Sen. Chris Dodd Being Considered As Chairman of Motion Picture Association; Job Pays $1.2 Million Per Year

November 29, 2010 · Posted in The Capitol · Comment 

U.S. Sen. Christopher J. Dodd, who has remained relatively quiet about exactly what he will be doing after his six-year term expires in January, is being considered to be the next chairman of the Motion Picture Association of America.

The issue was detailed in The New York Times and then in Politico for the job that pays an estimated $ 1.2 million annually. That would be a big pay increase for Dodd, whose Senate salary is about $ 165,000 per year.

Dodd is currently preparing for his farewell speech on Tuesday on the floor of the U.S. Senate.

Capitol Watch

Alaska Senate race: Murkowski files motion to counter Miller

November 24, 2010 · Posted in The Capitol · Comment 

(CNN) - Sen. Lisa Murkowski (R- Alaska) has filed a motion to intervene in Republican candidate Joe Miller’s lawsuit challenging the method by which the state’s Division of Elections counted write-in votes in the Nov. 2 general election.

Murkowski, who has already claimed victory in the race, also asked for an expedited decision.

“Joe’s reluctance to accept the will of the voters remains discouraging. We are certain the state courts can act on this baseless lawsuit in a timely manner,” Murkowski campaign manager Kevin Sweeney said in a statement.

“By intervening in the case, Senator Murkowski seeks to protect the thousands of voters that Mr. Miller seeks to disenfranchise.”

The country’s last undecided Senate election arrived in state court Monday when Miller sued the state over how write-in ballots for his Republican rival, write-in candidate Sen. Lisa Murkowski have been counted.

Miller’s lawsuit was originally filed in federal court, but a judge ruled Friday that it was instead a matter for the state court to decide. However, he did grant a temporary injunction halting certification of the Senate election. The incumbent Murkowski launched a write-in bid for the Senate seat after she lost the Republican primary to Tea Party-backed Miller.

The Miller campaign is now challenging the Division of Election’s decision to ensure the state law is followed, which calls for write-in votes to match the name of the candidate. He has argued that Alaska law does not allow the counting of misspelled names on write-in ballots. The Division of Elections set guidelines before counting began that allowed for a voter’s intent to be considered when determining whether to count a ballot for a write-in candidate.

After the court rules, the campaign has said it wants a hand count of the ballots.

The Associated Press called the race for Murkowski last week when she had a 10,328-vote lead over Miller, a figure that includes the 8,159 ballots contested by Miller observers. Not including those ballots, she has a 2,169-vote lead.

But Miller has not conceded despite the projections of Murkowski’s win and calls from Republican leaders asking him to end his bid.

In an interview with CNN White House Correspondent Suzanne Malveaux in the Situation Room on Tuesday, Miller said that there is a chance he could still win because “nobody really knows what the count is.”

He also defended his campaign’s challenge of the write-in ballots and the request for a hand count.

“I think Alaskans deserve to have a clear process, one that they can rely on in the future, and one that’s not gamed at the end.” Miller said.

- CNN”s Steve Brusk and Paul Steinhauser contributed to this report.


CNN Political Ticker

AFTRA, SAG Reach Agreement with TV, Motion Picture Producers

November 8, 2010 · Posted in The Capitol · Comment 
Photo credit: Jo Christian Oterhals/Flickr Creative Commons  
   

The American Federation of Television and Radio Artists (AFTRA) and the Screen Actors (SAG) reached a tentative agreement with motion picture and TV producers on new television and feature film contracts.

The workers’ top priority was an increase in pension and health care benefits. The tentative deal includes a 10 percent increase in the current employer contributions paid to the AFTRA Health & Retirement Funds and Screen Actors Guild Pension & Health Plans. This represents the largest dollar value increase to the plans under these contracts, since the plans were founded, and is the largest percentage increase to the plans in more than two decades.

The new three-year agreement with the Alliance of Motion Picture and Television Producers (AMPTP) still must be approved by the Joint National Board of AFTRA and SAG and by a vote of the two unions’ memberships.

