still leaves loopholes

6. http://www.nytimes.com/2009/05/14/business/14regs.html, The New York Times, Obama Proposes a First Overhaul of Finance Rules

7. http://online.wsj.com/article/SB10001424052702303695604575182111431255700.html?mod=googlenews_wsj, The Wall Street Journal, Senate Republicans Blast Regulatory-Overhaul Bill

8. http://wonkroom.thinkprogress.org/2010/04/12/bachus-aig/, Think Progress

9. http://www.nasdaq.com/aspx/stock-market-news-story.aspx?storyid=201004131100dowjonesdjonline000245&title=feds-tarullo-urges-advisory-body-to-systemic-risk-council, Fed’s Tarullo Urges Advisory Body to Systemic Risk Council

10. http://www.newser.com/story/78581/dems-may-cave-on-consumer-agency.html

11. http://www.nytimes.com/interactive/2010/03/16/business/financialreform-billcompare.html, The New York Times, Comparing the House and Senate Financial Reform Bills

12. http://www.reuters.com/article/idUSTRE63C05X20100413, Reuters

13. http://www.politico.com/news/stories/0410/35642.html, Politico, Democrats eager to take on Wall Street

14. http://www.abc.net.au/news/stories/2010/04/15/2873367.htm?section=justin, Obama comes out firing for economic reform

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The Supreme Court did not issue any opinions this week, choosing instead to issue orders and refuse to hear a series of appeals. Without any precedent setting landmark decisions, the big news this week revolved instead around a speculative frenzy over the potential retirement of Justice John Paul Stevens. On Monday, the Supreme Court issued the series of orders that declined to hear any new cases at this time. The most widely discussed of these is Al-Turki v. Colorado, a case involving jury bias. Homaidan Al-Turki, who was convicted of the sexual assault of his housekeeper, appealed his conviction because one of the jury members admitted to a potential bias against the Muslim faith. The defense attempted to question the juror about his views and bias, but the judge refused to allow the juror to be challenged. By refusing to hear the case, the Supreme Court allowed the conviction to stand and upheld the State’s standard that a juror could not be questioned unless he or she exhibited “unequivocally an actual bias.” [1] The Court also refused to hear a case involving damage claims against the US government by residents of the Marshall Islands who were removed from their homes and whose property was destroyed during years of atomic testing, thus essentially shutting down all claims. And, Justices dodged the issues of religious bias in the workplace, warrantless entry into a drunk driving suspect’s home, and the ability of US citizens to sue foreign corporations in injury or wrongful death cases. [1]

The Supreme Court is scheduled to begin hearing arguments, and likely issuing orders, on April 19th. And, according to the Supreme Court schedule on SCOTUSblog, opinions are not likely until the 20th. Congress is also in the middle of a two-week break and will be back in session on Monday, April 12.

With both Congress and the Supreme Court enjoying spring recess, what is a politician, pundit, or policy wonk to do?

Possibly one of the most popular ways to while away the time on a slow news day is speculation. Everyone can speculate, and it can even be fun. Did you hear there is already a short list of candidates to replace Justice Stevens – the Justice who is thinking about maybe possibly retiring sometime soon? That is, of course, unless he takes Arlen Specter’s advice and waits awhile. [2] Will it be this year? Next?

Stevens, who turns 90 this month, has long been rumored to be the “most likely to retire” of all Associate Justices. This rumor was put into overdrive this week, when an interview with Jeffrey Toobin, Stevens said, “You can say I will retire within the next three years.” He then continued by saying he would most likely make a decision within the month. [3] It is no surprise to those familiar with Justice Stevens and his judicial philosophy that he would choose to retire during the term of Democratic president. His three year window is, to say the least, unsurprising.

Another good, wholesome spring break activity, led this recess by Republican Senator Jon Kyl, is rallying around a good partisan threat. Appearing on Fox News, Kyl did everything but threaten a filibuster of the nominee who may be, saying he hoped Obama would avoid nominating anyone too “ideological.” The filibuster is not a weapon Republicans want to use, according to Kyl, but it is, of course, not one that is completely off the table either. [4]

Kyl isn’t new to this type of preemptive filibuster of not-yet-nominated Justices. In 2008, just days after President Obama was elected, and well before anyone had announced a retirement, Kyl, at a meeting of the Federalist society, said that if the President were to nominate an individual with “empathy” that person may face a filibuster. [5]

Judging from the already large volume of articles, speculation and response to Stevens’ comments, it looks like we might be facing another hyperbole-filled nomination showdown fanned by the fire of intense pundit speculation and inevitable Senatorial political posturing. Stevens’ announcement has unleashed what Slate has called a journalistic “pie-eating contest” in which every scrap is gobbled up and journalists “speculate to the breaking point.” [6]

As a service to our readers, as we collectively select the next Supreme Court nominee in anticipation of the Real Thing, I would like to offer a brief guide to the buzzwords most likely to be used during the coming wait for an official retirement and Presidential nomination.

