Harvard Law & Policy Review

Dayme Sanchez

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Money in Politics in the Courts, in the Trump Era and Beyond

By Allie Boldt & Adam Lioz*

The Supreme Court’s flawed approach to money in politics paved the way for Trump-style politics—and must change to rescue our democracy.  

In case after case over the last 40 years, the Supreme Court has struck down laws designed to protect our democracy from the influence of big money. The Court manufactured a right for the wealthy and the business sector to spend billions of dollars on elections, and then protected that “right” at times even more vigorously than it protects our precious right to vote. This approach has warped our democracy and allowed the wealthy donor class—disproportionately white and male—to drown out the rest of our voices. In 2016, for example, 77 percent of the money spent in competitive congressional elections and nearly half of total spending was directly traceable to past Supreme Court rulings.

The Court’s approach enabled Trump’s rise to power in at least 2 ways. As Demos President Heather McGhee explains in the foreword to the Election Law Journal’s 2016 symposium Beyond Corruption: New Approaches for Regulating Money in Politics, the case law rests on the mistaken premise that the only problem with big money in American politics is one of “rich donors buying politicians”— or essentially, bribery. The conservative majority on the Court refuses to recognize a much larger problem: the wealthy having more say in a democracy that’s supposed to embrace the principle of “one person, one vote.”

A similar line of thinking drove Trump’s presidential campaign: “[a]s a supposedly self-funding billionaire,” McGhee wrote, “he claimed he could not be bribed or bought.” That Trump could present himself as a walking solution to money in politics without being laughed out of the conversation was thanks in part to the way the problem of money in politics has been framed—a framing that has often been laser-focused on bribery, and not on the other ways that the wealthy turn their economic clout into political power.

In addition, it was largely the prospect that Trump could fund his own campaign that led the press to cover him vociferously (if not take him completely seriously) when he entered the race long after many of his primary opponents had built million-dollar war chests. This critical leverage was another gift from the Supreme Court, which struck down limits on self-funding in 1976.

The result is a (perhaps) billionaire in the White House and the wealthiest Cabinet in history—as well as a broader system in which community leaders without wealthy networks are often discouraged from running for office in the first place, while Congress advances a donor-driven tax plan designed to redistribute even more wealth to an elite, white donor class. Representative Chris Collins of New York told a reporter a few weeks ago, “My donors are basically saying, ‘Get it done or don’t ever call me again.’” Senator Lindsey Graham said that if Congress failed to pass a tax cut package, “the financial contributions will stop.”

For several years, Demos and our partners have been working to fulfill our Constitution’s democratic promise by forging a new legal order that is open to money-in-politics reforms, and marshalling the factual and legal arguments that could help the Court move in this direction. At Demos, we believe that to truly reverse course, a new approach should explicitly grapple with the value of political equality, and how American democracy is still undermined by our long history of race-based exclusion.

President Trump’s control over judicial appointments has blocked progress in the federal courts in the short term. Trump’s nomination of Neil Gorsuch quickly put the lie to his campaign promises to “drain the swamp.” As Demos’ Heather McGhee testified at Gorsuch’s confirmation hearing before the Senate Judiciary Committee:

In a world where Judge Gorsuch joins a majority bloc of pro-big money justices, the vicious cycle churns ever faster. Large corporations and wealthy individuals enjoy virtually unlimited ability to translate their economic might into political power. Our legislatures and other elected offices become even more skewed by race and class; policy becomes even more tilted towards the preferences of a donor class that is disproportionately male and largely excludes people of color; and working families and people of color across the nation continue to fall behind economically and be alienated politically.

In addition to his Supreme Court pick, Trump’s nominations to lower federal courts are also hostile to protections against big money in politics, including Judge Amul Thapar to the Sixth Circuit, and more recently, James Ho to the Fifth Circuit, who has openly favored abolishing all restrictions on campaign spending, while blaming the problem of money in politics on the few remaining rules in place. To gild the lily, Trump has nominated former FEC commissioner and ardent reform opponent Matthew Petersen to a District Court seat.

Where do we go from here?

