issue: Judiciary

Election Watch: All Eyes on Supreme Court, Obama Pushes GOP on Immigration

Posted on by The Progressive Policy Institute
Ed Kilgore is a PPI senior fellow, as well as managing editor of The Democratic Strategist, an online

This week’s skirmishing in the presidential campaign revolved around the president’s immigration initiative and preparations for the Supreme Court’s decision on the Affordable Care Act, due to be handed down next week.

The executive order (technically issued by the Department of Homeland Security) offered the children of undocumented workers a two-year, renewable immunity from prosecution if they had entered the country prior to the age of 16 and are currently under 30; have a high-school diploma or GED or a record of military service; and have no serious criminal record. It’s basically a “Lite” version of the DREAM Act, which Obama also supports, in that it provides no path to citizenship. And most importantly, from a political point of view, the administration initiative is very close to what Sen. Marco Rubio (R-Fla.) has reportedly been working on in the form of legislation that could free Republicans (and the Republican presidential candidate in particular) from the taint of being hostile to any remedial action to help children here illegally.

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A Negative Sign for Investment and Job Growth

Posted on by The Progressive Policy Institute

There’s a good rule of thumb–you get what you reward.

Here’s a summary of current U.S. policy towards big corporations: Invest in the U.S., create jobs, and get sued by the government.

You would think that during a business investment drought, any company that puts big money into the U.S. would be patted on the back. But no…

AT&T is the company which is putting the most money into the U.S.—almost $20 billion in capital spending in 2010. AT&T is also planning to bring back call center jobs from overseas. AT&T is also getting sued by the Justice Department to block the merger with T-Mobile.

Frankly, this sends a signal to U.S. companies that getting out of the reach of government regulators by going overseas is the right strategy.

Crossposted from Innovation and Growth.

More Speech: Living with Citizens United

Posted on by The Progressive Policy Institute

As if the damage to fair and accountable campaigns in Citizens United was not enough, a decision this week in the Federal District Court of Virginia raises the daunting prospect that the Supreme Court’s logic in favor of corporate speech can be extended to a second, more direct, form of political participation: contributions to political candidates. The verdict of the case, United States v. William Danielczyk Jr. & Eugene Biagi, found that Virginian corporations could legally donate directly to Virginian Congressional candidates. It goes one step beyond the Citizens United verdict that permitted campaign donations from corporations to political action committees and run advertisements impacting campaigns, but not the candidates themselves. (Before Citizens United, corporations had previously been unable to financially support political candidates and had been restricted in their political spending.) This latest ruling directly challenges more than a century of settled campaign law.

That corporate contributions will now become the norm is far from certain or even likely; nevertheless, the prospect of making campaign reforms in a judicial environment that is hostile to restrictions on spending invites more focus on alternative means to promote plurality and fairness in our democracy.

In Danielczyk & Biagi, Judge James Cacheris of the Virginia District Court this week upheld his earlier ruling that “the flat ban on corporate contributions [to candidates] is unconstitutional”, while clarifying that this decision was limited to the case’s particular circumstances. However, if other judges adverse to reform embrace Cacheris’ reasoning, then their combined opinion could have widespread implications.

Central to Cacheris’ decision is his reaffirmation of Citizens United: “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity”. Current caps on individual contributions are supposedly sufficient to avoid the risk or appearance of quid pro quo arrangements, which provide a historical basis for some restrictions on speech under the landmark Buckley v. Valeo decision in 1976. Given the inability of the law to discriminate between individuals and corporations, the Danielczyk decision states that if the Buckley v. Valeo contribution limits are sufficient for individuals, then they must be equally sufficient for corporations.

The Virginian court’s argument is open to a number of challenges, particularly over its implicit assumption that allowing corporate, in addition to individual, donations to candidates will not increase the risk of quid pro quo arrangements. A more ominous possibility however remains that Citizens United has opened the floodgates against laws that prohibit indirect corporate spending or candidate contributions in elections.

There remains at least one avenue for meaningful reform available to democracy advocates: offering significant public funds matching small donations to qualifying candidates. This type of systematic reform is not subject to the same legal challenges and would do more to promote a plural and open democracy than previous reforms focused on capping spending.

An example currently before Congress is the Fair Elections Now Act, which would for Congressional race donations of $100 or less, provide $5 for every $1 raised by candidates. Participating candidates must accept limits on the size of donations they are able to receive.

Such reforms would not limit the donations that corporations can offer, but rather encourage candidates to turn down such offers in order to qualify for matching funds. It doesn’t limit free speech, but rather offers a more speech alternative.

