Microsoft recently issued a statement responding to "stakeholders" queries on whether it supports the U.S. Chamber of Commerce's opposition to major climate and energy legislation pending in Congress. ThinkProgress's Matt Yglesias, noted the announcement, in a blog post, "Microsoft Breaks With Chamber of Commerce over Climate Change."

In its announcement, Microsoft stated:

We are pursuing strategies and taking actions that are consistent with a strong commitment to reducing our own impact as well as the impact of our products. In addition, we have adopted a broad policy statement on climate change that expresses support for government action to create market-based mechanisms to address climate change. And, we believe the greatest value Microsoft brings to the fight against climate change is our expertise on the role software and technology can play in reducing carbon emissions. To this end, Microsoft is working ranging from the Digital Energy Solutions Campaign to the World Wildlife Fund to the European Environmental Agency to advance public policies that promote the use of ICT solutions to advance energy efficiency, spur innovation and economic opportunity, and contribute to practical strategies for mitigating climate change. 

Earlier this week the Senate blocked the nomination of Craig Becker to the National Labor Relations Board (NLRB). With the help of the Senate's newest Republican, Sen. Scott Brown, and some Democrats, such as Sen. Ben Nelson (pictured), the chamber failed to muster the votes necessary to move the nomination forward, Politico reported.

A 60-vote supermajority was needed to end debate over the nomination, which Politico described as "a key Obama White House nomination." The action on Becker's nomination is also a major letdown for labor groups. AFL-CIO President Richard Trumka, in a press statement, blasted the Senate's action, calling it "reprehensible" that a minority of senators could scuttle the president's nomination.

"Becker is a highly-respected and experienced labor law practitioner and scholar," Trumka continued. "He has an impressive 27-year record of advocating for and representing workers, especially low-wage workers. He is eminently qualified to hear and decide cases fairly for both workers and employers as a member of the NLRB."

Politico reported today of growing frustration among labor groups over lawmakers' inaction on some of their top priorities, including passage of the Employee Free Choice Act. Kim Freeman Brown, head of American Rights at Work, told the newspaper that Congress should heed "the voice of their constituents who want change ...." 

In an article for the New York State Bar Association Journal, Gerald Lebovits provides tips on how attorneys can effectively use e-mail. In "E-Mail Netiquette for Lawyers," Lebovits, a judge of the New York City Civil Court and adjunct professor at St. John's University School of Law, writes that "Despite its problems, e-mail is an essential tool. Attorneys must make the most of it - so long as the attorney follows this good advice: ‘Think. Pause. Think again. Then send.'"

Lebovits's article, which was noted by Raymond Ward's the (new) legal writer blog, includes an array of tips for lawyers on using e-mail. For example, Lebovits stresses careful editing, before hitting send. "Editing includes more than reading for meaning. It means checking spelling and grammar," he writes. "Informality like making typos or using only lowercase letters is fine between friends. It has no place in professional correspondence. To ensure credibility and respect, avoid grammar and spelling errors. Use your e-mail program's spell-check function. Editing is necessary because ‘[c]lients often can't tell whether your legal advice is sound, but they can certainly tell if you made careless typos.'"

[image via nassaulibrary.org]

A year ago today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (pictured left). The law overturned the disastrous Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co.
The Act explicitly provides that "an unlawful employment practice occurs ... when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid" as a result of such a practice.

In the past year, courts around the country have implemented the Act as Congress intended for straightforward pay discrimination cases. In cases involving pay discrimination based on sex, race, disability, and age, these courts have recognized that the statute of limitations is renewed with each paycheck marred by discrimination.

But not every plaintiff has had their pay discrimination case restored by the Act, and there are a few thorny implementation issues that have emerged which courts will continue to flesh out. So where do we currently stand with the Ledbetter Act? One year later, our assessment is that while the Ledbetter Act was a true, hard-won victory for women and families, it is only the first step towards addressing pay disparities for women.