Transforming the Court’s approach will likely require shifts in personnel, and Trump has shown that positive change won’t happen on his watch. It’s impossible to know how long it will be before a viable window of opportunity opens—although it’s worth noting that if both Justices Ginsburg and Kennedy remain on the Court through 2020, it could come soon. In the meantime, lawyers and researchers can continue to develop the evidence and arguments that can provide a roadmap to future justices who are willing to follow the facts and grapple with tough questions about the relationship between capitalism and democracy.

For instance, political scientists can collect empirical evidence exposing the faulty assumptions underlying the current jurisprudence.  Examples include evidence showing that unlimited so-called “independent expenditures” are actually often made by entities with close ties to candidates; examinging the prevelance of Super PACs that support a single candidate, which allow donors to evade contribution limits; and evidence demonstrating that public financing of elections—such as Seattle’s innovative “Democracy Dollars” system—serve  public interests that run deeper than fighting crude bribery. Legal scholars can continue to develop arguments fleshing out “government interests” beyond fighting quid pro quo corruption and its appearance, a topic the Brennan Center summarized well in a 2015 paper and several scholars and practitioners tackled in the Election Law Journal symposium referenced above.

The general public has a role, too. Americans wanting to help shape a better path forward should ask their U.S. senators to oppose judicial nominees who would further entrench a legal order that protects donors more than voters. At the local level, communities can support small-donor-empowerment initiatives, which help elect leaders who are responsive to the people rather than the donor class—including the District of Columbia’s Fair Elections Act, which has a viable path into law thanks to a community-driven campaign (similar legislation is pending in Congress).

By transforming the Supreme Court’s approach and organizing on the ground, we can build a democracy in which the strength of our voices no longer depends upon the size of our wallets. This can get us a government that is truly of, by, and for the people—rather than by the billionaires for the donor class.

*Allie Boldt is a Washington DC-based Counsel for Demos, and Adam Lioz is Counsel and Senior Advisor, Policy & Outreach for Demos.

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Unlocking the Power of a Prison Education

Note: This article is cross-posted at the Huffington Post.

By Ryan Cohen*

When he wakes up in the morning, the first thing Marco does is write. To incentivize himself to stay on track with his goals, he pays a friend $25 if he hasn’t written 500 words by noon.

Though he’s working on finishing his first manuscript by the end of the year, Marco always has time to offer words of encouragement to others. One late night when I confessed self-doubt about my own writing, I became the lucky recipient of links to Ira Glass Youtube videos on the creative process and affirmation that my voice matters, and I should keep at it.

Like many, Marco’s college education has allowed him to make a career out of his passion. But his college experience was far from average: Marco went to college in a Michigan correctional facility.

After being convicted for a felony at 15 and sentenced as an adult to 10 years in prison, Marco worked his way through a GED and college courses in prison so he could graduate with a Bachelor’s before his release.

It was that in-prison education that gave Marco the ability to later pursue his Master’s in Creative Writing, secure a competitive fellowship to complete work on his memoir, and launch his career as an author.

Degrees like the one Marco earned in prison are crucial not only to helping people find pathways to meaningful careers, but also to breaking the cycle of poverty in the United States.

And there is no time like the present to talk about the poverty trap in America, and how to break it. Earlier this week, faith leaders marked the fifty-year anniversary of Martin Luther King’s Poor People’s Campaign by holding a press conference on Capitol Hill and announcing that they are reviving the fight. Since King originally launched the campaign in 1968, income inequality and poverty—both poised to be exacerbated by the Republican tax bill—have surged to new heights.

In a world of limited resources, targeting policy interventions toward areas in which they will have the maximum bang for their buck is key. And in terms of increasing social mobility, or making it easier to climb the rungs of the socioeconomic ladder, we should train our lens on the men and women in prison and jail.

That’s because, as low as social mobility is for the general U.S. population, and lower still for those born into poverty, it is lowest for those who have served time in prison or jail. Incarceration is associated with a 62.5% lower likelihood that a man will emerge from the bottom income quintile at all.

Why is that? First, U.S. prisons and jails are populated by those with the least opportunity. Thirty-seven percent of people in state prisons—as opposed to 19% of the general population—lack even a high school diploma.

Second, prison often deepens the cycle of poverty within which those populations are already ensnared. As difficult as it is in today’s economy to find a well-paying job that requires a high school diploma or less, the task is still more difficult with a criminal record. Studies have shown that having a criminal record is associated with 50% fewer callbacks for job opportunities, 40% lower earnings, reduced job tenure and hourly wages, and higher unemployment.

