Doug Kendall

A 'Pack' of Nonsense

2013-06-07T10:50:19-04:00

On a picture perfect day earlier this week, President Obama nominated Patricia Millett, Nina Pillard, and Judge Robert Wilkins to fill the three vacancies on the D.C. Circuit Court of Appeals during a ceremony in the White House Rose Garden. This was an important moment for the Obama presidency when it comes to judges -- the president delivered a powerful speech about the unprecedented obstruction that has stalled or outright blocked his nominees. After bending over backwards during his first term to appease Senate Republicans to get a modicum of cooperation that never materialized, President Obama made it clear he is fed up and ready to fight for his nominees.

Of course, the president isn't the only one ready to fight. Conservative activists have been fighting tooth and nail over the future of the federal judiciary for decades. Their hilarious first response to President Obama's nominations has been to claim that, by complying with his constitutional mandate to nominate people to fill authorized seats on the federal bench, the president is engaging in "court packing." Even some conservatives have had a hard time understanding this assertion. As Byron York, a Fox News contributor and author of The Vast Left Wing Conspiracy dryly noted, "it doesn't strike me as 'packing' to nominate candidates for available seats." American Enterprise Institute scholar Norm Ornstein more colorfully said that the claim made him "laugh out loud." Ornstein continued with, "How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?" Good question.

The more serious claim from the right is that President Obama is attempting to use these appointments to advance his policy agenda. This gets it exactly backwards. It is conservatives who have, successfully, used appointments to the D.C. Circuit to advance their policy agenda in recent years. By putting judges from the tea party fringe, such as Janice Rogers Brown, and conservative political operatives, such as Brett Kavanaugh, on this critical court, President George W. Bush helped produce a court that is, in the words of Pulitzer Prize-winning columnist and George Mason Professor Steven Pearlstein, waging "judicial jihad against the regulatory state." As Pearlstein observed, "dysfunctional government has become the strategic goal of the radical fringe [on the political right]. ... Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies."

In this context, President Obama does not need judges who will advance a progressive agenda. He simply needs judges who will uphold validly enacted laws and reasonable regulations. This is reflected in his nominees. If President Obama were seeking ideological warriors for the D.C. Circuit, it is unlikely that he would have nominated two people who served long stints in the Office of the Solicitor General under George W. Bush, as is the case of his one confirmed nominee to the court, Sri Srinivasan, and one of his new nominees, Patricia Millett. All four of his nominees have been given the American Bar Association's highest possible rating.

President Obama can nominate individuals based on qualifications rather than ideological fervor for a simple reason: the success of his agenda doesn't require judges who will bend the law, it just needs judges who will follow it.

This piece is cross-posted on Text & History.

Big Business and the Roberts Court

2013-05-01T16:37:36-04:00

Co-authored with Tom Donnelly

Last week, the Supreme Court wrapped up its final arguments in what has so far been a monumental term. Understandably, most commentators have focused on the blockbuster civil rights cases on the Court's docket - cases addressing affirmative action, voting rights, and marriage equality. However, the interest in these high-profile cases has obscured another emerging storyline - one that has potentially far-reaching consequences for workers, consumers, and ordinary Americans nationwide: the Court's business-heavy docket, and the U.S. Chamber of Commerce's continued success before the Roberts Court.

This term, the Chamber has filed a whopping eighteen briefs overall, typically acting as an "amicus" or "friend of the Court." With the Court's dwindling docket - it's likely to decide only 76 cases this term - that means the Chamber is participating in almost a quarter of the Court's decided cases, a staggering percentage. As a point of comparison, in the early 1980s - in the twilight years of the Burger Court - the Court heard twice as many cases as it does now, between 150 and 160 per term. At the same time, the Chamber filed in fewer of them - an average of seven per term or roughly 4% of the Court's cases overall. Therefore, even as the Court is now hearing far fewer cases, the Chamber is participating in a greater number of them.

And this is no accident. Instead, it's a reflection, in part, of a concerted effort by the Chamber to shape the Court's docket, an effort that has been extremely successful to date. As SCOTUSblog reported last month, the Chamber filed the most amicus briefs at the cert. stage - in other words, supportive briefs urging the Court to hear a given case - of any private organization between May 2009 and August 2012. And during the SCOTUSblog study period, the Chamber had the highest success rate of any of the most active organizations - with the Court granting 32% of the Chamber's cases overall. Therefore, the Chamber isn't simply participating in cases that the Court has already decided to hear. It's also working aggressively to shape the Court's docket itself.

Finally, and most importantly, the payoff for all of these efforts has been enormous, as the Chamber continues to win the vast majority of its cases before the Roberts Court. Take the current term. Although more than half of the Chamber's cases are still pending, the Chamber is already off to a strong start, winning six of its cases so far and losing only one. This success rate is a minor improvement in the Chamber's already spectacular overall track record before the Roberts Court to date.

All told, since John Roberts took over as Chief Justice and Samuel Alito replaced Justice Sandra Day O'Connor, the Chamber has prevailed in 69% of its cases overall, including 79% of its closely divided cases - that is, cases decided by a five-justice majority. And, in these close cases, when a justice's vote matters the most, support for the Chamber's position from Chief Justice Roberts and the conservative bloc has been overwhelming, with the Court's conservatives supporting the Chamber's position 82% of the time. Friends of the Court, indeed.

In the end, it's easy to overlook the Court's business docket. Many of the cases are obscure and, at times, technical. Nevertheless, stripped of legalese, the stakes involved are often enormous.

Take the Chamber cases that the Roberts Court has already decided this term. By siding with the Chamber, the Court has made it more difficult for victims of alleged human rights violations to hold corporations accountable for their alleged abuses abroad, more difficult for employees to join together to seek back-pay from an employer for alleged violations of federal labor law, and more difficult for customers to challenge their cable company for higher prices linked to alleged antitrust violations.

Furthermore, if the Court follows the Chamber's lead in the business cases still pending, it will close the courthouse doors to some patients injured by generic drugs, make it harder for employees to win Title VII retaliation claims after complaining about blatant discrimination, and undermine local efforts to strike the right balance between protecting the environment and promoting development. In addition, if it sides with the Chamber, the Court will make it easier for large companies to use arbitration agreements to block collective efforts to hold those companies accountable for their alleged misdeeds.

Needless to say, the remaining months of the Court's term will be extremely important for the Chamber - and for ordinary Americans. We'll be watching, and we hope that you will be, too.

Read the full CAC interim report Not-So-Risky Business: The Chamber of Commerce's Quiet Success Before the Roberts Court - An Early Report for 2012-2013.

(This post is also cross-posted on Text and History).

The Scalia Court and Voting Rights, Part 2

2013-03-11T11:14:26-04:00

With Justice Antonin Scalia's controversial statement that the Voting Rights Act represents the "perpetuation of racial entitlement" continuing to reverberate across the media landscape, it's hard to believe that the Supreme Court is poised to hear another seminal challenge to a federal law protecting Americans' right to vote.

But next Monday, the Court will hear Arizona v. Inter Tribal Council of Arizona, a challenge by the state of Arizona to the protections of the National Voter Registration Act (NVRA). The NVRA, also known as the Motor Voter Act, was enacted in 1993 with the goal of boosting voter participation and streamlining voter registration.