What are some of the issues on the table? Well, to name just a few:

1.  One question still to be worked out by the courts is whether and how the Act is retroactive. Congress made clear that courts must treat the Supreme Court's decision in Ledbetter as if it had never been issued, and pay discrimination plaintiffs should have their claims restored. Thus, plaintiffs who continue to receive discriminatory paychecks (even if initial acts of discrimination occurred prior to the Act) have had their claims reinstated, as well as plaintiffs whose claims were pending at the time of the Act either in court or at the EEOC. In Hester v. N. Ala. Ctr. for Educ., for instance, the Eleventh Circuit agreed that the plaintiff's Title VII claim that she was paid less than male employees engaged in substantially equal work should be restored in light of the Ledbetter Act. However, it remains to be seen what limits courts will place on the Act's retroactivity. For example, courts have not yet had the opportunity to consider the more complex issue of cases involving claims not pending when the Act came down, because plaintiffs decided not to appeal claims or decided not to bring their claims at all due to the Supreme Court's decision in Ledbetter.

2.  Another unresolved issue is whether the Ledbetter Act overturns the Ledbetter decision's application outside of the employment context, and the express statutes identified by Congress in the Act. Before the Act, several state and federal courts had applied Ledbetter to restrict the time period for bringing claims outside the pay discrimination context. It was applied, for example, by a district court in California to a Title IX athletics discrimination case. It also was applied by state courts in a host of contexts, some involving pay discrimination, some not. In contrast, courts have refused to apply the Ledbetter Act to cases outside the pay discrimination context. In a case decided earlier this month, Low v. Chu, an Oklahoma district court rejected a plaintiff's attempts to apply the Ledbetter Act to her claims, stating how the Act "relates to claims of discriminatory compensation practices only." Other courts have refused to apply the Act to cases involving statutes not expressly cited in the Act, such as the Family and Medical Leave Act.

3.  Finally, courts are still hashing out what Congress meant by the phrase "when an individual becomes subject to a discriminatory compensation decision or other practice." The legislative history and language of the Act make clear that the "other practice" must in some way relate to compensation discrimination. But where courts will draw the line in terms of what "other practices" impact compensation such that the statute of limitations is renewed remains to be seen. Some courts have made clear that "failure to promote" claims are not the sort of "other practices" contemplated by Congress. This issue is exemplified by a Texas district court, which acknowledged how district courts all over the country have grappled with the meaning of these terms in the Act, but ultimately held that the plaintiff's failure to promote claim did not constitute a "compensation decision" under the Act. While other courts have held that, for example, a "denial of tenure" can qualify as a "compensation decision or other practice" where it affects the plaintiff's salary.

So what's our assessment of the Act? There is no doubt that laws matter and in the one year since the Act was passed, workers around the country have had their fair pay claims restored. Like any new statute, however, there are a few issues, such as the ones identified above, that must be ironed out. And even once they are, the fact remains that women today are still paid, on average, only 77 cents for every dollar paid to men, and women of color are paid even less than that.

What is clear is that in this economy, women and their families simply cannot afford to be shortchanged in the workplace. Congress should view the Ledbetter Act as the first step in addressing pay discrimination, but the fight to achieve wage equality is far from over. Thus, while the targeted steps taken in the Lilly Ledbetter Fair Pay Act are important, they only restored the protection against pay discrimination stripped away by the Ledbetter decision. Congress should build off the Act to continue moving the ball forward to better address pay disparities in the workplace.

Our recommendation -- the Senate should expeditiously pass the Paycheck Fairness Act. Families cannot afford to wait.

"If you've got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you're the author of an angry dissent," reports The AP's Mark Sherman.

Some fear "huge openings" for foreign corporations to sway elections.

Prof. Nate Persily asks, "What will the Supreme Court's campaign finance ruling really change?"

Possible legislative responses are assessed at SCOTUSblog.

"Money isn't speech, and corporations aren't people," says Prof. David Kairys.

Judging the Environment is collecting scores of op-eds from across the country here.

[Image via TheBronze Blog.]

The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]

In his weekly address, President Barack Obama took aim at the Supreme Court's recent decision in Citizens United v. FEC, which, he said, "overturned more than a century of law." To "repair the damage that has been done," the president indicated that, as soon as the ruling was announced, he instructed his administration to work with legislators from both parties in developing a forceful response to the decision.

"This ruling opens the floodgates for an unlimited amount of special interest money into our democracy" President Obama stated. "It gives the special interest lobbyists new leverage to spend millions on adverstising to persuade elected officials to vote their way, or to punish those who don't."

