Today Congress is listening to 4 million silenced Americans. Leaders of the House Judiciary Committee are holding a hearing on the Democracy Restoration Act, legislation that seeks to restore the right to vote to people with a criminal records who are out of prison, living in the community. This bill would eliminate the last blanket barrier to the franchise, and reverse decade of discrimination create by laws firmly rooted in our country’s Jim Crow history.
Today 5.3 million American citizens are denied the right to vote because of a criminal conviction in their past. Four million are people who are out of prison, living in the community. States vary on whether, when and how they restore voting rights to people with criminal conviction, but all told 35 states continue to disenfranchise people who are out of prison, often for decades and sometimes for life.
Criminal disenfranchisement laws trace directly back to Jim Crow and were part of a concerted effort to maintain white control over access to the polls. Enacted alongside poll taxes and literacy tests, criminal disenfranchisement laws were part of a larger backlash against the adoption of the Reconstruction Amendments. At the same time states enacted these disenfranchisement provisions, they began to expand the criminal codes to punish offense they believed freed slaves were most likely to commit. The result: suppressed African-American political power for decades. Today, 13% of African-American men in our country have lost the right to vote.
Thanks to five members of the Supreme Court in the Citizens United case, CEOs are free to spend shareholders’ money on politics. Will Congress protect investors? We don’t know, yet.
In a Thursday Congressional hearing, corporate law experts debated how best to improve corporate governance. Most of the experts agreed: Current laws don’t protect shareholders.
Professor John Coffee of Columbia Law School and Nell Minow of the Corporate Library eloquently told Congress that we can make corporate political spending more transparent and more accountable by changing U.S. securities laws.
Shareholder consent should be part of the post-Citizens United reform package. There are numerous ways to structure shareholder consent rules: Sen. Sherrod Brown (D-Ohio) introduced S. 3004, the Citizens Right to Know Act, which requires shareholder consent to corporate electioneering communications. And Rep. Mike Capuano (D-Mass.) introduced H.R. 4537, the Shareholder Protection Act, which requires shareholder consent for a range of corporate political contributions and expenditures.
Or, Congress can look to the United Kingdom to get a sense of shareholder consent rules in action; British law has required shareholder consent for corporate political spending since the British Companies Act was amended in 2000. Now British law allows corporate managers to spend corporate funds on politics — but with prior shareholder approval. This comes in the form of a resolution proposed by management and voted by shareholders usually during the company’s normal proxy season. The Internet is full of such shareholder resolutions, many of which appear as attachments to annual general meeting announcements.
Lawmakers have opened another front in their war on Obama’s war on terrorism—this time implying that political appointees in the Justice Department have their loyalties in the wrong place. In recent weeks, Sen. Charles Grassley (R-IA) asked the Attorney General to list appointees who advocated for Guantanamo detainees prior to joining the Department. When Attorney General Holder declined, GOP representative Peter King (R-NY) voiced confusion: why wouldn’t Holder reveal the names of appointees who had “represented terrorists”?
Attorneys who represent unpopular clients play a key role in our justice system; in so doing they uphold the highest constitutional values and traditions of our country. We rely on same values and traditions, in fact, to separate the guilty from the innocent and to convict only those deserving of punishment. Our legal system—and the protections it affords—is not just for those who are parties to criminal proceedings. It’s also for the rest of us. This legal system—and the rules on which it is predicated—works to ensure that no matter how heinous the crime, our method of bringing the guilty to justice does not replicate their barbarity. Regardless of how high passions run, we do not abandon the elements of our legal system—including the right to a lawyer—that guarantee the most accurate results. Abiding by the rules of this system is how we lash ourselves to the mast, and ensure that, even in the most tumultuous times, we do not allow ourselves to adopt tactics inconsistent with our values and likely to lead to inaccurate results.
Implications that those who represent the men held at Guantanamo, who insist that they deserve zealous representation and fair trials, are somehow aiding the enemy are not merely attacks on those attorneys. They are attacks on this very system and its insistence that we do not allow our prejudices or our fears to drive us to lawlessness.
