Monthly Archives: April 2013

“Koch Brothers Plan More Political Involvement for Their Conservative Network”


While awaiting an internal audit headed by a top Koch Industries executive, the brothers have rejected any notion of stepping back from electoral politics. Strikingly, after years of nurturing a political network and donor base largely independent from traditional Republican circles, the Kochs are planning to substantially increase their involvement in party affairs.

They have not yet decided whether to intervene in Republican primaries, people involved in the discussions say. But the brothers want their network to play a bigger role in cultivating and promoting Republican candidates who hew to their vision of conservatism, emphasizing smaller government and deregulation more than immigration and social issues. They are also seeking closer control over groups within their network, purging or downgrading those that did not deliver last year and expanding financing for those that performed well.

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“San Gabriel political leaders to voice opposition to Chin Ho Liao hearing”

Pasadena Star-News: “SAN GABRIEL– Local and state political leaders will come together Friday to publicly oppose the City Council’s decision to hold an administrative hearing last week to determine whether Councilman-elect Chin Ho Liao meets residency requirements to serve on the council. Congresswoman Judy Chu, D-Pasadena, Assemblyman Ed Chau, D-Alhambra, State Sen. Ed Hernandez, D-West Covina, and former State Assemblyman and Los Angeles Community College Trustee-Elect Mike Eng will attend a press conference Friday at 11 a.m. The event is organized by the newly formed Coalition to Save San Gabriel, which a Facebook page says is comprised of concerned residents. The coalition also has begun to circulate a petition to seat Liao.”

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“Wonkbook: The hopey-changey thing isn’t working out so well”

Ezra Klein: “Under Obama, today’s Democratic Party is not the party of campaign-finance reform in any serious way. They favor it abstractly, but with the exception of relatively modest laws meant to roll back the effects of Citizens United and its related rulings, they expend no political capital or intellectual energy on the topic. Washington is safe. Democracy less so.”

Common Cause responds to Ezra.


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“Two New Nominees to FEC Possible But Reformers Press Obama for More”

Bloomberg BNA: “Word that the White House is studying two new appointments to the Federal Election Commission does not fully respond to criticism that President Obama has failed to provide leadership on the FEC or campaign finance issues in general, according to campaign reform supporters. The possible announcement of new nominees to the FEC in the coming weeks would not necessarily be a “breakthrough,” veteran campaign reformer Fred Wertheimer of Democracy 21 told BNA April 30. Wertheimer, along with other reformers, has stepped up criticism of Obama over the failure to appoint new FEC commissioners and other campaign finance issues.”

I agree.  Replacing a Democratic and Republican Commissioner on the FEC, without more, would do nothing to improve the agency.

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Prop 8 and the Possible DIG: Evidence From This Week That It’s Possible.

On March 28, I posted on the possibility that the Court in the Prop 8 case might dismiss the case as improvidently granted (or “DIG”) the case, thereby allowing the lower court ruling barring enforcement of Prop. 8 to stand, but not setting any precedent on the gay marriage issue.  This would allow likely swing Justice Kennedy to avoid the issue, at least for a while.  But I noted a catch:

  The issue arises because it takes only four Justices to hear the case but five to reach a majority on the merits.  Tom [Goldstein] writes:

If Justice Kennedy did decline to vote on the merits, then the Ninth Circuit’s judgment would be affirmed.  Either the judgment would formally be affirmed by an equally divided court, or he would nominally cast a vote to “affirm” that would produce the same result – see, for example, Justice Stevens’s 1983 opinion concurring in the judgment in Connecticut v. Johnson.

But whether a Justice can decline to decide a case on the ground that it should be dismissed, when no development has occurred since certiorari has been granted, is a difficult and debated question in the Court.  See, e.g., Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. Pa. L. Rev. 1067 (1987-1998), and Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG:  An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421 (2005).  (Ironically, one of the most relevant authorities is an early predecessor to gay rights litigation, New York v. Uplinger.)  If Justices were perfectly free to do so, then in theory the Court’s “rule of four” – that four members of the Court can vote to grant certiorari – would be in jeopardy:  five Justices who did not grant certiorari could simply refuse to decide the case.  On the other hand, a Justice could reserve the power not to decide the merits for extraordinary cases.

So the thinking is we would not have four Justices voting against a DIG.  Yet that’s precisely what happened this week in Boyer. v. Louisiana, a case involving a speedy trial.  As Rory Little explains, “four of the [Justices] dissented from the [DIG] order at length (Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan), while another three (Justice Alito concurring in the order, joined by Justices Scalia and Thomas) expressed their supportive rationale…”

So it could certainly happen again in the Prop. 8 case, though I would expect that the dissenters there would be Jusices Scalia, Alito, Thomas [corrected], and possibly the Chief.

