Analysis Law and Policy

Bad News for Reproductive Rights: Supreme Court Considers Campaign Finance Reform

Jessica Mason Pieklo

On the second day of its term, the Roberts Court looks ready to allow more political spending. The question is just how much more?

The Supreme Court wasted no time getting right to the big ticket cases, hearing arguments Tuesday in McCutcheon v. Federal Election Commission, a case that questions the constitutionality of individual political contribution limits.

The last time the Supreme Court looked at campaign finance reform was in 2010, when, in Citizens United v. FEC, the court struck limits on corporate political spending on the grounds they violated the First Amendment. That decision not only greatly expanded corporate constitutional protections, it placed on shaky ground remaining limits on political spending—limits like the one at issue in McCutcheon.

Federal election law limits political contributions in two ways. There’s the “base limit,” which is the $2,600 cap per election on contributions to candidates for federal office. And there’s the “aggregate limit,” which means that in a two-year election “cycle” a person can donate a total of $48,600 to all of the candidates for federal office and another $74,600 to national political parties, state and local parties, and political action committees (PACs).

Shaun McCutcheon is an Alabama businessman who loves Republican politics. He loves Republican politics so much he’s joined forces with the Republican National Committee (RNC) to challenge the individual aggregate limits, claiming he’d like to give away more money to Republicans, but federal law won’t allow it. Under the current law, McCutcheon is limited to giving $123,200 total, which he claims violates his freedom of speech. McCutcheon challenged the law but lost with the court upholding the aggregate limits thanks to Buckley v. Valeo, a 1976 Supreme Court decision that ruled the federal government can more severely restrict campaign contributions to candidates than it can on campaign spending by candidates or political groups.

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According to the Supreme Court in Buckley, treating donations and spending differently makes sense, because donations are most likely to corrupt the political process, as elected officials will feel beholden to wealthy donors. In McCutcheon, the lower court reasoned that the aggregate limits were similarly justified, because they prevented donors from evading base limits on donations to individual candidates—exactly the kind of behavior McCutcheon claims is a violation of his constitutional rights.

Naturally, it was Justice Antonin Scalia out in front of McCutcheon’s cause during oral arguments, claiming the court didn’t need to worry about “facts” of political corruption and just apply the law, presumably to strike the individual aggregate limits. To counter Justice Scalia’s insistence that evidence of political corruption was unnecessary for the court to consider was Justice Ruth Bader Ginsburg, making the obvious connection between dollars, political speech, and influence. If dollars are speech, Ginsburg reasoned, those with the most dollars get the most, and the loudest, speech. “By having these limits, you are promoting democratic participation,” Justice Ginsburg said. “Then the little people will count some and you won’t have the super-affluent as the speakers that will control the elections.”

While Justice Anthony Kennedy is often considered the key swing vote, in this case it could turn out to be Chief Justice John Roberts. Roberts seemed inclined to strike down the aggregate limits to several candidates, but maybe not limits on contributions to PACs. If that’s the balance the court finds—striking individual limits to candidates but placing some limits on contributions to parties or political action groups—we have to ask if it’s a difference that matters. Like the decisions in challenges to the Affordable Care Act and the Voting Rights Act, Chief Justice Roberts has come close to perfecting the art of gutting progressive policy while leaving just enough of its original architecture in place for political cover.

What does all this mean for reproductive rights and health care? Well, it’s not good news. According to the Center for Responsive Politics, even though women slightly outnumber men in terms of overall population, they accounted for only 29.6 percent of people donating to federal campaigns and candidates in the last election cycle. That figure shrinks when you look at overall dollar amount donated by women in comparison to men. Simply put, women contribute less money less often to political campaigns, and this is true even as the number of contributions by women is on the rise.

Admittedly, women’s political contributions do not directly correlate to pro-choice policy and and donations to candidates, but if the last two elections are any indication, women voters are more likely to support candidates that support reproductive choice and contraceptive equity.

Compare that to the opposition. As soon as U.S. Secretary of Health and Human Services Kathleen Sebelius announced the contraception mandate in the Affordable Care Act, religious organizations, including the United States Conference of Catholic Bishops, created a super PAC to fund the legal challenges; in the span of a little over a year, the issue has landed before the Supreme Court. Those cases, and those arguments, would not have been made possible but for the precedent developed in Citizens United.

It’s no mistake that many of the same conservatives arguing for corporate religious exercise rights and aiming to deny employees equal access to contraceptive health services are the same ones championing McCutcheon and the RNC’s cause. This joining together of conservatives opposed to comprehensive reproductive health care and those in favor of lots of “dark money” in politics is a campaign that was decades in the making.