AFTRA President Roberta Reardon said:

I am extremely pleased we met our goal of increasing contributions to our retirement and pension plans, and that we successfully completed this negotiation now to protect the needs of performers early in the process. Our joint negotiating committee worked together seamlessly and in solidarity, and I am very proud of their work.

SAG President Ken Howard said:

Strengthening the pension and health plans was our top priority in these negotiations. Making such a significant gain in that area was a vital achievement. Increased wages across the contract and the expansion of the major role premium into pay television will not only put more money in performers’ pockets, but will provide yet another boost to our P&H [pension and health] funds.

 The new tentative agreement also includes:

  • A 6 percent wage increase over the term of the agreement with 2 percent in each of the three years.
  • An expansion of major role provisions to apply to new pay television series beginning in their second season.
  • Expanded union coverage for made for new media productions.
  • Improved contract language to increase equal employment opportunities for union performers.

 The unions also agreed to modifications in the travel provisions of the contracts.

AFL-CIO NOW BLOG

Florida District Decision Rejecting the Federal Government’s Motion to Dismiss the Case Against the Individual Mandate

October 14, 2010 · Posted in The Capitol · Comment 

(Ilya Somin)

There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts claims that the lawsuits against the mandate are either frivolous or clearly precluded by existing precedent. Even the recent Michigan district court ruling upholding the mandate conceded that it was a case of “first impression” (although the judge also tried to argue that the mandate ultimately does fit under current doctrine).

I. Judge Vinson Rules that the Mandate is Not a Tax.

Second, Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty, a point that I emphasized in my amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law professors:

Because it is called a penalty on its face (and because Congress knew how to say “tax” when it
intended to….), it would be improper to inquire as to whether Congress really meant to impose a tax. I will not assume that Congress had an unstated design to act pursuant to its taxing authority, nor will I impute a revenue-generating purpose to the penalty when Congress specifically chose not to provide one. It is “beyond the competency” of this court to question and ascertain whether Congress really meant to do and say something other than what it did.

As the Supreme Court held by necessary implication, this court cannot “undertake, by collateral inquiry as to the measure of the [revenue-raising] effect of a [penalty], to ascribe to Congress an attempt, under the guise of [the Commerce Clause], to exercise another power.” See Sonzinsky, supra, 300 U.S. at 514. This conclusion is further justified in this case since President Obama, who signed the bill into law,
has “absolutely” rejected the argument that the penalty is a tax…. To conclude, as I do, that Congress imposed a penalty and not a tax is not merely formalistic hair-splitting. There are clear, important, and well-established differences between the two. See Dep’t of Revenue of Montana v. Kurth Ranch,
511 U.S. 767, 779–80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [penalties] are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra, 518 U.S. at 224
(“‘a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,’” whereas, “if the concept of penalty means anything, it means punishment for an unlawful act or omission”).

Notice that at least in this instance, President Obama’s preenactment claims that the mandate is not a tax have come back to bite him. 

The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal). Judge Vinson concluded that he had to resolves the tax issue at this early stage of the litigation in order to address the federal government’s claim that, because this was a tax case, the court lacked jurisdiction under the Anti-Injunction Act. 

II. The Commerce Clause and Necessary and Proper Clause Arguments.

The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

Vinson’s analysis of the Commerce Clause precedents (pp. 62–64 of his opinion) is very similar to my discussion of them in our amicus brief (Part I), though I don’t claim any direct influence. As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it….. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.

Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing a trend from the previous two cases), dismissed two weak federalism-related claims put forward by the state plaintiffs, and refused to dismiss their claim that the funding provisions of the act violated constitutional restrictions on “coercion” of states through conditional federal spending grants. Vinson concluded that this latter argument was just barely strong enough to get to the summary judgment stage. For reasons I may blog about later, I believe that the states’ coercion argument is correct under the text of the Constitution, but highly unlikely to prevail under current Spending Clause doctrine.

Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs. 