At stake in both the challenge to the Voting Rights Act in Shelby County v. Holder, and the challenge to the NVRA in the Arizona case, is whether the federal government will continue to have the power to beat back efforts by the states to suppress the vote. As anyone who was watching the 2012 elections knows, one of the key voter suppression methods employed by conservatives was the enactment of ever more burdensome voter ID laws. Those laws were an issue in Shelby County because the Voting Rights Act was used in 2012 to block or delay the implementation of voter ID laws in Texas and South Carolina.

The Arizona v. Inter Tribal Council case involves a variation of the polling place ID laws that dominated the news during the 2012 election cycle. In 2004, Arizona made a brazen attempt to add to the voter registration criteria established by the National Voter Registration Act. While the NVRA simply requires registrants to sign a sworn affidavit (under penalty of perjury) attesting to their citizenship status, Arizona attempted to add a more stringent condition by requiring all registrants to present hard copies of documents proving their citizenship.

If upheld, Arizona's challenge would likely set off a whole new wave of fights over copycat bills in states across the country. And while Shelby County and Arizona v. Inter Tribal Council involve different statutes and different legal challenges, they raise the same core constitutional issue: the role of the federal government vis-à-vis the states in terms of voting rights in America. As Constitutional Accountability Center's briefs in Shelby County and Arizona v. Inter Tribal Council show, the Constitution unambiguously supports the federal government in both these cases.

In the case of Shelby County, Section 2 of the Fifteenth Amendment explicitly grants Congress (not the Supreme Court, and certainly not the states) the power to craft "appropriate legislation" to enforce the Amendment's guarantee of voting free from racial discrimination. The Voting Rights Act is a quintessential example of "appropriate legislation" and, as 2012 showed us, its protections are still necessary today.

In Arizona v. Inter Tribal Council, the Constitution provides a similarly clear answer. The Elections Clause of the Constitution (Article I, Section 4) grants Congress the power to "at any time by Law make or alter" state election regulations -- including, of course, state voter registration laws. Therefore, while the Elections Clause provides an important role for states to establish time, place, and manner rules for federal elections, the Clause even more clearly gives the federal government a veto over these laws and the ability to establish nationwide standards on topics such as voter registration.

Which brings us back to Justice Scalia's comments in Shelby County ...

While his labeling of the Voting Rights Act as the "perpetuation of racial entitlement" has dominated the Shelby County news, Justice Scalia's argument that the reauthorization of the VRA was "not the kind of a question that you can leave to Congress," is, if anything, even more troubling. It reflects a breathtaking disregard for both the Constitution and the will of our democratically elected Congress.

The efforts by state officials around the country to suppress the vote in the lead-up to the 2012 election were an outrage. But what's happening in the Supreme Court in 2013 could end up being even more significant because the issue is not just whether the states can try to suppress the vote, it's whether the federal government can prevent this from happening.

(This post was written with Ryan Woo and will be cross-posted on Text and History)

The Constitutional Case for Marriage Equality

2013-02-28T11:10:01-05:00

The Cato Institute and Constitutional Accountability Center don't always agree politically, but we both pride ourselves in following where the Constitution leads. Several years ago, that led us to argue together for the enforcement of the right to keep and bear arms against state laws. It leads us this week to file joint briefs in the landmark Supreme Court cases on marriage equality. For us, these cases aren't a matter of politics or ideology; they are a fight for the true meaning of one of America's most sacred constitutional rights.

The constitutional case for marriage equality begins with the sweeping and universal text of the Fourteenth Amendment's Equal Protection Clause, which guarantees "equal protection of the laws" to "any person." Drafted in 1866 and ratified in 1868, the Clause wrote into the Constitution the ideal of equality first laid out in the Declaration of Independence. The text protects all persons from arbitrary and invidious class-based discrimination, whether black or white, man or woman, gay or straight, native-born or immigrant. It gives to all persons, as individuals, the guarantee of the equal protection of the laws.

Constitutional history shows that the breadth of the Equal Protection Clause was no accident. It is clear from the drafting history of the Clause that the framers were determined to strike out against more than simply discrimination on the basis of race. The framers wrote the constitutional guarantee broadly to ensure, for example, that white supporters of the Union in the South as well as Asian immigrants in the West were protected from arbitrary and invidious discrimination. As a result, the framers repeatedly rejected proposals that would have prohibited racial discrimination, and nothing else.

The Fourteenth Amendment's framers also recognized the right to marry the person of one's choosing as a crucial component of freedom and liberty--a right that had long been denied under the institution of slavery. Slaves did not have the right to marry, and slaves in loving relationships outside the protection of the law were time and again separated when one slave was sold to a distant part of the South. As Senator Jacob Howard - the leading sponsor of the Amendment in the Senate -- explained, a slave "had not the right to become a husband or father in the eye of the law, he had no child, he was not at liberty to indulge the natural affections of the human heart for children, for wife, or even for friend."

The Fourteenth Amendment remedied this horrible wrong. In writing into the Fourteenth Amendment a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment's framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry. Laws that discriminate and deny to members of certain groups the right to marry the person of their choosing thus contravene the original meaning of the Fourteenth Amendment.

Neither California's Proposition 8, which forbids gay men and lesbians from marrying the person of their choice, nor the federal Defense of Marriage Act (DOMA), a sweeping mandate of federal discrimination against legally-married same-sex couples, complies with the Constitution's guarantee of equal protection. By forbidding committed same-sex couples from participating in what the Supreme Court has long recognized to be "the most important relation in life," and the "foundation of the family in our society," Proposition 8 contravenes the Equal Protection Clause's central command of equality under the law. It establishes a class-based badge of inferiority that infringes upon the personal dignity and liberty of gay men and lesbians and their families.

DOMA, an equally sweeping violation of equality under law, establishes an across-the-board rule - applicable to more than 1,000 federal legal protections - that denies legally-married same-sex couples federal rights and benefits that exist to support committed, loving couples who form enduring, life long bonds. The federal government simply doesn't have the power to discriminate against individual Americans or refuse to honor the Constitution's prohibition against treating them as inferior, second-class persons.

In Romer v. Evans -- the first case in which the Supreme Court held that discrimination on the basis of sexual orientation violates the Equal Protection Clause -- Justice Kennedy began his opinion for the Court with the majestic words of Justice John Marshall Harlan, who, in dissent in Plessy v. Ferguson, declared that the Constitution "neither knows nor tolerates classes among citizens." Unheeded then, these words now are understood to state an unshakeable American commitment to the law's neutrality where individual rights are at stake. The Constitution demands marriage equality.

The No Good, Very Bad Week of Hans von Spakovsky

2013-02-22T16:07:27-05:00

If you've followed the conservative attack on voting rights over the past year, you know that the Heritage Foundation's Hans von Spakovsky has emerged as one of the right's most visible spokesmen. With the Supreme Court poised to hear a conservative-led attack on the constitutionality of the Voting Rights Act next Wednesday, you would think von Spakovsky would be on the top of the world. Instead, he's increasingly becoming a real embarrassment to the right's efforts.

