CFJ Fights for Free Speech at High Court

Today the Supreme Court hears oral argument in the biggest campaign finance case since Citizens United, and the Committee for Justice has weighed in on the side of free speech.  CFJ’s amicus brief in today’s case, McCutcheon v. FEC, supports the Republican National Committee and campaign donor Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.

Most observers believe the Court will strike down the aggregate limits at issue, which restrict the total amount of political contributions a donor can make over a two-year election cycle.  For example, a donor must comply not only with McCain-Feingold’s base limits – such as a $2600 per-candidate limit in each election – but also an aggregate or combined limit of $48,600 on contributions to all federal candidates over the election cycle. As a result, the contributor is limited to supporting no more than nine candidates if he gives each one $2600 for both the primary and general election.

CFJ president Curt Levey explained that “it is hard enough to square McCain-Feingold’s limits on per-candidate contributions with the First Amendment, but it is even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the individual limits.”

Levey emphasized that “striking down the aggregate limits would be both important in its own right and a critical first step towards ending the Court’s second-class treatment of political contributions under the First Amendment.”

CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations – like Citizens United – that engage in independent expenditures.  In other words, said Levey, “the aggregate limits diminish the voice of people and organizations with an interest in moderation, compromise and consensus and amplify the message of those with narrower interests and often less moderate views. “

This effect, added Levey, “is completely counter to the public’s nearly unanimous desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important consensus-building role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

CFJ’s McCutcheon brief also focuses on the perception of corruption, the countering of which is one of the purported interests served by McCain-Feingold and relied on to defend its constitutionality.  CFJ’s brief details how public opinion surveys going back decades demonstrate that the aggregate limits do not and cannot diminish the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.

Moreover, if the per-candidate ceiling already serves the only interests identified by the Supreme Court as sufficient to justify contribution limits, as McCain-Feingold’s defenders assert, then the aggregate limits can add nothing more – except to ensure that no donor engages in too much political speech, an interest the Court has rejected.

Mr. Levey emphasized that CFJ’s McCutcheon brief is “part of CFJ’s larger mission of battling judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges when it came to campaign finance cases, bending the First Amendment to accommodate the push for more and more restrictions on campaign contributions.  The result was a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.  We are very hopeful that the Supreme Court will take an important step in McCutcheon towards ending this constitutional wrong.”

CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.

DOMA: What Supremes Were Really Thinking

In the wake of yesterday’s decision (US v. Windsor) striking down the federal definition of marriage in the Defense of Marriage Act, legal experts are having a hard time making sense of what Justice Scalia called the “disappearing trail[s] of … legalistic argle-bargle” in the majority opinion.  Instead, we are left to guess what Justice Kennedy and his four colleagues were thinking when they wrote or joined the opinion.  Here’s our best guess at what those five Justices were really thinking when they struck down DOMA (quotes are from the majority opinion):

What the Supreme Court said yesterday:  “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

What the Supreme Court was really thinking:  We don’t agree with DOMA, so the Congress that enacted it – and President Clinton, who signed it – must have been mean and homophobic.

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Supreme Court:  “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Really thinking:  We’re sorry for going off on a tangent about federalism.  Please ignore the previous seven pages of this opinion.

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Supreme Court:  New York’s recognition of same-sex marriage “reflects … its evolving understanding of the meaning of equality.”

Really thinking:  Our understanding of the meaning of equality will continue to evolve until it requires us to mandate recognition of same-sex marriage in all 50 states.

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Supreme Court:  DOMA is an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”

Really thinking:  It is implausible to claim that there’s no precedent for DOMA’s definition of marriage, so we have to settle for calling the statute unusual.

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Supreme Court:  “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure [same-sex couples].”

Really thinking:  No discussion or analysis of the legitimate purposes put forth by DOMA’s supporters is necessary, because we already told you the supporters are mean and homophobic.

