---

By Donald A. Ritchie, Historian of the Senate.

---

Even a brief, seemingly prosaic phrase in the Constitution can pack a powerful wallop. Article I, Section 5 says simply that "Each House may determine the Rules of its Proceedings...." As I explain in my book, "The U.S. Congress: A Very Short Introduction," those nine words have enabled the U.S. Senate and the House of Representatives to evolve into two strikingly dissimilar legislative bodies, requiring different strategies in each house for enacting legislation.

Early in its history, the larger House adopted rules to limit the time members could speak, and essentially to allow the majority to prevail so long as it stayed together. The nineteenth-century House made itself into a hierarchical body, investing greater authority in the hands of its Speaker, establishing formal leadership positions, and creating a House Rules Committee that became a key leadership tool by setting the parameters for debate and amendment of major bills. The House evolved into a compound of groups: party conferences, committees, issue caucuses, state delegations, freshman classes, and any other means of creating strength through numbers. Since the House rules favor those who have the vote, the House majority could prevail without bothering to consult the minority.

The smaller Senate developed entirely different rules that gave more muscle to the minority, whether it is the minority party, a faction within the majority party, or a single senator who objects. More individualistic, the Senate limited the role of its president (the Vice President) to that of a neutral presiding officer, and took decades longer than the House to develop floor leadership. The Senate never gave to its Rules and Administration Committee the House Rules Committee's ability to define the length of debate and number of amendments that can be offered on the floor. The Senate operates according to a small number of standing rules, which it regularly waives by unanimous consent. Because senators do so much of their business by unanimous consent, and because any one of them can object at any time, senators gain individual power the moment they take the oath of office - a good explanation for why half of the Senate is composed of former representatives. Senate rules allow more time for debate and delay, thus requiring more negotiation and compromise to get things done.

The Constitution set several "supermajority" requirements - two thirds votes to overturn a veto, approve a treaty, or remove a federal official from office (while the House can impeach by a simple majority) - and Senate rules added a three-fifths requirement to invoke cloture and cut off filibusters. Filibuster and cloture most distinguish the two bodies, since they exist only in the Senate. Garnering the sixty votes needed to achieve cloture usually requires the Senate's majority to seek some support among the minority. Before the current Congress, it had been thirty years since one party had sixty votes in the Senate. In between, the average majority was fifty-five.

With rules that foster deliberation, cooperation, and consensus building, the Senate's majority cannot relegate the minority to the role of bystanders. The majority leader controls the calendar, but the minority leader holds an arsenal of parliamentary weapons for blocking action. Having passed a strong bill, House members often get infuriated over compromises struck in the Senate. But the House minority will often give thanks for the Senate minority's ability to force changes or derail a bill entirely. Senate majority leaders, regardless of party, must regularly remind their House counterparts that their chambers operate differently and that the Senate majority cannot do everything it wants. Sen. Arlen Specter has compared the Senate rules to anarchy and the House rules to despotism, adding that deciding which is better "is a fairly tough choice."

---

Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.

---

The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

Some of the report's findings:

• Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
• Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
• Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

"This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

Why did special interests discover court elections? Two words: tort wars.

In the 1990s, some state supreme courts overturned limits on civil damages, and multi-billion dollar awards in tobacco and asbestos litigation triggered a counterattack by big business.

Beginning in 2000, groups like the U.S. Chamber of Commerce and National Association of Manufacturers, aided by leaders of such corporate giants as Home Depot and AIG insurance, began pouring record amounts into high court races. Plaintiffs' lawyers and unions have spent millions of their own, creating a full-fledged arms race for control of the courts.

In 2004, the winner of an Illinois Supreme Court seat said the $9.3 million raised by him and his opponent was "obscene." That same year, coal executive Don Blankenship spent $3 million to help elect a West Virginia justice, seeking a friendlier court to overturn a $50 million jury award. The justice, Brent D. Benjamin, was ultimately disqualified in a landmark 2009 U.S. Supreme Court case, Caperton v. Massey.

Several states have enacted reforms. North Carolina, New Mexico, Wisconsin and West Virginia have enacted public financing, so that judges don't have to dial for dollars. And Michigan established a new rule making it easier to disqualify judges from cases involving campaign benefactors.

But even these reforms are under threat in federal court. Using a radically expansive interpretation of the First Amendment, while trying to waive off the Constitution's guarantee of due process, opponents of campaign laws have attacked public financing, corporate spending bans, financial disclosure laws, and limits on explicitly partisan activity by judges.

