Supreme Court Appears Sharply Divided in Public Campaign Finance Case

On Monday, the Supreme Court heard oral argument in McComish v. Bennett, a constitutional challenge to a 1998 Arizona statute, approved by the voters, establishing a public campaign financing program to combat corruption and encourage broader participation in the political process.  The oral argument revealed a deep ideological divide among the Justices.  The five conservative Justices who, one year ago, in Citizens United v. FEC, gutted important parts of the federal McCain-Feingold Act and held that corporations have the same right to spend unlimited amounts of cash to influence the outcome of elections, now seem poised to invalidate Arizona's Clean Elections Act.  Incredibly, a majority of the Court seems prepared to rule that Arizona's system for public campaign financing -- which adds to, not subtracts from, the public debate -- violates freedom of speech.

The Act was approved by the voters of Arizona in the wake of the worst public corruption scandal in the state's history.  As CAC demonstrated in the amici curiae brief that we filed in McComish on behalf of four of the country's leading constitutional scholars, the people of Arizona, in enacting this innovative solution to the problem of corruption, were following in the footsteps of the Framers, who designed the Constitution to stamp out corruption.  But even though the questions asked by Justices Ginsburg, Sotomayor, and Kagan made many of these points during oral argument, the Court's conservatives brushed them aside and treated the Act as dead on arrival.  If the Court in fact goes on to hold that the Act is unconstitutional, it will be, as Adam Liptak observed in the New York Times, the fifth straight ruling of the Roberts Court striking down campaign finance legislation.

In the wake of Citizens United, public campaign financing remains one of the last, best protections against the corrupting influence of high-dollar donors.  With its decision in McComish, the Court could strip candidates without such backing of having a fighting chance, and undermine the fair elections that all Americans deserve.

We'll keep you posted on the developments in this important case.

 Pace of Judicial Confirmations Still Far too Slow  

During the last Congress, Senate Republicans engaged in unprecedented obstruction of President Obama's judicial nominees, creating a vacancy crisis on the federal courts so severe that, by year's end, conservative jurists including Chief Justice John Roberts and Justice Anthony Kennedy had publicly criticized the vacancy situation.  Since early February, although the Senate has kept up a fairly steady pace of confirmations, that pace is still far too slow.  To date in 2011, the Senate has confirmed only 14 judicial nominees, all without opposition.  

In fact, the full Senate has yet to consider any nominee targeted by Republicans as "controversial."  Unfortunately, this hit list appears to include Caitlin Halligan, the President's nominee to the D.C. Circuit.  On March 10, based on really flimsy arguments, every Republican on the Judiciary Committee voted against Halligan, with the result that her nomination was sent to the Senate floor on a party-line vote of 10-8, and there it sits.  Halligan, the former Solicitor General of the State of New York, is a highly-qualified, well-respected nominee who deserves a prompt vote and deserves to be confirmed.  Indeed, as we noted in our letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell supporting Halligan's confirmation, her confirmation has the backing of a bipartisan group of preeminent attorneys, including such conservative luminaries as Carter Phillips and Miguel Estrada.  And, as we've written about here, efforts by Halligan's opponents to portray her as some sort of liberal activist by attributing personally to her positions that she has taken as an attorney on behalf of her clients are not only dangerous but also the product of cherry picking of her record.

Right now, nearly one in nine federal judicial seats is vacant.  The fact that the Senate Judiciary Committee is holding hearings on nominees every two weeks is promising. But once out of Committee, those nominees deserve a prompt vote on the Senate floor.  We'll keep pushing to get these nominees the floor votes they deserve.

The Constitutional Guarantee of Birthright Citizenship

In January, Senators Rand Paul (R-KY) and David Vitter (R-LA) introduced a measure in Congress to amend the Constitution so that U.S.-born children would not be U.S. citizens unless one parent is a U.S. citizen, or one parent is a legal immigrant, or one parent is an active member of the Armed Forces.  In the same month, in the Arizona state legislature, conservative lawmakers introduced legislation seeking to challenge the right to U.S. citizenship for children born in the state whose parents are undocumented immigrants or other non-citizens.  The goal, according to Arizona Representative John Kavanagh, a primary supporter of the legislation, is "to trigger ... Supreme Court review of the phrase 'subject to the jurisdiction thereof' in the 14th amendment."  These are just a few examples of the recent attacks on the Citizenship Clause of the 14th Amendment, which guarantees that all persons born on U.S. soil are U.S. citizens.  

CAC's Chief Counsel, Elizabeth Wydra, has written and spoken extensively on the correct reading of the Citizenship Clause, rebutting attacks on this critical component of the 14th Amendment.  As Elizabeth explains in an Issue Brief just distributed by the American Constitution Society, a close study of the text and history of the Citizenship Clause demonstrates that birthright citizenship is guaranteed to everyone born on U.S. soil, regardless of the immigration status of the child's parents.  Efforts to deny birthright citizenship based on the status or national origin of a child's parents contravene the Citizenship Clause, and proposals to amend the Constitution to eliminate birthright citizenship imperil our core constitutional values.  You can read Elizabeth's issue brief, "Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded," here.  On March 31, Elizabeth participated in an important panel discussion on these issues co-sponsored by the Center for American Progress and the American Constitution Society entitled "Born in the USA? The Historical and Constitutional Underpinnings of Birthright Citizenship."  You can view an archived webcast of that event here.

CAC's attorneys have been quite busy, filing briefs in three cases last month.

At the beginning of March, we filed a brief in Virginia ex rel. Cuccinelli v. Sebelius in support of the constitutionality of the Patient Protection and Affordable Care Act -- the new health care reform law.  Our brief demonstrates that Congress's power to enact the Act's minimum coverage provision is supported by the original meaning of the Constitution's Commerce Clause and the Necessary and Proper Clause.  The Fourth Circuit is scheduled to hear oral argument in the case on May 10, 2011.  

We also filed a brief in the Supreme Court in PLIVA, Inc. v. Mensing, a case in which the Court has been asked to decide whether state law claims against generic drug manufacturers for failing to properly warn consumers about dangerous risks associated with their products should be displaced by federal law.  The PLIVA case is virtually identical to 2009's Wyeth v. Levine, in which the Court held, 5-4 (with now-retired Justice Stevens in the majority), that state failure-to-warn claims against prescription drug manufacturers are not preempted by the federal Food, Drug and Cosmetic Act.  The Court heard oral argument in PLIVA on March 30.  You can read our full recap of the argument here.  

Just this week, we filed a brief in Farina v. Nokia, Inc., in support of a petition for a writ of certiorari.  The petitioner has asked the Supreme Court to hear this case to decide whether state law claims against cell phone manufacturers based on possible risks associated with radiofrequency radiation emitted by cell phones are impliedly preempted by the views of a federal agency, even though Congress has expressly disclaimed implied preemption in the statute implemented by the agency.  If the Court decides to review Farina, it will consider the case during its next Term, which begins in October.  

Please be sure to check Text & History and the litigation section of our website to stay informed about developments in these and all other CAC cases. 

Text & History

A Note to Senator Grassley: Ten < Eleven

An Originalist Defense of Health Care Reform

Remembering the Civil War in the Tea Party Age