First, as explained here, one of the most remarkable briefs the court will consider next week is a ferocious brief signed by former Reagan and H.W. Bush Attorney General Richard Thornburgh that is a direct and pointed takedown of an earlier brief filed by von Spakovsky. Safe to say that it's not often that you see such a thoroughgoing rebuke by a conservative Republican former attorney general against an argument made by other conservative advocates. And it's a clear indication of how controversial von Spakovsky has become even in conservative circles.

There is more indication of that today. According to a story broken by the Virginia blog NotLarrySabato, and also reported by the Associated Press, a group of GOP judges just booted von Spakovsky from the Fairfax County Electoral Board. As described in this letter written by the Fairfax County Democratic Committee, in his time on the Board, von Spakovsky had proven himself "temperamentally ill-suited to properly perform the functions and duties of an Electoral Board member for the people of Fairfax County." A panel of GOP judges on the Fairfax County Circuit Court apparently agreed, and broke a long line of precedent in refusing to reappoint von Spakovsky. Here's how NotLarrySabato described what happened:

The parties get to nominate three candidates, but judges usually take the first choice of the party. In Fairfax- judges have never bypassed the top choice of a party in the last 50 years (which is as far back as I could find people that remembered). Also the judges making the decision were all selected for the bench by Republicans in the General Assembly.

So what did these GOP judges decide to do? In an unprecedented move in Fairfax County- judges for the first time in modern history have rejected the top choice of a political party for one of these positions. Instead, GOP lawyer Brian Schoeneman was appointed to the Board.

Coming less than a week before an historic argument in the Supreme Court about the constitutionality of the Voting Rights Act, the face of the conservative attack on voting rights is confronting an attack himself, and largely from people you would expect would be his allies. Hopefully the Supreme Court's conservative wing will note the very deep divisions within the conservative ranks about the constitutionality of the Voting Rights Act and the snake oil being peddled by Hans von Spakovsky.

Too Rich to Lose Money? AIG, the Takings Clause and the Roberts Court

2013-01-14T09:51:53-05:00

Co-authored by Tom Donnelly

The Takings Clause of the Constitution's Fifth Amendment made national news last week with the spectacle of AIG playing Hamlet in debating whether "to sue, or not to sue" the federal government over the terms of the company's bailout -- a rather backhanded way of thanking American taxpayers for keeping the company from certain bankruptcy in 2008. Wisely, the company, facing widespread public outrage, chose "not to sue." However, a lawsuit filed in 2011 by a group of AIG shareholders, led by the company's former chief executive, will go on. The shareholders allege, in part, that the terms of the bailout were so onerous that they violated the Constitution -- in lawyer-speak, that they represented an unconstitutional "taking" of the shareholders' "private property... for public use, without just compensation."

To see how ludicrous the shareholders' claim is, remember that when AIG agreed to a federal bailout the company was facing bankruptcy, with only one creditor available to save it -- the federal government. Had the government not stepped in, AIG would surely have gone bankrupt, and the shareholders would have been left with nothing. Therefore, the shareholders can't argue that government aid wasn't needed at the time -- nor do they. Instead, they claim that the final terms agreed to by AIG -- terms that granted the company $182 billion in loans and allowed it to stay in business -- led to an unconstitutional taking of the shareholders' private property because the terms excessively diluted their stock and the agreed-upon loans demanded a too-high interest rate from the company. Talk about biting the hand that fed you!

To understand why this ludicrous claim has not been laughed out of court, you have to shift from Wall Street to the land development world and to a decades-old "property rights" movement that has pushed to expand the scope of the Takings Clause. The next big Supreme Court case dealing with these issues -- indeed, the most important such case to be reviewed by the Court since John Roberts became Chief Justice -- Koontz v. St. Johns River Water Management District, will be argued tomorrow. This case has been spearheaded by the Pacific Legal Foundation (PLF), a conservative group that has worked for decades to turn the Takings Clause into a constitutional barrier to environmental protection.

While the amount of money in dispute in Koontz is far smaller than that at issue in the AIG case, the legal issues themselves are roughly the same: how broadly should the Takings Clause sweep and, in particular, under what circumstances can courts use the Takings Clause to second-guess the terms offered by the government during the course of its negotiations with private parties.

Coy Koontz, Sr. was a developer who sought a permit to dredge and fill more than three acres of protected wetlands in Florida. While the Water Management District wished to place reasonable conditions on Koontz's development permit to mitigate related environmental harms to the community -- conditions intended to comply with well-established state guidelines -- Koontz wanted to develop his land free of these conditions. In the end, Koontz cut off negotiations and sued the District, alleging a regulatory taking. Without getting too far into the legal weeds, Koontz's claim is a complete non-starter based on the text and history of the Takings Clause, as well as the Supreme Court's takings jurisprudence.

The text of the Takings Clause itself is quite narrow, and since the Court's unanimous decision in Lingle v. Chevron in 2005 regulatory takings, such as those alleged by Koontz, have been limited to situations in which a regulation's impact on a property owner is "functionally equivalent" to the "classic taking in which government directly appropriates private property." Given this framework, the key problem for Koontz is that the District took absolutely nothing from him. No one disputes that the District had the authority to deny Koontz's permit application outright. Furthermore, following the permit denial, Koontz was left with the same wetlands property he had before starting the permit application process -- property that, as Koontz himself concedes, retains some economic value.

To avoid a clear defeat, Koontz's PLF lawyers have cleverly attempted to reframe his claim as a challenge to the mitigation measures proposed by the District during the course of the parties' negotiations. This ploy is designed to allow Koontz to take advantage of a specialized set of tests developed by the Court in two cases, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), which were decided at the heyday of the property rights movement in the Supreme Court, an effort that has since fizzled, at least until Koontz. The AIG shareholders have relied on a similar ploy in their suit against the federal government, alleging that the harms caused by the terms of AIG's bailout were, to borrow language from Dolan, not "roughly proportional" to the related benefits -- an argument rejected outright by the Court of Federal Claims, but one that becomes more plausible if PLF prevails in Koontz.

At bottom, this attempt to expand the reach of the Takings Clause is a bold effort to prevent the government from forcing developers to bear the costs that their development imposes on the community, and, in the case of AIG, to allow shareholders to dictate the terms of a government bailout. The Founders would be appalled at this risible effort to distort the Fifth Amendment.

This post was written with Tom Donnelly, Constitutional Accountability Center's Counsel and Message Director. CAC filed a brief in Koontz on behalf of the American Planning Association, the City of New York, and the National Trust for Historic Preservation.

While Politicians Run, Conservative Judges Stand for Voting Rights

2012-12-19T14:32:11-05:00

In a speech at the John F. Kennedy Library last week, U.S. Attorney General Eric Holder made an impassioned case for the present amd continuing need for the Voting Rights Act, in particular the Act's Section 5, saying," "This provision has consistently enjoyed broad, bipartisan support - including, most recently, in 2006, when an overwhelming Congressional majority joined with President Bush to reauthorize its protections."

He's right. It is almost hard to believe now, but just six years ago Republicans and Democrats came together in both chambers of Congress to reauthorize the landmark Voting Rights Act by overwhelming majorities -- 98 to 0 in the Senate, 390-33 in the House. The 25-year reauthorization of the act was signed into law on July 27, 2006 by President George W. Bush.