In Missouri, Tennessee and Alaska, interest groups have battled another longstanding method for insulating courts from special interests: merit selection commissions, which identify qualified judicial candidates before governors make a final appointment.

If these groups get their way, special interests could spend unlimited amounts, in total secrecy, to elect the judges of their choice, presumably to get the rulings that they want.

That might be a cozy world for those writing checks, but it's a scary world for the rest of us - businesses and individuals alike - who depend on courts for a fair, impartial resolution of our disputes. Big money, campaign politics, and secret spending have little to do with the words carved over the Supreme Court's bronze doors: Equal Justice Under Law.

 

By Paul S. Ryan, FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.

In the months since the landmark decision Citizens United v. Federal Election Commission, authorizing corporations to make unlimited independent political expenditures in candidate elections, groups including the Republican-leaning Club for Growth and the Democratic-leaning Commonsense Ten have asked the FEC to go well beyond the Court's decision. They have asked the FEC, through Advisory Opinion Requests (AORs), to extend Citizens United to further deregulate corporate money in politics by ignoring statutes and regulations restricting how corporate political committees (PACs) raise money and limiting contributions from corporations to PACs - statutes and regulations not yet viewed or evaluated by any court.

These recent Club for Growth and Commonsense Ten AORs raise important questions of both substance and process. When and how is it appropriate for an administrative agency to decide not to enforce statutes and regulations that have not been invalidated by any court?

Prior to the Citizens United decision, corporations like Goldman Sachs were prohibited by federal laws from (1) making political expenditures using their general treasury funds and (2) making political contributions to federal candidates and PACs. The Citizens United Court ruled that corporations like Goldman Sachs have a constitutional right to make unlimited independent expenditures, but the corporate contribution ban was not challenged, considered or invalidated in Citizens United.

The Supreme Court in Citizens United concluded that, unlike "direct contributions," which may give rise to corruption, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption," and held that the federal law prohibiting a corporation from making independent political expenditures using general treasury funds violates the corporation's right to free speech under the First Amendment.

A couple of months after the Supreme Court decided Citizens United, the en banc D.C. Circuit Court of Appeals decided SpeechNow.org v. FEC. The court struck down, on First Amendment grounds, the federal $5,000 limit on contributions from individuals to SpeechNow.org, which promised to limit its political activity to making independent expenditures (i.e., no contributions to candidates). In reaching its conclusion, the D.C. Circuit extended the reasoning of Citizens United from expenditures to contributions. The D.C. Circuit reasoned: "In light of the Court's holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption."

Neither Citizens United nor SpeechNow challenged the constitutionality of the federal ban on corporate contributions to candidates and political committees - a ban that has been on the books since 1907. Consequently, neither the Supreme Court in Citizens United nor the D.C. Circuit in SpeechNow considered the constitutionality of the long-standing ban on corporate contributions.

This fact, however, did not stop Club for Growth and Commonsense Ten from approaching the FEC to request further deregulation of corporate money in federal elections.

Club for Growth argued in its Advisory Opinion Request that, under the rationales of Citizens United and SpeechNow, it should be permitted to set up a corporate PAC to make independent expenditures using the corporate parent's treasury funds to pay the PAC's overhead expenses, but to do so free from existing statutory and regulatory restrictions on corporate PAC solicitations (e.g., requirement that corporate PAC only solicit its "restricted class" of executive employees and shareholders).

Commonsense Ten took things one step further. Commonsense Ten established itself as a federal PAC to make independent expenditures and argued in its Advisory Opinion Request that, under the rationales of Citizens United and SpeechNow, it should be permitted to accept unlimited corporate and labor union contributions - despite the statutory ban on corporate and union contributions to federal PACs, which has not been invalidated by any court. Commonsense Ten argued that because Citizens United establishes the right of corporations to make unlimited independent expenditures, and because SpeechNow establishes the right of independent expenditure PACs to accept unlimited individual contributions, the two should be understood together as establishing the right of independent expenditure PACs to accept unlimited corporate contributions.