Research by Americans for Campaign Reform suggests that such measures would allow candidates relying on small contributions to be competitive, even against those candidates backed by large corporate war chests. The relationship between money spent and votes gained is strong up until about the $1 million mark in the average House race, a level at which most candidates can establish their name and get their message out to prospective voters. After that spending threshold, there is little correlation between spending and votes.

Public funding would enable more candidates to get over this crucial threshold without requiring support, whether it is direct or indirect, from private interests. The presence of such candidates would in itself create a strong argument against politicians accepting large contributions, and so reduce the role of money in politics. Overturning the century-long ban on direct corporate contributions to candidates is indeed a worrying sign and one that directly violates the Supreme Court’s recent findings; but the avenues for meaningful reform are far from closed.

Photo Credit: TalkMediaNews

How to Think About AEP v. Connecticut

Posted on by The Progressive Policy Institute

Today, the U.S. Supreme Court will be hearing oral arguments in AEP v. Connecticut, a case that will decide whether eight states have the right to sue American Electric Power (AEP) Co. and several other utilities for greenhouse gas emissions. The states have argued that carbon dioxide emissions are a “public nuisance” because they contribute to climate change. They’re hoping to force the companies to reduce their emissions through litigation. The power companies have argued that because of the complexity of climate change, it’s impossible to draw a causal link between any specific emissions and any unwelcome changes in the weather.

For helpful background on the case, there’s no better place to turn than to a recent PPI memo entitled “Why Progressives Should Cool to ‘Global Warming’ Lawsuits.” In the memo, author Philip Goldberg argues that such litigation makes little sense:

Progressives should … not reflexively support climate change litigation, no matter how passionately one might favor emission reductions. We should adhere to our principles and protect due process rights of defendants, even when those defendants are large corporations. The David and Goliath analogy may score political points, but it only works in litigation when Goliath does something objectively wrong. Otherwise, any group that fails to get its way in the political arena will turn to the courts. Such an act would be an affront to democratic proceduralism that has long defined our progressive philosophy.

You can read the entire memo here.

Clean Elections Are Constitutional

Posted on by The Progressive Policy Institute

When the U.S. Supreme Court last year ruled in Citizens United that incorporated entities have the same First Amendment rights as individuals to spend money in political campaigns, it upended a century of settled law aimed at limited special interest influence in American politics. The predictable result was a torrent of new spending in the 2010 midterm election, with nearly $300 million in electioneering ads by outside interest groups, half of which was undisclosed.

On Monday, the Supreme Court waded back in to the campaign finance issue when it heard oral arguments in McComish v. Bennett, concerning one of the most sweeping and successful forms of campaign finance regulation to emerge in recent years, publicly funded “Clean” or “Fair Elections”.

The case in question involves a challenge to the constitutionality of a specific “trigger funds” provision of Arizona’s Citizen’s Clean Elections Act of 1998, the law which established voluntary public funding for qualifying candidates for any state office in Arizona. Under the challenged provision, candidates who opt in to the Clean Elections system receive matching funds beyond their initial allocation if they are outspent by a privately funded opponent. The aim of the provision, as of the law in general, is to provide serious and hardworking candidates who attract broad-based constituent support in the form of small donations and who agree to forego private special interest contributions with enough money to mount a credible campaign.

The law is being challenged by a group of Arizona candidates and political committees who claim that triggered funds to participating candidates have a “chilling” effect on the First Amendment free speech of privately funded candidates and independent spenders. The Ninth Circuit Court of Appeals rejected the challenge last May, which concluded that no candidate or group had been prevented from spending money by the law.

Contrary to petitioners’ characterization of the Arizona law as curtailing First Amendment speech, Arizona’s Clean Elections program places no limits on the ability of privately funded candidates or independent spenders to enter the political debate, including by spending far in excess of the triggered funds provided to participating candidates. Instead, as argued by former Reagan Solicitor General Charles Fried in an amicus brief to the Court:

Arizona extends public financing to any candidate who meets certain qualifications and agrees to forego fundraising from private sources. Thus, if the government violates no one’s First Amendment rights, does not silence, suppress or deter anyone’s speech by speaking a contrary message in its own voice, so most assuredly it burdens no speech when it makes funds available to all comers on a viewpoint neutral basis. More speech may answer speech but it does not silence it. What effect speech has on its audience the First Amendment leaves up to the audience.

The brief, which was signed by a bipartisan committee of former Senators, Representatives, and Governors on behalf of Americans for Campaign Reform, established in no uncertain terms the constitutional imperative of voluntary public funding as an effective means of expanding and enhancing First Amendment free speech: “The law at issue in this case is not, in the words of the First Amendment, a law ‘abridging the freedom of speech.’ Rather, it adds voices to the political forum and thereby expands speech… If there is one fixed star in the constitutional firmament, it is that arguments seeking to compel a reduction in speech face an extraordinary hurdle.”

