Category: General Law


The Certiorari Grant in Fisher

I’d been meaning to say something about the not-so-new affirmative action case, but writing a book review knocked me offline for a while.

The new grant of cert in Fisher is peculiar.  Media reports suggest that the last time around the Court was going to issue a stronger opinion curtailing the use of race-conscious admissions policies.  Faced with a sharp dissent from Justice Sotomayor, though, the majority backed down and (after extended wrangling) produced a brief opinion remanding the case to the Fifth Circuit.  Now we get another grant (after the Fifth Circuit reaffirmed its prior holding).

It’s worth noting that this second grant is problematic in a couple of respects.  First, there’s a certain waste of resources in going through a second round of briefing and argument in the same case.  Sure, the briefs will be freshened up a bit, and you have a new circuit opinion as well, but the Justices are largely spinning their wheels.  Second, there is the awkward fact that Justice Kagan is recused because she worked on the case as Solicitor General.  (Indeed, you would think that this is the last case that will prompt her recusal for that reason.)  Any other challenge to university admissions accepted by the Court would have been decided by all nine Justices–perhaps that would have better.  Finally, Fisher has always struck me as a poor vehicle for thinking about race-conscious admissions given the structure of Texas public schools and the way the UT plan was designed.

So what’s going on?  Could it be that the current majority (that is, the one that did go forward the first time) is aware that there may not be another opportunity to take a stand before there is a different majority?  Or is this a situation where (as with campaign regulation and the Voting Rights Act) the Court will use Fisher I as authority for a broader ruling in Fisher II, but was not comfortable doing that without a Fisher I?


Kozinski Revisited — 10 ways to become a Federal Judge by 35 . . . and more!

Give credit where it is due — and especially where it is not. — Alex Kozinski (8-19-96)

Over at the Volokh Conspiracy Eugene recently posted excerpts from a new article by Judge Alex Kozinski; the piece is titled “12 Reasons to Worry about our Criminal Justice System.” Eugene’s posting got me to thinking (yet again) about Kozinskian lessons on life and law.

Thus this post concerning an August 19, 1996 National Law Journal article by the Judge titled “So You want to Become a Federal Judge by 35?

Judge Alex Kozinski (credit: The Recorder)

Judge Alex Kozinski (credit: The Recorder)

Given the sound counsel in that piece, I thought our under 35 age readers might appreciate familiarizing themselves with the his 10 “commandments.” Take heed: they may serve you well. At the end of these “commandments” (as I term them), I asked the Judge a few followup questions, which he kindly answered. They should be of interest to the over 35 crowd.

Onward, then, to Alex Kozinski’s Ten Commandments, albeit in abbreviated form:

Commandment I: “Decide early. This, the most obvious step of all, is often overlooked. .”

Commandment II: “Get into politics. Judging is not a partisan political process, but being fitted for the robe definitely is. . . .”

Commandment III: “Never back a loser. Campaiging for the Spotted Owl Party in the middle of a lumberjack country won’t get you a robe. . .”

Commandment IV: “Get a job in Washington. If you want to become a federal judge; you might as well peddle your wares in the federal judgeship bazaar. . . .”

Commandment V: “Get to know your senators. You won’t get a federal judgeship if a senator from your state objects” to you or your credentials.

Commandment VI: “Make friends on both sides of the aisle. . . .”

Commandment VII: “Ask a lot of people for favors. . . . Most people believe that the way to get ahead in politics is to do a lot of favors for others so they’ll owe you favors when you need help. In fact, people hate to pay back favors — it makes them feel cheap; anyway, they always think the favor you’re cashing in is worth lesss than the one you’re asking in return. . . .”

Commandment VIII: “Give credit where it is due — and especially where it is not. When you do achieve a measure of success . . . be sure to thank those who helped. . . .”

Commandment IX: “Do your level best at whatever job is entrusted to you. Political assignments are not merely stepping stones; they are important jobs in themselves. . . . [And] if you disappoint someone who has helped you, don’t expect that person’s help again.”