But significant evidence shows that prison college programs improve the opportunity available to this population, their future generations, and society as a whole. For instance, studies show that those who participate in prison education programs are 43% less likely to recidivate than those who do not, and are also more likely to find a job after their release.

Though the primary argument against increased investment in prison education is cost, a 2013 RAND Corporation study debunked that concern: every dollar invested in correctional education saves almost five in re-incarceration costs within three years. Another think tank estimates that if every inmate released from federal and state correctional facilities in 2012 and 2013 had received an education before release, the cost savings would add up to $3.9 billion, even after subtracting the cost of providing Pell Grants to make the schooling affordable. Looking beyond re-incarceration costs—for instance at policing, public health, and education costs within communities with high incarceration rates—overall cost savings are likely even higher.

Given the clear evidence that college prison programs have the power to break cycles of poverty without breaking the bank, the case for increasing investment seems clear. But we have done just the opposite. In 1994, Congress revoked prisoners’ Pell Grant eligibility, and many colleges eliminated their prison programs. By 2005, the number of prison college and degree programs had shrunk from 350 to 12. Though the Obama administration sought to expand access to Pell Grants for some prisoners, Congress introduced a bill to block the effort.

If we are looking for levers to pave pathways out of poverty in an unequal America—as we should—common sense says we need look no further than the education system and labor market. Those with the least access to both are the more than 2.2 million men and women serving time in the criminal justice system.

Through our relationship, I have seen Marco’s ability to enrich not only my life, but society as a whole. Imagine the contributions the other 2.2 million could make if given a fair shot.

*Ryan Cohen is a social impact strategist, lawyer, and policy analyst based in Mexico City, Mexico. She is a former Editor-in-chief of the Harvard Law & Policy Review.

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The Save Local Businesses Act Will Cost Workers

By Edward Nasser*

On Tuesday, November 7th, the House of Representatives voted to pass a bill that would narrow the definition of a joint-employer and reduce liability for companies that work with subcontractors or staffing agencies. The bill, misleadingly titled the “Save Local Businesses Act,” would effectively reverse the National Labor Relations Board’s 2015 decision in Browning-Ferris Industries of California, Inc. which allowed organizations with indirect control over employees to be considered their employer for violations of law and for the purpose of collective bargaining.

Prior to Browning-Ferris, a company needed to exercise “direct and immediate” control over the terms and conditions of employment in order to be considered a joint-employer. Browning-Ferris announced a new, expanded standard for when two or more organizations would be considered joint-employers of a single workforce under the National Labor Relations Act. If (1) the entities are both employers as defined by common law; and (2) they codetermine matters governing “the essential terms and conditions of employment,” they would be considered joint-employers. In evaluating whether an employer had sufficient control over employees to qualify as a joint employer, the Board considered—among other factors—whether an employer “affects the means or manner of employees’ work and terms of employment, either directly or through an intermediary.”

The decision in Browning-Ferris meant that a company that hired a contractor to staff its facilities may be considered a joint-employer of workers at that facility, even if the company did not actively supervise them. Companies could be held responsible for labor violations committed by contractors hired to staff its facilities and those workers would be legally entitled to collectively bargain with the “upstream employer,” and not just the contractor. The Board argued that the new standard better protected workers in the modern economy, where “the diversity of workplace arrangements” had “significantly expanded.” The Save Local Businesses Act would effectively reverse Browning Harris and codify the stricter “direct and immediate” standard in both the National Labor Relations Act and Fair Labor Standards Act.

For the last few decades, companies throughout the economy have focused their businesses on core competencies, often outsourcing support activities like payroll, accounting, human resources, and janitorial services. This phenomenon is known as the “fissured workplace,” and it has not only affected labor standards compliance, but lowered wages and limited employees’ access to benefits by insulating companies from the misdeeds of their contractors. Worse yet, the fissured workplace dilutes workers’ power by artificially segmented workers into tiny bargaining units. Browning-Ferris attempted to combat this development by holding parent companies responsible for the violations of their contractors and allowing workers to organize and bargain with the parent company, the employer who truly controls their workplace.