That message, at least, the Court heard loud and clear in the oral arguments on Monday: public funding writ large, regardless of the specific provisions of Arizona’s law, does not violate the Constitution. In the the post-Citizens United world of big spending by corporate and union interests, public funding may be the only means left to effectively combat the power of special interest money in politics.

A decision is expected before the end of the Supreme Court Term in June.

Making Sense of Connecticut v. AEP

Posted on by The Progressive Policy Institute

The U.S. Supreme Court agreed today to hear an appeal to Connecticut v. AEP, a court of appeals granting eight states the right to sue American Electric Power (AEP) Co. and several other utilities for greenhouse gas emissions.  The states had argued that carbon dioxide emissions were a “public nuisance,” and hoped to force the companies to reduce their emissions through litigation.

In a recent PPI memo, Philip Goldberg argued that such litigation made little sense.

Progressives should … not reflexively support climate change litigation, no matter how passionately one might favor emission reductions. We should adhere to our principles and protect due process rights of defendants, even when those defendants are large corporations. The David and Goliath analogy may score political points, but it only works in litigation when Goliath does something objectively wrong. Otherwise, any group that fails to get its way in the political arena will turn to the courts. Such an act would be an affront to democratic proceduralism that has long defined our progressive philosophy.

You can read the entire memo here.

Metro “Plot”: What A Crock

Posted on by The Progressive Policy Institute

When officials stress that the public was never in danger, you should take them at their word.  Why? Because it’s very likely the DC “metro plot” was never real.  It was, in short, nothing more than an entrapment exercise.  Here’s an excerpt from the Washington Post:

Officials stressed that the public was never in danger. Still, Neil H. MacBride, U.S. attorney for the Eastern District of Virginia, said it was “chilling that a man from Ashburn is accused of casing rail stations with the goal of killing as many Metro riders as possible through simultaneous bomb attacks.”

Here’s what likely happened: Someone (a friend, relative… whomever) had a vague conversation with Farooque Ahmed about attacking the DC metro system.  This person became concerned enough to alert law enforcement, who sent in an undercover agent, posing as an al Qaeda member, to meet and evaluate Ahmed.

The undercover agent and Ahmed then probably developed plans to case various metro stations. That’s because in order to prosecute him, the law enforcement would need demonstrable evidence that Ahmed took action to execute an attack plot.  It’s tough to get a conviction by testifying that Ahmed really, really wanted to do something, but never did anything beyond that.

If (a big if) this is what happened, it opens serious issues: Would Ahmed have surveyed the attack locations had he not come in contact with the undercover agent?  To put it another way — did law enforcement “create” a terrorist out of someone who was otherwise just talking a big game?  And, as evidenced by the District Attorney’s comments, is law enforcement content to reap the benefits of the positive press coverage?

Much of this is informed speculation on my part, but if the public was allegedly never in danger, why did we need to hear about it in the first place?

Photo credit: the futuristics

Rupert Murdoch v. Justice Scalia

Posted on by The Progressive Policy Institute

Just like their crazy-as-a-FOX cousins, the Wall Street Journal editorial page has indulged yet again in a spectacle of tragicomical self-victimization. An especially shameless recent raving targets the Democrats’ efforts to expose the furtive corporate backing behind their array of political front groups, of the sort that Rupert Murdoch, the brothers Koch and their band of aspiring overloads have nearly perfected. Naturally, the Journal gets it wrong across the board.

Their charge was that Senate Finance Committee Chairman Max Baucus engaged in a “liberal abuse of power” against right-leaning “issue advocacy” groups recently when he asked the IRS to investigate whether “certain tax exempt 501(c) groups had violated the law by engaging in too much political campaign activity.”  But Baucus did not target “certain” groups—his request to the IRS was broad, and intended to give them wide rein to go where the facts led them and report back.

Senator Baucus, as chairman of the Senate committee responsible for the tax code, has the obligation to examine how his committee’s laws work in practice, and whether they ought to be revisited. The examples in his letter, one of which cited a local financier who paid for a pro-development referendum campaign in Washington State, represented the results of investigations by the New York Times and Time, not part of any partisan hit list as the Journal would have us believe.

Even if the IRS investigation ends up disproportionately impacting conservative groups, that is because these groups’ “issues” just so happen to coincide squarely with their backers’ financial interests, calling into question their tax-exempt status.

