A.P. offers this report.
Bob Kengle has written this four page letter, which states, among other issues related to the Voting Section at DOJ, that DOJ attorneys were “prohibited from developing a record to help Congress make its decisions” regarding renewal of Section 5 of the Voting Rights Act.
At pages 25-26 of the transcript in WRTL, Seth Waxman made the following statement in response to a question by Justice Alito about whether setting up a PAC to run issue ads before an election would be “impractical:”
- [The ACLU] and the other amici who provide a growing table of amicus briefs every time this issue comes up, have never, ever, brought their own as-applied challenge, although those these groups are not shy to litigate when they think important rights are in effect. They have been in the three years since this Court decided McConnell, and in the year since this Court made clear what I think we had assumed, which is this statute is — it is open season on as-applied challenges. There have been precisely two as as-applied challenges brought, both brought by the counsel in this case. The ACLU’s brief which is as representative as any other says look at these ads that we’ve been running about really important issues: The war in Iraq, Guantanamo, etcetera, etcetera, here is the text of the ad. If we had put onto a tag line of that ad, please call Senator so and so and tell him no, we wouldn’t be allowed to do it.
Well, you know what? With one exception that I’ll explain in a minute, in its 90-year history, the ACLU has never — way before Bickler [sic, should be BCRA] was passed, even outside the 60-day period, they never put that line on. And you know why? It’s because they have pledged to their members and to the public that they will not engage in electioneering of any sort. They are completely nonpartisan and they don’t ever want to be understood to the contrary, and so they never utter those words.
My emphasis added. Joel Gora, one of the ACLU lawyers, points me to pages 14-18 of the ACLU’s amicus brief in this case, where the ACLU explains that they often include “Call Your Senators” in broadcast ads where the Senator is mentioned by name. So it appears that either Seth Waxman was misspeaking or mistaken (or perhaps I’m misunderstanding his argument).
UPDATE: My post is old news. Last Thursday Seth Waxman sent this letter to the Court.
Sandy Levinson has this interesting post on Balkinization, which not only mentions Bush v. Gore, but also may shed light on how WRTL could be decided. A snippet: “The acerbity of Roberts’s dissent [in the death penalty cases last week] suggests that he may be giving up on his professed desire to overcome the fragmentation of the current Court. So maybe he is on his way to becoming more like Thomas or Scalia. The ‘Roberts Court’ (which is really, right now, the Stevens-Kennedy Court) is clearly a work in progress, not least because of the consequences of the 2008 presidential and Senate elections for who will succeed the now-87-year-old John Paul Stevens and, possibly, the already septagenerians Scalia, Ginsburg, and Kennedy.” My sense from oral argument in WRTL was much the same as Sandy’s, which is why I still think the outcome in WRTL may come down to Justice Kennedy’s views of stare decisis.
Brad Smith has written this Roll Call commentary ($).
Roll Call offers this interesting report ($).
Lyle Denniston has written this post on Office of Senator Dayton v. Hanson, which was argued in the Supreme Court last week. It begins: “When skepticism about a case before the Supreme Court is expressed in a half-dozen different ways, it is fair to speculate that the case may be doomed. What might be a historic test of the U.S. Senate’s potential immunity to being sued for workplace discrimination against its own employees proved fascinating to the Justices on Tuesday — but an across-the-bench uncertainty about reaching that question and about the merits of the issue dominated the hour of oral argument in Office of Senator Dayton v. Hanson (05-618).” You can find the transcript of oral argument here and an AP report here.
Check out this oped and this this detailed accompanying graphic by Tom Mann, Molly Reynolds, and Peter Hoey. It begins: “THE failure of Congress to fulfill its responsibilities as the first branch of government — to engage in responsible and deliberative lawmaking, to police the ethical behavior of its members, and to check and balance the other national political institutions — contributed to the demise of the Republican majority in last November’s midterm election. So how well is Congress performing under its new Democratic leadership?”
The second item in this Washington Post column by Bob Barnes discusses last week’s oral argument in WRTL.
John Fund has written this Opinion Journal column.
The Wall Street Journal offers this report.
This piece appears in the London Review of Books.
The Milwaukee Journal-Sentinel offers this report. In tangentially-related news, Tony Mauro has this analysis of last week’s argument in the WRTL case. These cases were brought to my attention before breakfast by Howard Bashman, whose run-in with Judge Kozinski shows that any attempted coverup is often worse than the initial transgression.
UPDATE: More McCain on McCain-Feingold (from FOXNews Sunday):
- WALLACE: Another beef that conservatives have you, I don’t have to tell you, is McCain-Feingold campaign finance reform. They say it’s an assault on free speech, especially by conservative advocates.
When you see candidates spending more money — or raising more money than ever, spending more money than ever, when you see soft money that’s now banned from going to the parties instead going to these so-called 527s, which are even less accountable than the parties were, can you honestly say that McCain-Feingold is working?
J. MCCAIN: We’ve strengthened the parties. There’s millions more small donors. We have taken soft money, which was rampant in Washington, out of the game. The 527s are a violation of the ’74 law. The 527s are clearly illegal.
It’s not a problem with law. It’s a problem with the Federal Election Commission who will not enforce the law. So, yeah, we made significant progress, absolutely, and I’m proud of a lot of the results of this.
I lived in the environment where a powerful committee chairman would call up a trial lawyer, a union leader or a corporate head and say, “I need a check for seven figures from you, and by the way, your bill is up before my committee next week.”
That was routine operation in Washington, and we’re still seeing manifestations of this kind of corruption.
From Political Appointees No Longer to Pick Justice Interns in the Washington Post: “According to a former deputy chief in the civil rights division, one honors hire was a University of Mississippi law school graduate who had been a clerk for U.S. District Judge Charles W. Pickering Sr. about the time the judge’s nomination by President Bush to a federal appeals court provoked opposition by congressional Democrats, who contended that Pickering was hostile to civil rights. A few months after he arrived, that lawyer was given a cash award by the department, after he was the only member of a four-person team in the civil rights division who sided with a Georgia voter-identification law that was later struck down by the courts as discriminatory to minorities, according to two former Justice lawyers.”