Business groups like the International Franchise Association and the National Restaurant Association loudly criticized the Board for Browning-Ferris, fearing that it would “significantly alter the face of American business” and “inflict serious damage to our nation’s economy.” A majority in the House apparently agreed; the Save Local Businesses Act passed with overwhelming Republican support and eight Democratic votes. In reality, the most the NLRA authorizes the NLRB to do is order an employer to bargain with workers, reinstate an employee fired in violation of the act, pay back wages to a wrongfully fired employee, or cease and desist from engaging in conduct that violates the act. The NLRA does not even provide for monetary damages against an employer. Congress and the NLRB should be working to extend the basic, modest protections of the NLRA to more workers, not making backwards progress.

Lobbyists and House Republicans have sought to frame the bill as a common-sense reform to encourage entrepreneurship and cut costs for small businesses. But the bill’s biggest impact will not be to protect mom and pop shops, but to effectively inoculate multinational corporations and franchisors from any liability for the terms and conditions they impose on contracted workers—especially those in low-wage sectors where wage theft and other workplace violations are prevalent. If it passes the Senate, the Save Local Businesses Act would be another blow against workers and the middle class.

*Edward Nasser is a 2L at Harvard Law School.

 

 

 

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Give Me Liberty, or Give Me Corporate Personhood

By Taylor Holden*

The Trump administration recently rolled back federal requirements that employers include birth control coverage in their health insurance plans, significantly expanding exemptions for corporations that cite moral or religious objections at the expense of the health of hundreds of thousands—if not millions—of women.

This new policy is the latest in a long series of attempts to gut the Affordable Care Act, in order to pander to a small, vocal, and fringe part of the American electorate. It goes far beyond the reasonable accommodations established by the Obama administration for religious exemptions and expands on those established in Burwell v. Hobby Lobby.

Burwell v. Hobby Lobby, in a landmark 5-4 decision, struck a blow against access to preventive care while expanding the notion of corporate personhood and the scope of religious liberty. It provided more leeway for corporations to challenge laws they claim violate their religious liberty. Justice Samuel A. Alito Jr., writing for the majority, played down the scope of the decision, arguing that it applied only to closely held religious for-profit corporations.

Justice Ruth Bader Ginsburg argued in her dissent that the decision constituted a radical expansion of corporate rights, not exclusively bound to closely held religious for-profit corporations or even cases relating to contraceptive coverage.

At this time, it seems, she was right.

The Trump administration’s decision to roll back contraceptive coverage requirements for employers now expands religious exemptions to nonprofit organizations, for-profit companies that voice religious objections, publicly traded corporations, and higher education institutions, which threatens contraceptive coverage for students and staff covered by university health plans. A second rule, opaque by design, extends an exemption to organizations and privately held companies that have “moral objections.”

Furthermore, this new policy undermines a crucial Obama-era accommodation, which allowed religious entities like churches and convents to opt out of providing contraceptive coverage to employees on the condition that they file a document certifying their objection to the contraceptive coverage mandate with their insurer and the government. Following this filing, contraception would be provided by the insurer and the insurer would be reimbursed by the government. Trump’s new policy makes that accommodation optional, which means this newly expanded pool of employers and institutions claiming moral or religious objections to covering birth control now have no responsibility to make sure employees and students receive this coverage elsewhere.

And the wholly unsurprising kicker: The Trump administration imposed these new regulations without even understanding the extent of their implications.

The Department of Health and Human Services provided briefing memos to The Washington Post stating that the new policy “will result in some persons covered in plans of newly exempt entities not receiving coverage or payments for contraceptive services.” However, it also says there is not “sufficient data to determine the actual effect . . . on plan participants and beneficiaries, including for costs they may incur for contraceptive coverage, nor of unintended pregnancies that may occur.”

Yet here we are.

Short of building a time machine and going back to a time before we were all through the looking glass, there are three possible fixes here.

