Citizens United Un-PACed?

                As my colleague pointed out in Attack of the Super PAC, the emergence of super political action committees (Super PACs) in the wake of the Citizens United v FEC Supreme Court decision in 2010 has caused a monumental shift in the financial structure of political campaigns.  To reiterate his excellent summary, the Court found that federal restrictions on the amount that corporations and unions spent for political advertising violated the First Amendment. While the Court did stipulate that such entities could be barred from directly coordinating with a political campaign, in the wake of the decision Super PACs have emerged engaging in aggressive spending in support of their favored candidates.  My colleague makes a plea for limiting the influence of Super PAC funding in the political process, and I certainly share his concern.  What is harder to address is just what kind of limit might be imposed on political spending by Super PACs without running afoul of the Citizens United decision.  It is difficult for Congress to legislate around a First Amendment prohibition and getting a constitutional amendment passed and ratified would be a long-term effort.

                In researching this question, I am led to conclude that the most direct and available means of addressing the situation would be for the Court to revisit its decision.  In fact, there are rumblings that the Court may at least take a step in that direction.  At the end of 2011, Montana’s Supreme Court upheld a state law banning corporate spending on political campaigns on the grounds that the state law was fundamentally different from the limitation found unconstitutional by the U.S. Supreme Court in the Citizens United case.  Immediately following the Montana ruling, the U.S. Supreme Court was asked to stay the Montana decision and did indeed act to stay the decision.  At that time, Justices Ginsberg and Breyer (two of the dissenting justices in the Citizens United decision) made a statement in support of the stay urging the Court to reconsider Citizens United “in light of the huge sums currently deployed to buy candidates’ allegiance.”  While the stay prevents the Montana decision from taking effect, the next step in the process could go a couple of different ways.  According to a February 18, 2012 article on SCOTUSblog, the Court will either: (1) summarily reverse the Montana decision, meaning that the Court will stand firmly behind its Citizens United decision; or (2) decide to fully review the Montana case.  It would take four votes to grant full review.  Assuming that Justices Ginsberg and Breyer have signaled their interest in full review, only two additional justices’ votes would be needed.  However, assuming full review is granted, it will still be a long road ahead.  No decision would occur prior to the upcoming Presidential election, in fact, because of a subsequent application to the court (noted in a March 27^th SCOTUSblog post) a final decision would not occur until after this years’ elections are completed. 

                Furthermore, although a decision on the Montana case might lay some groundwork for an eventual overruling.  As Mr. Goldstein wrote in the February SCOTUSblog post, “…the relationship between campaign finance law and the First Amendment is destined to be unsettled … for at least the next century”.

Let By-Gones Be By-Gones and the Court Be Congress?

                I am returning to the Affordable Care Act (ACA) with this post. Particularly I wish to expand on my opinion about the Act’s severability (If you want some background on the particulars of severability you can go back a few posts and read my post Severability and Possible Judicial Power Grab? Or you could go to any news site and find at least something on it.) I digress; there are a number of brain-twisting qualifications to consider when asking if, hypothetically, the individual mandate is declared unconstitutional, is the rest of the bill able to (or should it) stand on its own?

                The other two main entities of the ACA besides the individual mandate are “guaranteed-issue” and “community-rating.” These two entities are extremely popular with the majority of Americans; simply because these provisions give more people access to health care and particularly to “fair” health care, or so it is said. I won’t bother trying to decide if that is a true assertion, but I can say that there are more than a few Americans that believe it is. The provisions’ popularity was not over-looked by the government either; the government actually argued during oral arguments before the Supreme Court that the bill was NOT severable if the individual mandate was declared unconstitutional. (One has to wonder if this argument wasn't made in part as an effort to use public pressure to nudge the court to accept the individual mandate.)
                Which leads me to my next point: If I were a Supreme Court Justice (Lord help me), the first thing I would have to consider is the protection of the Court. What I mean by that is that the Court is an independent entity, and if they are swayed to either uphold the individual mandate or declare the rest of the Act (particularly the guaranteed-issue and community-rating) severable from it because they were bowing to public opinion, the Court would be entirely worthless. Worthless because it is charged with being objective and unbiased in applying the Constitution, (granted, not something easy to do). Yet if the Court allows the will of the masses move it, how can it protect the rights of the minority, protect the rights of the government, the rights of businesses, the rights of you and I, or the Court itself; how can it be considered anything other than a tool? Thus as a Supreme Court Justice I would probably have to exercise judicial restraint and say, “Since there is no severability language present in the bill, the entire Act must fall because a severability clause allows for provisions in the Act to survive without the ‘heart’ of the bill present and without one it cannot be assumed that those provisions can stand on their own. You can’t have it both ways.” Besides it would make sense that if the other provisions in the bill are so incredibly popular, they could surely be put in a new bill rather easily, right?  After all, the Court's opinion could specifically delineate the provisions that are unconstitutional and clarify that the remainder of the bill falls due to the lack of a severability clause.
                In conclusion, while I do think that the “guaranteed-issue, community-rating,” along with the majority of the rest of the Act (excluding the individual mandate) are certainly not unconstitutional and even positively progressive, the statute as a whole must fall. Judicial activism is not necessarily a bad thing mind you, but severability clauses exist for the purpose of laying out Congressional intent. The Court is separate and independent of Congress; the Constitution gave the power to make laws to Congress and the power to review those laws to the Court. They were not made to mix those together with one or the other. Checks and Balances. Declaring that part(s) of the bill can stand without clear legislative intent written in via a severability clause is, in essence, “writing” the law, which is entirely different from “reviewing” the law.