The story of how quickly conservative politicians abandoned their support for the iconic Voting Rights Act is one of the most depressing examples of the toxic brand of politics that has broken out on the far right. Just as important, though lesser known, is the support for this critical statute provided by lower court federal judges from across the ideological spectrum. Indeed, judges appointed to the bench by President Bush have been among the most powerful advocates for the constitutionality of, and continued need for, the Voting Rights Act.

Whether the conservative majority on the Roberts Court will follow the political winds on the right, or hew to the legal analysis of conservative judges on the lower courts, is one of the critical backstories in Shelby County v. Holder, a blockbuster challenge to Section 5 of the Voting Rights Act -- a critical part of the law -- that will be decided by the Court this spring.

On the political front, the floor debate over the 2006 reauthorization of the act stands as a striking example of how quickly Washington has changed for the worse in recent years. In 2006, Republican lawmakers were tripping over themselves to voice their support for the Voting Rights Act.

For example, Senator Chuck Grassley, citing his own remarks during the previous reauthorization vote in 1982, said "the Voting Rights Act is a key tool -- perhaps the key tool -- in eradicating any remaining vestiges of racial discrimination." Senator Mitch McConnell reminded his colleagues: "We have, of course, renewed the Voting Rights Act periodically..., overwhelmingly, and on a bipartisan basis, year after year after year because Members of Congress realize this is a piece of legislation which has worked." Republican Judiciary Committee members touted the eight months of studies and markups that went into the final bill. Southern senators spoke powerfully on how the civil rights movement had touched their lives. Lawmakers from covered jurisdictions gamely affirmed that the law had had a positive impact in their states. To be sure, there were some Republicans who were sharply critical of the act, including several Senators who signed an extraordinary post-passage Judiciary Committee Report, but by and large, Republicans in 2006 agreed with President Bush that "[i]n four decades since the Voting Rights Act was first passed, we've made progress toward equality, yet the work for a more perfect union is never ending."

In 2012, the political landscape looks very different. Following a dramatic overreaction to a handful of "studies" on voter fraud that have been thoroughly debunked, Republican legislatures around the country passed harsh new restrictions on voting and registering, including strict photo ID laws, which not one state had on the books prior to 2006. Crass calculations about demographics appear to have fed the trend. Famously, one overly candid lawmaker crowed that new voter ID laws would "allow Romney to win the state of Pennsylvania." Just last week, a GOP consultant suggested that long lines at the polls represented an advantage for Republican campaigns. That's sickening.

Correspondingly, it's very hard right now to find a conservative politician willing to defend the Voting Rights Act, even though most voted for reauthorization just six years ago. One of the few exceptions is Representative Jim Sensenbrenner, who recently told NPR: "I'm proud of this law... Going up to the Supreme Court, saying that the court should make findings that are opposite of the findings that Congress made after extremely extensive deliberation, I don't think is the way the system ought to work." Sadly, Sensenbrenner is a rare and courageous voice in the conservative wilderness.

The remarkable thing is that this willful amnesia about the wisdom of the Voting Rights Act does not seem to have filtered into the federal courts, where conservative judges have been quite adamant in explaining the continuing need for the act and the constitutionality of the challenged provision: Section 5, which requires that jurisdictions with a history of discrimination get "preclearance" from the federal government before changing voting rules. As these judges have recognized, once you read the Constitution, it is clear that Congress has the power to eliminate the scourge of racial discrimination in voting.

Indeed, perhaps the single most powerful defense of the constitutionality of Section 5 was penned by District Judge John Bates, a George W. Bush appointee, who wrote a 151-page opinion rejecting the challenges brought by Shelby County. Another George W. Bush appointee, Judge Thomas Griffith, joined an opinion by the D.C. Circuit Court of Appeals affirming the ruling by Judge Bates. Conservative judges also wrote or joined a number of other very important opinions earlier this year that employed Section 5 to prevent some of the most disturbing efforts by states to make it more difficult to vote from ever going into effect.

This sets the question as the Shelby County case is heard by the Supreme Court: will the Court's conservative majority, including President George W. Bush's two appointees to the Court, Chief Justice John Roberts and Justice Samuel Alito, follow the conservative political winds or the well-reasoned opinions by conservative judges? One of our nation's most important and successful statutes hangs in this balance.

This piece was written with CAC's Emily Phelps and will be cross-posted on CAC's blog Text and History.

Learn more about the fight to defend voting rights.

Defending the Voting Rights Act From Its Conservative Critics

2012-12-03T10:41:05-05:00

In a condescending but shallow response to a Huffington Post piece written last week by my colleague Emily Phelps and me, Wall Street Journal columnist James Taranto accuses us of appealing to "emotion" and wallowing in "nostalgia for the heroism of the civil rights movement half a century ago." Our piece mourned the recent death of Lawrence Guyot, a civil rights hero who was repeatedly "challenged, jailed and beaten" in his efforts to register black voters in Mississippi in the 1960s, while making broader points about the continued need for the law -- the Voting Rights Act of 1965 -- that represents one of the most important accomplishments produced by the struggles of Mr. Guyot and his civil rights movement compatriots.

Forgive us for getting a bit worked up in explaining that Mr. Guyot's untimely death coincides with a time when conservatives are seeking simultaneously to enact laws that suppress the vote and to have their conservative majority on the Supreme Court strike down a key part of the Voting Rights Act, but the strongest argument in favor of the Act is not based on emotion, it's based on the Constitution. Mr. Taranto accuses us of not having "a lot to say about the Constitution," but this is willful blindness on Taranto's part. Unlike Mr. Taranto, who writes opinion columns for a living, my organization, Constitutional Accountability Center, produces scholarship and writes legal briefs. For the last three years, dating back even before the Shelby County case was filed in 2010, CAC has filed briefs, written reports and authored numerous blog posts that set out why the text and history of the Fifteenth Amendment support the constitutionality of the Voting Rights Act.

As history shows, the Framers of the Fifteenth Amendment recognized that the hard-won gains towards what Lincoln called "government of the people, by the people, and for the people" would be frustrated unless Congress had the power to protect the right to vote against all forms of racial discrimination in voting, whether heavy-handed or subtle. The Framers knew that states hostile to the Fifteenth Amendment could use their power to regulate elections to frustrate the Fifteenth Amendment's guarantee, and made sure to give Congress the power to secure to racial minorities full enjoyment of the right to vote. Taranto is loath to admit it, but, on any faithful reading of our Constitution, Congress has the power of selecting the means of protecting one of our most cherished constitutional rights from racial discrimination.

Mr. Taranto's willful blindness goes even further. He ignores completely the massive record assembled by Congress in 2006, when bipartisan majorities (by votes of 98-0 in the Senate and 390-33 in the House) renewed the preclearance requirement of the Voting Rights Act for a fifth time. Congress found repetitive violations of minority voting rights, including a number of intentionally discriminatory practices -- redistricting decisions made on the basis of race, intimidation and harassment at the polls, closing or relocating polling places and even cancelling elections to deprive African Americans of the right to vote -- that persisted in jurisdictions covered by the Act. As conservative jurist Judge John Bates wrote in his district court opinion in Shelby County rejecting a constitutional challenge to the preclearance provision, there is "extensive evidence of recent voting discrimination reflected in th[e] virtually unprecedented legislative record."