Qualified. Qualified is a tricky word, being by definition, subjective. The Constitution does not set qualification standards for Supreme Court Justices; the President can nominate pretty much anyone he wants. Some presidents choose to nominate attorneys who have served on the bench, and some do not. Whatever the experiences of the nominee, barring the George W. Bush Harriet Meyers debacle of 2005, generally Presidents are careful to pick extremely qualified candidates.

During nomination hearings, much is often made of the rating handed down by the American Bar Association Standing Committee on the Federal Judiciary, which rates nominees as “Well Qualified,” “Qualified” or “Not Qualified.” The general consensus is that a “Well Qualified” is a positive statement about the nominee’s ability to perform as a Justice. (Unfortunately, the rating may hold more weight with Senators who agree ideologically with the nominee.)

This brings us back to Senator Kyl’s thinly veiled warning to President Obama about the ideological proclivities of his potential nominee. According to Kyl, “I think the president should nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test…” [14] This statement implies that there is some link between nominees not being “overly ideological” and also being “qualified.” What, exactly, is the test? It seems in Senator Kyl’s case to be the ideology, not the qualifications borne from intellect and experience.

Judicial Activism. The term judicial activism, and its sister, judicial restraint, are used in such excess that they have become almost completely devoid of meaning. In theory, judicial activism refers to the act of interpreting law according to political beliefs rather than the original intent of the law. But the original intent of whom? The law according to whose point of view? You may be noticing a theme here, but the concept of who is and is not a judicial activist strongly depends on the perspective of the accuser. Judicial activism has become little more than a fancy way of saying “one who does not agree with me.”

Whomever President Obama picks when the time comes will most likely be considered a judicial activist by around thirty percent of the Senate, regardless of political philosophy or judicial record. Keep in mind some of these will inevitably be the same Senators who happily voted for Chief Justice Roberts, whose membership in the Federalist Society was supposed to ensure his judicial restraint. Roberts now leads a court accused of being one of the more “activist” courts in recent history, [7] particularly after its decision in Citizens United. It was Roberts who decided to hear the case on broad First Amendment grounds instead of the original narrow grounds upon which it was brought. The resulting decision overturned multiple precedents and flew in the face of nearly a century of American political thought.

Up or Down Vote. This is an unnecessarily lengthy way of saying “majority rules,” which, historically, it has. No Associate Justice has ever been successfully filibustered, so to do so would break with, well, the entire history of the United States. [8]

We have all heard this term ad nauseum, so a brief explanation will do. A Senator who cries “up or down vote” is essentially saying, “Stop your filibuster threats and let’s decide this with a simple majority.” Only about 26% of Americans know that it takes 60 votes to break a filibuster, [9] so this is a handy rhetorical trick used by supporters of a nominee to explain the injustice of a filibuster – at least from their point of view.*

Pay close attention to Senator Jeff Sessions, who argued in 2005 that, “Since the founding of the Republic, we have understood that there was a two-thirds supermajority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done.” [10]

Will that standard apply to Obama nominees? Speculation may be the name of the game, but we will have to wait and see.

And not to pick on Jon Kyl, but the now filibuster threatening Arizona Senator also said in 2005, “Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we’re not changing the rules in the middle of the game.” [11]

*It is important to note that in terms of Health Insurance Reform, an up or down vote, decided by a majority, is also a way of cramming legislation down America’s throat. [12] Will we hear accusations of cramming Justices down our throats? The comedy writes itself, but hopefully the debate will not degenerate to that point.

The Short List. The short list is one item that, magically and without any confirmation from the administration, most pundits agree upon. Although, in fairness, two of the names were floated before the nomination of Justice Sotomayor. The short list of nominees consists of the top three, Solicitor General Elena Kagan, and federal appeals court judges Diane Wood and Merrick Garland. Judge Wood is accused by some of being the most liberal and therefore the most likely to provoke a fight. [13]

Some other names that have been bandied about are Cass Sunstein, a law professor at the University of Chicago and Senator Amy Klobuchar, who has expressed a lack of interest in the not yet available position.

While politicians and political analysts decry the state of debate in this country, and often rightfully so, they will most likely continue to participate in the pie-eating contest all the same. The eventual nomination and subsequent fight over said nominee are likely to follow the same patterns of the past 10 years with a lot of rhetoric, no small amount of hyperbole, and ultimately a Senate that confirms the President’s nominee. How long Stevens will sit back and enjoy the show before announcing his retirement is anyone’s guess.

