FedSoc Blog

U.S. District Judge James Cacheris ruled last week that corporations have the same right as individual citizens to donate to candidates for federal office and struck down a law that banned corporate contributions to federal candidates, AP reports.

Judge Cacheris of the Eastern District of Virginia determined that the Supreme Court's decision last year in Citizens United prohibiting bans on corporate spending by independent groups extended to direct contributions to candidates' campaigns:

(F)or better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech. Thus, if an individual can make direct contributions within (the law's) limits, a corporation cannot be banned from doing the same thing.

The judge therefore ruled that part of indictment against two defendants alleging that they illegally reimbursed donors in two of Hillary Clinton's campaigns was invalid. Click here to read the decision.

The ruling came after a federal judge in Minnesota upheld a state ban on corporate contributions. Some commentators predict that the decision will be overturned on appeal, asserting that Citizens United made a clear distinction between limits on corporate campaign contributions and independent expenditures.

UPDATE: Judge Cacheris appears to be reconsidering his ruling that the First Amendment prohibits laws that differentiate between individuals and corporations in campaign contributions, according to the Wall Street Journal's Washington Wire. Today, he requested briefs from both sides and has called for oral arguments on Friday.

An interesting story from NPR discusses how bees do politics when they are searching for a new place to build a hive. It appears that the bees dance to show the others the proposed location, and once enough waves of bees visit the location and approve, a dancing consensus is formed.

Once a bee stops dancing in support of a possible location, however, it rejoins the crowd and, according to one hypothesis, no longer cares about which location is picked. This "Retire and Rest hypothesis," if confirmed, would seem to distinguish the way bees and humans participate in politics and persuasion.

Listen to the audio here.

On May 23, the Supreme Court announced its decision in Brown v. Plata (formerly Schwarzenegger v. Plata). The question in this case was whether a court order requiring California to reduce its prison population, in order to remedy unconstitutional conditions in its correctional facilities violated the Prison Litigation Reform Act.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the lower court order requiring California to reduce its prison population was authorized by the Prison Litigation Reform Act and "necessary to remedy the violation of prisoners' constitutional rights." Justices Scalia and Alito filed dissenting opinions.

To discuss the case, we have Sarah Hart, who is a prosecutor in Philadelphia. Ms. Hart is on an amicus brief in support of the appellants.

Click here to view this article on the source site »

The Washington Post carried an op-ed by Prof. Chris W. Bonneau of the University of Pittsburgh yesterday about judicial selection in the states following some media reports questioning the legitimacy of popularly electing state judges. As Prof. Bonneau notes, the New York Times recently published an editorial about Wisconsin's judicial race this year stating as follows:

Whoever ultimately gets the job, all of Wisconsin has lost. This nasty, highly politicized race is raising serious questions about the impartiality of the state's highest court.

However, Prof. Bonneau, citing several studies, disputes the assertion that judicial elections lead to judges who are less qualified and less independent. He argues that not only are elected judges viewed by the public as just as legitimate as appointed ones, but they in fact perform at the same level and are just as independent as appointed judges.

Furthermore, Bonneau states that elections are at least more transparent than a "merit" commission process in which the governor selects judges from a list formulated by a commission formed under state law. He writes:

It is important to remember that efforts to maximize judicial "independence" from the electorate can also maximize independence from the law and the Constitution. Without a mechanism for effectively holding judges accountable, judges are free to "go rogue" and make decisions based solely on their political views.

With opponents of judicial elections like the American Bar Association, Justice at Stake, and the American Judicature Society, not to mention former Supreme Court Justice Sandra Day O'Connor, attempting to reform and eliminate such elections, it looks to be an issue that will not go away anytime soon, in Wisconsin and across the country.

Listen to the audio here.

On May 16, the Supreme Court announced its decision in Schindler Elevator Corp. v. U.S. ex rel. Kirk. In general, the False Claims Act authorizes private individuals who discover fraud against the United States to sue on its behalf. If prosecution of the case is successful, the Act allows the individual to recover a portion of the damages and penalties imposed on the defrauder. An exception to this rule is that the Act does not permit a private individual to sue based on information that was previously disclosed in a government "report" or "investigation" unless the individual was the original source of that information.

The question in this case is whether alleged fraud disclosed in a federal agency's response to a Freedom of Information Act request falls within the government "report" or "investigation" bar to suit. In an opinion delivered by Justice Thomas, the Court held by a vote of 5-3 that "a federal agency's written response to a request for records under the Freedom of Information Act . . . constitutes a ‘report' within the meaning of the public disclosure bar."