The 'Obstacle' for "Crisis of Education"

My colleague’s March 26^th post “Crisis of Education in America” calls for increased funding for K-12 education to address the nation’s dropout and literacy problems and also to better prepare students for college-level work.  While I think that more funding for K-12 education can certainly be put to good use, I want to point out that K-12 education is primarily governed and financed at the state and local level.  On a nationwide basis, only 9.5% of total K-12 revenue is from federal sources.

Clearly the federal government has an established presence in education; however, I think that my colleague’s plea for additional dollars, presumably federal dollars, needs to be put in perspective of the current federal role in education, both in terms of policy/regulation and financial commitment.  If Congress were to provide significantly more federal funding for K-12 education, those dollars would likely be accompanied by a significantly expanded federal policy-setting and regulatory role.  States, particularly Texas, would probably take a dim view of additional federal education mandates.  For example, when part of the federal economic recovery funding was set aside for competitive grants, known as Race to the Top, Texas was one of five states that refused to apply for funding because of the perception of federal invasion of the state’s role in education.  In that case, preferential scoring was given to the applications of states that agreed to adopt federal curriculum standards for reading and math, remove caps on the number of charter schools, and so forth.  Likewise the federal government has been steadily backing away from the politically unpopular accountability requirements under No Child Left Behind by offering waivers of the requirements, for which more than half of states applied.  So, even at the current level of federal funding for K-12 education, there is overwhelming resistance toward federal policy-setting and regulatory roles.

And then we come to the level of financial commitment.  Let’s assume that a level of funding at least equal to state and local government funding for K-12 education would guarantee something like an equal federal say in education policy-setting and regulation.  Based on a report by the Census Bureau, in 2009, states contributed $276 billion to K-12 education, local governments $259 billion, and the federal government $56 billion.  So, it would take at least an additional $204 billion annually for the federal government to get in the range of an equal financial commitment.  Naturally there would also need to be consensus on just how to distribute so much additional funding and requirements for the state and local governments to maintain their current levels of funding.  Given Congress’ recent track record on passing a budget, there would seem to be nearly insurmountable odds against a coalescence of the political will necessary to pass an increase in excess of 350% of current federal K-12 education spending.

To be succinct, an increase in “spending” on K-12 education means the federal government has to pump money into it via its only revenue source:, what Justice Stephen Beyer called “the life blood of the government:” taxes. And, as I mentioned above, an incredible amount of taxes would have to be generated. (ask yourselves; who are, or will be soon, taxpayers, would you be willing to increase your taxes to meet this extraordinary sum?)

 Let me reiterate that I, too, find the statistics presented by my colleague troubling.  However, given both the historically limited role of the federal government and the current resistance both to any expansion of the federal education-related footprint and to a lack of consensus on spending in general, I think that citizens would be better advised to be active in pursuing accountability for results and enhanced levels of funding at the state and local level. 

Severability and Possible Judicial Power Grab?

The Supreme Court of the United States has heard, over the last three days, several arguments on President Obama’s Health Care plan. I wish to examine and extrapolate on the proceedings of this case, in particular the arguments heard on the morning of Wednesday the 28^th.

                The arguments heard on Wednesday morning were debating the severability of the Health Care statute. The “severability” of a statute (or bill) is that bill’s ability to still be a working piece of legislation without certain provisions (or aspects) of the bill in place. The positions that were advocated were: 1. The bill is not severable, if the individual mandate is declared unconstitutional then the rest of the bill should fall. 2. The Court does not have the ability to consider the question of severability because the other provisions of the bill apply to people who are not litigating before the court. 3. The bill is severable, and if the individual mandate is declared unconstitutional then the rest of the bill can still stand. Allow me to dissect the political jargon in those positions; for some back ground into the Patient Protection and Affordable Care Act, the “individual mandate” is a mandate (or federal requirement) that every person has health insurance by 2014 or pays a penalty. Two other key provisions are the “guaranteed-issue,” (that everyone has insurance available to them regardless of health risk) and “community-rating” (where everyone is charged the same price for the same type of coverage at the same age without any other type of discrimination)

                Back, briefly, to the issue of the individual mandate; I do not plan to burden you with my two-bits-worth opinion about the individual mandate, but I will give you two quotes from the arguments brought before the Supreme Court,

                “Here [in this bill] Congress is regulating existing commerce, economic activity that is already going on – people’s participation in the health-care market”

-          Donald Verrilli

-          Solicitor General, representing the government

Then in response,

“The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce.”