The evidence from the most recent presidential election -- where preclearance played a vital role in protecting the right of racial minorities to vote -- only adds to the overwhelming record. While voter suppression efforts occurred across the country, they were concentrated in the states where preclearance applies, as this fact sheet makes clear. In short, the actual record demolishes Mr. Taranto's claim that supporters of the Voting Rights Act are simply "clinging to the policies of the past." Instead, the record demonstrates that it is Mr. Taranto who is blinding himself to realities of today and the mountain of facts found by Congress in exercising the constitutional authority explicitly conferred on it by the Fifteenth Amendment.

For the last 47 years, year in and year out, the Voting Rights Act has stood as our nation's most effective weapon to realize the guarantees of the Fifteenth Amendment and prevent and deter state-sponsored racial discrimination in voting. If the Supreme Court is faithful to the text and history of the Fifteenth Amendment, it should resoundingly affirm the constitutionality of the Voting Rights Act.

The Voting Rights Act, the Supreme Court and the Life of Lawrence Guyot

2012-11-28T10:38:59-05:00

If medals were awarded for bravery and injuries sustained in the war over civil rights and voting rights, then Lawrence Guyot, who died this weekend, would have been one of our most decorated veterans.

The New York Times' obituary chronicles some of his harrowing experiences:

Mr. Guyot (GHEE-ott) was repeatedly challenged, jailed and beaten as he helped lead fellow members of the Student Nonviolent Coordinating Committee and student volunteers from around the nation in organizing Mississippi blacks to vote. In many of the state's counties, no blacks were registered.

He further pressed the campaign for greater black participation in politics by serving as chairman of the integrated Mississippi Freedom Democratic Party, formed to supplant the all-white state Democratic Party. It lost its challenge to the established Mississippi party at the Democratic National Convention in 1964, but its efforts are seen as paving the way for the passage of the Voting Rights Act of 1965.

A famous moment in the civil rights movement occurred after Fannie Lou Hamer and two other civil rights workers were arrested for entering an area of a bus station reserved for whites in Winona, Miss., in June 1963. Mr. Guyot went to Winona to bail them out of jail. When he asked questions about their rough treatment, nine police officers beat him with the butts of guns, made him strip naked and threatened to burn his genitals. The abuse went on for four hours until a doctor advised the officers to stop.

Mr. Guyot's remarkable life story yields some important lessons for the Nation and the Supreme Court as the Court begins consideration of Shelby County v. Holder, a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which Mr. Guyot shed blood.

Mr. Guyot's death at the too-young age of 73 reminds us just how little time has passed since it took genuine, physical courage even to seek the right to vote in certain parts of the United States. The presence among us of civil rights heroes such as John Lewis -- and, until this week, Lawrence Guyot -- ought to serve as a living conscience as the Court considers these issues. The Civil Rights era is not just a historical abstraction. Millions of our fellow voters went to the polls this fall with firsthand memories of violence, verbal abuse and organized intimidation in their memory. Perhaps that is why so many Americans were willing to endure ridiculously long lines at the polls, and why Mr. Guyot pushed himself to vote early a few weeks ago, in spite of his advanced illness.

Mr. Guyot's life story is also a story of the progress, incomplete but inspiring, that's been made on voting rights in the last fifty years. Many Americans waited too long at the polls and had to overcome unnecessary voting obstacles, but no one in 2012 experienced anything like the torture endured in 1963 by Mr. Guyot. Indeed, in Mississippi, the state of Mr. Guyot's victory, strong African American turnout helped President Obama win a surprisingly strong 43 percent of the vote.

At the same time, the voter suppression efforts that marred the 2012 election yet again confirmed that the Voting Rights Act is the nation's first and best line of defense against efforts to disenfranchise American voters. In 2012, conservative legislators and election officials in states throughout the country tried to change election rules to make it more difficult for Americans to vote. These voting changes -- imposing restrictive ID requirements, shortening early voting hours and making it more difficult to register to vote -- had the greatest impact on young, minority, elderly and poor voters. Fortunately, a number of important lower court rulings blocked the worst of these voting changes from ever going into effect, enforcing the requirement of the Voting Rights Act that requires states with a history of race discrimination in voting to obtain federal "preclearance" for any change in voting laws or regulations. This key part of the Act, Section 5, is the component of the law threatened in the Shelby County case.

Voter suppression laws that were held back by Section 5 rulings this year (summarized here) included a strict Texas ID law, which a three-judge panel found was tantamount to reviving the poll tax, and a shortened early voting calendar in Florida that a judge found would be akin to "closing polling places in disproportionately African-American precincts." Equally important, laws that ultimately did "clear," like South Carolina's ID law, which was approved for use beginning in 2013, did so because Section 5 made lawmakers more careful to avoid problematic outcomes, as one conservative judge observed.

That is the backdrop for the effort by conservative legal activists in the Shelby County case to get the Supreme Court to take the teeth out of the Voting Rights Act. Conservatives argue that this iconic law is no longer necessary because the South is a different place today than it was when the law first passed. That argument gets things exactly backwards. The South is a different place today because of the Voting Rights Act. And the South would have been a different place in 2012 if the Voting Rights Act hadn't blocked or tempered voter suppression efforts in Florida, Texas and South Carolina.

As we mark the passing of a civil rights warrior who wore his scars proudly, Lawrence Guyot's story should serve as a reminder of the truly heroic efforts that were necessary to win passage of iconic laws such as the Voting Rights Act. Mr. Guyot will not be in the courtroom as the Supreme Court takes up Shelby County, but his story should loom over the Court's deliberations and should lead the Court to affirm, rather than strike down, this iconic and still essential law.

This piece was written with CAC's Emily Phelps and will be cross-posted on CAC's blog Text and History.

Supreme Court Review Puts Voting Rights Act in Jeopardy After Election Proves Its Necessity

2012-11-09T18:24:24-05:00

In the wake of an election season in which the Voting Rights Act proved its mettle as the last, best hope against voter suppression efforts, the Supreme Court today decided to review the constitutionality of a key part of this iconic civil rights statute in a case called Shelby County v. Holder. If the experience over the last 12 months proves anything, it's that the Voting Rights Act is as vital today as it was in 1965 when originally passed. Hopefully, the proven success of the Act, and the powerful opinions written by lower court judges from across the ideological spectrum applying it, will convince a majority on the Court to affirm rather than undermine the vital constitutionality of the Act.

As everyone knows by now, in the run-up to the 2012 election the right to vote was under siege. Conservatives in states throughout the country tried to change election rules to disenfranchise ordinary Americans -- passing restrictive voter ID laws, shortening early voting hours and making it more difficult to register to vote. These restrictions had the greatest impact on young, minority, elderly and poor voters. They made a mockery of President Lincoln's description of our government being "of the people, by the people, and for the people," and they failed to honor the heroic efforts of generations of Americans to ratify six different Amendments that expanded the right to vote.