To discuss the case, we have Elizabeth P. Papez, who is a partner at Winston & Strawn LLP.

Click here to view this article on the source site »

In light of the scheduled expiration of some of the major provisions of the USA PATRIOT Act - including those authorizing roving wiretaps, business records subpoenas, and surveillance of "lone wolves" temporarily in the U.S. with murky ties to terrorism - Rep. Steve King of Iowa, a member of the House Judiciary Committee, and Prof. Nathan A. Sales of George Mason University School of Law have co-authored an article in Politico encouraging Congress to reauthorize these provisions.

The article, entitled "Patriot Act fits tea party standards," argues that these provisions meet the civil liberties demands of tea party members and are at most simply allowing the departments investigating suspected terrorists to use the same tools other officials have been using for decades when investigating domestic crimes.

And in some cases, Rep. King and Prof. Sales assert, the PATRIOT Act provisions are stricter on government officials than laws relating to domestic surveillance, requiring these officials to get permission from a judge before investigating certain suspects and their records.

Following the House Judiciary Committee's vote to renew these three major provisions, it remains to be seen whether the full House and Senate will do the same. The PATRIOT Act provisions are set to expire on May 27.

Update: And here's a piece by David Rivkin and Andrew Grossman on the constitutionality of the provisions up for renewal under the 4th Amendment.

Dane County Circuit Judge Maryann Sumi ruled today that the Wisconsin law passed on March 9 that takes away almost all collective bargaining rights from most state workers is invalid under the state's open meetings law, reports Andrew Beckett at the Wisconsin Radio Network.

Republicans scheduled with only two hours' notice a conference committee meeting to move forward a stripped-down version of the bill including the prohibition of collective bargaining. This action, Judge Sumi concluded, violated a law requiring lawmakers to give 24 hours notice before such meetings and thus caused the legislation to be entirely void.

The bill's proponents passed the bill 18-1 with no discussion or debate after nearly all Democrats had left the state to avoid a quorum.

Supporters of the law are expected to appeal to the Wisconsin Supreme Court in the next week. Republicans also may try to pass the bill again or place it in the state budget.

Click here for the Politico story, here for NPR, and here for Reuters.

The Blog of Legal Times reports that today the U.S. Securities and Exchange Commission has approved new rules rewarding whistleblowers who give the agency information leading to successful prosecutions. The vote on the provisions was split along partisan lines, with the Republicans on the Commission voting against the new rules and the Democrats voting for them.

Click here to read the new rules. Click here to see the SEC's press release.

The rules reward whistleblowers financially for using internal compliance programs to report misconduct, but they do not require such reporting to the internal company apparatus. SEC Commissioner Kathleen Casey, who voted against the new rules, expressed concern about the absence of an internal reporting requirement: "By diverting a large portion of the flow of information, (the rule) impairs a company's ability to step in," thus causing "violations to last longer and be more serious."

On the other hand, SEC Chairman Mary Schapiro argues:

I believe that incentivizing - rather than requiring - internal reporting is more likely to encourage a strong internal compliance culture. Our rules create incentives for people to report misconduct to their employers, but only if those companies have created an environment where employees feel comfortable that management will take them seriously - and where they are free from possible retaliation.

The rules also extend the time a whistleblower can wait following an internal complaint to notify the SEC that the complaint has not been redressed from 90 to 120 days.

A few days ago, the Wall Street Journal's Law Blog highlighted Federal Magistrate Judge Wallace Dixon, who on May 19 penned an opinion recommending the dismissal of claims Andrew Giuiliani, the son of the former New York mayor, has made against Duke University upon his dismissal from Duke's golf team. Wrote Judge Dixon:

Plaintiff's promissory estoppel claim, which was not argued in his brief, brings to mind Carl Spackler's analysis from the movie CADDYSHACK (Orion Pictures 1980): "He's on his final hole. He's about 455 yards away, he's gonna hit about a 2 iron, I think." North Carolina does not recognize affirmative claims of promissory estoppel; thus, Defendants are entitled to a judgment on the pleadings.

Giuliani had claimed that Duke's golf coach had concocted a number of allegations against him to kick him off the team and that he had a binding agreement with the former golf coach, who died in 2007, that he could stay on the team.

Having been kicked off the team, some suggest that Giuliani be officially placed on gopher duty (see above left). Click here to watch Carl Spackler at work.

The L.A. Times reports that the Supreme Court today ordered California to release tens of thousands of prisoners in order to relieve overcrowding in a 5-4 decision, with Justice Kennedy writing for the majority that the overcrowding had caused "needless suffering and death," and Justice Scalia writing that "terrible things are sure to happen as a consequence of this outrageous order."