This is not the case with conservative bogeymen such as George Soros. While Soros and other wealthy progressives also contribute to issue advocacy groups, their personal fortunes do not turn on the agenda they espouse.  Soros would in fact be even better off financially were the Republicans to gain power and, say, extend Bush tax cuts for the wealthiest Americans. Contrast that with the Koch brothers, whose sprawling empire is one of the top ten air polluters in the United States, and who have been called the “kingpins” of climate change denial.  One can just imagine how much they have to lose from stronger environmental regulations or a cap-and-trade bill.

Now, it is all well and good if the Kochs and Co. want to keep pumping dollars into elections and carbon into the air. That is their right under the law.  But they should have to be honest about it so that the American people can judge whether this agenda coincides with their own.   We all know that the Supreme Court in the case Citizens United upheld the right of corporations to spend freely on behalf of issues and candidates they believe in.  Less well known is the court’s decision, in the same term, in Doe v. Reed.  In it, the 8-1 majority held that there is no categorical First Amendment right to anonymous political speech.

In Doe, finding against such a right to privacy was critical, said the Court, to “fostering government transparency and accountability.” Perhaps Justice Scalia explained the rationale best: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed…”  That is what the tax code provisions the right is abusing are supposed to reinforce, and which Senator Baucus is charged with overseeing.

Would that the Journal had Scalia’s spine. Instead it complains about businesses being made the “targets of vilification with the goal of intimidating them into silence.”   But why should consumers unwittingly support businesses that advocate interests potentially at odds with their values?   This contrast is especially striking when those same businesses can covertly advance their interests through a tax-exempt organization.  Only in the Journal’s circular world, where what’s good for the golden gooses is good for the gander, could this somehow square.  But such misdirection and obfuscation, as we well know, is the only way the far right can still pretend to have the interests of the American people at heart.

Photo credit:  cafemama

How to Prosecute an American Jihadist

Posted on by The Progressive Policy Institute

How should the United States handle the case of an American citizen encouraging jihadist-style violence against his countrymen?  It’s easy for the US to launch Predator drone strikes against foreign al Qaeda members in holed up in Pakistan, but what legal precautions are necessary when other Americans are in the Predator’s crosshairs?  This is the twisted legal issue at the heart Anwar al-Aulaqi, the American cleric based in Yemen who has served as the ideological inspiration behind the Ft. Hood and Christmas Day attacks (amongst others).

Back in January, the government added Anwar al-Aulaqi  to a “kill list” that authorized the U.S. Joint Special Operations Command to target him with lethal action. In August, the ACLU and the Center for Constitutional Rights filed a suit seeking to stop the US government from lethally targeting Anwar al-Aulaqi. This case was filed on behalf of al-Aulaqui’s father, on the grounds that al-Aulaqui is an American citizen.  And furthermore, the complaint argues, the executive branch decision to place him on the “kill list” without judicial oversight allegedly violates his Fourth and Fifth Amendment rights.

The government has filed a brief seeking to dismiss the case on several grounds: That al-Aulaqi’s father is not the proper party to file the suit (only al-Aulaqi can); that the judicial system has no power to second-guess the executive branch on this call; and that arguing this might expose top secret information.

The government’s arguments are solid.  And to be clear: there is no doubt that al-Aulaqi poses a threat to national security by promoting violence against Americans.

However, there are important practical and legal issues here: Many would argue that the federal government cannot simply kill an American citizen without regard to the citizen’s Constitutional rights, which have no greater value to a citizen than when they protect him from his government’s ability to take his life.   Further, as the complaint notes, the decision to place al-Aulaqi on the kill list was made with no judicial process at all.

What to do? Should there be a special process to deal with a dangerous jihadist inspirer like al-Aulaqi?

Yes.  The legal framework for the process could be partially adopted from national security litigation procedures that already exist, such as the Guantanamo Bay habeas corpus cases. The process should be as expedited as quickly possible, and should require the government to show a judge that a person poses an imminent threat to the national security of the United States.  It should also have to prove that it has exhausted all other means of resolving the situation and that lethal action is the only viable option left.  The hearing can be closed off to the public so that classified information will be protected.

Providing the accused with some form of representation is difficult because those like al-Aulaqi will be inaccessible, hiding in a foreign country. But an attorney representing the target’s interests should be present to make sure that the process is balanced.  This could be done with military JAG officers or through a stable of civilian attorneys with top secret clearances.

Photo credit: Clyde Robinson

Empower the American People, Not Special Interests, to Bankroll Elections

Posted on by The Progressive Policy Institute

Eight months after a landmark Supreme Court ruling lifted decades-long limits on corporate and union spending in elections, the 2010 midterm election promises to be the most expensive – and most secretive – on record.