Commandment X: “Don’t be daunted. . . There’s a fine line between being persistent and being a pest; don’t crosss it, but get close to it.”

So if one follows those ten commandments, will they work? Well, “you’ll have a very good shot” wrote Kozinski, provided you have a “modicum of intelligence and common sense.” And, of course, a kindly nod from Fortuna is always helpful.

* * *  *

 Twenty Years Later — A Few Followup Questions 

Most judges leave politics behind when they take the bench. — Judge Alex Kozinski (7-18-15)

In 1981-1982 Alex Kozinski served as the first U.S. Special Counsel; he was appointed by President Ronald Reagan. Thereafter, he was nominated to be Chief Judge of the United States Court of Federal Claims. In 2002 he spoke at a conference celebrating the twentieth anniversary of the US Court of Federal Claims. On that occasion he said: 

My acquaintance with the new court started one day while riding the Metro during the spring of 1982. In those days, I used to read U.S. Law Week religiously, even the boring parts at the end where they reported on new legislation and such stuff. I was getting near my stop – it was Farragut North in those days – when I came across a new statute called the Federal Courts Improvement Act of 1982. Yeah right, I thought. How can one possibly improve the federal courts? But, as I read on my eyes opened wide: 

The Act created two new courts, the Federal Circuit and the United States Claims Court. I glossed quickly over the Federal Circuit; too ambitious, I thought. Maybe in three years or so I could think about becoming a circuit judge. But the Claims Court retained my interest. The Act provided that the President would be appointing all the judges of that court – fifteen in all – and, most interesting to me, he would also be designating the court’s chief judge. “Shezam!,” I thought to myself. That’s my job! 

Over the next couple of weeks I spent considerable time on the phone calling everyone I knew in the White House and Justice Department, explaining to them why I’d be the ideal candidate to be chief judge of the Claims Court. In truth, I don’t remember what I said, because I can’t think of anyone less suited for that position. In addition to knowing nothing about the court, I knew nothing about trials.

In 1985, after having served on that court and when he was 35, President Reagan nominated Kozinski to the Court of Appeals for the Ninth Circuit. He was confirmed: 54 to 43.   

Question: Did you follow your own advice? Be honest!

Kozinski: For the most part. I’d probably do a better job on some of them today — like making more friends with people on the other side of the political fence.

Question: Your 10 “commandments” speak mostly to the prospect of being nominated to be a federal judge. Do you have any additional advice — e.g., dos and don’ts — on how best to weather confirmation hearings?

Kozinski: Try answering questions by using baseball metaphors.

Question: If Judge Robert Bork had taken you’re advice, starting from when he was 25 in 1952, would he have had a “very good shot” at becoming a Supreme Court Justice?

Kozinski:  With my advice he’d have certainly become a Justice.

Question: The political atmosphere today seems different from what it was twenty years ago when you wrote your article.  It seems more polarized. No? If so, how does that affect your “get into politics”/ “make friends on both sides of the aisle” maxims?

Kozinski: Those maxims are probably more relevant now than ever.

Question: Can you give an example of when persistence turns into annoyance?

Kozinski: When you persist by trying the same (failed) strategy over and over again. To avoid annoyance you have to be imaginative in your persistence.

Question: Tell us more about the art of asking favors of others so that they do not feel exploited.

Kozinski: Appeal to their better nature. Make no promises as to how you would vote on cases or issues. Be dignified. And don’t overreach. Most important of all, promise to reciprocate when you’re in a position to do so.

Question: Say more about what you meant when you said “give credit . . . where it is not” due.

Kozinski: Let’s say you ask 10 people for help and you then find out that only one or two made a difference.  The rest either didn’t try or were ineffective. Never mind — they all get 100 percent of the credit:  “I couldn’t have done it without you.”

Question: You claim that “judging is not a partisan political process.” Are you speaking of the ideal of appellate judging or the reality of such judging? It seems that many people now just assume that such judging is partisan.

Kozinski: Not in my experience. Most judges leave politics behind when they take the bench. Of course, your philosophy stays with you, and that will inform you decisions-making. Sometimes that looks like politics, but it’s not.