The FEC voted 5-1 to approve both deregulatory advisory opinions, with Commissioner Walther dissenting in both opinions. Commissioner Walther seemingly disagreed primarily with how the Commission reached these results expanding the holdings of Citizens United and SpeechNow. Commissioner Walther suggested the FEC should have given the matters more thorough consideration through a formal rulemaking proceeding, with opportunity for more extensive public input through submission of written comments and in-person testimony at a public hearing, rather than using the more abbreviated advisory opinion process to decide the matters,

Commissioner Walther's concerns are understandable. Regardless of whether multiple court decisions can be read together to establish a certain proposition, it is dangerous precedent for an administrative agency to sua sponte cease enforcement of a federal statute that has not been invalidated by any court and to do so through the advisory opinion process. After all, advisory opinions are for the purpose of addressing questions "concerning the application of the [Federal Election Campaign] Act," 11 C.F.R. § 112.1(a), not for declaring key portions of the Act unconstitutional.

---

By Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics in the Philosophy Department, Law School and Divinity School at the University of Chicago.

---

We are in the midst of a crisis of massive proportions and grave global significance. No, I do not mean the global economic crisis that began in 2008. At least then everyone knew that that crisis was at hand, and many world leaders worked quickly and desperately to find solutions. No, I mean a crisis that goes largely unnoticed, a crisis that is likely to be, in the long run, far more damaging to the future of democratic self-government: a worldwide crisis in education.

Radical changes are occurring in what democratic societies teach the young, and these changes have not been well thought through. Eager for national profit, nations, and their systems of education, are heedlessly discarding skills that are needed to keep democracies alive. If this trend continues, nations all over the world will soon be producing generations of useful machines, rather than complete citizens who can think for themselves, criticize tradition, and understand the significance of another person's sufferings and achievements.

What are these radical changes? The humanities and the arts are being cut away, in both primary/secondary and college/university education, in virtually every nation of the world. Seen by policy-makers as useless frills, at a time when nations must cut away all useless things in order to stay competitive in the global market, they are rapidly losing their place in curricula, and also in the minds and hearts of parents and children. Indeed, what we might call the humanistic aspects of science and social science - the imaginative, creative aspect, and the aspect of rigorous critical thought - are also losing ground, as nations prefer to pursue short-term profit by the cultivation of useful, highly applied skills, suited to profit-making.

Consider these two examples. Both concern higher education, but similar changes are taking place at all ages.

• In the fall of 2006, the United States Department of Education's Commission on the Future of Higher Education, headed by Bush Administration Secretary of Education Margaret Spellings, released its report on the state of higher education in the nation: A Test of Leadership: Charting the Future of U. S. Higher Education (pdf). This report contained a valuable critique of unequal access to higher education. When it came to subject matter, however, it focused entirely on education for national economic gain. It concerned itself with perceived deficiencies in science, technology, and engineering - not even basic scientific research in these areas, but only highly applied learning, learning that can quickly generate profit-making strategies. The humanities, the arts, and critical thinking were basically absent. By omitting them, the report strongly suggested that it would be perfectly all right if these abilities were allowed to wither away, in favor of more useful disciplines.
• In the fall of 2009, in Britain, the Labor Government issued new guidelines for its Research Excellence Scheme, which will assess all individuals and departments in British universities. According to the new criteria, 25 percent of the grade for each researcher will be based on that person's "impact," meaning, basically, contributions to economic growth and success. The humanities and the arts will now be forced to become salesmen for a product, and they will be able to justify their contribution and their claim to funds only if they can demonstrate a direct, short-term economic impact.

The profit motive suggests to concerned politicians that science and technology are of crucial importance for the future health of their nations. We should value good scientific and technical education, and I do not suggest that nations should stop trying to improve in this regard. My concern is that other abilities, equally crucial, are at risk of getting lost in the competitive flurry, abilities crucial to the health of any democracy internally, and to the creation of a decent world culture and a robust type of global citizenship, capable of constructively addressing the world's most pressing problems. These abilities are associated with the humanities and the arts: the ability to think critically; the ability to transcend local loyalties and to approach world problems as a "citizen of the world"; and the ability to imagine sympathetically the predicament of another person.

My book, Not for Profit: Why Democracy Needs the Humanities, studies each of these abilities in turn, asking why each is important and how each can be embodied in education from primary years to college and university liberal arts curricula. I then show why each is crucial to the stability of a vigorous democratic culture, one that is able to withstand the forces of fear, hatred, and greed that are found in every society.

