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Independence Institute teams up with Violence Policy Center:

And with the Alliance for Justice, the American Conservative Union Foundation, and 31 other non-profit organizations. We're all members of a coalition which filed an amicus brief in the upcoming January Supreme Court case of Wisconsin Right to Life v. Federal Election Commission. The brief argues that the censorship provisions of the McCain-Feingold law cannot constitutionally be applied to public charities, including the 35 amici. The well-written brief was produced by three attorneys for Perkins Coie, and offers an excellent argument about one aspect of the constitutional abomination that Congress enacted in 2002, and which President Bush--in derogation of his oath to defend the Constitution--signed notwithstanding his belief that the bill was unconstitutional.

arbitraryaardvark (mail) (www):
So far the count of amicus briefs favoring WRtL: 8, favoring the FEC: zero. Hat tip allison.
11.28.2005 4:05pm
Cornellian (mail):
My favorite part about the "I'll sign it anyway" approach was the rationale given "it doesn't matter because the courts will strike it down anyway." Just think in less than a decade this Administration, with the full complicity of Congressional Republicans, has managed to squander the credibility the party spent decades building on the issue of the proper role of the judiciary.
11.28.2005 4:22pm
Per Son:
What a wide array of interests represented. I love it!
11.28.2005 4:43pm
M. Lederman (mail):
Here's what the President said about BCRA title II in his signing statement: "I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law."

There are several notable things about this. The first is that it is descriptively misleading: It's not a "broad ban" on issue advertising. It is "merely" (i) a requirement that covered entities use a PAC, rather than their treasury funds; (ii) when advertising on certain media (and not others); (iii) when they mention the names of candidates in an upcoming election. That's not peanuts; but nor is it a "broad ban."

More importantly, the PAC requirement doesn't apply to a "wide variety of groups." It applies *only* to unions and corporations; and even as to the latter, a corporation is *exempt* if it is a nonprofit formed for the express purpose of promoting political ideas, doesn't engage in business activities, doesn't have shareholders and doesn't accept corporate donations.

Third, the President's signing statement made clear that he signed the bill because he thought it provided substantial benefits, notwithstanding his constitutional "reservations." There's nothing untoward, or unusual, about that -- it happens all the time in an age of complex, multi-provision pieces of legislation.

The really important decision was not the signing, but the Administration's decision to *defend* the constitutionality of BCRA title II in the ensuing litigation. Which brings me to the most interesting point:

The Court only upheld the PAC requirement because the President's own SG, Paul Clement (along with intervenors' counsel Seth Waxman), did an absolutely superlative job winning over Justice O'Connor at oral argument. And he did so by emphasizing, repeatedly, that the PAC requirement had been in place for 56 years (it was enacted as part of Taft-Hartley); that the sky had not fallen in all that time; that the Court had upheld an analogous (Michigan) statute in 1990; and that the plaintiffs had not given the Court any good reason to overturn that precedent (the Austin case).
11.28.2005 4:58pm
anonymous22:
The Supreme Court in Cooper v. Aaron declared it was the sole authority of the meaning of the Constitution. So Bush's actions actually were keeping very much in the spirit of Cooper. I realize that during quainter times the executive had the obligation to interpret the Constitution in passing on legislation, but Cooper relieved the executive of this responsibility.
11.28.2005 5:09pm
big dirigible (mail) (www):
It's not obvious to me that the executive should veto based on what he thinks the judiciary might do. He's not really in a position to play one-man pseudo-judge, nor would he want to be. The Separation of Powers works best when everyone isn't trying to do everyone else's job.

But speaking of separation of powers, I'm a bit surprised to see Dave K. have anything to do with the VPC, even if the VPC happens to be right - this time.
11.28.2005 5:36pm
CJ:
The VPC (Brady Bunch) is a charity? Dang.
11.28.2005 5:43pm
MSG:
They're a 501(c)(3) non-profit corporation. Charity is a rather broad term.
11.28.2005 6:51pm
therut (mail):
Maybe Mr. Kopel can explain to me why all the money I donate to the NRA is not deductable. Why are they set up that way. Why is the Brady bunch non-profit somehow and the NRA is not. What I send to the Second Amendment foundation is deductalbe. Why is the NRA set up the way it is??????????????????????????

[DK: The NRA, like the Brady Campaign, is not tax deductible because a large share of its money is spent on lobbying. People who want to make tax-deductible gifts for the various non-lobbying activities of the NRA can give money to the NRA Foundation instead. Likewise, people can give money to the Brady Center, which does educational and legal work, but not lobbying. The Citizens Committee for the Right to Keep and Bear Arms is a non-deductible lobbying organization; its sister organization, the Second Amendment Foundation, is a tax deductible, non-lobbying educational/legal organization. The Independence Institute spends very little money on lobbying, and almost all its money on educational activity. Accordingly, donations are tax deductible because it is a non-profit 501(c)(3) educational organization. The Violence Policy Center (which is a totally different group from the Brady Campaign/Center) also appears to be a tax-deductible organization; although I haven't researched them, I presume that they are tax-deductible because of the particular amounts they spend on education vs. on lobbying.]
11.28.2005 10:47pm
arbitraryaardvark (mail) (www):
Anonymous22, you are mistaken about Cooper v Aaron. It's a very important case. Echoing Marbury v Madison, it asserts that in conflicts between branches, or conflicts between state and fed, the Supreme Court is supreme. But that doesn't make them the sole guardians of the constitution. They wouldn't be able to handle the workload. If the other branches shirk their duty to support the constitution, that's a problem the courts aren't in a position to fix. That's a lot of the problem we have now - congress defers to the courts, the courts and AGs defer to congress, citizens and veterans defer to politicians, and we are losing our liberties.
11.29.2005 4:18am
David M. Nieporent (www):
Third, the President's signing statement made clear that he signed the bill because he thought it provided substantial benefits, notwithstanding his constitutional "reservations." There's nothing untoward, or unusual, about that -- it happens all the time in an age of complex, multi-provision pieces of legislation.
What happens all the time? Balancing out benefits and drawbacks of various aspects of a piece of litigation? Sure. Nobody expects the president or a member of Congress to approve of every provision of a bill he ultimately signs/votes for.

The problem is that we're not talking about balancing benefits and drawbacks here; we're talking about balancing benefits and unconstitutionality. And that is no sort of balance at all. It doesn't matter whether the benefits are "substantial" if the bill is unconstitutional.
11.29.2005 1:16pm
anonymous22:
I first came across the interpretation of Cooper as establishing the SC as sole arbiter in Powe's Warren Ct. &Amer. Politics, but as I read the opinion I think that Powe's interpretation of Cooper stands up. The reasoning of the opinion, especially the last section, leads to the conclusion that the opinion of SC on the Constitution supersedes the opinion of any other coequal branch of government, even though all government officers take an oath to uphold the Constitution. That means that when officers swear to uphold "the Constitution," according to the SC, "the Constitution" refers not to the original document but only to the Supreme Court's interpretation of the Constitution, which as anyone who has read Randy Barnett's book knows, is not identical to the written constitution. I suppose there is a gray area where, on contested legal issues, government officers can do some de novo interpretation, but that interpretation stands only so far as the federal courts approve of it.

I am not arguing that the Court was correct in Cooper, only that it affirmatively deep-sixed the Jeffersonian view of each government officer interpreting the Constitution for themself.
11.29.2005 3:58pm