The happier, but lesser known, part of this story is how effective the Justice Department and progressive organizations were in going to court and using the Voting Rights Act to prevent the worst of these statutes from going into force. In the run up to the election there were a number of hugely important lower court rulings that enforced the requirement that states with a history of racially discriminatory voting restrictions must "preclear" with the Department of Justice any change in voting laws. These rulings provide critical new evidence of precisely why preclearance is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in states across the country might have been denied their constitutional right to cast a ballot on election day.

For example, on August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas' new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic. The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available -- a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card -- and making it costly to obtain a so-called "free" election ID for use at the polls. For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, "imposing an implicit fee for the privilege of casting a ballot." The "very point" of the Voting Rights Act, the court explained, was to deny "states an end-run around the Fifteenth Amendment's prohibition on racial discrimination in voting."

Likewise, on August 16, in Florida v. United States, three other judges unanimously held that Florida could not slash the period for early voting, explaining that "a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot... " Florida's reduction in early voting, the court explained, was akin to "closing polling places in disproportionately African-American precincts." Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and "provide robust and meaningful protections for minority voting rights," the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.

Finally, on August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas' new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength. Importantly, because the court's opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas' districting was both a violation of the Voting Rights Act and the Constitution.

Given all this experience, it's not surprising that conservative legal activists are desperate to get the Supreme Court to gut the Voting Rights Act, which is precisely what the Shelby County case threatens. And it could work. The Court seemed poised to strike down Section 5 of the Voting Rights Act (requiring preclearance) as unconstitutional in 2009, then blinked and issued a narrower ruling, which has preserved the Voting Rights Act until now.

Which brings us full circle to the big news at the end of this momentous week. After spending enormous energy and resources in confronting the legislative efforts to suppress the vote during the course of the 2012 election, supporters of the right to vote need to spend just as much time and energy making the case to the Court and the broader public about the constitutionality of this iconic civil rights law. The 2012 election may be over, but the fight to protect voting rights has just begun.

This piece was written with CAC's David Gans and will be cross-posted on Text and History.

Citizens United, President Obama, and His Liberal Naysayers

2012-11-02T10:04:36-04:00

This post was co-written by Tom Donnelly, Counsel and Message Director of Constitutional Accountability Center.

The future of the Supreme Court is the 800-pound gorilla in the room this election season that neither candidate seems to want to talk about much. That's what made President Obama's Rock Center remarks last week on Citizens United -- a 5-4 ruling by the Court in 2010 that unleashed the specter of unlimited corporate expenditures on our nation's political system -- so important. Asked what problem in the political system he'd solve if he had "unlimited powers," Obama responded that the amount of money his campaign, the Romney campaign and the Super-PACs were spending was "ridiculous," and he blamed Citizens United, saying it was wrong as a matter of constitutional law and "bad for our democracy."

This is not the first time the president has raised this critique. As he noted last week, Obama took the "fairly unusual step" of calling out the conservative majority on the Court for its 5-4 ruling in Citizens United in a State of the Union speech shortly after the opinion was released. This summer, President Obama even suggested that, if the Court did not reverse course, he would support a constitutional amendment to overturn the Court. Clearly Citizens United hit a presidential nerve. Just as clearly, Citizens United has become a very potent rallying cry for progressives trying to raise concerns about the Roberts Court and to promote political reforms.

But the very potency of Citizens United as a political weapon has produced a backlash of sorts among a small but vocal cadre on the libertarian left who supported the outcome in Citizens United. No one wants to be remembered for supporting a ruling that is quickly being elevated in progressive circles to a pantheon of conservative judicial atrocities that includes Lochner v. New York and Bush v. Gore. Thus comes a rather surprising argument from these left-leaning libertarians: Citizens United isn't really that important after all.

This argument, spelled out this summer in an opus by Matt Bai in The New York Times Magazine, goes like this. Citizens United permits unlimited spending by corporations to support the election of candidates of their choice. Previous rulings by the Supreme Court had already permitted unlimited spending by individual Americans. The available evidence indicates that most of the flood of money being pumped into the 2012 campaign is coming from billionaires, not corporations (Sheldon Adelson, not Exxon). Because this could have occurred before Citizens United, critics are wrong to blame our problems on the ruling. "Liberal delusion" is how Ira Glasser, a former head of the ACLU, dismissively labels the progressive (and the president's) criticism of Citizens United.

The error in these "Citizens-United-is-not-the-problem" claims, most fundamentally, lies in their effort to treat Citizens United in isolation. While it is certainly true that there were problems with our campaign finance system before Citizens United, it is also undoubtedly true that Citizens United caused a very big new problem -- the unleashing of unlimited corporate spending on electioneering. In the words of Steven Law, head of American Crossroads Super PAC, "the ruling served as 'a Good Housekeeping seal of approval for nervous general counsels' at corporations considering donations." Citizens United also pushed along a much larger problem: the systematic dismantling of the campaign finance system by the Supreme Court's conservative majority.

Seeing this completely requires breaking down the Citizens United ruling into its three constituent parts. Citizens United is the culmination of a thirty-five-year campaign by opponents of campaign finance reform to get the Supreme Court to endorse the absolute equivalence of three things that are not really equal: money = speech; corporations = people; and corruption = bribery. Because the Court treats money as a form of speech, efforts to stem the flow of cash flooding into the political process are subject to "strict scrutiny," the most rigorous form of Supreme Court review. Since the Court treats corporations the same as individuals, efforts to limit corporate campaign expenditures are also subject to this level of scrutiny. And because only efforts to rid the American political system of quid pro quo forms of corruption constitute the "compelling governmental interest" necessary to withstand this scrutiny, many campaign finance laws at the federal and state level are doomed.

Take the first equation: money = speech. Former Chief Justice William Rehnquist, who for most of his tenure on the Court was a surprising critic of the campaign finance jurisprudence emerging from the pens of his conservative brethren, once warned that the Court was confusing "metaphor with reality." However, following Citizens United, there can be little doubt about where the Roberts Court stands. Money equals speech, plain and simple. Indeed, as Monica Youn of the Brennan Center notes, this equivalency is at the core of Justice Kennedy's Citizens United opinion.

But, the Citizens United majority didn't stop there. Not only did the Court's conservatives equate money with speech, but they also equated the free speech rights of corporations with those of individuals. In so doing, the Court cast aside recent Court precedent, as well as a century's worth of laws designed to limit the influence of corporate money in our politics. While it's true that a divided Court struck down a state law limiting corporate independent expenditures in ballot initiative elections in 1978, the Court made it clear just over a decade later that governments could limit such expenditures in candidate elections -- a conclusion reaffirmed by the Court as recently as in 2003. Nevertheless, in Citizens United, the Court reversed course, concluding, for the first time, that the political speech of corporations was entitled to the same protections as that of individuals -- never mind that corporations were never mentioned in the Constitution, that the Founders had viewed corporations with suspicion, and that, from its earliest days, the Supreme Court had recognized that governments could treat corporations differently than individuals.

Finally, and perhaps most importantly, the Citizens United majority also equated corruption with bribery -- an abrupt move that (at least for now) settles a longstanding debate on the Court. Since Buckley, the Court had recognized only one "compelling governmental interest" that justified the regulation of money in politics: a government's interest in combating corruption or the appearance of corruption. But in previous cases -- and as recently as in 2003 -- the Court endorsed a rather expansive definition of "corruption," one that encompassed not only quid pro quo exchanges, but also the use of money to buy access and influence. In Citizens United, the Court narrowed this definition considerably, concluding that only "quid pro quo arrangements" could create a potential for actual or apparent corruption and adding, in turn, that "independent expenditures, including those made by corporations, do not give rise to [such] corruption."