The Volokh Conspiracy

CNN 100: Physics’ first law of motion in Michigan

September 18, 2010 · Posted in The Capitol · Comment 
 The CNN 100 takes a look at the top 100 House races, from now until Election Day.

The CNN 100 takes a look at the top 100 House races, from now until Election Day.

Editor’s Note: In the final 100 days before Election Day, CNN has been profiling one race at random each day from among the nation’s top 100 House races, which we’ve dubbed “The CNN 100.” Read the full list here. Today’s featured district is:

Michigan 3rd-(Open Seat)-Rep. Vern Ehlers (R) is retiring
Primary: August 24, 2010
Location: West-Central Michigan, Grand Rapids
Days Until Election Day: 45

(CNN) - In another life, GOP State Rep. Justin Amash and Democrat Patrick Miles may have met in a boardroom on opposing sides of the table. Instead, both former corporate lawyers are meeting - and competing - against one another in the race to replace the first research physicist elected to the U.S. House of Representatives, GOP Rep.Vern Ehlers. Ehlers has a history of achieving easy victories in Michigan’s 3rd district. After eight terms he will retire and attempt to pass the torch to Amash, whom he endorsed in the August 3rd GOP primary. Ehlers can certainly attest to the first law of motion in physics: an object in motion stays in motion unless it is acted upon by an external force. With the national trend turning red, a win for Amash would not appear to require heavy lifting, especially since President Bush won the district with a 19-point margin of victory in 2004. But in 2008, the 3rd district almost succumbed to the blue wave that elected President Obama; John McCain carried the region with only 2,000 votes to spare.

That slim margin gives Democrats some hope that they can pull an upset in this long-held GOP seat. In his first run for public office, Miles handily won the Democratic nomination and gained the endorsement of Sen. Carl Levin. A graduate of Harvard Law School, Miles was a classmate of President Obama and editor-in-chief of the Harvard Law Record, the school’s student-run newspaper. Miles has proposed reining in federal spending by implementing a 5-percent congressional pay cut every year the federal budget is not balanced. In what may have been one of the few moments of bipartisan accord on the campaign trail so far this contentious year, Amash agreed with the proposal, and Miles immediately tweeted his thanks.

Amash was elected to the Michigan legislature in 2008. He criticized the incumbent Ehlers for being too moderate for the district and announced his candidacy for Congress in February the day before Ehlers had announced his retirement. Amash has the endorsement of Right to Life Michigan; his web site touts a campaign philosophy centered on a “consistent commitment to limited government, free markets, and individual liberty.”

Amash is also no stranger to social media. He uses Twitter to chronicle his daily experiences from the Michigan House floor and details each of his legislative votes on Facebook. The Michigan GOP credits Amash’s Facebook use with helping to attract new voters to the party.

The Republican has had an advantage in fundraising, but both candidates have shown the ability to compete financially. Amash raised $ 304,000 in contributions for his campaign, compared to $ 203,000 for Miles, who nonetheless has stayed competitive financially after loaning his campaign $ 115,000 in personal funds. Amash loaned his campaign $ 75,000. As of mid-July, Miles had a considerable cash advantage with $ 227,000 in the bank, while Amash posted $ 112,000. The Democrat had largely kept his powder dry, spending only $ 92,000, compared to $ 268,000 for Amash.

Both candidates, as well as the late President Gerald Ford, are native sons to Grand Rapids, which comprises most of Michigan’s 3rd district. Miles spent his college summers as a spot-welder in one of the office furniture factories that help stabilize the city’s economy. These factories along with those owned by Bissell and other major brands helped Grand Rapids cope with recent plant closings as a result of GM’s financial woes. Through the years, the city, often described as the GOP seat of Michigan, has remained solidly Republican. Democrats face an uphill battle to take this seat, especially in what’s expected to be a difficult election year for members of the president’s party. Nonetheless, Ehler’s retirement and Republicans’ relatively weak showing here in the 2008 presidential campaign give Democrats a faint glimmer of hope for an upset.