Question: Mindful of what you say in “Commandments” 6-8, can you tell us the names of some of the people whose help made a difference in you getting nominated to be a Circuit judge?

Kozinski: I probably shouldn’t mention names without their consent, but there are many names you’d recognize.

Question: Given how confirmation hearings are conducted in the post-Bork era, just how candid do you think that a judicial nominee can be in answering senator’s questions? Isn’t the name of the game to be as evasive as possible? Or not?  What is your sense of this?

Kozinski: Yes, total candor is probably best left for private conversations. Always follow the three rules of  live in Washington:

  1. Don’t say it if you don’t want to see it quoted in the Washington Post.
  2. Don’t do it if you don’t want to be asked about it during your confirmation hearings, and
  3. If you can eat it and drink it in a single sitting, it’s not a bribe.

Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).

Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.

Question: What is your sense of the A.B.A. committee that evaluates judicial nominees?

Kozinski:They gave me a hard time and eventually gave me a mixed Q/NQ rating. But they did let me get by, so I’m grateful.

purported sighting of the young Kozinski in a forest (credit: NBC News)

purported sighting of the young Kozinski in a forest  (credit: NBC News)

Question: Given your talents in advising young men and women on how to best secure a federal judgeship, do you have a few words of wisdom for law students who aspire to be law clerks for a federal judge?

Kozinski: Bust your buns; sleep little; read much; and take lots of practice exams.

Question: If your plans to be a judge had never panned out, what do you suppose you’d be doing today?

Kozinski: I would have been a lumberjack!


Flashback circa 2006 — First Amendment lawyers, scholars and journalists gather to discuss press freedoms & Espionage Act


20 July 2006, Newseum, Rosslyn, Virginia

In ascending order, from left to right:

Floyd Abrams, Jeffrey H. Smith, Robert Corn-Revere, Susan Buckley, Shelby Coffey,  Lee Levine, Geoffrey Stone, Sandra Baron, Lucy Dalglish, Ronald Collins, Tiffany Villager, David Hudson, Scott Armstrong, Stephen Vladeck, Harold Edgar, and Paul McMasters. 

The participants gathered for a First Amendment Center workshop on the Espionage Act and Press Freedoms. The workshop produced a book by Geoffrey Stone: Top Secret: When Our Government Keeps us in the Dark (Rowman & Littlefield, 2007) (foreword by Ron Collins & commentary by Stephen Vladeck).

Those were the days!


FAN 68.1 (First Amendment News) Wisconsin high court strikes down campaign finance laws in Walker dispute

As reported in the New York Times: “The Wisconsin Supreme Court on Thursday ruled that a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign cannot continue. The decision of the court ends the specter of a criminal investigation as Mr. Walker pursues the Republican nomination for president. Mr. Walker, who has won three elections for governor over the last five years including a recall challenge in 2012, officially announced his bid on Monday.”

Today the Wisconsin Supreme Court handed down in ruling in Wisconsin v. Peterson, et alJustice Michael Gableman wrote the lead opinion. Justice David T. Prosser wrote a long concurring opinion in which Chief Justice Patience Drake Roggensack joined as to Sections IV and V of the opinion, and Justices Annette Kingsland Ziegler and Michael Gableman joined as to Section IV of the opinion. Justice Shirley Abrahamson wrote an opinion concurring and dissenting in part. Justice Patrick Crooks likewise wrote an opinion concurring and dissenting in part. All tolled the various opinions came to 634 paragraphs. (Justice Ann Walsh Bradley did not participate).

The case concerned charges that Governor Scott Walker’s campaign team violated certain campaign finance laws during the 2012 recall elections by working in conjunction with dark money groups.

In relevant part, the Court declared:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

It also added:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Over at the Election Law Blog, Professor Richard Hasen noted:

Today’s lengthy and contentious 4-2 ruling dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

Check with the Election Law Blog as Professor Hasen has additional substantive comments on the case.