If the real clash of civilizations is, as I believe, a clash within the individual soul, as greed and narcissism contend against respect and love, all modern societies are rapidly losing the battle, as they feed the forces that lead to violence and dehumanization and fail to feed the forces that lead to cultures of equality and respect. If we do not insist on the crucial importance of the humanities and the arts, they will drop away, because they don't make money. They only do what is much more precious than that, make a world that is worth living in, people who are able to see other human beings as full people, with thoughts and feelings of their own that deserve respect and sympathy, and nations that are able to overcome fear and suspicion in favor of sympathetic and reasoned debate.

---

By Gilda R. Daniels, an assistant professor at the University of Baltimore School of Law. Daniels, a former deputy chief in the Voting Section of the DOJ's Civil Rights Division, will moderate a panel discussion during ACS's Voting Rights Symposium Sept. 28 (details to be announced). 

---

I admit it. I am a Voting Rights Act baby. I was born 45 years ago and so was the Voting Rights Act. Just like me, the Voting Rights Act must adapt to and acknowledge a changing society, but we are far from over the hill and should not be discarded as a relic of the past. At the signing of the Voting Rights Act of 1965, President Johnson called the passage of the VRA a "triumph for freedom" and linked the need for the VRA to the history of African Americans in America. After Bloody Sunday left the country in shock over man's inhumanity to man and countless efforts to secure equal voting rights through piecemeal litigation, then-Attorney General Katzenbach convinced Congress to pass and the President to sign the Voting Rights Act to serve as the vehicle that would tear down Jim Crow's barriers to the ballot, such as literacy tests and grandfather clauses. The Act was sorely needed. In March of 1965 in Alabama, only 19.3 percent of blacks were registered compared with 69.2 percent of whites, an almost 50 percent gap in registration rates. The most egregious state was Mississippi with a 63.2 percent gap between blacks and whites. Only 6.7 percent of its eligible Black voting age population was registered. (See "Minority Representation and the Quest for Voting Equality.") Have we made advances? Absolutely. Have we reached the post-racial Promised Land where the VRA is no longer needed? No.

 

Recently, the VRA has come under attack. VRA opponents in Georgia and Alabama have filed lawsuits challenging the constitutionality of the Act and particularly its Section 5 provisions which require certain jurisdictions, mainly southern states, to receive approval before making any changes to the voting scheme. Changes can include anything from moving a polling place across the street to a Congressional redistricting. Many jurisdictions consider Section 5 onerous and out of date in this "post racial" world. They eagerly point to the White House as an example of how we, as a nation, have overcome. They neglect to point out, however, that in that historic election, candidate Obama did not win any of the states in the Deep South, where blatant injustices forced the federal government to respond with the VRA and where racially polarized voting continues to exist.

 

Although electing an African American as President of the United States is no small feat given our country's racial history, many barriers remain and must be eliminated before this country can reach full electoral equality. It is the electoral process that needs to be free of new millennium methods of disenfranchisement, including such acts of voter deception and intimidation as mistakenly and maliciously advertising that "Republicans (whites) vote on Tuesday and Democrats (blacks) vote on Wednesday." These acts go unpunished and unprosecuted, yet they impact minority voters. Additionally, the vast disparities in felon disenfranchisement laws across the country strip the ability to vote from those who are no longer incarcerated and are attempting to become honorable citizens. Yet, they are denied the opportunity to vote because of past indiscretions. In some states, more than 30% of African American males are disenfranchised because of felon disenfranchisement laws.

 

Is this a different country than it was on the birth of the VRA in 1965? God, I sure hope so. Gains have certainly been made and are in no small part attributable to the passage of the Voting Rights Act. True, the registration gaps between blacks and whites are close to or have been eliminated in most Southern states. In 2005, this country had about 9,500 black elected officials - an incredible gain from the approximate 1,500 in 1970. While there has certainly been an increase in the number of minorities in the Congress, the Senate continues to have one or no African American Senators and currently, only one African American serves as governor. I submit we should not gauge the success of the VRA solely within the black/white binary. The language minority provisions have opened a whole new world of equal electoral opportunity to citizens who speak languages other than English. The VRA has provided equal access to all citizens. It ensures that no person can be denied an equal opportunity to participate in the electoral process, but the battle is not over.

After 45 years, the Voting Rights Act, just like me, is reaching its stride and realizing that it has to make some changes to adjust to this new world that we live in full of electronic voting machines, voter ID requirements and the like. It's also recognizing the need to adapt to changing electoral methods and provide equal access to a new generation of voters. It's not time for the gold watch and the rocking chair, but time to continue to ensure equal opportunity for all.

 

On the 45th anniversary of the Voting Rights Act of 1965, President Barack Obama called the Act "an affirmation that although the arc of the moral universe may be long, it bends toward justice."