Sources

1. SCOTUSblog.com, http://www.scotusblog.com/2010/04/court-passes-up-jury-bias-case/
2. The Washington Post, http://voices.washingtonpost.com/44/2010/04/specter-urges-justice-stevens.html
3. The New Yorker, http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin
4. The Kansas City Star, http://voices.kansascity.com/node/8471
5. Crooksandliars.com, http://crooksandliars.com/john-amato/rep-jon-kyl-vows-filibuster-obamas-poss
6. Slate.com, http://www.slate.com/id/2249929/
7. The American Prospect, http://www.prospect.org/cs/articles?article=the_most_activist_court
8. http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
9. Pew Research, http://pewresearch.org/pubs/1478/political-iq-quiz-knowledge-filibuster-debt-colbert-steele
10. The Huffington Post, http://www.huffingtonpost.com/2009/05/04/jeff-sessions-top-goper-o_n_195803.html
11. The Huffington Post, http://www.huffingtonpost.com/daniel-cluchey/no-justices-no-peace_b_526491.html
12. Mediamatters.org, http://mediamatters.org/research/201001200052
13. CBS, http://www.cbsnews.com/stories/2010/04/05/politics/main6366318.shtml
14. Fox News, http://www.foxnews.com/politics/2010/04/04/sen-kyl-fires-shot-battle-supreme-court-nominee/

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

“]

Supporters of Proposition 8 hold a rally in 2008 in Fresno, California. Perry v. Schwarzenegger challenges the constitutional validity of Prop 8. Photo by Richard Johnstone [18

The question of whether gay and lesbian couples should be able to marry and enjoy all of the legal and purported emotional benefits of the institution has taken the forefront in state legislatures, courts and on the ballot since Massachusetts became the first state to legalize same sex marriage in 2004. Following that initial victory for supporters of gay marriage, results have been mixed. Four more states and the District of Columbia have legalized gay marriage, while opponents scored a number of electoral victories, most notably the passing of Proposition 8 making gay marriage illegal in California. ^[1]

While both supporters and opponents of gay marriage are continuing to focus efforts on winning public support and ultimately votes in favor of their positions, others are turning to the courts. Whether or not this is a good strategy remains to be seen, perhaps sooner rather than later. It is beginning to appear progressively more inevitable that the Supreme Court will be forced to weigh in on the gay marriage issue. And with little precedent, and a Court that has proven a recent willingness to overturn precedent at that ^[2], both sides are guessing at where the Supreme Court will come down on the issue.

The Supreme Court has weighed in on few cases specifically involving gay marriage, leaving the door open to speculation about what arguments, if any, will hold water with individual justices. And recent sessions have not clarified the issue. Since the Supreme Court began taking cases in its opening session in January of 2010, it has both agreed to hear and refused to intervene in three cases involving gay marriage and gay rights issues. ^[3]

Most recently, in early March, the Court declined to issue a stay on a Washington DC act legalizing gay marriage, thus removing the final hurdle and allowing gay marriage to become legal in the District. Chief Justice Roberts, acting as Circuit Justice for the DC Circuit, wrote the opinion. In it, he stated that the Court did not historically interfere in matters of “local concern” in the District of Columbia. However, he left the door open to future challenges to the law, stating, “[T]he D. C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.”  ^[4]

The Court has also agreed to hear two cases concerning gay rights, although only one is related to the issue of gay marriage. The first, Snyder v. Phelps, et al., involves the Westboro Baptist Church, headquartered in Topeka, Kansas, and famous for its nationwide, hate-filled, ant-gay protests at military funerals. Specifically, the Court will decide whether Albert Snyder, whose son, Marine Lance Corporal Matthew A. Snyder was killed in Iraq, is entitled to the $5 million settlement initially granted to him by a Maryland court. The settlement was granted on the basis of “intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.” ^[5] Arguments are scheduled to be heard during the October 2010 Supreme Court session.

The second case concerns Referendum 71, a Washington state ballot initiative asking voters to weigh in on a bill granting domestic partners the same benefits as legally married couples. The Washington legislature approved the bill, which was then put on the ballot under a provision of Washington law allowing a public vote on bills approved by the legislature if enough signatures are gathered. The anti-gay marriage group, Protect Marriage Washington, gathered the requisite number of signatures in the hopes that voters would veto the legislature’s decision. The referendum was ultimately approved, granting legal protections to domestic partners. ^[7]

The issue before the Supreme Court is whether the names of the individuals who signed the petition asking Referendum 71 to be subject to a veto vote can be released as public record. Although Attorney General Rob McKenna initially announced the names would be released, Protect Marriage Washington won a temporary stay from U.S. District Judge Benjamin Settle on the basis that releasing the names could infringe upon the First Amendment free speech rights of the signers. Project Marriage Washington argues that signers of the petition would be subject to attacks by supporters of gay marriage and that the release of the names may discourage people from exercising their right to political free speech in the future. ^[6]

Both advocates for government transparency and gay rights activists argue the names should be made public. The 9th U.S. Circuit Court of Appeals reversed the District Court decision, allowing the release of the names as a matter of public record. Upon appeal to the Supreme Court, Justice Kennedy intervened to place a temporary stay on the release of the names. The Supreme Court then agreed to hear arguments in the case, which are scheduled for late April. ^[6]

With two cases on the docket and one turned down, what indication has the Court given about its proclivity to support or oppose gay rights and gay marriage on a federal level? Unfortunately for those with a stake in the issue, not much. To date, the court has only directly intervened in two cases involving gay marriage: Referendum 71 in Washington and Hollingsworth v. Perry in California.