James Bopp Jr., the legal brains behind Citizens United, boasts the National Organization for Marriage, National Right to Life Committee, Susan B. Anthony List, and Focus on the Family as clients, and serves as the primary force advocating for an end to campaign finance reform under the guise of free speech rights. With those clients, Bopp has traveled from state to state looking to challenge campaign finance disclosure and contribution laws. His latest crusade, on behalf of Iowa Right to Life, looks to upend state laws that require organizations that spend money in elections to declare themselves PACs and follow PAC reporting requirements once certain spending limits have been met. Bopp and IRTL filed a petition for review with the Supreme Court this term, asking it to, among other things, overrule Buckley altogether. Senate Minority Leader Mitch McConnell (R-KY) a champion of the anti-Obamacare crusade, went out of his way to publicly support the cause and appeared in the case as a party arguing there’s just no real evidence letting people give as much money as they want to candidates creates political patronage.

It will be months before we know how the Supreme Court will rule, but early indications don’t look good for what’s left of campaign finance reform. And if it doesn’t look good for campaign finance reform, it doesn’t look good for reproductive rights and health care either.

Roundups Politics

Campaign Week in Review: Republican National Convention Edition

Ally Boguhn

The Trump family's RNC claims about crime and the presidential candidate's record on gender equality have kept fact-checkers busy.

Republicans came together in Cleveland this week to nominate Donald Trump at the Republican National Convention (RNC), generating days of cringe-inducing falsehoods and misleading statements on crime, the nominee’s positions on gender equality, and LGBTQ people.

Trump’s Acceptance Speech Blasted for Making False Claims on Crime

Trump accepted the Republican nomination in a Thursday night speech at the RNC that drew harsh criticism for many of its misleading and outright false talking points.

Numerous fact-checkers took Trump to task, calling out many of his claims for being “wrong,” and “inflated or misleading.”

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 Among the most hotly contested of Trump’s claims was the assertion that crime has exploded across the country.

“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump claimed, according to his prepared remarks, which were leaked ahead of his address. “Homicides last year increased by 17 percent in America’s 50 largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings have risen by 50 percent. They are up nearly 60 percent in nearby Baltimore.”

Crime rates overall have been steadily declining for years.

“In 2015, there was an uptick in homicides in 36 of the 50 largest cities compared to the previous years. The rate did, indeed, increase nearly 17 percent, and it was the worst annual change since 1990. The homicide rate was up 54.3 percent in Washington, and 58.5 percent in Baltimore,” explained Washington Post fact checkers Glenn Kessler and Michelle Ye Hee Lee. “But in the first months of 2016, homicide trends were about evenly split in the major cities. Out of 63 agencies reporting to the Major Cities Chiefs Association, 32 cities saw a decrease in homicides in first quarter 2016 and 31 saw an increase.”

Ames Grawert, a counsel in the Brennan Center’s Justice Program, said in a statement posted to the organization’s website that 2016 statistics aren’t sufficient in declaring crime rate trends. 

“Overall, crime rates remain at historic lows. Fear-inducing soundbites are counterproductive, and distract from nuanced, data-driven, and solution-oriented conversations on how to build a smarter criminal justice system in America,” Grawert said. “It’s true that some cities saw an increase in murder rates last year, and that can’t be ignored, but it’s too early to say if that’s part of a national trend.” 

When Paul Manafort, Trump’s campaign chairman, was confronted with the common Republican falsehoods on crime during a Thursday interview with CNN’s Jake Tapper, he claimed that the FBI’s statistics were not to be trusted given that the organization recently advised against charges in connection with Hillary Clinton’s use of a private email server during her tenure as secretary of state.

“According to FBI statistics, crime rates have been going down for decades,” Tapper told Manafort. “How can Republicans make the argument that it’s somehow more dangerous today when the facts don’t back that up?”

“People don’t feel safe in their neighborhoods,” said Manafort, going on to claim that “the FBI is certainly suspect these days after what they did with Hillary Clinton.”

There was at least one notable figure who wholeheartedly embraced Trump’s fearmongering: former KKK Grand Wizard David Duke. “Great Trump Speech,” tweeted Duke on Thursday evening. “Couldn’t have said it better!”

Ben Carson Claims Transgender People Are Proof of “How Absurd We Have Become”

Former Republican presidential candidate Ben Carson criticized the existence of transgender people while speaking at the Florida delegation breakfast on Tuesday in Cleveland.  

“You know, we look at this whole transgender thing, I’ve got to tell you: For thousands of years, mankind has known what a man is and what a woman is. And now, all of a sudden we don’t know anymore,” said Carson, a retired neurosurgeon. “Now, is that the height of absurdity? Because today you feel like a woman, even though everything about you genetically says that you’re a man or vice versa?”