CNN Political Ticker

Judges Deny Stem Cell Plaintiffs’ Motion To Stack Panel

September 4, 2010 · Posted in The Capitol · Comment 

stem-cell-harvestEarlier this week, the Wonk Room noted that the plaintiffs seeking to end all federal embryonic stem cell funding requested that the same three right-wing judges who handled a preliminary issue in this case be reassigned to hear the case again.  To those judges’ credit, they denied this request:

Opponents of stem cell research that uses discarded or unwanted embryos have failed in their bid to, in essence, hand pick the judges who will hear an appeal of a lower court’s groundbreaking ruling barring federal funding of all embryonic stem cell research.

The request got some attention, since it seemed to be a bid to guarantee a conservative panel to take up Lamberth’s ruling and perhaps the Justice Department’s request for a stay that would allow the status quo policy to go remain in place while the appeal is heard. . . .

However, it doesn’t seem to have been reported that on Thursday the three GOP appointees passed up their right under court rules to reclaim the case. So the appeal and possibly the stay will go to a randomly-selected panel, which may or may not include some of the original judges but is highly unlikely to be exactly the same as the original panel.

The practical effect of this decision is that the case is still likely to be heard by a conservative panel — six of the DC Circuit’s nine active judges were appointed by conservative presidents, and those six judges include some of the most right-wing judges in the country.  Nevertheless, the panel that the plaintiffs were seeking is unusually conservative even for this very conservative court.

The three judges did not explain why they denied the motion, but such denials without explanation are not uncommon for this kind of judicial order.  One possible explanation is that they understood that granting the motion would create a bad precedent that could be used against them in future cases.  If conservative plaintiffs can hand-pick a panel of conservative judges to hear their appeal, than what prevents left-leaning plaintiffs from locking in their own preferred panel in a future case?

Hopefully, when a new panel finally decides whether to reinstate funding for stem cell research, that panel will be equally aware of the fact that bad precedents lead to bad consequences down the road.

The primary legal question in this appeal is whether judges are required to defer to the Clinton, Bush and Obama Administration’s interpretation of a federal law, or whether judges can substitute their own views for that of three ideologically diverse administrations.  This should be an easy question because a landmark Supreme Court decision called Chevron v. NRDC establishes that judges are supposed to pay a great deal of deference to a federal agency’s interpretation of the law.  Were a conservative panel to refuse to pay such deference in a case brought by conservatives, there is little to prevent a left-leaning panel from doing the same when the shoe is on the other foot.

Wonk Room

Anti-Stem Cell Plaintiffs File Motion To Stack Appeals Panel With Right-Wing Judges

September 2, 2010 · Posted in The Capitol · Comment 

stem-cell-harvestLawyers in the lawsuit attempting to shut down all federal embryonic stem cell funding filed a highly unusual motion yesterday.  If their motion is successful, it will effectively stack the court of appeals panel hearing this case with three far right judges who are more likely to side against scientific research than a randomly selected panel of their colleagues:

Cases in the U.S. Court of Appeals for the D.C. Circuit are randomly assigned to three-judge panels. There’s conflict screening to determine whether any one judge has a financial or other conflict of interest.

In the stem cell case, Judges Douglas Ginsburg, Janice Rogers Brown and Brett Kavanaugh picked up the dispute, heard oral argument in April and issued a ruling in June. The court reversed the dismissal of the claims and remanded the case for further proceedings in the U.S. District Court for the District of Columbia. DOJ is now appealing the issuance of a preliminary injunction that blocks funding for human embryonic stem cell research.

The Gibson, Dunn & Crutcher lawyers for the plaintiffs, Drs. James Sherley and Theresa Deisher, filed a motion about 1:30 a.m. today in the D.C. Circuit asking that the previous panel be assigned to hear the new appeal.

Early in this litigation, the trial judge determined the plaintiffs lack “standing” to bring this lawsuit — effectively saying that, because the plaintiffs haven’t actually been harmed in any way by the defendants, they are not allowed to sue them.  The plaintiffs appealed that determination and an appeals panel of Judges Ginsburg, Brown and Kavanaugh decided that the plaintiffs have standing after all and sent the case back to the trial judge to consider the remaining issues.