In Hollingsworth, the Court stepped in to prevent the public broadcast of arguments in a case challenging the constitutionality of Proposition 8. Initially, U.S. District Chief Judge Vaughn Walker announced the trial would be streamed online (on a delay), allowing oral arguments to be viewed by the public. In a 5-4 decision, the Supreme Court barred the trial from being broadcast, stating that opponents of gay marriage might be subject to harassment should their identities be made public. Some pundits see this as a bad omen for supporters of gay marriage in that it indicates the Court is looking at the argument from the point of view of the opposition. It is the opposition that are the victims and may be harassed, not homosexuals. ^[8]

In both of these cases, and the case involving the hate-filled rhetoric of the Westboro Baptist Church, the primary issues involved are Free Speech and Privacy. Gay rights advocates and opponents are involved, but the issue of gay rights and gay marriage is at best tangential. And Roberts’ refusal to intervene in the Washington DC case was procedural, giving no real indication of his stance on the constitutionality of the DC law.

Two justices, Antonin Scalia and Clarence Thomas, can be counted on to vote against gay marriage in any form, no matter how strong the legal argument(s) in its favor may be. Both Justices dissented in the 2003 case Lawerence v. Texas, which struck down a Texas anti-sodomy law. In his dissent, Justice Scalia wrote, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”  [9]

Justice Scalia also wrote that the logic in Lawerence could be extended to same-sex marriage, an outcome that he found less than desirable.

Scalia and Thomas also dissented in the case Romer v. Evans, which struck down a Colorado amendment as unconstitutional because it singled out homosexuals as an unprotected class. While the majority found there was no “rational basis” for the amendment, Scalia and Thomas’ dissent implied gays and lesbians could be singled out for unequal treatment. ^[10]

Justice Alito, who has been nicknamed “Scalito” by some because of his similarity to conservative Justice Antonin Scalia, would more than likely join these two in any decision. ^[11]

For the most part, the Court has been unwilling to hear cases involving gay marriage precisely because they generally apply only to local laws. When the Maryland Court of Appeals upheld Maryland’s ban on gay marriage in 2007, there was no place for the case to go from there. Similarly, if gay marriage advocates do bring a case before the New Jersey Supreme Court, as is being discussed, an appeal of the outcome of that case would most likely not be heard by the US Supreme Court.

A case with the potential to end the guessing game, at least for the time being, is currently under deliberation by Judge Vaughn Walker in San Francisco. Perry v. Schwarzenegger is the second case to be filed in the state of California challenging the constitutionality of Proposition 8, and it is widely believed the case will make it to the Supreme Court. The first case challenging the constitutionality of Proposition 8, Smelt v. United States of America, was dismissed by the Obama Justice Department on the grounds that the plaintiffs did not prove they suffered real harm by not being allowed to marry. ^[12]

Two attorneys, conservative Theodore B. Olson and democratic trial lawyer David Boies, who were opposing counsel in Bush v. Gore, brought the case against Proposition 8. The prosecution aims to prove that the basis for the gay marriage ban in California is discriminatory, reflecting nothing but “prejudice or animus” ^[13] against gays and lesbians, and that the state has no compelling interest in preventing same sex marriage.

According to Boise, “We will show that prohibiting gays from marrying has no redeeming social benefit, that permitting gay marriage does not in any way undermine heterosexual marriage.” ^[14]

Boise and Olson also point to the Court’s decision in Loving v Virginia, the landmark 1967 case that struck down laws banning interracial marriage. Loving established a fundamental right to marry, with the Court writing in its decision, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”  ^[15]

Referencing the Loving precedent and that of Brown v Board of Education (abolishing “separate but equal” schools), Olson argues, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and … when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” ^[16]
Arguments in Perry ended on January 27, and a decision was expected by mid March. The case is now being held up as some outside groups that have been ordered to disclose emails and documents related to their opposition to Proposition 8 are fighting the court order.

All eyes are on Judge Walker, his inevitable landmark decision, and the precedent he will set when he decides the constitutional fate of Proposition 8. No matter what the outcome, the case will be appealed to the 9^th Circuit Court of Appeals and ultimately to the Supreme Court. Since the 9^th Circuit Court jurisdiction covers 7 states in the western United States and Alaska, and since the plaintiff’s arguments concern issues beyond local law, it is highly unlikely the Court will refuse to hear an appeal.

While the case could be a major victory for gay marriage advocates, several groups friendly to the cause disapprove of the decision to bring a case at this time. The move is risky, with little precedent, few laws on the books protecting gay marriage, and the fate of the case most likely resting, as usual, on “swing” Justice Anthony Kennedy. If the plaintiffs ultimately prevail, the constitutionality of marriage bans in several states will be in question. However, if they fail, gay marriage rights could suffer a serious setback that the movement may not be able to overcome for decades.