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Supreme Court:  “New York was responding to the initiative of those who sought a voice in shaping the destiny of their own times … Private, consensual sexual intimacy between two adult persons of the same sex … can form but one element in a personal bond that is more enduring.” (internal quotation marks omitted)

Really thinking:  We may not excel at legal reasoning but, if any publishers are listening, we would be great at writing self-help books.

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Supreme Court:  “The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”

Really thinking:  If you want to get fussy about precedent, maybe DOMA doesn’t really violate the Fifth Amendment's liberty interest.  But would you believe us if we told you that DOMA violates equal protection?

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Supreme Court:  “While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

Really thinking:  Law students, don’t worry if you don’t understand this.  We don’t either.

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Supreme Court:  DOMA “humiliates tens of thousands of children now being raised by same-sex couples.”

Really thinking:  We’re telling you that kids look to federal law when determining whether to be embarrassed by their parents, and you are going to have to take our word for it because we’re the Supreme Court.

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Supreme Court: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.”

Really thinking:  This rhetoric doesn’t add anything to our legal analysis, but it works great when you want kids to do their chores.

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Supreme Court:  “This opinion and its holding are confined to those lawful marriages [recognized by the states].”

Really thinking:  There would be no reason for us to say this if the logic of the opinion really limited its holding to lawful marriages.  We would be stating the obvious.

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Supreme Court:  “The power the Constitution grants [to Congress] it also restrains.”

Really thinking:  We don’t think this principle applies to the Supreme Court’s power, as we make clear with this DOMA decision.

Court Ends Profiling of Southern States

Statement of Committee for Justice president Curt Levey on today’s Supreme Court decision in Shelby County v. Holder concerning the Voting Rights Act:

The Committee for Justice applauds the Supreme Court’s decision ending the federal government’s irrational discrimination against southern states based on an outdated, 50 year old formula.  While there was a rational basis for targeting southern states (plus Alaska) when the preclearance formula was written 50 years ago, continuing to do so until today amounted to geographic profiling based on outdated stereotypes.  Decisions based on such irrational stereotypes are the essence of impermissible discrimination.

Although there is already plenty of howling about this decision, this is not a Court that is unsympathetic to voting rights. Just last week, the Supreme Court, by a 7-2 vote, struck down an Arizona law demanding proof of citizenship from people registering to vote.  Moreover, even today’s decision took a narrow, cautious approach.  The Justices did not strike down Section 5 of the Voting Rights Act, just the formula used to implement it. And the heart of the Act, Section 2, remains intact.  The overreaction to the decision simply underscores the courage it took for the Supreme Court to right this wrong and end geographic profiling.

End of the Road for Racial Preferences?

Statement of Committee for Justice president Curt Levey on today’s Supreme Court’s decision in Fisher v. University of Texas narrowing the use of race in admissions:

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)

We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.”  The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.

The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin.  But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.

The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone.  As the Court said today:

"Consideration … is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." (internal quote marks omitted)

Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Today’s decision servers as a final warning to universities that the Supreme Court is serious about racial preferences being defensible only when race-neutral alternatives fail.  The next time a university that has not rigorously met this standard comes before the Court, it can expect to lose.  In that sense, today’s decision is reminiscent of the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District v. Holder, in which the Court by a similar majority (8-1) warned Congress that it needed to amend the constitutionally dubious preclearance coverage formula of the Voting Rights Act.  After four years of Congress ignoring the warning, the Supreme Court is likely to strike the formula down later this week in Shelby County v. Holder.

While today’s decision will not eliminate race-based admissions in the short-term, it will very likely curtail it precisely because race-neutral plans – such as Texas’s Top Ten Percent and similar alternatives that focus on socioeconomic and educational disadvantage rather than race – have been so successful in achieving diverse student bodies. As Committee for Justice president Curt Levey said nine years ago in a law review article following the Grutter and Gratz decisions:

“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. …  [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account.  The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.

Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system  may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye.  That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys.  For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).