In a radical departure from previous high court jurisprudence, the decision in the case of Citizens United v. Federal Election Commission extended full personhood freedom-of-speech rights to corporations , allowing them to spend unlimited funds to advocate the election or defeat of candidates at any level. It is little surprise, therefore, that analysts are predicting political ad spending to balloon to $4.2 billion this year, fully twice the level spent in 2008.

In the absence of FEC enforcement of longstanding disclosure norms and the failure of the DISCLOSE legislation to garner 60 votes in the Senate, millions of dollars in electioneering ads are being spent for or against candidates by unknown players who are unaccountable to either the candidates or the public. A recent study issued last week by the watchdog group Public Citizen found that less than one-third of independent groups receiving electioneering donations have revealed their donors this election; virtually every such group did so in 2004 and 2006. Small wonder that eight in ten voters roundly condemn the Supreme Court ruling in opinion polls.

With these sobering changes in special interest spending and disclosure comes an opportunity for Congress to shift the election year debate from issues – on which there is little hope of consensus between the parties – to process. The political imperative for such a change is clear, as liberals and Tea Partiers alike are outspoken in their rejection of the current system of corporate special interest-funded elections. While progressive support of campaign finance reform has long been assumed, Republican strategist Mark McKinnon recently observed, “There is a conventional myth that Republican voters are opposed to campaign finance reform, but [recent] research shows that Republican voters, like all other voters, believe our system of electing representatives is irreparably broken.”

It is encouraging news that the Committee on House Administration is planning to vote this Thursday on the Fair Elections Now Act. The bill offers a sweeping overhaul of congressional campaign finance rules. It would take require that participating candidates say no to special interest contributions and instead raise money in $100-or-less donations directly from their constituents. Qualifying House candidates who can collect at least 1,500 such donations in-state would be eligible to receive competitive matching funds with which to run a viable campaign. The legislation is supported by 164 cosponsors in the U.S. House and 26 cosponsors Senate.

For Democrats concerned with leveling the electoral playing field to allow more voices to enter the debate, the appeal of Fair Elections is clear. For Republicans opposed to old fashioned limits-based regulation of ‘free speech’ but who are equally fed up with the never-ending hunt for special interest dollars, Fair Elections represents a free market-oriented ‘more speech’ approach, enabling non-millionaire and non-special interest candidates to compete against those with big money. Recent surveys confirm broad public support for Fair Elections across every political group.

Shortly after the Supreme Court ruling in Citizens United came down, President Obama roundly condemned the decision  in his State of the Union address on the grounds that “American elections [should not] be bankrolled by America’s most powerful interests.” Now is Congress’ opportunity to make good on their objection and to ensure that American elections are bankrolled by the American people.

Photo credit: Nick Ares

Did Enviros Overreach in Ecuador?

Posted on by The Progressive Policy Institute

The plot is generic Hollywood, straight out of an airport potboiler:

U.S. oil company drills in Amazon, leaves behind contaminated pools of sludge. Activists sue on behalf of rainforest Indians ravaged by disease. Environmentalists and rock stars rush in to show solidarity with the victims. Not hard to tell how this story ends; we’ve seen this movie before.

Except that in this drama, the actors don’t quite play to type. It turns out that the “good guys” cheat, manipulating an Andean countries’ weak and corrupt judicial system in a bid to extract a king’s ransom — $27.3 billion -– from the U.S. oil company. Meanwhile, that company’s claims to be a victim of a political shakedown is getting a sympathetic hearing in U.S. courts.

So maybe this murky saga is not Hollywood material after all. In any case, here’s the real story, courtesy of Roger Parloff on CNNMoney.com:

Ecuador ended its long-time oil exploration partnership with Texaco in 1990. Texaco worked out an agreement to help clean up sites in the Amazon, and was formally absolved of further liability by Ecuador’s then-government in 1998. Nonetheless, a lawsuit was filed subsequently on behalf of Indians who said they had suffered higher rates of cancer and other diseases as a result of exposure to toxic waste. A new Ecuadoran government led by Rafael Correa, a socialist and fiery champion of impoverished indigenous peoples, strongly backs the suit.

According to Parloff, there’s strong evidence that lawyers for the plaintiffs helped to write the report of an allegedly impartial “expert” appointed by an Ecuadoran court that found Texaco – since acquired by Chevron – liable for further damages. A U.S. magistrate recently issued a scathing ruling that said the plaintiffs’ apparent collusion with Ecuador’s judicial system “would be considered fraud by any court. If such conduct does not amount to fraud in a particular country, then that country has larger problems than an oil spill.”