A joint statement published by several leading LGBT right groups earlier this year urged caution, stating that victory before the Supreme Court was far from a sure thing. In the statement they argue, “The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law.” ^[17] To date, 31 states have put gay marriage up for a vote, and all 31 have voted no. If public opinion does act as a bellwether, gay rights advocates may have reason to worry.

With a decision in Perry expected in the coming weeks, it seems as though the Supreme Court may finally get a chance to set a precedent for the constitutionality of gay marriage bans. A case in Boston challenging the constitutionality of the Defense of Marriage Act may also make its way to the Supreme Court on a similar time frame. Three of the Justices are relatively young and have not weighed in on any related cases. While a 5-4 decision may seem inevitable, court watchers and gay rights activists are far from certain which way the deciding vote may fall.

Sources

1. http://en.wikipedia.org/wiki/Same-sex_marriage
2. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html, The New York Times, Justices, 5-4, Reject Corporate Spending Limit
3. Supreme Court Docket, http://www.supremecourt.gov/
4. http://www.docstoc.com/docs/27405774/Jackson-v-DC-Board-of-Elections/, decision
5. http://www.scotusblog.com/2010/03/court-to-rule-on-funeral-pickets/, SCOTUS Blog, Court to Rule on Funeral Pickets
6. http://seattletimes.nwsource.com/html/localnews/2010094187_apwadomesticpartnerships2ndldwritethru.html, Seattle Times, Justice Kennedy blocks release of R-71 names
7. http://ballotpedia.org/wiki/index.php/Washington_Referendum_71_%282009%29
8. http://articles.latimes.com/2010/jan/17/nation/la-na-court-gay-marriage17-2010jan17, Los Angeles Times, Gay marriage supporters fear Supreme Court’s ruling was an omen
9. http://www.law.cornell.edu/supct/html/02-102.ZD.html, Dissent, Lawerence v. Texas
10. http://en.wikipedia.org/wiki/Romer_v._Evans
11. http://www.slate.com/id/2129107/, Slate.com, Alito or Scalito? If you’re a liberal, you’d prefer Scalia.
12. http://www.acslaw.org/taxonomy/term/735, ACS Blog
13. http://www.slate.com/id/2242957, Slate.com, Who Will Win the Gay Marriage Trial?
14. http://articles.latimes.com/2010/jan/11/local/la-me-prop8-trial11-2010jan11/2, Los Angeles Times, Prop. 8 trial to include unprecedented testimony
15. http://en.wikipedia.org/wiki/Loving_v._Virginia
16. http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot, The New Yorker, A Risky Proposal
17. http://www.aclu.org/lgbt-rights_hiv-aids/why-ballot-box-and-not-courts-should-be-next-step-marriage-california, joint statement
18. http://commons.wikimedia.org/wiki/File:Fresno_-_Prop_8_Rally.jpg – Photo by Richard Johnstone

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

A challenge to a US anti-terror law raises the issue of whether political speech may be prosecuted as support for a terrorist organization.

The Supreme Court heard oral arguments in the case, Holder v. Humanitarian Law Project, last Tuesday

and is currently deliberating the issue. The question at hand is a clause of a 1996 law, 18 U.S.C. § 2339B, also subsequently included in the PATRIOT Act, which prohibits the “material support” of groups designated by the Secretary of State as terrorist organizations. [1]

While the phrase “material support” sounds as though it refers to concrete items, it is actually not limited to commodities such as weapons, ammunition or money, but also includes less clear cut items like “training,” “personnel,” “service” and “expert advice or assistance.” [2]

The case originated in 1998, with an additional complaint filed in 2003, when a group of peace activists sued for the right to provide support for the lawful and humanitarian activities of two groups, the PKK, a Kurdish political group and the Tamil Tigers, a group advocating for the self-determination of the Tamils in Sri Lanka. Both of the groups in question have been designated as terrorist organizations. [1]

Arguing for the prosecution, attorney and Georgetown Law Professor, David Cole claimed that the material support clause is unconstitutionally vague and violates his clients’ guaranteed rights to free speech and association as provided by the First Amendment. According to Cole, the statute would cause individuals to be prosecuted and potentially imprisoned for supporting and participating in lawful activities.

In turn, US Solicitor General Elena Kagan argued that the law is “vital weapon” [3] in the government’s efforts to combat terrorism.

The case brings to light the delicate balance between the need to safeguard long-established First Amendment freedoms and the ability of the US government to protect the nation’s security. The battle between those that believe some rights can be subverted by the need for security and those that believe certain rights are immutable has been raging for over a century from Lincoln’s suspension of habeas corpus during the Civil War to McCarthyism and the Second Red Scare to more current disputes over warrantless wiretapping and provisions of the PATRIOT Act. Mr. Cole contends that in this case the government should not hold individuals liable for speech that intends only to promote peaceful, legal activities and should instead focus on prosecuting conduct that aids violent and illegal actions.