Supreme Court’s Fragile Majority

Former New York Times Supreme Court reporter Linda Greenhouse speculated in a column this week that the Supreme Court’s conservative Justices are “in a hurry,” as evinced by the Court’s choice of cases – specifically, two involving affirmative action (Fisher v. Univ. of TX and Schuette v. Coalition to Defend Affirmative Action) and one religion (Greece v. Galloway).  The reason for the hurry, she believes, “can be found in the faint but resonant drumbeat of conservative concern about the stability of the Roberts Court’s narrow conservative majority.”

We share Greenhouse’s observation that

“Most uninformed commentary on the future of the Supreme Court … has focused on Justice Ruth Bader Ginsburg, who just passed her 80th birthday … obscur[ing] the fact that the conservative justices are growing old at exactly the same rate.”

In fact, Greenhouse cites Committee for Justice president Curt Levey’s March 2013 op-ed as an example of the “faint but resonant” concern about one of the five center-right Justices leaving the bench:

“Curt Levey, a prominent conservative commentator, took the occasion of Justice Scalia’s birthday to observe, in a Fox News op-ed, that it was entirely likely that at least one of the five conservative justices would leave the bench during the remainder of the Obama presidency. The result, he warned apocalyptically, was ‘a Warren Court redux,’ one that would erase ‘all the strides conservatives have made since the Reagan era in containing judicial activism.’”

We are pleased that Greenhouse is bringing attention to the fragility of the Roberts Court’s center-right majority; there’s nothing to be gained from conservatives lulling themselves into a false sense of security. And we don’t disagree with her characterization of the theme of Levey’s op-ed as “be afraid, be very afraid” (see here for ten good reasons to fear a liberal Supreme Court majority). However, we take issue with Greenhouse’s claim that

“[Levey’s] account of exactly what the court under Chief Justice Earl Warren can be blamed for left a bit to be desired. ‘The Warren Court brought us Roe v. Wade,’ he asserted. In fact, it was the Supreme Court under Chief Justice Warren E. Burger that issued the 1973 abortion decision, with a 7-to-2 majority opinion joined by three of President Richard M. Nixon’s four appointees.”

The problem with Greenhouse’s claim is that it omits context by quoting only a fragment of the following sentence in the Fox News op-ed:

“Named for but outlasting Chief Justice Earl Warren, the Warren Court brought us Roe v. Wade and most of the other judicial excesses decried by conservatives.” (emphasis added)

In other words, Levey explains that “Warren Court” is shorthand for an era of liberal judicial activism on the Supreme Court that OUTLASTED Chief Justice Warren (the length constraints of an op-ed prevented a more detailed explanation).  The era persisted because of Nixon’s inconsistent Supreme Court appointments, which included Warren Burger, arguably ending only after Justices Scalia and Thomas joined the Court.

We say “arguably” because progressives like Greenhouse would contend that it is inaccurate to call a Court with four Nixon appointees “liberal,” and some conservatives would say that the era of liberal activism on the Supreme Court has yet to end.  In fact, many conservatives will be saying that loudly by month’s end if the Court’s decision on the Defense of Marriage Act goes the way we expect.

IRS: Why Obama Should Read the Papers

Last summer, CFJ president Curt Levey wrote about the IRS’s targeting of Tea Party groups – and, more generally, about the Nixonian attempts by the Obama Administration and its allies to silence conservative critics – after Senate GOP Leader Mitch McConnell spoke out about the problem. In an op-ed this week at Breitbart.com, Levey looks back at last summer’s articles and his interview with Sen. McConnell as a reminder that the IRS scandal and related wrongdoing could not have come as a surprise to anyone inside or outside the White House who was following the news.