Typically, when a case ping-pongs between a trial and an appeals court, the case is assigned to one appeals panel to determine standing and a different panel to decide future issues.  Nevertheless, the plaintiffs’ motion claims that the court should not follow its normal practice “because the original panel is well-versed in the specific facts and law relating to the present appeal.”  It’s tough to believe, however, that this is the real reason why the plaintiffs want to keep their old panel.

Ginsburg, Brown and Kavanaugh are among the most right-wing judges in the country.  Brown once compared liberalism to “slavery” and Social Security to a “socialist revolution.”  Ginsburg is a leading “tenther” who once called for America to return to a discredited era when child labor laws were considered unconstitutional.  Kavanaugh cut his teeth working for Ken Starr’s Clinton-era witchhunt.  When the court randomly assigned these three judges to hear the plaintiffs’ standing appeal, it was like the plaintiffs won the lottery.  Their most recent motion is nothing less than an attempt to rig that lottery.

There also does not appear to be much legal support for the plaintiffs’ motion.  The motion admits that, although the DC Circuit used to provide for “retention of the same panel that handled an earlier appeal in the same case . . . [,] that system is no longer in place as a formal matter.”  Moreover, the motion is only able to find two examples from courts other than the DC Circuit which arguably support their request that their case be heard by the same panel — and one of those examples is nearly two decades old.

Nevertheless, the motion places the Justice Department in an awkward position.  Were DOJ to oppose the motion, they would risk antagonizing Ginsburg, Brown and Kavanaugh even further by potentially implying that they are not well-suited to hear this case.  Perhaps for that reason, DOJ informed the plaintiffs that they “take[] no position on this motion.”

If nothing else, this motion is a very clever attempt to shape the result of this litigation long before the case is even briefed.  Should the motions succeed, opponents of stem cell research will have their dream panel.

Wonk Room

More Thoughts on the Prop. 8 Stay Motion Before the Ninth Circuit and (If Necessary) the Supreme Court

August 16, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

Prof. Rick Hasen (Election Law Blog) has some interesting analysis. The conclusion is,

First, though the standard for reviewing a trial court’s decision on a stay is quite deferential, in ideological (or hot issue) cases, these appellate courts [circuit courts and the Supreme Court] show a lot less deference. Second, even if the Supreme Court stays Judge Walker’s decision (assuming the Ninth Circuit does not and the question gets to the Supreme Court), that does not necessarily mean the Court will reverse Judge Walker’s opinion if and when the case ultimately gets to the Supreme Court.

He gives more details, and specific precedents, in his post.




The Volokh Conspiracy

Motion To Stay Prop 8 Ruling Denied — But Judge Delays Lifting Stay

August 12, 2010 · Posted in The Capitol · Comment 

A federal judge in California today denied a motion to stay his ruling on Proposition 8, saying he will lift the temporary stay Aug. 18 at 5 p.m. Pacific time.

Judge Vaughn Walker ruled last week that Prop 8, which defined marriage in California as heterosexual, is unconstitutional. He issued a temporary stay — meaning same-sex couples can’t get married yet — and today ruled that his stay will continue until next Wednesday. After that, gay couples will be able to marry in California.

That is, unless the Ninth Circuit Court of Appeals, the court which will hear the appeal of Prop 8 supporters, issues its own stay in the meantime.

As in his original ruling, Walker wrote that proponents of Prop 8 just didn’t provide enough evidence for their position.

“Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court
denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner,” Walker wrote in his ruling.

Walker pointed out that proponents of Prop 8 could not prove that they would suffer any harm if the stay is lifted. They argued that the stay would be harmed but “proponents, of course, are not the state,” Walker said.

“Proponents also point to harm resulting from ‘a cloud of uncertainty’ surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse,” he wrote.

Here’s the ruling:

Prop 8: Final Stay Order









California - California Proposition 8 - Same-sex marriage - Vaughn R. Walker - Vaughn Walker


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