FAN 68 (First Amendment News) Court of Appeals for the Armed Forces to hear “true threats” case

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. — Justice Samuel Alito, concurring & dissenting in part in Elonis v. U.S. 

UnknownThe Court of Appeals for the Armed Forces (the highest military court) has just agreed to review a “true threats” case in United States v. Rapert (No. 15-0476/AR). The issue the five-member court will consider is “whether the finding of guilty .  . . for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of circumstances and in light of the Supreme Court’s decision in Elonis v. United States (2015).” 

As reported in CAAFLOG, there is no opinion in Rapert on the Army Court of Criminal Appeals’ website, which may be because that “court summarily affirmed the conviction.” Communicating a threat is an  Article 134 UCMJ, offense, which not only requires some misconduct (i.e., communicating a threat), but also that the conduct is either prejudicial to good order and discipline or service discrediting.

As  Zachary Spilman pointed out in his CAAFLOG post: “for [Eric L.] Rapert a footnote in a recent CAAF opinion looms large.” That opinion is United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) and the pertinent language in a footnote in that case is:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

 (ht: Jeffrey Barnum)

Update on Elonis on remand to 3rd Circuit: According to Ronald H. Levine, who argued the Elonis case in the Third Circuit, “the Third Circuit has not yet acted other than to recall its original mandate. Whether it will vacate and remand to the district court or seek briefing per the concurrence of Justice Alito is unknown.”

Headline: “Lawmakers want Internet sites to flag ‘terrorist activity’ to law enforcement”

Screen Shot 2015-07-14 at 1.35.09 PMA story in the Washington Post by Ellen Nakashima reports that “[s]ocial media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee. The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.”

“. . . It would not require companies to monitor their sites if they do not already do so, said a committee aide, who requested anonymity because the bill has not yet been filed. The measure applies to ‘electronic communication service providers,’ which includes e-mail services such as Google and Yahoo. . . .”

Senate Bill 1705: Intelligence Authorization Act for Fiscal Year 2016: The relevant provision of the proposed measure is Section 603: Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

Subsection (a) of section 603 concerns the duty to report and provides:

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.

Subsection (b) of section 603 provides:

The Attorney General shall determine the appropriate authorities under subsection (a).

Subsection (c) of section 603 concerns facts and circumstances and provides:

The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.

Subsection (d) of section 603 concerns privacy protection and provides:

Nothing in this section may be construed to require an electronic communication service provider or a remote computing service provider—

(1) to monitor any user, subscriber, or customer of that provider; or

(2) to monitor the content of any communication of any person described in paragraph (1).

The ACLU’s Gabe Rottman said that the Senate “committee had secretly inserted a provision in a spending bill that would require social media companies to report posts about “any terrorist activity” to the government. The bill is hopelessly vague on what that means. That’s because it goes far beyond a reporting requirement for wrongful conduct—terrorist activity—and will invariably result in the reporting of speech about terrorism—including by activists and other peaceful people with forceful opinions.”

“In practice, he added, “were this to become law, websites will likely do a couple of things”:

  1. “First, they will overcorrect and start taking down content wholesale. They will monitor posts for keywords like ISIS or “don’t tread on me” (a libertarian slogan that some identify with white supremacist and anti-government ideology) and pull them. That will chill an enormous amount of online debate . . .”
  2. “Second, and perhaps worse, companies—faced with the proposal’s utter lack of guidance on what the law requires them to report—will apply it inconsistently. . . .”

(ht: Emma Llansó, Free Expression Project: See also Ms. Llansó’s “Intel Authorization Bill Would Turn Online Service Providers into Law Enforcement Watchdogs,”) 

10th Circuit rejects compelled speech & compelled silence claims in Little Sisters Case

Yesterday a majority of the judges of a Tenth Circuit three-judge panel rejected the compelled speech and compelled silence claims, among others, raised by the Appellants in Little Sisters of the Poor Home for the Aged v. Burwell. Judge Scott Matheson, Jr. wrote for the majority (joined by Judge Monroe G. McKay) with Judge Bobby R. Baldock writing in dissent, but on RFRA grounds.