In the end, even if Citizens United isn't the only problem facing our campaign finance system, there's little doubt that the decision has put reformers in an ever-shrinking constitutional box. Following Citizens United, it's all but impossible for reformers to control the influence of corporate money in our politics, root out corruption (in all its forms), and ensure that our government truly is, as the Founders envisioned, "dependent upon the People alone." That's, no doubt, why President Obama keeps raising concerns about Citizens United, and reason enough for progressives everywhere to keep up the fight -- no matter what Ira Glasser and his compatriots might say.

This post is cross-posted on Text and History.

Premier débat: les candidats, la Constitution et la question sans réponse

2012-10-03T09:20:07-04:00

Aussi bien le président Obama que le gouverneur Mitt Romney ont qualifié les élections à venir de choix crucial à faire entre deux visions très différentes de l'Amérique - et ils ont raison. Alors que la course présidentielle entre dans sa dernière ligne droite, les candidats et leurs partis respectifs restent très divisés concernant les impôts, la dette publique, le filet de sécurité sociale et le rôle du gouvernement - si tant est qu'il en ait un - dans la création d'emploi et l'encouragement de la croissance économique. Ces questions, une fois encore, seront au centre du premier débat présidentiel de ce mercredi soir 3 octobre, Jim Lehrer de PBS devant consacrer 1/6ème du temps - 15 minutes en tout - à discuter du "rôle du gouvernement". Reste à savoir si Lehrer ou les candidats oseront s'attaquer à la question majeure se tenant derrière cette discussion : la Constitution des Etats-Unis.

LIRE AUSSI:

» BLOG: Trois conseils à Obama pour gagner le premier débat

» BLOG: Pourquoi Romney doit faire exploser Obama

Ces deux dernières années, les "tea-partistes" et autres "conservateurs de la constitution" se sont époumonés à dire que leur vision très limitée du gouvernement fédéral - un gouvernement impuissant à gérer des problèmes nationaux comme l'assurance santé et le plan retraite - n'était pas un choix politique mais une exigence constitutionnelle. Ils ont déjà perdu dans les grandes lignes ce débat, n'étant pas parvenus à convaincre la majorité de la Cour Suprême, pourtant plutôt conservatrice, que le mandat individuel de l'Obama Care (l'assurance maladie défendue par le président sortant) dépassait les pouvoirs du gouvernement fédéral. Néanmoins, les alliés du gouverneur Romney continuent d'encourager cette vision radicale de la Constitution, notamment au niveau de la plate-forme électorale du parti républicain. Quant à Romney, il n'arrive pas à trancher : d'un côté, il soutient le désaccord de la majorité à propos de l'Obama Care: de l'autre, il donne l'impression de croire que le gouvernement fédéral a un rôle majeur à jouer concernant la crise de l'assurance santé en Amérique.

Pour Romney, la question ce soir est donc de savoir s'il se ralliera définitivement à cette vision constitutionnelle de la droite extrême, ou au contraire, s'il prendra ses distances avec elle. Quoiqu'il en soit, Lether ne peut en tout cas pas laisser Romney exprimer ses visions du rôle du gouvernement fédéral sans avoir d'abord dit s'il croit ou non que la Constitution lie les mains du Président sur les questions de politique nationale (et si oui, lesquelles et jusqu'à quel point).

En face de Romney se trouvera donc le Président Obama, ancien professeur de droit constitutionnel, mais qui parle rarement de la Constitution. Durant la bataille de l'Obama Care, et même après en être sorti victorieux auprès de la Cour Suprême, le Président n'a jamais livré une vision convaincante de la Constitution pour répondre au tea-party - une qui permettrait des actions énergiques du gouvernement pour s'occuper vraiment des problèmes nationaux, tout en reconnaissant des limites au pouvoir fédéral. A la place, le Président et ses alliés n'ont évoqué presque exclusivement que les avantages concrets de l'Act - pour les grand-mères, pour les ceux qui ont 26 ans, pour ceux ayant des conditions médicales préexistantes. Certes, cet argument est important, mais il ne répond absolument pas aux attaques incessantes du tea-party contre l'Act, qui le qualifie d'agression anticonstitutionnelle à la liberté individuelle. On en a vu le résultat assez prévisible lors de sondages réalisés avant que la décision de Cour Suprême ne fasse jurisprudence : ils montrent que même les supporters de l'Act croyaient que ce dernier était anticonstitutionnel, malgré des preuves convaincantes du contraire. C'est pourquoi il est aussi important que Lehrer pousse le Président Obama à donner sa propre vision de la Constitution.

Dans une période de campagne pleine de diversions et de sujets futiles, la décision de Lehrer de demander aux candidats de discuter de leurs visions du rôle gouvernemental met le doigt sur la principale question de cette élection et la controverse centrale qui divise nos grands partis depuis quatre ans. Les candidats eux-mêmes la définissent comme le "choix" auquel devront faire face les électeurs, mais ils ont dit bien peu sur la question fondamentale sous-tendant ce choix :

"Que pensez-vous que la Constitution autorise comme pouvoir au gouvernement fédéral pour affronter les problèmes nationaux comme le système de santé et selon vous, dans quelles limites ?"

Si cette question est posée mercredi soir et qu'on y répond de manière significative, le choix qu'auront à faire les Américains le 6 novembre sera bien plus facile.

Lire aussi :
» BILAN - Le match des convention démocrate et républicaine
» PORTRAIT - Mitt Romney, cet inconnu des Français
» ANALYSE - Le bilan de 4 années d'Obama
» Toute l'actualité sur les élections américaines

Retrouvez les discours les plus marquants des deux conventions:

Premier débat: les candidats, la Constitution et la question sans réponse

2012-10-03T03:20:07-04:00

LIRE AUSSI:

» BLOG: Trois conseils à Obama pour gagner le premier débat

» BLOG: Pourquoi Romney doit faire exploser Obama

"Que pensez-vous que la Constitution autorise comme pouvoir au gouvernement fédéral pour affronter les problèmes nationaux comme le système de santé et selon vous, dans quelles limites ?"

The First Presidential Debate: The Candidates, the Constitution, and the Unanswered Question

2012-10-02T08:31:58-04:00

Both President Obama and Governor Romney have described the upcoming election as a critical choice between two very different visions of America -- and so it is. As the presidential race enters its final stages, the candidates and their respective parties remain deeply divided over taxes, the federal deficit, the social safety net, and the government's role (if any) in creating jobs and spurring economic growth. These issues will, once again, be front and center tomorrow night, as PBS's Jim Lehrer will devote one-sixth of the first presidential debate -- 15 minutes in all -- to a discussion of the "Role of Government." The question remains whether Lehrer or either of the candidates will acknowledge the 800-pound gorilla lurking in the background of this discussion: the U.S. Constitution.