Why Obama Wants to Pack the DC Circuit

Statement of Committee for Justice president Curt Levey on President Obama’s announcement today of three nominations to the DC Circuit:

President Obama’s high-profile announcement today of three DC Circuit nominees – left-wing law professor Cornelia Pillard, U.S. District Court Judge Robert Wilkins and appellate attorney Patricia Ann Millett – is intended to provoke a fight with Senate Republicans rather than to address any need for additional judges on the Circuit.  A battle over these nominees is inevitable, both because the DC Circuit already has more judges than it needs and because nominees to this Circuit – the most powerful court in the nation after the Supreme Court – are subject to a higher level of scrutiny. 

Senate Democrats raised the already high bar to confirmation of DC Circuit nominees when they blocked two stellar Bush nominees to the Circuit, Miguel Estrada and Peter Keisler, and kept President Bush’s other four nominees to the Circuit waiting between one and three years.  Obama appeared to concede as much today when he said “Democrats weren’t completely blameless when I was in the Senate.” Left unsaid was the fact that there would not be three vacancies on the DC Circuit now if not for the Democrats’ obstruction of Estrada and Keisler.

After more than four years of relative disinterest in lower court nominees – Obama has not lobbied for any of them nor appeared alongside them before today – why is the President suddenly so concerned about the DC Circuit?  While we cannot read Obama’s mind, we can rule out any possibility that he is genuinely worried that the DC Circuit doesn’t have enough judges.  Despite there being two DC Circuit vacancies since he took office, Obama waited 20 months to make his first nomination to the Circuit and three and a half years to make his second.

That’s because Obama was well aware that the DC Circuit has more than enough judges.  The Circuit’s eight active judges and six senior judges are the equivalent of eleven full-time judges, which is precisely the capacity specified by the 2008 statute that reduced the court’s judges from 12 to 11 due to a low workload. Five years later, the DC Circuit’s workload remains the lowest of any of the 12 circuit courts.

President Obama’s newfound concern about DC Circuit vacancies is even harder to explain in light of the glacial pace of his judicial nominations generally, including to courts that badly need additional judges.  He has made nominations to fill only one-quarter of the 32 vacancies classified as “judicial emergencies” (none of the 32 are on the DC Circuit).  If he has any genuine concern about judicial vacancies, we suggest Obama support Sen. Grassley’s bill to shift two of the unfilled DC Circuit seats to the overworked Second and Eleventh Circuits.

We suspect the President’s sudden interest in the DC Circuit is motivated by several political factors. One, Obama is undoubtedly unhappy with several DC Circuit decisions – especially the one that found his recess appointments to the NLRB to be unconstitutional – and wants to shift the Circuit to the left by adding liberal judges to it.  Two, by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.  Three, President Obama may be making a big deal about DC Circuit nominees largely for show, hoping to blunt criticism from his allies over the glacial pace of judicial nominations.

Whatever Obama’s motivation, Senate Republicans should hold firm in the fight the President has provoked with today’s nominations.  Short of Supreme Court review, the best hope of blocking Obama’s attempts to bypass Congress with overreaching executive orders and regulations lies in the DC Circuit, which hears many of the applicable cases.  President Obama should not be allowed to tilt the Circuit, which currently has four Republican and four Democratic appointees, to the left.  

Any attempt by Obama and Reid to use this fight as an excuse for crippling the minority’s rights in the Senate must also be fiercely resisted.  If the minority’s right to filibuster nominees is lost now, it won’t be available if and when a center-right vacancy on the Supreme Court gives President Obama a chance to install a liberal majority and push the Court sharply to the left.

DNA Decision Sets Dangerous Precedent

Statement of Committee for Justice President Curt Levey on today’s Supreme Court decision concerning collection of DNA samples:

An alarming precedent was set today when the U.S. Supreme Court decided 5-4 in Maryland v. King that the police can take DNA samples from those arrested for, but not yet convicted, of a serious offense. 

In a devastating dissent joined by three of his colleagues, Justice Scalia explained why the majority’s decision is a big step towards a dangerous loss of liberty and privacy.  “Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote, reminding us that “Nearly one-third of Americans will be arrested for some offense by age 23.”

