Archive for the ‘Open Government’ Category

The Supreme Court’s 2010 decision to open the floodgates to unlimited corporate expenditures in elections has recently been thrust back into the spotlight by the international Occupy movement. And rightly so, given that the Americans creating a “church of dissent” in urban public spaces are echoing popular discontent with a broken political process– one where the voices of “We the People” seem to be drowned out by powerful special interests all too often.

Thus, it’s fitting that, as they’ve cast a spotlight on a ruling that is widely reviled by Americans across the political spectrum, Occupy participants have inadvertently highlighted another sad result of Citizens United v. Federal Election Commission.  As Professor David Kairys observed the day the ruling was handed down (full disclosure: I conducted research on Citizens United under Professor Kairys’ supervision in 2010), corporations’ attempts to influence elections through unlimited spending are now granted a heightened level of constitutional protection compared to, say, everyday citizens:

Political cartoon by Cory M. Grenier, via Flickr.

“Taken as a whole, the conservative court’s First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.”

Indeed, the Supreme Court’s interpretation of the First Amendment in recent decades specifically limits Occupy encampments’ potential recourse against government restrictions. As Christopher Dunn of the New York Civil Liberties Union explained, today’s gatherings are potentially limited by the Court’s 1983 decision in Clark v. Community for Creative Non-Violence (“CCNV”).

CCNV upheld the National Park Service’s decision to prevent advocates for the homeless from sleeping in Lafayette Park (across the street from the White House) and on the National Mall, and limit them to daytime protest. Camping out in the park was meant to be a central part of the activists’ critical message about Reagan administration policies. Nevertheless, the government’s valid interests in public safety and the “aesthetic value” of national parkland for tourists were given broad deference by the Court (too much deference according to the late Justice Thurgood Marshall’s dissent).

CCNV doesn’t give state and local officials carte blanche to evict today’s encampments, of course; as Dahlia Lithwick points out, it is an open legal question “whether the regulations being used to shut down protest are bogus attempts to use neutral-sounding rules to suppress speech.”  And as Dunn notes, he was able to successfully represent advocates in New York who wanted to sleep on the sidewalk in front of Gracie Mansion to protest then Mayor Giuliani’s policies.

Still, when you look at CCNV alongside other court rulings over the past few decades that have limited the scope and form of individual free speech rights, the clear reality is that the First Amendment is far from a surefire defense against government regulation.

In sharp contrast, Citizens United places even modest, bipartisan restrictions on the manner and target of corporate spending in elections into the category of constitutional “strict scrutiny.” They were deemed a “classic example of censorship” to be vigorously guarded against according to Justice Anthony Kennedy.

Kennedy simply brushed aside Justice John Paul Stevens’ dissenting observation that corporations still wield the ability to form political action committees, have their executives and board members make individual contributions, and otherwise lobby and make their preferences clear. As a result, there was no deferential balancing of interests like in CCNV. Laws restricting corporate spending are presumptively unconstitutional, and can’t be upheld unless the government has an extremely compelling reason for them.

And lo and behold! Kennedy and his colleagues determined that Congress’ concern for the corrosive impact of unlimited corporate money is simply too speculative. Without hard and fast evidence of quid pro quo corruption, efforts to halt the undermining of the quintessential public forum at the heart of our democracy– the elections in which individual, and not corporate, citizens cast their ballots– are for naught.

So even though corporate spending to back political candidates was never imagined to be a form of protected speech (let alone subject to such elevated protection) by the Framers, thanks to Citizens United, it has been placed at the heart of the First Amendment.

Meanwhile, citizens who have not incorporated themselves and aren’t flush with cash, but wish to express their displeasure with the ruling and the broader distortion of our democracy, have greater restrictions than large corporations on their right to speak out.

It is precisely this skewed reality that makes me, as a student of American history, a newly-minted lawyer, and a citizen of this great nation, proud to be a part of the Democracy is for People campaign’s effort to pass a constitutional amendment overturning Citizens United.  If you’re equally outraged, and equally impassioned to do something about it, then get involved in this movement today.

Sean Siperstein is a Legal Fellow with the Democracy is For People campaign.

Yesterday Public Citizen and the Natural Resources Defense Council filed a lawsuit under the Freedom of Information Act against the Federal Maritime Commission. The dispute dates back to last October, when NRDC tried to get records about the Commission’s unusual decision to investigate and seek termination of portions of programs at two California ports that aimed to reduce truck emissions, called the Clean Trucks Programs. Why the Commission—usually concerned with regulating shipping—took such a keen interest in a program regulating trucks, is a topic of much speculation, and you can read more about NRDC’s efforts to fight for the Clean Trucks Programs here.

However, not only the environment is at stake in this case, so are our government transparency laws. Under FOIA, requesters are supposed to be granted a waiver of all the fees associated with searching for and copying the requested records if the disclosure will further the public’s understanding of the operations of government and is not in the commercial interest of the requester. The Commission denied NRDC a public interest fee waiver, even though NRDC extensively documented how it intended to use the information to inform the public about the Commission’s investigation of the programs.

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K Street

by David Arkush, director of Public Citizen’s Congress Watch division

It’s big news when a president says something like “I screwed up.” And it’s true that mistakes were made, so to speak, regarding some recent nominations. But President Obama still has a groundbreaking ethics policy, and he can still make it work. Sen. Daschle’s nomination shows how.

We at Public Citizen were concerned about Daschle’s nomination right away because we had heard about his work at Alston & Bird, which has a major healthcare lobbying practice.  Even though many people thought Daschle would have done a great job at HHS and as health “czar,” his private-sector work over the past few years didn’t seem to fit with Obama’s promise to change the way Washington works.

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President Obama’s first acts in office included issuing two memoranda and an executive order directing the government to embrace a new policy of openness and transparency. As someone who assists organizations whose requests under the Freedom of Information Act have been denied, these documents have the potential to make a world of difference.

As background, the Freedom of Information Act lists various categories of documents that are exempt from disclosure, but most of those categories are discretionary. That is, the government can choose to disclose documents that fall under these exemptions. But the Bush Administration’s FOIA policy directed the government to defend any discretionary withholding if there was a reasonable basis in the law to do so. That policy hardly reflects the presumption of disclosure that FOIA embraces.

President Obama, as he put it, is “usher[ing] in a new era of open Government.” He directed that “[i]n the face of doubt, openness prevails… The presumption of disclosure should be applied to all decisions involving FOIA.” In this way, President Obama’s memoranda implement many of the suggestions made by Public Citizen, joining over 60 other organizations, in transition recommendations. I believe this directive will have practical effect.

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