For the past two years, tea partiers and other so-called "constitutional conservatives" have been shouting at the top of their lungs that their vision of a strictly limited federal government -- a government powerless to address national problems like health care and retirement security -- is not a policy choice, but a constitutional requirement. Of course, they already lost this debate on the largest possible stage, failing to convince a majority of the conservative-dominated Supreme Court that the Affordable Care Act's individual mandate was beyond the powers of the federal government. Nevertheless, Governor Romney's allies continue to push this radical constitutional vision in, among other places, the Republican Party Platform. At the same time, Romney remains divided against himself -- on the one hand, siding with the dissent over the majority in the Affordable Care Act case, while, on the other hand, suggesting that he does believe that the federal government has a robust role to play in addressing the health care crisis in America.

For Romney, then, the question for tomorrow night is whether he will embrace the hard right's constitutional vision or distance himself from it. Either way, Lehrer simply can't allow Romney to offer his views on the role of the federal government, generally, without first clarifying whether he believes that the Constitution itself ties a President's hands on key national policy questions (and, if so, on which ones and to what extent).

Across from Romney will be President Obama, a former constitutional law professor who seldom speaks about the Constitution. Throughout the battle over the Affordable Care Act, and even after emerging victorious in the Supreme Court, the President has never articulated a compelling constitutional vision to answer the tea party -- one that authorizes vigorous government action to address genuinely national problems, while still recognizing some limits on federal power. Instead, the President and his allies have been focused almost exclusively on talking about the Act's concrete benefits -- for grandma, for twenty-six-year-olds, for those with pre-existing conditions. This is an important line of argument, to be sure, but one that is largely unresponsive to the tea party's relentless attack on the Act as an unconstitutional assault on individual liberty. The predictable result was polling, prior to the Supreme Court's landmark ruling, showing that even supporters of the Act believed it to be unconstitutional, despite compelling constitutional evidence to the contrary. That's why it's just as important for President Obama to be pushed by Lehrer into articulating his own constitutional vision.

In a campaign season packed with trivia and diversion, Lehrer's decision to have the candidates discuss their views on the role of government hits upon the central issue in this election, and the defining controversy that has divided our major parties over the last four years. The candidates themselves recognize this to be "the choice" facing voters, yet so far, they have said precious little about the foundational question that underlies this choice:

"What do you believe the Constitution allows when it comes to the federal government's power to address national problems, such as health care, and what limits do you believe it imposes?"

If that question gets asked and meaningfully answered tomorrow night, the choice facing the American electorate this November will be far clearer.

Conservatives Seek to Celebrate the Constitution by Undermining It

2012-09-12T06:52:14-04:00

For more than two years, the tea party and its allies have lectured the American people about the need to return to our Founding principles, peddling, among other things, a series of constitutional fairy tales about the radical limits allegedly imposed by the Founders on the ability of the federal government to solve national problems. Most recently, in their 2012 party platform, Republicans declare themselves "the party of the Constitution," and, on Sunday, Governor Mitt Romney asserted he was "as conservative as the Constitution." But no amount of Constitution-waving or tricorn-hat-wearing can change one basic fact: this election season, conservative Governors, election officials, and state legislators nationwide are working hard to deny Americans one of their most cherished constitutional rights -- the right to vote.

There's no better moment to highlight this conservative assault on constitutional voting rights than in the coming weeks, as the Nation celebrates the Constitution's 225th Anniversary. Officially, Constitution Day is September 17th, but over the next several weeks celebrations and related events will occur in D.C., Philadelphia and around the country, including an important hearing convened by Senate Judiciary Committee Chair Patrick Leahy titled "The Citizens United Court and the Continuing Importance of the Voting Rights Act." Every one of these events is a perfect opportunity for progressives to speak powerfully against the ongoing efforts by conservatives to suppress the vote.

Perhaps more so than any other constitutional guarantee, the right to vote is deeply embedded in the Constitution's text and history. And yet conservatives are trying to change election rules to disenfranchise eligible voters -- passing restrictive voter I.D. laws, shortening early voting hours, and making it more difficult to register to vote. Some tea party candidates are even advocating repeal of the 17th Amendment, which would strip Americans of their right to vote for U.S. Senators. At the same time, conservatives have embraced rulings by the Supreme Court that allow corporations and the rich to drown out the voices of ordinary Americans in the electoral process.

That's some 225th Anniversary gift for the tea party's beloved Constitution. But it does give progressives the opportunity on Constitution Day 2012 to recapture the constitutional high ground and put the tea party and its allies on the defensive.

We must begin by embracing our constitutional heritage, rather than effectively ceding it to conservatives. Don't believe this is happening? Then spend some time comparing the relative treatment of the Constitution in the Republican and Democratic Party Platforms. The Republican Platform has an entire chapter entitled "Restoration of Constitutional Principles," and the document is infused throughout with claims about our Nation's charter. The Democratic Platform is entirely devoid of anything resembling a constitutional vision. It's no wonder, then, that many Americans assume that conservatives are right about the Constitution. They're the only ones routinely talking about it.

Progressives need to turn this around, and we should start on Constitution Day by reminding the American people of the story of constitutional voting rights. This story begins with our democratic Founding. Never before in world history had a government charter been ratified by the people themselves. Furthermore, rather than keep voters from the polls -- as conservatives are trying to do in 2012 -- the Founding generation took important steps to increase the number of eligible voters in the ratification process, with many states waiving voting restrictions (such as property requirements) and some allowing African Americans to vote for convention delegates.

Although wildly restrictive through a modern lens, the ratification process was inclusive for its time. And the patriots who gathered in Philadelphia did not intend for the document to be complete. Article V, authorizing Amendments, made it clear that the 1787 Constitution was not an end, but a beginning.

Over the past two centuries America has moved ever closer to the full promise of what President Abraham Lincoln called "government of the people, by the people, and for the people." "We the People" have poured precious blood and treasure into a series of reform efforts that produced the six Voting Rights Amendments. These Amendments fundamentally changed our system of government -- outlawing poll taxes in federal elections, giving ordinary Americans the right to elect U.S. Senators, allowing the citizens of our Nation's capital to vote for President, and guaranteeing African Americans, women and 18-year-olds the right to vote.

These Amendments are just as much a part of the Constitution as is the original text, and they call into question state efforts to impose unreasonable, arbitrary restrictions on the right to vote. On Constitution Day 2012, progressives should share this story with our friends, families, neighbors, and co-workers -- anyone who is willing to listen.

But the fight must not end there. As long as conservatives believe they can win elections by changing the ground rules, the battle over voting rights will continue. And as long as conservatives are weaponizing the Constitution for political purposes -- as the Republican Party Platform most certainly does -- progressives must aggressively tell our own story about the Constitution. This story starts in 1787, but it also prominently includes the 27 Amendments ratified over the last 225 years which improved our Constitution by ending slavery, enshrining guarantees of equality and citizenship, expanding the right to vote, and ensuring that the national government has the power and resources necessary to protect the nation, address national challenges and secure civil rights.

Only by telling this story of the whole Constitution, including the Amendments, can progressives truly seize the Constitution from the tea party and its allies and expose their selective ancestor worship for the sham that it is.

It's hard to imagine a better birthday present for the Constitution.

(This piece was written with Tom Donnelly, Constitutional Accountability Center's Counsel and Message Director. It will be cross-posted on www.textandhistory.org).