While the Maryland statute at issue in this case does provide some safeguards, government guarantees of privacy and confidentiality are far from watertight. Consider the recent problems at the IRS, which include the agency leaking nine confidential applications of conservative non-profits to ProPublica, and leaking the tax return of the National Organization for Marriage – a pro-traditional marriage organization – to a gay rights group.

We suggest that instead of inventing privacy rights – concerning abortion and homosexuality for example – that require a long stretch from the text of the Constitution, the Supreme Court should focus on protecting the privacy rights that are clearly spelled out in the Fourth Amendment. In his dissent, Justice Scalia points out that “The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.”

The majority tries to justify its decision by analogizing Maryland’s collection of DNA to the fingerprinting of arrestees for identification purposes.  However, Justice Scalia destroys that analogy by carefully demonstrating that Maryland is using DNA not to identify arrestees but to accuse them of additional crimes.  We would add that the majority’s contention that there is little difference in intrusiveness between fingerprinting and DNA collection brushes aside the fact that when the government possesses your DNA, it possesses the detailed blueprints for your entire body.

No doubt, some of CFJ’s supporters cheered today’s decision because it advances the important cause of crime solving. We are very sympathetic to that cause, but it must be pursued in a manner that complies with the Constitution’s vital limits on the power of the government.  Too often, conservatives forget that big government poses a threat to our liberties not only through out-of-control regulation, taxing and spending, but also through over-zealous crime fighting.

As Justice Scalia concedes,

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. …  Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver's license, or attends a public school.”

We echo Justice Scalia’s points here and note that the noble cause of solving crimes must occupy a lower place in constitutional analysis because, unlike the right to be free from unreasonable searches and seizures, it is not explicitly guaranteed by the Constitution.  That could be changed by amending the Constitution, but there is little support for such an amendment.

Finally, Justice Scalia reminds us of the irony of today’s decision:

 “[T]he ironic result of the Court's error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the State's accusations.”

CFJ: Overturn Contribution Limits

This week, the Committee for Justice filed an amicus curiae brief in McCutcheon v. FEC, the next big campaign finance case before the U.S. Supreme Court.  CFJ’s brief supports the Republican National Committee and individual plaintiff Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.  The Supreme Court will hear arguments in the case this fall.

CFJ president Curt Levey described the brief as “part of CFJ’s continuing effort to battle judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges on this issue, bending the First Amendment to accommodate the push for campaign finance reform.  The result is a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.”

The aggregate limits being challenged in McCutcheon restrict the total amount of political contributions a donor can make over a two-year election cycle, even if the donor’s individual contributions comply with McCain-Feingold’s base limits – for example, the $2,600 per candidate per election limit.  The aggregate limits specify that no one can give more than $48,600 to all federal candidates combined over the election cycle. Thus, the contributor is limited to supporting nine candidates if he gives each one $2600 for both the primary and general election.

Similarly, there is a two-year aggregate limit of $74,600 on contributions to non-candidate committees, such that a donor could not give $32,400 per year – the base limit – to committees for both Senate and House races (say, the NRSC and the NRCC).

Mr. Levey notes that “It is hard enough to square McCain-Feingold’s base limits with the First Amendment, but it’s even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the base limits.  Striking down the aggregate limits would be both important in its own right and a critical first step towards ending the second-class treatment of political contributions under the First Amendment.”

CFJ’s brief points out that the base limits are purported to serve the only two interests – countering the occurrence or perception of quid pro quo political corruption – identified by the Court as constitutionally sufficient to justify contribution limits.  Therefore, the aggregate limits can add nothing more than ensuring that no one engages in too much political speech, an interest the Court has rejected.

CFJ’s brief goes on to focus on the perception of corruption, detailing how public opinion surveys over the last several decades demonstrate that the aggregate limits do not and cannot affect the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.

CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations, that engage in unregulated independent expenditures – in other words, away from organizations with an interest in moderation, compromise and consensus and towards groups with narrower interests and often less moderate views.