The chance for blacks to vote for Obama was itself was a major victory for blacks and the Voting Rights Act, writes Cord Jefferson for The Root, but "sadly, the good news ended there."

Criminal disenfranchisement remains a major barrier to voting, Jefferson writes, citing Human Rights Watch statistics that nearly a third of all black men in Alabama and Florida are permanently disenfranchised by past convictions.

"The issue of felon disenfranchisement turns the spotlight on some uncomfortable facts about who goes to prison in the United States, a country with the highest incarceration rate in the world," ACS board member Linda Greenhouse wrote in a column for The New York Times last month.

In her column, Greenhouse, a Pulitzer Prize-winning journalist, highlighted an opportunity for the Obama administration to take leadership on the issue of felon disenfranchisement. The Supreme Court has asked the Office of the Solicitor General to take a position on whether laws that disenfranchise those in prison or on parole are a violation of the Section 2 of the Voting Rights Act.

States have imposed other requirements that "restrain the right to vote," including a photo ID requirement in Indiana, and a system that relies on outdated information to verify citizenship in Georgia, writes CNN contributor Donna Brazile. Adds Brazile:

Other states have enacted similar laws or have simply refused to comply with federal demands, perhaps betting that they are unlikely to face reprimand from an overburdened federal government. This year, an election administrator in Texas -- a state employee -- publicly mocked the Voting Rights Act's language minority protections, telling an audience that poll workers should simply speak in slow, broken English to Spanish-speaking voters. The administrator was fired.

In addition to state laws that have eroded the Act, the constitutionality of the core provision of the Act, Section 5, has been challenged in multiple lawsuits in recent months, writes Kristen Clarke in The Grio.

But, Clarke adds, "It is perhaps because of the success of the Voting Rights Act that the law has a target on its back."

"A few years ago, people could not vote simply because of the color of their skin," Congressman John Lewis (D-Ga.), who led the civil rights march now known as "Bloody Sunday," said during remarks in Florida recently. "With the passage and implementation of this Act we have witnessed a nonviolent revolution in America," he added in a statement commemorating the Act's anniversary.

On September 28, Congressman Lewis and historian Taylor Branch will discuss the Voting Rights Act during an ACS symposium in Washington, D.C. The symposium will include two panels of leading voting rights experts, who will discuss the Act in light of recent precedent and explore election administration issues in the 2010 mid-term. More details about the event will be announced at ACS's website.

---

By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

---

A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.

In a recent speech entitled "Tyranny of the Minority" at the Brennan Center for Justice at New York University School of Law, Senator Tom Harkin described just how abusive the filibuster has become in this Congress:

For the entire nineteenth century, there were only 23 filibusters. From 1917 - when the Senate first adopted cloture rules for ending debate - until 1969, there were fewer than 50 . . . In contrast, during the last Congress, 2007-2008, the majority was obliged to file a record 139 motions to end filibusters. Already in this Congress, since January 2009, there have been 98 motions to end filibusters.

... According to one study, in the 1960s, just eight percent of major bills were filibustered. Last Congress, 70 percent of major bills were targeted.

Second, in the defeat of the Disclose Act, as with efforts to defeat global warming legislation, health care reform, judicial nominations, financial reform, and so much else, facts no longer matter in the Senate. Knowing that going to bat for foreign corporations and corporate welfare recipients would not be very popular, the Republicans instead rallied around a tried and true tactic: union bashing. According to her press secretary, Senator Susan Collins opposed the Act because it "would provide a clear and unfair advantage to unions, while either shutting other organizations out of the election process or subjecting them to onerous reporting requirements that would not apply to unions." Senator Scott Brown complained that unions "would be carved out of this legislation and not face the same regulations that would apply to everyone else."

As with the "death panel" canard used to attack health care reform, the "union carve-out" charge is false. The bill in the Senate applies to "covered organizations," defined specifically as corporations and "any labor organization." In fact, the AFL-CIO opposed the Disclose Act.

In leading the charge to defeat the Disclose Act, Senate Minority Leader Mitch McConnell from Kentucky accused his 58 Senate colleagues and the President of the United States of pretending to care about democracy while actually trying to "rig the fall elections." This is what now passes for leadership.