According to Solicitor General Kagen, the material support law rests on the assumption that any aid to a terrorist group, whether for peaceful endeavors or not, ultimately helps the group pursue violent activities. “Hezbollah builds bombs,” Kagan said. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.” [4]

The Justices, however, did not seem to agree that the issue is so clear-cut. During wide ranging questioning, discussions included a variety of real and hypothetical items, including working in Nazi hospitals, support for the Communist party, travel to Cuba and harmonica. At times questioning intended to clarify issues seemed only to make them murkier. At one point in the discussions, Chief Justice Roberts stated, “I am just trying to find an example that doesn’t implicate the particulars of the issue today… my hypothetical was confusing.” [4]

Justice Kennedy admitted that he could see a governmental interest in prohibiting support of any kind to a designated group, since any support “will ultimately inure to the benefit of a terrorist organization.” Kennedy, a strong supporter of First Amendment rights admitted, “This is a difficult case for me.” [5]

Mr. Cole responded by arguing that there must be a more concrete link between the speech and the illegal actions of the group. Any advice or advocacy cannot be said to automatically aid in illegal activities. He conceded that the Court has upheld in prior cases that conduct (i.e. travel to Cuba) or monetary contributions can be regulated, but reasserted that the issue at hand is speech. And, because of the strong First Amendment protection given to speech, it must meet a higher standard of scrutiny, or a “specific intent standard.” [4]

Continuing with a hypothetical, Cole posited that under a broad reading of the statute, perhaps the New York Times could be prosecuted for publishing an editorial written by a Hamas leader. When challenged by Justices Kennedy and Scalia that publishing an editorial is different than meeting with a group, Cole argued that there is no such distinction. “It’s about whether you coordinate with them,” he said. “And they’ve [The New York Times] certainly coordinated with the Hamas spokesperson in editing and accepting and then publishing his editorial.” [4]

In attempting to clarify where the line is drawn between legal and illegal speech and association, Ms. Kagan said that individuals could advocate any position as long as the advocacy is done independently of the group in question. A person may even join the group and have discussions with other members of the group. However, once any discussions turn to “advice” the speech becomes prosecutable.

Justice Ginsburg questioned this statement, saying, “So you can communicate, but the communications are censored? You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?” [5]

Ms. Kagan agreed, giving the example of a lawyer filing a friend-of-the-court brief on behalf of a terrorist group. That action, she claimed, would be subject to prosecution.

Justice Sotomayor added a touch of levity to the discussion, suggesting that it may be illegal to give harmonica lessons to a member of a terrorist group since such activity could be considered “specialized training.”

The material support clause existed for many years as a relatively obscure provision of the law. However, it has been used with increased frequency since the terrorist attacks of September 11, 2001. Opponents of the law argue that has been used in several terrorism cases as a last resort, a catchall for prosecutions that otherwise have thin evidence. [6]

In 1998, Judge Collins, of the federal district court in Los Angeles, found the material support clause to be unconstitutionally vague. Subsequently, in 2000, the federal Court of Appeals for the Ninth Circuit affirmed the decision and Judge Collins issued a final injunction in 2001. [7] A decision is expected from the Supreme Court on the issue in June.

Sources:

1. http://ccrjustice.org/holder-v-humanitarian-law-project, Center for Constitutional Rights

2. http://www.law.cornell.edu/uscode/18/usc_sec_18_00002339—B000-.html, Cornell University Law School Legal Information Institute

3. http://www.csmonitor.com/USA/Justice/2010/0223/Supreme-Court-Peace-activists-challenge-US-antiterror-law, The Christian Science Monitor

4. http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1498.pdf, Oral Arguments Before the Court, Feb 23, 2010

5. http://www.nytimes.com/2010/02/24/us/24scotus.html, The New York Times

6. http://www.huffingtonpost.com/shayana-kadidal/today-at-the-supreme-cour_b_472619.html, The Huffington Post

7. http://www.ccrjustice.org/hlp, Center for Constitutional Rights

The SEOLawFirm.com Newsroom extends editorial freedom to their staff writers thus the views expressed in this column may not reflect the views of SEOLawFirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Citizens United v. Federal Election Commission opens the door for corporate cash in political campaigns.

On January 21, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission, a case concerning corporate expenditures in elections. The 5-4 ruling, split solidly along ideological lines, states that the government may not ban any political spending by labor unions or corporations, thus striking down key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA, commonly known as McCain-Feingold). [1] The ruling also overturns two prior Court decisions and has created an outpouring of debate about corporate influence in elections, free speech, stare decisis, and the shape that any future attempts at campaign finance reform may take.