-          Paul Clement

-          Former Solicitor General, representing opponents to the law

You may decide whether the individual mandate is constitutional. In making its decision concerning the individual mandate along with the rest of the questions debated this week, the Court must also address severability. As I read and listened to the official court transcript concerning the question of severability, I noticed something that came up repeatedly throughout it. The Justices kept asking for an example of a case on severability that was close to this one.

“JUSTICE SCALIA: Mr. Kneedler… When have we ever really struck down what was the main purpose of the Act, and left the rest in effect?

MR. KNEEDLER: There is no example -

JUSTICE SCALIA: There is no example. This is really -

MR. KNEEDLER: — to our — to our — that we have found that suggests the contrary.

JUSTICE SCALIA: This is really a case of first impression. I don't know another case where we have been confronted with this — with this decision.

Can you take out the heart of the Act and leave everything else in place?”

Then again when the Amicus Curiae (friend of the court) was advocating his position,

“JUSTICE BREYER: I would say stay out of politics. That's for Congress; not us. But the, the question here is, you've read all these cases, or dozens, have you ever found a severability case where the Court ever said: Well, the heart of the thing is gone; and, therefore, we strike down these other provisions that have nothing to do with it which could stand on their feet independently and can be funded separately or don't require money at all.

MR. FARR: I think the accurate answer would be, I am not aware of a modern case that says that. [I] think there probably are cases in the '20s and '30s that would be more like that.”

                For some reason the Justices kept pushing that question; a question that I believe they already knew the answer to, since after Mr. Farr’s answer they seemed satisfied. I believe they are well aware of the position of power they are now in. Most Acts of Congress include something called a “severability clause” that explains that if part of the bill is struck down the rest will remain in effect and continue to function. While the final decision concerning constitutionality is still with the Court, when a severability clause is present the Court has to come up with a very good reason to strike down the entire Act. However in the Affordable Care Act, the severability clause was left out. In fact there was no severability language included anywhere in the bill. The Supreme Court now has been empowered with deciding on a much larger scale than any previous case, legislative intent. In other words they can decide, “What did Congress mean to do?” Did Congress intend for elements such as guaranteed issue or community rating to continue in effect even if there is no individual mandate? While severability cases have existed in the past, they have never dealt with something quite this massive in scale.

                The undertone of all this is that the Court has the potential to exercise what some might see as judicial activism. At a minimum, they might establish a potentially far-reaching precedent concerning severability. In June we will see what kind of power the Court chooses to exercise.  I think the opinions will make for some interesting reading.

All direct quotes are from the Official Transcript of Florida v. Department of Health and Human Services, copies for all 3 days of hearings can be found on NPR’s website.

Cyber-Paranoia

               Cyber warfare has increased importance in today’s security questions, and Leslie Harris, in her blog post for the Huffington Post, NSA’s Cyber Power Grab  expresses her worry that the proposed SECURE_IT Act will allow military organizations to infringe on the privacy of ordinary people.

 Leslie Harris is the President and CEO of the Center for Democracy & Technology and has testified before Congress on matters related to technology. In her post, Harris seems to be targeting a general audience who has very little if any knowledge about the NSA (National Security Agency) and the “information sharing” proposed by the SECURE_IT Act. Harris claims that this Act, proposed by a group of Republican Senators including John McCain, would give a great deal of liberty to the NSA regarding what types and how much information they could access. Her argument is that the new bill “authorizes sharing that goes beyond what is truly necessary to describe a cyber threat or to engage in self- defense…” She asserts that the SECURE_IT Act does not create explicit limitations on what types of information that would be acquired from the “private sector.”