The plaintiff’s misconduct has overshadowed the important questions: how badly did the Indians suffer from exposure to toxic waste, and who is responsible for cleaning up the sites? It’s alleged that Texaco’s remediation efforts were inadequate, even if a compliant Ecuadoran government approved them. Yet Ecuador’s state-owned oil company has continued to drill in the area since Texaco pulled out 20 years ago.

This episode yields at least three morals. First, oil exploration is hazardous, and its full environmental and health costs must always be accounted for. Second, the end doesn’t justify the means, even if the end is to bring justice to people harmed by the effects of oil drilling. And third, it pays to greet overly familiar plot lines, with stock villains and heroes, with an extra measure of skepticism.

photo credit: Rain Forest Action Network

A Better Way to Prosecute Terror Suspects

Posted on by The Progressive Policy Institute

The White House today withdrew charges against Abd-Al Rahim al-Nashiri, the al Qaeda operative who lead the attack on the USS Cole in Aden harbor, Yemen in October 2000, and was awaiting trial in a reformed military commission in Guantanamo Bay.

Reasons for the withdrawal remain unclear, but one possibility is that the Obama administration is not comfortable with how rules for the new military tribunal system are being implemented.

As background, on the campaign trail in 2008, then-Senator Obama campaigned against the Bush version of military tribunals.  In office, the president endorsed the 2009 Military Commissions Act, which reformed Bush’s military tribunals by letting, say, the defendant actually cross-examine witnesses and call witnesses in their defense.  (You can read details of the 2009 law, and how it improves Bush’s 2006 iteration, here.)

Any discomfort from the White House may stem from another dropped case this year against a Guantanamo detainee. In May, the Administration scuttled charges against Omar Khadr, a Canadian, when it became uncomfortable with  interpretation of certain legal definitions in the 2009 Act.  Based on the Khadr precedent, one Administration estimate believed up to one-third of the Guantanamo proceedings might be canned on similar grounds.

We’ve been operating in this legal limbo for nearly ten years:  the system for prosecuting terrorism suspects is an ad hoc, inefficient mish-mash of stop-gap solutions.

But there are better solutions. One is “National Security Court,” along the lines of what the – gasp – French have.  Harvey Rishikof made a strong argument for this in PPI’s Memos to the New President:

As a practical matter, however, it will be difficult for you to close Gitmo without an appropriate legal framework for adjudicating terrorism cases.

Such a framework is urgently needed. …

In the French system, an investigating judge is essentially a special prosecutor in charge of a secret, grand jury-like inquiry through which he can file charges, order wiretaps, and issue  warrants and subpoenas. These judges can request the assistance of the police and intelligence  services; order the preventive detention of suspects for six days without charge; and justify  keeping someone behind bars for several years pending an investigation. The judges have  international jurisdiction when a French national is involved in a terrorist act, be it as a perpetrator or as a victim.

Clearly, this is by no means an ideal to be adopted wholesale by the American justice system.  Several of the French magistrates’ powers would run far afoul of proper constitutional safeguards in the United States. It is worth noting, however, at least one benefit of the French  system that we could readily emulate: It has produced a pool of specialized judges and investigators adept at prosecuting terrorist networks.

Of the Bush administration’s many failings in the so-called GWOT, perhaps its greatest is that it never defined the rules of the road to prosecute those who had harmed us.  A National Security Court would right that wrong.

The Government Takes on Arizona

Posted on by The Progressive Policy Institute

On Tuesday, the federal government fired its first legal shot at Arizona’s controversial immigration law. The law as it stands now is slightly less stringent than it was in its original form.  The original law allowed law enforcement officers to inquire into the immigration of anyone that they contacted. The amended law does not allow officers to stop and look into the immigration of a person if the stop is based solely on the person’s race. However, the law does require authorities to determine the immigration status of every person that breaks a state or local law, no matter how minor. It also attempts to address other immigration-related issues such as alien registration, smuggling, and employment, among others. The state became the target of national and international scorn when its Governor Jan Brewer signed the law on April 30th.

The law is set to take effect on July 29th, but the federal government is seeking an injunction that will stop that. The U.S. is actually seeking two types of injunctions: 1) a permanent injunction that will stop the law from ever being enforced, and 2) a preliminary injunction that will stop enforcement of the law while the case winds its way through the courts. The government is concerned that if the Arizona law is allowed to stand, it will lead other states to pass similar sweeping legislation that will further encroach on the federal government’s regulation of immigration, and drain federal resources that would have to be used for enforcement.