“Wouldn’t that be the same as if you woke up tomorrow morning after seeing a movie about Afghanistan or reading some books and said, ‘You know what? I’m Afghanistan. Look, I know I don’t look that way. My ancestors came from Sweden, or something, I don’t know. But I really am. And if you say I’m not, you’re a racist,’” Carson said. “This is how absurd we have become.”

When confronted with his comments during an interview with Yahoo News’ Katie Couric, Carson doubled down on his claims.“There are biological markers that tell us whether we are a male or a female,” said Carson. “And just because you wake up one day and you say, ‘I think I’m the other one,’ that doesn’t change it. Just, a leopard can’t change its spots.”

“It’s not as if they woke up one day and decided, ‘I’m going to be a male or I’m going to be a female,’” Couric countered, pointing out that transgender people do not suddenly choose to change their gender identities on a whim.

Carson made several similar comments last year while on the campaign trail.

In December, Carson criticized the suggested that allowing transgender people into the military amounted to using the armed services “as a laboratory for social experimentation.”

Carson once suggested that allowing transgender people to use the restroom that aligned with their gender identity amounted to granting them “extra rights.”

Ivanka Trump Claims Her Father Supports Equal Pay, Access to Child Care

Ivanka Trump, the nominee’s daughter, made a pitch during her speech Thursday night at the RNC for why women voters should support her father.

“There have always been men of all background and ethnicities on my father’s job sites. And long before it was commonplace, you also saw women,” Ivanka Trump said. “At my father’s company, there are more female than male executives. Women are paid equally for the work that we do and when a woman becomes a mother, she is supported, not shut out.” 

“As president, my father will change the labor laws that were put into place at a time when women were not a significant portion of the workforce. And he will focus on making quality child care affordable and accessible for all,” she continued before pivoting to address the gender wage gap. 

“Policies that allow women with children to thrive should not be novelties; they should be the norm. Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career.”

However, Trump’s stated positions on the gender wage gap, pregnancy and mothers in the workplace, and child care don’t quite add up to the picture the Trumps tried to paint at the RNC.

In 2004, Trump called pregnancy an “inconvenience” for employers. When a lawyer asked for a break during a deposition in 2011 to pump breast milk, Trump reportedly called her “disgusting.”

According to a June analysis conducted by the Boston Globe, the Trump campaign found that men who worked on Trump’s campaign “made nearly $6,100, or about 35 percent more [than women during the April payroll]. The disparity is slightly greater than the gender pay gap nationally.”

A former organizer for Trump also filed a discrimination complaint in January, alleging that she was paid less than her male counterparts.

When Trump was questioned about equal pay during a campaign stop last October, he did not outline his support for policies to address the issue. Instead, Trump suggested that, “You’re gonna make the same if you do as good a job.” Though he had previously stated that men and women who do the same job should be paid the same during an August 2015 interview on MSNBC, he also cautioned that determining whether people were doing the same jobs was “tricky.”

Trump has been all but completely silent on child care so far on the campaign trail. In contrast, Clinton released an agenda in May to address the soaring costs of child care in the United States.

Ivanka’s claims were not the only attempt that night by Trump’s inner circle to explain why women voters should turn to the Republican ticket. During an interview with MSNBC’s Chris Matthews, Manafort said that women would vote for the Republican nominee because they “can’t afford their lives anymore.”

“Many women in this country feel they can’t afford their lives, their husbands can’t afford to be paying for the family bills,” claimed Manafort. “Hillary Clinton is guilty of being part of the establishment that created that problem. They’re going to hear the message. And as they hear the message, that’s how we are going to appeal to them.”

What Else We’re Reading

Vox’s Dara Lind explained how “Trump’s RNC speech turned his white supporters’ fear into a weapon.”

Now that Mike Pence is the Republican nominee for vice president, Indiana Republicans have faced “an intense, chaotic, awkward week of brazen lobbying at the breakfast buffet, in the hallways and on the elevators” at the convention as they grapple with who will run to replace the state’s governor, according to the New York Times.

“This is a party and a power structure that feels threatened with extinction, willing to do anything for survival,” wrote Rebecca Traister on Trump and the RNC for New York Magazine. “They may not love Trump, but he is leading them precisely because he embodies their grotesque dreams of the restoration of white, patriarchal power.”

Though Trump spent much of the primary season denouncing big money in politics, while at the RNC, he courted billionaires in hopes of having them donate to supporting super PACs.

Michael Kranish reported for the Washington Post that of the 2,472 delegates at the RNC, it is estimated that only 18 were Black.

Cosmopolitan highlighted nine of the most sexist things that could be found at the convention.

Rep. Steve King (R-IA) asked, “Where are these contributions that have been made” by people of color to civilization?

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.