“Plaintiffs, wrote Matheson, “contend the accommodation scheme violates the Free Speech Clause of the First Amendment . . .  by compelling them both to speak and remain silent . . . . . First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail.”

“To the extent such a claim requires government interference with the plaintiff’s own message, . . . . the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. . . .”

“We further reject the claim that the accommodation scheme compels Plaintiffs’ silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. . . . After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot.”

llya Shapiro & Ira Glasser on Redskins trademark flap Read More


AALS Section on Poverty Law Call for Papers

AALS Section on Poverty Law

Call for Papers for 2016 AALS Annual Meeting

The AALS Section on Poverty Law is seeking abstracts or drafts of papers to be presented at the 2016 Annual Meeting in New York, NY.  This year’s program is entitled “New Directions in Poverty Law,” and it will be held on Friday, January 8, from 10:30 a.m. to 12:15 p.m. Read More


Equal Constitutional Status

I want to pick up on a line of thought in the comment thread to one of my prior posts on separation of powers.  What do we mean when we say that the three branches are equal?  Probably we are saying that they have the same status.  For example, as Orin Kerr points out, each nation-state is equal to another as a sovereign.  We don’t mean by that, of course, they they have equal power.  We mean that they have equal rights in some respects and equal (dare I say it) dignity.

Let’s set aside the question of whether the Framers thought that the three branches were equal in this sense.  What I’m wondering is at what point interpretation based on status becomes fictional?  Here’s an example.  Are the two Houses of Parliament coequal?  You could say yes.  A bill must pass each house to become law.  Each House has its own chamber and its own rules.  But you could also say no.  The House of Commons can legally abolish the House of Lords.  The Lords cannot do that to the Commons.  That doesn’t look like coequality. So which is the better answer?

Federalism also complicates matters.  Nobody thinks that Congress and Delaware are of equal rank.  Nevertheless, Delaware has certain rights that Congress may not invade.  So the fact that an entity has autonomy does not make it equal in that formal sense.  Why couldn’t the same be true among the three branches?  Congress could be the superior branch, but it cannot do certain things to the others.

One answer to that is that the Supremacy Clause makes the hierarchy clear with respect to the federal government and states.  There is no equivalent text that says that Congress is the #1 branch.  At best, you’d have to say that congressional superiority (or the lack of coequality) is implied.  But coequality is also just a construction.  So why did people adopt that view?  Did the Framers have that view?  We’ll see.




What do the Constitutional Articles mean?

Before doing additional research on this subject, I want to say one more thing on the question of whether the Constitution established three equal branches. Perhaps the best way of asking the question is:  Why do we think that we have three equal branches?  The text does not say that, and it’s hard to find anybody who said that until long after the Founding.  Moreover, when you look at the powers distributed by the text, I don’t think that coequality is the best conclusion.

One answer is that each branch gets its own article.  If this is an important structural point, then that could lead to the inference that the three branches are equal.  Why, though, is that important?  You could just as easily say that Article I is longer than Articles II and III, which proves that the branches are not equal.

Another thought is that we think the three branches should be equal even though they were not originally understood that way.  Is this, though, within the range of acceptable interpretation?  I don’t know.


FAN 67 (First Amendment News) En Banc Unanimous Ruling from DC Circuit Upholds Federal Ban on Contributions by Federal Contractors

This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election CommissionDemocracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

  1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
  2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
  3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
  4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
  5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
  6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
  7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
  8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
  9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

→ Mootness: “The plaintiffs advise us that both Wagner and Brown have now completed their federal contracts and hence are once again free to make campaign contributions. Brown, at least, has already done so.  Accordingly, Wagner’s and Brown’s claims are moot,” which leaves Plaintiff Jan Miller, whose “contract is ongoing” and therefore “his constitutional claims . . . remain alive.”

→ Reliance on Williams-YuleeThe Chief Judge cited to Williams-Yulee v. Florida Bar fifteen times — e.g., “But as the [Williams-Yulee] Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”

The Lawyers & Amici

  • Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
  • Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
  • Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
  • J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

  1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
  2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

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