               Harris is obviously no fool. She is, after all, President and CEO for the Center for Democracy & Technology and has experience as a lobbyist; thus she understands concerns that businesses would have with the “sharing of information.” Yet her post is targeted towards the average Joe, not to the well-informed business head. She introduces two “cyber security bills,” SECURE_IT, and the Lieberman-Collins bill; both she claims grant too much power to the government to “share cyber attack information.” She does not explain what exactly the two bills propose that makes them “too much,” nor does she even explain what she means by “sharing information.” While that might be perfectly all right for some one well informed in the area, no average citizen will understand what she is talking about.  In order to scare her public readers into believing this proposed bill is a serious threat she uses scare tactics saying “What could be shared under the Republican bill? How about images from the drones that the FAA will soon be licensing to conduct private surveillance in the U.S….” and continues in on the “black helicopter” mentality by asserting that the government will abuse its power by getting surveillance footage of people entering “sensitive locations” like sports stadiums and airports.  First of all where did this assertion come from?  There is a link to a post on what appears to be her own company's website asserting that upcoming rulemaking action by the FAA (Federal Aviation Administration, which deals with civilian air control) will enable widespread licensing of civilian drones. (Granted, such drones would be privately owned since the military would not need a license from the FAA.)  But initiation of a regulatory structure for civilian drones is no indication there will soon be swarms of private drones monitoring us.  Harris simply does not substantiate her claims with direct evidence nor does she present anything more specific as a problem than broad authorization for “information sharing.”  I think that both evidence and specific examples would be necessary both to clarify and to substantiate her stated concerns. 

               I believe that the idea behind the bill that she takes issue with, is to heighten the government’s ability to respond to and or prevent “cyber-attacks” (or in other terms, sophisticated hacks or breaches in secure networks) in both “private” and government sectors. The reason the need for better cyber-security has been a subject of popular debate recently is due to numerous, well-publicized major breaches by hackers over the last few years including the hack of global intelligence company Stratfor that involved information from clients including the US Defense Department, the Army, and the Air force.

               Obviously the threat is real and obscuring that threat by claiming that it is a government attempt to spy on its own people comes across as simply cyber-paranoia.  If there are issues to be raised about the proposed bills related to civil liberties or economic considerations, those issues deserve a more comprehensive and convincing airing.

               For more information about the two bills, the SECURE_IT Act and the Lieberman-Collins bill please read Cybersecurity Bills Duel Over Rules for Firms from The Wall Street Journal by Siobhan Gorman.

Free to Speak; Free to Lie?

On the Opinion Page of The New York Times the editorial entitled Honor and Free Speech touches on the Supreme Court case heard yesterday, Wednesday February 22, 2012. The case, United States v. Alvarez, centralizes around the constitutionality of the Stolen Valor Act of 2006: which makes lying about receiving military awards a federal crime. Xavier Alvarez claimed that he “served in the Marines 25 years, was wounded many times and received the Congressional Medal of Honor.” All of which were false statements.

 However, because of the Stolen Valor Act, he was charged and sentenced with 3 years of probation and a fine of $5,000. The editorial asserts that while the Stolen Valor Act’s purpose “to protect the honor in receiving a military medal” is “perfectly reasonable,” the fact remains that “as a regulation on speech, the [Stolen Valor Act] is unconstitutional and should be struck down by the Supreme Court…” An argument I agree with whole-heartedly.

 The author of this editorial is not named nor any credentials mentioned, yet that does not negate the validity of his or her points; points reasserted in other articles in different major news networks (The Wall Street Journal for example had an article, Justices Take on Medal Lies relating to the case hearing itself in its February 23 edition. An article I suggest to the reader to provide insight into the Justices’ possible ruling on the case.) The author of the New York Times editorial seems to be targeting a general audience that has no great concern for a small case about a mendacious fraud. The author is trying to point at the bigger picture of an encroachment on Freedom of Speech and how if the government could get away with in this case, what’s to stop them from going farther? Many news networks “filed a brief supporting Mr. Alvarez,” furthering the idea that the fear would be of government “policing everyone’s speech” for lies.

 I hold the utmost respect for our nation’s heroes and heroines in the Armed Forces and their right to the honors they receive. However, the Stolen Valor Act is clearly in conflict with the First Amendment of the Constitution and, therefore, must be struck down by the Supreme Court. It’s important to know what your rights are and to fight against any infringement upon them. While it’s not likely many people would lie about being a decorated military veteran, the fact that it is a federal crime to SAY you are means that it would not be a large step to make “lying in general” fall outside the First Amendment’s protection of speech.

Strange Political Bedfellows

 I highly recommend reading the article entitled, “Congress tries again to hand the president a line-item veto” written by Ben Pershing and published on January 30 in The Washington Post. It is a very informative article that focuses on the recent Expedited Line-Item Veto and Rescissions Act of 2011 and how Congress plans to, once more, try to grant the President “Line-Item Veto” power. What that entails is that instead of the normal presidential up or down veto of a bill, the President would have the power to “line out” or cut only certain parts of the bill. (Though under the proposed bill, the President would only have that power for budget bills.) This article offers backstory to the attempts that Congress has made in the past to grant presidents the line-item veto including the Clinton v. City of New York Supreme Court case that threw out the last attempt to grant the line-item veto in 1996. This article is a must read, (You will find the politically-motivated, bipartisan alliance forming around this issue very interesting!)