The case originated when Citizens United, a non-profit corporation, attempted to air their film Hillary: the Movie, on cable. The film had already been released in theaters and on DVD and was be aired via video on demand in January of 2008, immediately before the Democratic primaries and while Senator Clinton was still a candidate for her party’s presidential nomination. The film, a prime example of acrimonious political messaging with a healthy dose of advocacy journalism, is openly critical of Senator Clinton, portraying her as not much more than a power-hungry liar. [2] [3] Broadcasting such a film on cable so close to the primary elections subjected Citizens United to fines and prison time according to campaign finance laws. In response, Citizens United brought action against the FEC, declaring that the Bipartisan Campaign Reform Act was unconstitutional as applied to Hillary: the Movie and that the film should be given air time. [2] [3] [4]

Specifically, the provision of McCain-Feingold in question, § 441b, prohibited unions and corporations from spending funds on “speech” that is an “electioneering communication” and/or “speech” intended to promote a specific candidate for public office. [5] The United States District Court for the District of Columbia ruled that the film portrayed a clear partisan opposition to Senator Clinton and, since it was to be aired within 30 days of a primary, did constitute “electioneering communication.” The lower court did not address free speech issues. [6]

The Supreme Court initially heard arguments on the narrow basis that McCain-Feingold was unconstitutional only with respect to Hillary on March 24, 2009, and most Court watchers expected a decision some time in the summer of 2009. However, in June of 2009, the Court ordered the parties to reargue the case on broader First Amendment grounds. The second hearing of the case resulted in the controversial January 2010 decision. [3] [4]

The decision strikes down the provision of McCain-Feingold that prevented corporations and unions from using general funds in support of or in opposition to political candidates. In addition, the ruling overturned the 1990 case Austin v. Michigan Chamber of Commerce and partially overruled the 2003 case McConnell v. Federal Election Commission. [1] In Austin, the Court had originally held that government regulation prohibiting corporations from spending money to promote or oppose candidates did not violate that corporation’s First or Fourteenth Amendment rights. McConnell also upheld campaign finance laws by reaffirming the McCain-Feingold’s restrictions on corporate expenditures. [3]

In essence, the Court’s decision found that the restrictions placed on corporate and union expenditures were unconstitutional in that they violate the entities’ right to free speech under the First Amendment. Writing for the majority, Justice Kennedy stated, “We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether… the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.” [1] The ruling repeals all restrictions on how much corporations and unions can spend to promote or oppose a candidate for political office. It does not change the law with regard to limiting contributions made directly to political candidates. [7]

While Supreme Court decisions are welcome fodder for heated discussions among policy wonks, they are often met with fleeting attention from news outlets and the public at large. That however, has not been the case with Citizens United v. FEC.

Campaign finance activists immediately attacked the decision, claiming that it would open the doors for corporations to pour untold amounts into supporting or defeating pet issues or even pet politicians, often pointing to the recent influx of corporate money into the health care debate. [8] [10] President Obama responded quickly to the decision, saying in his weekly radio address on January 23 that he could not “think of anything more devastating to the public interest” [12] and calling for a “forceful” response to the decision. [9] The president repeated this sentiment in his Sate of the Union Address, saying:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.” [11]

In a more staid response than the infamous “You Lie!” outburst by Representative Joe Wilson during a prior presidential speech, Justice Alito was caught on camera shaking his head and mouthing the words “Not true…” during this part of the address. (Depending on which news outlet is reporting the event, either the President or Justice Alito acted outrageously). However, regardless of Alito’s obvious support for the majority opinion, the decision has fostered criticism on a number of grounds.

Retired Supreme Court Justice Sandra Day O’Connor expressed concerns that the ruling would have a negative effect on judicial elections. Ms O’Connor told CNN that her fear of corporate money and corporate influence becoming involved in judicial elections was one for her reasons for voting with the majority in the McConnell case upholding McCain-Feingold. She also expressed her hope that judges not become “politically-elected figures in arms races.” [13]

Pundits have, when expressing their distaste for the decision, often stated that the ruling flies in the face of over 100 years of national policy. The “100 years” number has been repeated all over the media scene, from cable TV interviews to blogs to the pages of the New York Times. [14] [16] This critique of the last century of American national policy is referring to the Tillman Act of 1907. The Act, supported by Theodore Roosevelt, banned corporate contributions for political purposes. The intent of the law was to limit the influence of special interest groups and wealthy individuals on the political process. Since then, policy with regard to corporate “influence-peddlers” has remained in line with the idea, espoused by the Tillman Act, that democracy flourishes when a few wealthy individuals or corporations do not have undue influence on the process. [15]

Others have criticized the act on the basis that it overturns two cases and two decades of precedent with no new compelling interest introduced to prompt such action. Fred Wertheimer, Founder and President of Democracy 21, has been vocal in his derision of the decision, saying “The only real change that has occurred between the Court’s 2003 decision in McConnell and now is a change in the makeup of the Court – which, in and of itself, has never been considered sufficient legal grounds for overturning past precedents.” [17] Since no new compelling interests have been brought forward, stare decisis should have forced the Court to uphold precedent in this case.