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The following press release arrived via email:

New York, N.Y.–“Home of the Brave,” a powerful, award-winning 2004 documentary about murdered civil rights activist Viola Liuzzo will be released digitally as the U.S. Supreme Court considers overturning critical aspects of the Voting Rights Act of 1965, the ground-breaking legislation that outlaws discriminatory voting practices. SundanceNow and New Video have scheduled widespread digital distribution with dates that overlap with this significant Supreme Court decision being made in June.

“The most potent weapon in fighting discrimination at the ballot box is before the Supreme Court in a case that weighs the nation’s enormous progress in civil rights against the need to continue to protect minority voters,” says Stockard Channing, narrator of “Home of the Brave.” “Viola Liuzzo’s story needs to be part of America’s social consciousness for many reasons, but is especially critical now, as the Supreme Court justices make their decision this June.”
The lawsuit from Shelby County, Ala. addresses Section 5 of the Voting Rights Act and says that federal oversight of elections is no longer needed. Section 5 requires 16 states with a history of racial discrimination in voting, primarily in the South, to clear election-related changes with the federal government. Section 5 is widely regarded as the most effective provision of the country’s most important civil rights law.
“She wanted equal rights for everyone, no matter what the cost!”  14-year-old Tommy Liuzzo, 1965


Viola Liuzzo
Liuzzo, the 39-year-old wife of a Detroit Teamster and mother of five, joined thousands of civil rights protesters in Selma, Ala. for the Voting Rights March in 1965, only to be gunned down in a drive-by shooting on a deserted highway as she shuttled marchers back and forth to the airport.  The murderers were members of the Ku Klux Klan, one of whom, Gary Thomas Rowe, was an FBI informant.  Despite a slanderous investigation headed by J. Edgar Hoover, Liuzzo’s death – the only white woman killed during this long struggle – became the catalyst for President Lyndon Johnson’s push to pass the Voting Rights Act of 1965.
Many Americans have never heard Liuzzo’s name or story, making “Home of the Brave” extremely timely and relevant. Amazon Instant Video, PlayStation, Xbox Video, Vudu, YouTube Rentals and SundanceNow will release “Home of the Brave” on May 7. The documentary’s release will expand to include Netflix, SnagFilms and Hulu on June 7. The educational distributor Bullfrog Films, Inc., a long-time advocate for the film, is actively promoting the documentary to their broad list of libraries and universities.
“The entire struggle of that era was about the Voting Rights Acts, says Mary Lilleboe, daughter of Viola Liuzzo. “American citizens have and had the Constitutional right to vote. All the bloodshed, tears and lives lost were in a struggle to get the federal government to ensure this right was not tampered with by anyone in any way. This movie is about the struggle to exercise our right, the cost to guarantee it and the people who paid the price. The very attempt to repeal this legislation forewarns of the danger in doing so and tears at the hearts of those who lived through it.”

“Home of the Brave” premiered in competition at Sundance in 2004. The film was distributed theatrically by Emerging Pictures and on television by Court TV.  Image Entertainment handled DVD sales and Bullfrog Films distributes to the educational market, including schools and museums.  The critically acclaimed documentary was short-listed for the 2005 Academy Awards. The film won the Chicago International Film Festival Silver Lion Award as well as the Social Justice Award at the Santa Barbara International Film Festival. It also received a Writer’s Guild nomination for Best Documentary Screenplay, Best Documentary Award at the Port Townsend Film Festival, Best Feature Documentary nomination for the 2004 International Documentary Association Awards, the Joan Phillips-Sandy Award for excellent film with social message in Maine and 1st runner-up for the Audience Choice at the Cleveland International Film Festival.


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“Assembly and Petition (Book Review)”

Aaron Caplan has posted this draft on SSRN (forthcoming, Journal of Legal Education).  Here is the abstract;

Two books published in 2012 – Liberty’s Refuge: The Forgotten Freedom of Assembly by John D. Inazu and Reclaiming The Petition Clause by Ronald J. Krotoszynski, Jr. – are devoted to explaining the final clauses of the First Amendment. They share a central complaint: namely, that current doctrine fails to give much independent force to either clause, instead channeling all inquiries into a speech clause that does not effectuate the distinct goals of the assembly and petition clauses. Yet the two books have curiously little to say to each other. The cases the authors cite and the slices of legal and social history they explore have almost no overlap.

This joint review (forthcoming in the Journal of Legal Education) describes the two books, identifying some of the more intriguing puzzles identified by each. It closes with some ideas about what it means for two nearly simultaneous books about “forgotten” clauses of the First Amendment to pass silently like ships in the night.


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