Goddess of the Market

Ayn Rand and the American Right

By Jennifer Burns

[Available Here]

Of all the second acts in American lives, perhaps none is more remarkable than the recent conservative embrace of Ayn Rand, the long-dead doyenne of American capitalism. During the market nosedive of 2008 it seemed her version of free market capitalism had been discredited altogether; even former acolyte Alan Greenspan had his doubts, famously telling Congress he had found "a flaw" in his Rand-inspired ideology. Yet in 2009 sales of her books began a ferocious climb, with Atlas Shrugged alone selling more than 300,000 copies. Signs referencing her hero John Galt dotted the tea party protests, and she's been a staple of right wing talk radio and a new favorite of rising stars like Glen Beck. On the campaign trail, candidate Obama would sometimes criticize the virtue of selfishness, making a veiled allusion to Rand's ideas. Now President Obama has wrestled firsthand with the virtue of selfishness, for it is Rand's ideas that have undergirded conservative response to his economic proposals from the auto bailout to health care reform. Nor is she likely to fade away anytime soon; the Washington Post just declared Randroids "in" for 2010.

Though Rand's newfound popularity may have caught liberals and progressives by surprise, my book Goddess of the Market: Ayn Rand and the American Right, shows that Rand has always been a staple of political thought on the right. As I describe in the book, her ideas become especially prominent in eras of liberal dominance. She first caught the eye of business conservatives when she worked as a volunteer for Wendell Willkie's 1940 presidential run against Franklin Roosevelt, and she inspired legions of young volunteers who campaigned for Republican contender Barry Goldwater in 1964. The same cycle continues today, as the presidency of Barack Obama has energized and outraged his conservative opposition.

Ayn Rand was born Alissa Rosenbaum in 1905 in St. Petersburg, Russia. When she was twelve, Bolshevik revolutionaries seized her father's chemistry shop, an experience that left young Alissa with a bitter hatred of government and an abiding suspicion of any collective action justified in the name of social good. In 1926 she left Russia for America, where she changed her name and embarked on a remarkable career as a screenwriter, playwright, novelist, and political activist. She developed a Nietzschian-style philosophy of ethical selfishness, holding that traditional values like altruism lay at the root of totalitarian systems such as communism, socialism, and fascism. Rand called her mature philosophy "Objectivism," and it proved wildly popular among college students in the 1960s. Objectivism helped inspire the Libertarian Party, the Cato Institute, and Reason magazine.

Today, Rand's best known work is her politically charged 1957 novel Atlas Shrugged. The 1,084 page book is set in a future dystopian America, where overbearing government regulation and taxation have strangled the economy. In response, the country's top capitalists have gone "on strike," heroically refusing to work for an exploitative system that redistributes their wealth to the needy. Ever since it was published more than 50 years ago, readers have hailed the work as prophecy, seeing in Rand's villains the dim outline of liberal presidents from Lyndon Baines Johnson to Jimmy Carter.

This understanding of Rand as prophetess is widespread on the right today. "Read Atlas Shrugged before it happens" warned a sign at last spring's tea parties. Or as Rush Limbaugh put it: "Ayn Rand, she wrote ‘Atlas Shrugged.' The sequel: ‘Atlas Puked.' We're in the middle of it."

What's different now is that for the first time, conservatives are willing to overlook Rand's once-controversial atheism. Rand's materialistic philosophy is pivotal to her attack upon government, as both she and an earlier generation of conservatives understood. William F. Buckley, Jr., the founder of National Review and himself an avid fan of capitalism, tried to run Rand out of the conservative movement because she was an atheist. He rightly perceived her work as not just as a defense of capitalism, but an attack upon Christianity itself. For Buckley and other traditional conservatives, government charity might be wrong, but charity itself was to be applauded. That Rand criticized Christian morality made her anathema to believers like Whittaker Chambers, who wrote the message of Atlas Shrugged was "to a gas chamber - go!"

What matters most to Rand's latter day conservative followers, however, is how vividly Rand makes the case that government intervention in the economy and social welfare programs are morally wrong. In a clever sleight of hand, Rand's ideas have helped conservatives shift the terms of debate from the causes of the economic crisis to the Obama administration's proposed solutions. She offers a secular version of saints and sinners, for in Rand's world, there are two types of people: producers and looters, or those who work for themselves, and those who work for the government. It's the original version of Richard Nixon's "silent majority" or Sarah Palin's "real Americans."

Rand's acceptance into the pantheon of conservative thinkers is a sign that the libertarian wing of the movement is gaining strength as economic issues move to the fore of American politics. And though liberals expected that the market crash would discredit libertarian economics altogether, Rand's prominence signifies that the ideal of unregulated capitalism itself is becoming more firmly welded to the conservative world view. Whether Rand's popularity lasts into the new decade remains to be seen. But if the history I describe in Goddess of the Market is any guide, Rand and her ideas will be with us for many political cycles to come.