Explains CFJ’s Levey, “The resulting flow of money away from candidates and political parties and towards independent expenditure groups is completely counter to the one interest expressed almost unanimously by the public – the desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.

Ted Cruz on Gun Ban

Texas Senator Ted Cruz has put progressives and their allies in the mainstream media in a quandary.  As an unabashed advocate of conservative, small-government principles who can’t be ignored, Cruz must be attacked.  And yet the Left’s usual lines of attack are unavailable.  It would be laughable to question the intelligence of Sen. Cruz, a Harvard Law School graduate and the former solicitor general of Texas. Likewise, no one can credibly call Cruz — who beat the GOP’s establishment candidate in a Senate primary and is the son of a poor Cuban immigrant — a tool of the fat cats.  And it would be virtually impossible to convince folks that Cruz hates Hispanics; he is one.

All that’s left for progressives trying to undermine Sen. Cruz is name-calling and distortion of the facts.  That is why there’s been plenty of both.  At National Review Online, Committee for Justice president Curt Levey responds to the latest example — the charge that Cruz is a hypocrite because he allegedly changed his position on an assault weapons ban.

Supremes Add to Racially Charged Docket

Statement of Committee for Justice President Curt Levey on the Supreme Court’s decision today to review Michigan’s ban on racial preferences (Schuette v. Coalition to Defend Affirmative Action):

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the campaign to enact Michigan’s ban.)

protesting for preferences in Michigan

Adding to an already racially charged docket, the United States Supreme Court signaled today that it is ready and willing to overturn one of the most outrageous examples of judicial activism in recent years – the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities.

The Sixth Circuit reasoned – if stretching the law and logic to reach a politically correct decision can be called “reasoning” – that the Michigan Civil Rights Initiative (MCRI) violates the U.S. Constitution’s Equal Protection Clause because, by amending the state constitution to prohibit racial and gender preferences, it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  Never mind that, by definition, the purpose of all constitutional amendments – in contrast to ordinary legislation – is to reorder the political process in a way that is difficult to reverse.   

The Sixth Circuit’s far-fetched argument that requiring equal treatment regardless of race or sex is a violation of equal protection lost what little plausibility it might have had when it was rejected by the very liberal Ninth Circuit.  In a 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based, the Ninth Circuit pointed out that the Fourteenth Amendment’s Equal Protection Clause barely permits racial preferences and reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

It is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of  whether their state should use race in admissions. In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin. The Sixth Circuit’s end-run around the democratic process in Schuette is the hallmark of liberal judicial activism, in which courts impose the values of the elite –concerning diversity, abortion, gay marriage, and the like – on the less “enlightened” public.

It is difficult to predict the results of the other big race-related cases on the Supreme Court’s docket. While the Justices will probably strike down Texas’s race-based admissions system (Fisher v. University of Texas) and strike a blow against the pre-clearance provision of the Voting Rights Act (Shelby County v. Holder), those cases are close calls – 5-4 decisions are likely and it’s hard to know whether the rulings will be narrow or broad.

Schuette, on the other hand, should be a no-brainer for the Court. To uphold the Sixth Circuit would be to require that Michigan and similarly situated states reinstate their racial preferences.  The Supreme Court has never required that racial preferences be used in the name of diversity and it will not do so here.  The Court will reverse the Sixth Circuit and the five center-right Justices will be joined by some, if not all, of the Court’s four liberals.

Scalia’s B-day Brings Warren Court Worries

In an op-ed at FoxNews.com, CFJ president Curt Levey writes that Justice Scalia’s 77th birthday this week is “a reminder of the all too likely prospect that President Obama will pick a successor for Scalia or his colleague Anthony Kennedy, who turns 77 in July.” Levey explains that

“Conservatives can hope that Scalia and his four center-right colleagues will all outlast President Obama, but a probabilistic analysis suggests otherwise. Obama will likely replace at least one of the five, with the resulting liberal majority wrenching the Court to the left on issues ranging from gay marriage and religious liberty to immigration, racial preferences, voter ID laws, and the death penalty.”