Click here to read the decision.

The Court upheld a decision from a 9th Circuit panel that ordered California to release between 38,000 and 46,000 prisoners. The Court's majority referred to situations in which as many as 200 prisoners had lived in a gymnasium and in which as many as 54 prisoners had been forced to share one toilet. The release order is one of the largest in U.S. history.

In a separate dissent from Justice Scalia's, Justices Alito and Roberts argued that the ruling was in conflict with a federal law reducing federal judges' power to order such a release.

Arguably paving the way for a possible Federal Footloose situation, the D.C. Circuit determined in Oberwetter v. Hilliard that there is no constitutional right to dance at the Jefferson Memorial. Therefore, the federal government was not prohibited from ticketing a woman for engaging in "expressive dancing" in the Memorial at night.

The court decided that the Jefferson Memorial is a "nonpublic forum" in which the government may make reasonable restrictions that are viewpoint-neutral. This means that the government may ban such activities in the Memorial as

picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers.

Click here to read Eugene Volokh's post on the case on Volokh Conspiracy, in which he agrees with the result: "The Memorial strikes me as a good example of a nonpublic forum, a place not open, by tradition or by government decision, for public expression; the restriction is indeed viewpoint-neutral; and it does seem reasonable given the purposes for which the property is dedicated."

Click here for the Footloose music video.

The Blog of Legal Times reports that Goodwin Liu, nominated by President Obama to join the U.S. Court of Appeals for the 9th Circuit, might become the first Obama judicial nominee to be successfully filibustered. Three Republican Senators, Lindsey Graham, Johnny Isakson, and John McCain, all of whom rarely support such judicial nominee filibusters, have expressed their support for a filibuster of Liu in light of his 2006 testimony opposing the confirmation of Justice Alito.

In the testimony, Liu, a law professor and associate dean at the University of California at Berkeley's law school, criticized Justice Alito's record while on the 3d Circuit, saying, among other things, that such a record "envisions an America" where "police may shoot and kill an unarmed boy to stop him from running away with a stolen purse."

Liu has since apologized for this portion of his testimony. However, Lindsey Graham states:

Basically, Mr. Liu went after Alito's character and (said) that people with a judicial philosophy like Judge Alito's must want America to go backwards. Well, I sure don't want America to go backwards, so that's why I'm voting no.

Among the Republicans planning to filibuster or vote "no" on the nomination, one Democrat, Sen. Jim Webb of Virginia, has said that he will also vote "no," but he will not support the filibuster.

A three-judge panel of the Fourth Circuit heard oral arguments in two lawsuits challenging the Patient Protection and Affordable Care Act as unconstitutional last week, becoming the first circuit court panel in the country to hear arguments on the law, reports Michael Sluss at The Roanoke Times. Two of the judges hearing the case were appointed by President Obama; one was appointed by President Clinton.

According to the account of Lyle Denniston at SCOTUSblog, the three judges found the distinction of those challenging the law between activity and inactivity, the former of which they argue may be regulated under the Commerce Clause and the latter of which may not, "fundamentally baffling" and "probably unconvincing." The judges spent the most time during arguments trying to untangle this and other issues surrounding the constitutionality of the law's "individual mandate," which requires that Americans who do not currently have health insurance buy it.

Denniston writes that "the challengers cannot defeat the law in court unless they sharpen their argument that Congress has set out in a revolutionary new direction to control Americans' personal lives."

Randy Barnett on Volokh Conspiracy agrees that throughout the arguments, "the panel conveyed a tone of skepticism about the utility" of the activity-inactivity distinction. But he picks up on a portion of Solicitor General Neal Katyal's argument in which Judge Motz, who presided over the panel, persisted in questioning him about how the term "regulate" in the Commerce Clause could be squared with the commerce power reaching inactivity.

It appears that the panel will issue a ruling on the law at some point this summer.

Listen to the audio here.

On April 20, the Supreme Court announced its decision in Sossamon v. Texas. The question in this case was the following: When states accept federal funds, does that constitute consent on the part of the states to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)?

In an opinion delivered by Justice Thomas, the Court held by a vote of 6-2 that when states accept federal funding, they do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Jacob R. Loshin, who is an associate at Winston & Strawn LLP.

Click here to view this article on the source site »

Prof. Jonathan Haidt of the University of Virginia, who was recently featured in a New York Times article about political bias within the social sciences, has gathered together a large number of resources dealing with the conservative-liberal divide and potential bias within academia. Click here to take a look at these materials.