Cutting away all the legalese in the U.S.’s 58-page brief, the government’s argument boils down to this: the Arizona law impermissibly conflicts with federal immigration laws, and it will have adverse effects on federal resources used to regulate immigration and U.S. foreign policy. Part of the argument is that Arizona’s blanket treatment of all unlawful aliens affects the discretion given to the federal government under federal law. That discretion allows the federal government to more effectively target aliens that are a national security risk. Other areas of discretion allow the federal government to allow unlawful aliens to remain in the U.S. for humanitarian reasons. Also, requiring Arizona law enforcement officials to check the status of every person that breaks a law in the state will place too heavy a burden on federal resources that keep track of individuals’ immigration status.

Furthermore, U.S. foreign policy is affected by the Arizona bill because the current immigration framework arose in part from negotiations with other countries on how foreigners in the U.S. could expect to be treated. The Arizona law criminalizes actions by certain aliens that are treated with civil laws under the federal system. The federal government argues that this broad criminalization does not account for potential foreign policy concerns with respect to some aliens, and does not allow the U.S. to “speak with one voice” in the area of immigration.

This is the first step in what is sure to be a contentious legal battle. The federal government makes a convincing constitutional argument that Arizona’s law impermissibly strays into an arena meant to be controlled by federal law. Arizona’s response will most likely be that it was forced to enact the law in an effort to protect the well-being of the state in the face of the federal government’s inability to stem the tide of undocumented immigrants that stream across Arizona’s border every day. I would not be surprised to see the federal court in Arizona grant an injunction that stops the state from enforcing the law during the litigation process in order to allow it time to get to the Supreme Court, which will certainly make the final determination.

Photo credit: Fibonacci Blue’s Photostream

Terrorism, Material Support and the First Amendment

Posted on by The Progressive Policy Institute

There is no freedom more sacrosanct in the U.S. legal system than the First Amendment right to free speech. The First Amendment protects speech that a lot of people may find offensive: pornography, violent movies, even hate speech. The Supreme Court is fiercely protective of the right, and does not hesitate to strike down any law that encroaches on it. However, on June 21, the Supreme Court departed from that stance when it handed down its decision in a case challenging maybe the most important anti-terrorism law in the U.S. arsenal.

The case, Holder v. Humanitarian Law Project, concerned a federal law commonly referred to as the “material support” statute. The law criminalizes a range of activities aimed at helping terrorist groups. The plaintiffs in the case are a collection of groups and individuals who sued the federal government to declare the “material support” statute unconstitutional as it applies to their activities with respect to two known terrorist organizations. In this specific instance, the plaintiffs wanted to provide money, legal aid, and political advocacy for two groups that the secretary of state declared to be terrorist organizations. One of their central arguments was that criminalizing its ability to advocate for those organizations was an unconstitutional restriction of their First Amendment rights.

In a 6-3 decision, the Supreme Court sided with the government saying that the statute did not unconstitutionally impinge on the plaintiffs’ right to free speech. The crux of the Court’s 36-page opinion is this: The nature of the acts of terrorist organizations is so nefarious that support in any form, even when the support goes towards legal activities, is an illegal act that Congress can constitutionally regulate. The Court did identify advocacy that is “entirely independent” of a terrorist organization as permissible under the statute, but that any assistance directed at or by a specific terrorist organization or organizations is illegal.

In support of its stance that the statute does not encroach on the right to free speech, the Court paints a convincing picture of how the statute promotes a compelling governmental interest to fight terrorism and how the plaintiffs’ proposed action may help a terrorist organization further its illegal objectives. The opinion points out that supporting legal activities can free up an organization’s resources, allowing it to direct those resources towards planning and carrying out acts of terrorism. Providing legal advice or political advocacy can also help legitimize an organization, making it easier to recruit members and raise funds.

The Court lays out a logical and convincing argument as to why activities like those proposed by the plaintiffs in this case should be restricted; but what are all the different types of activities that could be considered to materially support terrorism? For example, what if Hamas wanted to sue someone or was being sued and they wanted to hire an American law firm? Besides the obvious fact that providing legal assistance to a terrorist organization would be a public relations nightmare for an American law firm, such an act, like the legal assistance that plaintiffs in this case proposed to provide, also appears to be illegal.

The Court’s bottom line here is that terrorist organizations do not segregate their legitimate activities from their criminal ones. Any money that they raise through legitimate channels is likely to go towards supporting violence. The same goes for political or legal aid. While the Court’s rationale is solid, it seems that there will likely be future arguments over what kinds of actions the “material support” statute actually proscribes and what degree of connection someone must have with a terrorist organization for their advocacy actions to be considered illegal.