In other words, we’ll see a Warren Court redux (literally if Sen. Elizabeth Warren, a liberal darling and ex-Harvard Law professor, were to be President Obama’s pick).  The op-ed warns that

“[A]ll that stands in the way of this legal Armageddon for conservatives is fortune and the 45 Republicans in the Senate. … [C]onservatives should demand a level of opposition from GOP senators, in the face of a predictably liberal nominee, that is commensurate with the threat of a reborn Warren Court. … [A] filibuster – or Republican resolve to use one if necessary – may be the only viable way for the party to ensure that a center-right vacancy is filled by a moderate.”

Levey concludes that “Educating and unifying GOP senators around the likely prospect of a new Warren Court is a long-term project. … Conservatives need to wake up now if the project is to be successful.”

Guns & Lessons Learned from Halligan

The Committee for Justice congratulates GOP Senators for remaining united today to defeat controversial D.C. Circuit nominee Caitlin Halligan on the Senate floor, where cloture failed by a vote of 51 YEAs to 41 NAYs.  Special thanks to South Carolina’s Lindsey Graham, whose vote was considered in doubt, for contributing to the 41 nays.

Halligan’s hostility to gun rights was the single biggest factor in her defeat. As Gun Owners of America said in a letter of opposition this week, “Halligan’s public hatred for firearms was only matched by her [anti-gun] zealotry inside the courtroom."  For details on Halligan’s disturbing record, see our earlier press release.

CFJ’s Curt Levey explained today why several lessons can be learned from Halligan’s defeat:

Importance of gun rights in judicial confirmation battles

Gun rights have become a pervasive issue in the judicial confirmation process.  It was the key issue in Halligan’s defeat and it’s been on the front burner since the Sotomayor confirmation battle, where nearly every senator in both parties criticized, defended, or tried to counterbalance Sotomayor’s bad Second Amendment record in explaining their vote on confirmation. 

As Mr. Levey said in a 2009 op-ed entitled “Guns Are the New Abortion”:

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. … That’s why … gun owners – their fate tied to the selection of judges in the wake of Heller – [have become] a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

Newtown has not changed things

Democrats hoped and the media speculated that the national reaction to the Newtown shootings would make Halligan’s campaign against firearms look more sympathetic, thus boosting her chances of confirmation.  They were wrong. On Halligan’s first cloture vote in December 2011, she fell 6 votes short.  She fell 9 votes short on the second cloture vote today. Both times, only one GOP senator – Murkowski (R-AK) – voted for her.

Why did Newtown fail to soften concerns about Halligan’s Second Amendment record? We suspect it’s both because the post-Newtown “fervor” for gun control has been greatly exaggerated and because the prospect of new gun control legislation has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.

GOP senators committed to higher standard for DC Circuit nominees

While explaining his vote against Halligan on the Senate floor today, Sen. Mike Lee (R – UT) emphasized that

“The D.C. Circuit is arguably the most important federal appellate court in our country’s judicial system, with primary responsibility to review administrative decisions made by many federal departments and agencies.  It has also served in several instances as a stepping-stone for judges who are later appointed to the Supreme Court. As a result, the Senate has a longstanding practice of scrutinizing nominees to the D.C. Circuit.” 

In applying a higher standard to D.C. Circuit nominees, GOP senators are following a precedent set during the Administration of George W. Bush.  Senate Democrats blocked several Bush nominees to the D.C. Circuit, despite magnificent qualifications acknowledged even by opponents. Those nominees included Miguel Estrada, who – Democratic Judiciary Committee memos revealed –was blocked because Democrats feared he would eventually become the first Hispanic Supreme Court Justice, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee.