The first option is, of course, litigation, which has already begun in earnest on the grounds that this new policy is unconstitutional and unlawfully targets women. The second and third options are that Congress can require insurance companies to pay for contraceptive coverage, or require states or the federal government to step in to pay for the contraceptive coverage lost under this new policy. Unfortunately neither of these latter options appear to be viable, considering:

  • The Trump administration’s decision to make Obama-era accommodations that require insurers to cover birth control optional rather than mandatory,
  • The historic dysfunction of this particular Congress and administration, and
  • The hostility toward women that the Republican Party is enthusiastically attempting to codify into various laws that disproportionately impact women, like employer-covered contraceptive coverage, abortion access, insurance premiums associated with pregnancy and sexual assault, and others.

But I digress.

This new policy is devastating for women’s health and freedom, and that it’s so deeply tied to subjective religious and moral objections means it paves the way not only for workplace discrimination against women but for discrimination against LGBTQ and genderqueer people as well. They, too, need and deserve access to contraception.

More than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate in the Affordable Care Act. This move will cost many of them access to birth control they currently receive at no cost, forcing some to make choices between paying for preventive care like contraceptives and paying their rent, their mortgage, or their electric bill.

In addition to its primary purpose, birth control is used to treat many other conditions like endometriosis, Polycystic Ovary Syndrome, Primary Ovarian Insufficiency, menstrual migraines, nausea, heavy bleeding, and clotting, all of which are debilitating and can be dangerous for women. Birth control is also used to treat women for whom pregnancy is not a safe or viable option based on pre-existing medical conditions.

Affordable contraception for women saves lives. It prevents unintended pregnancies. It reduces maternal mortality rates and improves quality of life. It does not, as the Trump administration is claiming, lead to ‘risky sexual behavior.’ No study has shown that access to contraception causes significant changes in sexual behavior.

Furthermore, it’s not 1950.

Reducing access to contraception increases unintended pregnancies and sexually transmitted diseases. It undermines women’s health and the health of families, curtailing options for planning pregnancies and, consequently, higher economic and educational attainment for parents.

And it’s not just that whether or not a woman has to pay out of pocket to cover contraception is now based on the religious or moral objections of her employer. The Trump administration also rolled back Title IX regulations intended to curtail sexual assault on college campuses and provide support and legal recourse to survivors. Republicans brought forth a health care bill that treated sexual assault and rape as a pre-existing condition, which would have driven up premiums for women seeking care and potentially cost them access to care altogether. The Trump administration ended the requirement that large companies report to the government what they pay employees by race and gender, a rule that aimed to close the gender wage gap. Republicans are doing everything they can to limit access to abortion, which is health care and a constitutional right.

And now they’re coming for access to contraception. All of these actions are connected—revealing a majority political party and administration aggressively fighting against the equality, autonomy, and well-being of women everywhere.

They’d better have a good lawyer.

*Taylor Holden is the Development Director of ProgressNow Colorado, the Chair of the Board of Directors of Emerge Colorado, and formerly served on President Obama’s reelection campaign

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For Some Older Veterans the Wounds of War Have Yet to Heal

By Ruth Stein*

Older Americans may remember when November 11th wasn’t known as Veterans Day. The day reserved to recognize, reflect upon, and revere the achievements of our American heroes was originally named Armistice Day to honor the cessation of major World War I hostilities (at the 11th hour of the 11th day of the 11th month of 1918). It was renamed Veterans Day in 1954.

The new name rightly reflects that for so many of the men and women who have served our country, the war is never over. According to a Health Policy Brief from the American Society of Anesthesiologists, the veteran population is older and sicker than the general population. In 2011 the average veteran was between 60 and 64 years old, due to the larger size of the military force during the Korean War and Vietnam War eras. Chronic conditions and health problems are more common among veterans, and as they age their health declines more steeply.

For many older Veterans the physical wounds of war not only persist, but are also compounded by a host of other challenges that come with getting older. A recent article published in JAMA Psychiatry describes the findings of the National Vietnam Veterans Longitudinal Study looking at the prevalence of Posttraumatic Stress Disorder (PTSD) among Vietnam veterans. The article reports that an “important minority of Vietnam veterans are symptomatic [for PTSD] after four decades, with more than twice as many deteriorating as improving.” Meanwhile, “the stresses of aging, including retirement, chronic illness, declining social support, and cognitive changes” can “create difficulties with the management of unwanted memories” for PTSD-inflicted veterans.