Photo credit: Jeff Kubina’s Photostream

More Protection for Money Talking

Posted on by The Progressive Policy Institute

One of the more pernicious if deeply entrenched constitutional doctrines in this country is the idea that spending money on political campaigns is inherently an exercise of first amendment free speech rights whose regulation requires the strictest judicial scrutiny. It’s why we do not have any effective national system for campaign finance limitations, and indirectly why at any given time about half the country thinks our politicians have been bought and sold for campaign contributions. Most fundamentally, self-funding candidates can pretty much do whatever they want, and despite the hard economic times, we are seeing self-funders arise this year in extraordinary numbers, particularly on the GOP side of the battlelines.

Unfortunately, the U.S. Supreme Court seems determined to undo every effort to provide candidates who face self-funders with anything like an equalizer. In 2007, in Davis v. F.E.C., a 5-4 majority of the Court struck down the so-called “Millionaire’s Amendment” to the Feingold-McCain campaign finance law on grounds, basically, that it discriminated against millionaires by allowing the opponents of self-funders higher contribution and spending limits.

By the same dubious logic, the Court may be about to strike down “equalizer” provisions in six state public financing systems (Arizona, Connecticut, Maine, New Mexico, North Carolina and Wisconsin). In a case involving Arizona, the Court has issued a stay on the collection of “extra” public money from candidates facing self-funders until it can hear a constitutional challege to the system. Given the Davis precedent, campaign reform advocates are bracing for a bad result.

Photo Credit: Dbking’s Photostream

This item is cross-posted at The Democratic Strategist.

Time for a One-Two Punch for Campaign Reform

Posted on by The Progressive Policy Institute

In its recent Citizens United v. Federal Election Commission decision, the U.S. Supreme Court ruled that corporations and unions are entitled to the same First Amendment freedoms as flesh-and-blood human beings, thereby overturning decades of settled law limiting corporate influence in elections. With political analysts predicting a torrent of new spending by special interest groups in the fall elections, congressional leaders are advancing new legislation aimed at blunting the worst effects of the Supreme Court ruling.

Introduced by Sen. Chuck Schumer (D-NY) and Reps. Chris Van Hollen (D-MD) and Mike Castle (R-DE), the DISCLOSE Act would place commonsense limits on corporate independent expenditures and require CEOs and major funders to take credit for the political ads they make. The legislation rightly restricts electioneering expenditures by corporations with a significant foreign ownership stake, as well as those that benefit from large-scale government contracts or bailouts. In addition, the legislation would greatly increase transparency and disclosure requirements on corporations, unions, trade associations and other incorporated entities, bipartisan measures that are in accordance with our long tradition of constitutionally protected disclosure.

While the design of specific provisions, including the appropriate threshold for government contractor restrictions, is open to debate, the DISCLOSE Act represents a necessary first step to stem the anticipated flood of special interest money post-Citizens United. Democratic leaders have promised swift action and a House vote on the legislation after the Memorial Day recess.

But Congress cannot content itself with incremental fixes to a system of special interest funding that’s rotten at the core. Fundamental reform of the nation’s pay-to-play system will not come by imposing new limits on private campaign spending, but by changing the very source of money that funds campaigns. Bipartisan legislation to establish a new system of citizen-funded elections has already gained the support of 175 members of Congress and dozens of grassroots organizations representing millions of concerned citizens from across the political spectrum.

Under the proposed Fair Elections Now Act, congressional candidates who attract a broad base of public support would be eligible to receive matching federal dollars if they agree to forego special interest money and raise only small donations from their constituents. A four-to-one match on in-state donations of $100 or less would ensure that serious, hardworking candidates have the funds they need to mount a competitive campaign, even when opposed by wealthy individuals or groups.

Indeed, academic analysis of the relationship between congressional campaign spending and election outcomes has consistently found a competitive spending threshold below which candidates are unable to effectively compete and above which additional spending produces negligible returns. Candidates running for the U.S. House between 1992 and 2006 required between $1 million and $1.5 million (in 2006 dollars) to mount competitive campaigns, while spending beyond that threshold did not measurably increase the likelihood of success.

By giving small donors an incentive to invest in political campaigns and rewarding candidates who demonstrate broad public support — regardless of wealth — such a reform has the potential to rein in undue influence by special interest groups and restore the public’s trust. And far from imposing new limits on political speech, the Fair Elections Now Act would expand free speech by enabling new voices to enter the political debate regardless of wealth.

Congress is presented with an historic opportunity to right the wrongs of an activist Supreme Court with a one-two punch for reform: by passing an evenhanded DISCLOSE Act to increase transparency and accountability on the part of corporate funders of political speech, and by passing the Fair Elections Now Act to ensure that elections for public office are owned by the American people, not wealthy special interests. Let’s hope they’re up for the fight.

Photo credit: Dbking’s Photostream