Obama should make a deal:

With four vacancies on the D.C. Circuit, President Obama has an opportunity to not only solve the DC Circuit impasse, but also to begin healing the Bush-era wounds that have made the judicial confirmation process so contentious.  If Obama is serious about filling the four vacancies, he would be wise to make a package deal with Senate Republicans that includes the nomination of one conservative to the circuit – ideally Keisler or Estrada. The good will engendered by such a deal would make confirmation of Obama’s other judicial nominees easier and would send an indisputable signal of bipartisanship at a time when it’s badly needed in Washington.

Consider that George W. Bush did precisely what we’re proposing, selecting Democratic judicial nominees three times to encourage bipartisanship.  Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee.  Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008.  All three nominees were quickly confirmed.

Best of the State of the Union

There was plenty to criticize in the President’s State of the Union address.  But, instead, we decided to focus on the positive in Obama’s remarks and those of SOTU responders Sens. Marco Rubio and Rand Paul. To that end, here are the excerpts from the three speeches that should give cheer to constitutionalists and all those who believe in limited government and the rule of law.  Whether these words make their way into policy remains to be seen.

On limited government:

Rubio: “[G]overnment’s role is wisely limited by the Constitution. And it can’t play its essential role when it ignores those limits.”

Obama: “It’s not a bigger government we need, but a smarter government that sets priorities ...”

Obama: “The American people don’t expect government to solve every problem.”

Paul: “[W]e absolutely must pass a Balanced Budget Amendment to the Constitution! The amendment must include strict tax and spending limitations.”

On the American ideal:

Obama: “Above all, America must remain a beacon to all who seek freedom during this period of historic change.  I saw the power of hope last year in Rangoon … when thousands of Burmese lined the streets, waving American flags, including a man who said, ‘There is justice and law in the United States.  I want our country to be like that.’”

Paul: “People say America is exceptional. I agree, but it’s not the complexion of our skin or the twists in our DNA that make us unique. America is exceptional because we were founded upon the notion that everyone should be free to pursue life, liberty, and happiness.”

On the Second Amendment:

Paul: “We are the party that adheres to the Constitution. We will not let the liberals tread on the Second Amendment! … We will not let any President use executive orders to impinge on the Second Amendment.”

Rubio: “We must effectively deal with the rise of violence in our country. But unconstitutionally undermining the 2nd Amendment rights of law-abiding Americans is not the way to do it.”

On the War on Terror:

Obama: “I recognize that in our democracy, no one should just take my word that we’re doing things the right way.  So, in the months ahead, I will continue to engage with Congress to ensure … that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances …”

Paul: “We will not tolerate secret lists of American citizens who can be killed without trial.”

On illegal immigration:

Rubio: “We need a responsible, permanent solution to the problem of those who are here illegally. But first, we must follow through on the broken promises of the past to secure our borders and enforce our laws.”

On the separation of powers:

Paul: “Montesquieu wrote that there can be no liberty when the executive branch and the legislative branch are combined. Separation of powers is a bedrock principle of our Constitution. We took the President to court over his unconstitutional recess appointments and won. If necessary, we will take him to court again if he attempts to legislate by executive order.”

On school choice:

Paul: “[We should] allow school choice for everyone, rich or poor, white, brown, or black. Let the taxes you pay for education follow each and every student to the school of your choice. ...  When every child can, like the President’s kids, go to the school of their choice, then will the dreams of our children come true!”

Rubio: “We need to give all parents, especially the parents of children with special needs, the opportunity to send their children to the school of their choice.”

On economic liberty:

Rubio: “Politicians here and throughout the world have long promised that more government can make those dreams [of a better life for our children] come true. But we Americans have always known better. From our earliest days, we embraced economic liberty instead.”

Paul: “Only through lower taxes, less regulation and more freedom will the economy begin to grow again.”

On the Bill of Rights:

Paul: “We will fight to defend the entire Bill of Rights from the right to trial by jury to the right to be free from unlawful searches.”

On term limits:

Paul: “If [Congress] will not listen, if [Congress] will not balance the budget, then we should limit their terms.”