Indeed, for the clients I serve as an attorney staffing the Older Veterans Legal Clinic at VA hospitals in New York City, cognitive decline can combine with health issues and psychological injuries to prevent them from effectively navigating social service systems, enforcing their legal rights, and accessing justice.

One client I met is Thomas, an 88-year-old disabled Korean War veteran who came to us facing eviction from his apartment. Thomas, whose income is below the poverty line, had previously been able to afford rent through a New York City senior citizen rent freeze program funded by landlord tax credits. Unfortunately, the freeze had lapsed when he failed to recertify, likely as a result of his disabilities. Meanwhile, these same age- and health-related challenges prevented him from solving, on his own, the legal problems they had caused. As a result, substantial advocacy—both in and out of housing court—was necessary to stop eviction proceedings and ensure the continued security of his home, including his rent freeze.

Stories like Thomas’ are a stark reminder that older veterans need attorneys on their side to succeed at their continuing struggles. If there is one thing to remember this Veterans Day, it may be that this is no time to lay down our “arms”—our oldest Veterans have not lived down the fight, and neither should we.

 

*Ruth Stein is an attorney with the New York Legal Assistance Group (NYLAG), and staffs the Older Veterans Legal Clinics at the Bronx and Manhattan VA medical centers. She is part of NYLAG’s LegalHeath unit, which partners with medical professionals to address the nonmedical needs of low-income individuals with serious health problems.

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So-Called Gravity Knives: New York Law Balances On A Thin Edge

By Danielle Haley*

In late October, Governor Cuomo vetoed a bill that “Relates to the definition of a gravity knife.” The law aimed to reform New York­’s laws regarding gravity knives by reducing the possibility for discretionary and discriminatory enforcement. The law governing gravity knives was initially passed in 1958 and has not been updated since. This marks the second year that a bill to modify this law has passed both houses of the New York State legislature and been rejected by the Governor.

The 1958 law originally criminalized the possession of a knife “which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” In part because of New York case law, this has been interpreted to refer any knife that opens with “a flick of the wrist”, even if it does not do so easily or consistently, regardless of whether the defendant has actual knowledge that the knife is a so-called gravity knife. This interpretation means that almost any common folding pocket knife can be manipulated into being a “gravity knife” by an officer who is strong and determined enough. In fact, that is the exact situation of United States v. Irizarry, 509 F. Supp. 2d 198, wherein an officer managed to get a knife to open, in court, after three tries, by flicking his wrist. The fact that the defendant claimed not to open the knife that way, and that the knife was not even designed to open that way according to the manufacturer, was irrelevant to the court’s determination that it fell within the purview of the 1958 statute.

The bill that was passed by both houses of the New York State Legislature in this past year worked to get rid of the “flick of the wrist” test. It would have modified the text to say that a gravity knife was one “released from the handle or sheath thereof SOLELY by the force of gravity which, when released, is locked in place by means of a button, spring, lever or other device.” This would have prevented officers from swinging the knife in order to open it, and curtailed the number of common folding knives that could be classified as gravity knives.

Part of the push to modernize and limit this law has been its discriminatory enforcement. The Legal Aid Society and Brooklyn Defenders reported that “tens of thousands” of people are arrested each year on gravity knife charges. Of those arrests, particularly through stop and frisk procedures, 86 percent involved black or Hispanic suspects. Many of them are tradespeople, particularly those who work in construction or maintenance jobs. The knives are handy for any sort of work in which you need constant access to a cutting tool, and are popularly available at places such as Home Depot, Paragon, and Eastern Mountain Sports. Though the knives offered are simply standard folding knives, the “flick of the wrist” test means that almost any folding knife can be turned into a gravity knife by a well-worn hinge and a determined police officer.

According to the data reported by the Legal Aid Society, this makes possessing a “gravity knife” one of the 10 most prosecuted offenses in New York City. New York City is one of the few places that actually prosecutes gravity knife cases, with the Bronx seeing ten times the number of cases as Suffolk County, a county with a relatively equal population. Modifying the gravity knife law would reign in a system of discriminatory enforcement and stop individuals from being punished for carrying a tool used in the rest of New York State without incident. Though this measure was again rejected by the Governor, continued political pressure and common sense regulation will hopefully lead to the initiative being reintroduced, with success coming close behind.

*Danielle Haley is a 2L at Harvard Law School