For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]

Today's Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court.

The decision will unleash unprecedented amounts of corporate "influence-seeking" money on our elections and create unprecedented opportunities for corporate "influence-buying" corruption.

Today's decision is the most radical and destructive campaign finance decision in Supreme Court history. In order to reach the decision, five justices abandoned longstanding judicial principles, judicial precedents and judicial restraint.

With the Citizens United opinion, Chief Justice Roberts has abandoned the illusory public commitments he made to "judicial modesty" and "respect for precedent" to cast the deciding vote for a radical decision that profoundly undermines our democracy.

In a stark choice between the right of American citizens to a government free from "influence-buying" corruption and the economic and political interests of American corporations, five Supreme Court Justices today came down in favor of American corporations.

With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.

The radical nature of today's decision can be seen in the fact that the Court is overruling cases decided in 1990, 2003 and 2007, without any changed circumstances to justify these abrupt reversals.

The only change that has occurred is a change in the makeup of the Court itself and that provides no justification for overturning past decisions.

The Supreme Court decision in Citizens United is wrong for the country, wrong for the Constitution and wrong for our democracy. It will not stand the test of time or history.

The Supreme Court majority has acted recklessly to free up corporations to use their immense, aggregate corporate wealth to flood federal elections and buy government influence. The Fortune 100 companies alone had combined revenues of $13 trillion and profits of $605 billion during the last election cycle.

Under today's decision, insurance companies, banks, drug companies, energy companies and the like will be free to each spend $5 million, $10 million or more of corporate funds to elect or defeat a federal candidate -- and thereby to buy influence over the candidate's positions on issues of economic importance to the companies.

Today's decision turns back the clock to the nineteenth century, eliminating a national policy to prevent the use of corporate wealth to corrupt government decisions -- a policy that has been in existence for more than a century.

Members of Congress have passed and Presidents have signed numerous laws over the years to prevent "influence-buying" corruption of our government. These laws have consistently been upheld by the Supreme Court.

Today, five Justices issued a decision that will empower "influence-buying" corruption.

In the name of the Constitution, five Justices have substituted their pro-corporate policy views for the anti-corruption policy views of the representatives elected by citizens to establish our national policies under our constitutional system of government.

This decision will have a devastating impact on the ability of citizens to believe that their government is acting on their behalf, instead of advancing the interests of the nation's corporations at their expense.

In the coming weeks, Congress should explore all possible legislative options to address the dangerous corruption problems opened up by the Supreme Court today.

The Citizens United decision reinforces the need to dramatically increase the role of citizens in financing our elections with small "non-influence seeking" contributions. This requires enacting legislation to repair the presidential public financing system and create a new system of congressional public financing, and to make small donors the key players in these systems by providing public funds to match small contributions. Democracy 21 strongly supports such legislation.

Ironically, the constitutionality of the corporate spending ban was never even raised by the plaintiffs in the lower court consideration of this case. Instead, the Justices, in essence, started the case themselves when, on their own, they ordered further briefing and argument on the constitutionality of the corporate spending ban.

Ignoring the longstanding judicial doctrine of constitutional avoidance, the Court majority has reached out to decide Citizens United on broad constitutional grounds rather than on the various narrower grounds that were available. If the Court had made its decision on any of these narrower grounds, it would not have disrupted more than a hundred years of national policy to prevent corporate "influence-buying" corruption.

A Washington Post Outlook piece by Bob Kaiser (September 9, 2009) quoted former Republican Senator Chuck Hagel on the enormous stakes involved in the Citizens United case:

Chuck Hagel, the Nebraska Republican who retired from the Senate last year after serving two terms, said in an interview that if restrictions on corporate money were lifted, "the lobbyists and operators . . . would run wild." Reversing the law would magnify corporate power in society and "be an astounding blow against good government, responsible government," Hagel said. "We would debase the system, so we would get to the point where we couldn't govern ourselves."

Justice Louis Brandeis, one of the nation's greatest Supreme Court Justices, once said "The most important political office is that of the private citizen." Today's Supreme Court decision rejects Justice Brandeis' view, raising corporations to new heights of importance and influence in our political system.

[Image via jtyerse.]