And look at what's going on in Senator McConnell's home state of Kentucky after Citizens United. John Cheves, of the Lexington Herald Leader, recently uncovered a letter from the Roger Nicholson, general counsel of the International Coal Group, calling on at least four coal corporations, including Massey Energy, to pool corporate money in "a 527 entity with the purpose of attempting to defeat anti-coal incumbents in select races, as well as elect pro-coal candidates running for certain open seats." Mr. Nicholson picks up on Justice Kennedy's moving point in Citizens United that corporations, like any other "disadvantaged person and class," must use their "voices:" "With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard."

Despite the farce that defeated the Disclose Act in the Senate, there is growing recognition in Washington and beyond that Citizens United and the magnitude of challenges to our democracy call for much more than legislative gamesmanship. Thus it is hopeful to see Senator Max Baucus responding to the defeat of the Disclose Act with his introduction of a Constitutional amendment. "We have got to make sure elections remain in the hands of the people, it's as simple as that," Baucus said. "We Montanans learned our lesson almost a century ago when the copper kings leveraged their corporate power to effectively buy elections. As a result, we have some of the toughest campaign finance laws in the land -- and they work." He joins several other Senators and Representatives and millions of Americans in recognizing that it is time once again for the American people to turn to Article V's basic tool of citizenship to decide for ourselves what kind of democracy we will have in America.

America needs the Disclose Act. Much more, though, we need to amend the Constitution to restore government of the people.

 

The Massachusetts Senate passed a bill to adopt a National Popular Vote law, approved by the state's House of Representatives earlier this year.

If Gov. Deval Patrick signs the bill, Massachusetts will join five other states that have agreed to cast their electoral college votes for the presidential candidate who wins the national popular vote, rather than the candidate who wins the state's vote, according to the Progressive States Network.

The agreement between the states, which now include Hawaii, Illinois, Maryland , New Jersey and Washington, will not go into effect until states with electoral votes totaling 270 adopt such laws. If the Massachusetts law goes into effect, the number of electoral votes amassed would be 73.

ACSblog reported last month that New York State is also close to adopting a National Popular Vote law. A June 21 editorial in The New York Times urged the New York Assembly to follow the lead of the state Senate and seize the "chance to withdraw from the archaic and unfair way the country picks its chief executives."

The Progressive States Network map (above) shows the progress made in other states.

Jamie Raskin, a Maryland state senator and constitutional law professor at American University, wrote a two-part analysis for ACSblog, available here and here, on the importance of the National Popular Vote movement.

"Why is the NPV plan spreading like political wildfire?" asks Raskin, who introduced the nation's first National Popular Vote bill to be signed into law.

The core reason is that it presents an irresistible proposition: that the person we elect president should be the one who collects the most votes. This is how we elect Governors, Mayors, Senators and Congresspeople, and it is how presidents are elected in most democratic nations that have presidents. On the other hand, the current electoral college regime can produce farcical upside-down results like the one we saw in 2000, a dismal turning point in American history, when the popular vote loser (by more than a half-million votes) tortured out a "victory" in the electoral college after the most dubious sequence of assaults on voting rights and political participation by state and federal actors like Katharine Harris and five Supreme Court justices.

Stephen Boyd’s video was the winner of the ACS Constitutional video contest. Boyd, 23, a junior at Ball State University, won $1,500 for his efforts. Click below for a catchy rap about the Constitution and the importance of judges.

 

Our second place winner, Tim Cone, reminds us of the importance of an independent judiciary through a moving tour of the Gettysburg battlefield.  Tim has been a member of ACS's Washington DC Chapter since 2001, and works on criminal appeals as an Assistant Federal Public Defender. 

ACS hosted its annual Supreme Court Review at the National Press Club this week. With moderator Supreme Litigator and SCOTUSblog founder Tom Goldstein leading the way, Supreme Court experts Paul Butler, Associate Dean for Faculty Development and Carville Dickinson Benson Research Professor of Law, George Washington University Law School; Paul D. Clement, Partner, King & Spalding, and former Solicitor General of the United States; Doug Kendall, President, Constitutional Accountability Center; Elisa Massimino, President and Chief Executive Officer, Human Rights First; Andrew J. Pincus, Partner, Mayer Brown LLP, and Visiting Lecturer in Law, Yale Law School; Virginia A. Seitz, Partner, Sidley Austin LLP; and Monica Youn, Counsel, Brennan Center for Justice at New York University School of Law's Democracy Program, addressed the major cases of the term, as well as potential changes that might result from the retirement of Justice Stevens and the likely ascension of Elena Kagan.