Much criticism has also been leveled at the decision because of its perceived activism and its implications to the democratic process. No First Amendment issue was raised in the original arguments before the lower court. The Supreme Court chose to decide the case on broad constitutional grounds, which critics argue was an unnecessary overstepping of its authority. [18] [19]

In deciding the case on broader Constitutional grounds, the Court ruled that the First Amendment makes no distinction between different types of people. Although prior courts have held that corporations are “citizens” or “people” under the law, the distinction has always been made between natural citizens, or individuals, and artificial citizens, or corporations. Justice Stevens, in his dissent, noted the potential negative ramifications of this interpretation, saying that the First Amendment “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” [1] [20] Since the majority decision was silent on the issue of foreign corporations, this area of law will likely be debated heatedly in the future.

Although much of the reaction to the Court’s decision has been negative, focusing on the dangers of allowing too much undue influence into the democratic process, some politicians and activists see the decision as an overwhelming victory for the First Amendment and for the rights of citizens. Senate Republican leader, Mitch McConnell, immediately expressed his approval of the decision. In an opinion piece in the Atlanta Journal Constitution, he wrote, “But criticism of candidates running for office, like criticism of politicians in office, has always been viewed as what the First Amendment protects most obviously and most importantly. Why should that not be true of speech of corporations? Or unions?” [21]

This sentiment is widely shared by supporters of the decision. If money equals speech and we all have a right to free speech, how could the First Amendment possibly allow for regulation of corporate expenditures? In addition those who see the ruling as a positive development argue that opening the national discourse up to unlimited corporate and union financial contributions will even the playing field and give more middle class citizens the means to run for higher office. [22]

It is still too early to tell what effect the decision will ultimately have on American political discourse and on our particular form of democracy? Will corporate cash flow in to elections, buy politicians and make voices of “average” constituents harder and harder to hear? Or will removing limits on corporate and union spending in elections usher in a new era of equality in which anyone can afford to run for higher office? Barring the passing of a Constitutional Amendment addressing the decision, it seems as though we are about to find out.

For a list of proposed legislation in response to the Citizens United decision, including a proposed Constitutional Amendment, see the list at Sunlightfoundation.com. [23]

Sources:

1. http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf – Decision of the Supreme Court
2. http://topics.law.cornell.edu/supct/cert/08-205 – Cornell University Law School summary of Citizens United v. Federal Election Commission
3. http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission
4. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html – New York Times
5. http://www.nationalcenter.org/McCainFeingold.html – Text of Bipartisan Campaign Reform Act
6. http://www.firstamendmentcenter.org/news.aspx?id=21767 – firstamendmentcenter.org
7. http://www.examiner.com/x-34784-NY-Public-Policy-Examiner~y2010m1d23-What-does-the-Citizens-United-v-Federal-Election-Commission-ruling-mean-for-New-Yorkers New York Policy Examiner
8. http://democracy21.org/index.asp?Type=B_PR&SEC={EEB4E4AC-6B24-4DBB-9730-468057B230E2} – democracy21.org
9. http://news.yahoo.com/s/nm/20100121/pl_nm/us_usa_court_politics – Reuters
10. http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2010/01/31/voices_will_be_drowned_out/ – Boston Globe
11. http://www.nytimes.com/2010/01/28/us/politics/28obama.text.html – Text of State of the Union, New York Times
12. http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html – huffingtonpost.com
13. http://politicalticker.blogs.cnn.com/2010/01/26/oconnor-talks-politics-judicial-independence/?fbid=b_50QmGSJkH – CNN Political Ticker
14. http://www.nytimes.com/2010/01/22/us/politics/22donate.html – New York Times
15. http://en.wikipedia.org/wiki/Campaign_finance_reform
16. http://roomfordebate.blogs.nytimes.com/2010/01/21/how-corporate-money-will-reshape-politics/ – New York Times Room for Debate Blog
17. http://roomfordebate.blogs.nytimes.com/2009/09/08/free-speech-and-hillary-the-movie/?pagemode=print New York Times Room for Debate Blog
18. http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20100124/OPINION/1240301/-1/NEWSMAP – Medford Mail Tribune
19. http://www.pressdemocrat.com/article/20100124/OPINION/100129788/1042 – Santa Rosa Press Democrat
20. http://www.huffingtonpost.com/doug-kendall/but-it-is-true-justice-al_b_440385.html – huffingtonpost.com
21. http://www.ajc.com/opinion/pro-con-is-the-285259.html – Atlanta Journal Constitution
22. http://blog.heritage.org/2010/01/21/citizens-united-v-fec-a-landmark-decision-in-favor-of-free-speech/ – Heritage Foundation
23. http://blog.sunlightfoundation.com/2010/01/27/legislation-intended-to-respond-to-citizens-united/

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