The constitutional entitlement to an attorney—and attorneys’ professional ethical obligations to provide zealous representation of every client, no matter what acts they might be accused of having committed—is part of this system. It’s not surprising that attorneys who represented Guantánamo detainees qualified for Justice Department positions. A lawyer’s decision to represent a detainee no more disqualifies her from handling detainee issues than a lawyer’s prior experience as corporate counsel disqualifies her from work with the Justice Department’s Antitrust Division.
Didn’t we abandon years ago the inane notion that there is something seditious about attorneys who advocate on behalf of terror detainees?
In 2007, a Defense Department official called for corporations to boycott law firms who represented “terrorists” at Guantanamo; he was roundly criticized. And not just by the attorneys at issue, but by the editorial boards of major U.S. newspapers—the Washington Post, LA Times, and New York Times, to name a few—and by the deans of several prominent U.S. law schools. The Department of Defense itself explicitly repudiated the official’s remarks.
Everyone shares an interest in making our nation more secure. But sacrificing the essential elements of our justice system is no way to pursue the goal of security. Especially when that sacrifice is motivated by unfounded fear.
Make no mistake about it: claims that the Administration has “brought al Qaeda lawyers inside the Department of Justice” incite baseless fear; this in turn, lowers public tolerance for the constraints imposed by rule of law. But in throwing off those constraints, we throw away, too, the very rules designed to incapacitate dangerous individuals.
These allegations, however, lack even the veneer of credibility. Is it remotely plausible to consider Deputy Solicitor General Neal Katyal an “al Qaeda lawyer” because he worked on a behalf of a Guantánamo detainee in a Supreme Court case, Hamdan v. Rumsfeld, in which the majority of the Justices agreed with him? Does the majority opinion in this case raise suspicions about the Supreme Court majority in Hamdan as well?
As a nation, we face unique challenges, including terrorist threats. We must meet these with the same convictions and in the same spirit with which we face all other threats: with a strong sense of who we are as a country and a firm grasp on the values that make that country worth defending. Doing so can only serve to strengthen our justice system, thereby increasing both our safety and our freedom.
Andrew Stengel, Senior Adviser for Government Reform for the Senate Democrats and loyal reader of our blog, contacted us today to give us a different interpretation of Senate Rule VII § 3(e) than we provided in a blog post last week in connection with the Farmworkers Rights Bill.
The full rule is below:
No motion for committee consideration shall be in order after the first Monday in May. The sponsor of any bill may file, through the Journal clerk, a motion for committee consideration forty-five days after the bill has been referred to such committee. Once a motion for committee consideration is filed, the chair of the committee shall place the bill on a committee agenda and schedule a vote within forty-five days. In the case of a bill that is referred to a standing committee having secondary reference, the bill shall be considered within the next two committee meetings [emphasis added].
We interpreted the last clause of this rule to mean that in the case of bills referred to a committee of secondary reference, as the farmworkers bill was, the committee must consider the bill within two meetings once a motion for committee consideration has been filed.
Andrew tells us that the Senate has a different interpretation. He says that this clause only applies to bills that passed out of the committee of first reference with a motion for committee consideration - so the sponsor does not have to wait to file a second motion for committee consideration or wait 45 days for that motion to be honored once it hits the second committee. If the motion for committee consideration is filed for the first time once a bill is in a committee of secondary reference, the chair still has 45 days to consider the bill. Going forward, this reading will be extremely be useful to those attempting to understand how the rules work and how best to decrease the likelihood that leadership can use committee referral to kill a bill.
This seems to be good news in the sense that leadership should have less power to silently kill a bill by referring it to a new committee and having the clock for a vote start all over again, but it's less clear how helpful it will be for proponents of the bill currently in question. Because the motion for committee consideration on the farmworkers bill wasn't filed until the bill was already in the committee of secondary reference, it may have to wait a full 45 days for consideration, rather than two meetings as we and the bill's supporters originally thought.
The main lesson for sponsors of bills (and their supporters) seems to be that if you want to get your bill to the floor quickly, make sure you file a motion for committee consideration as soon as possible.
A new report by the Kentucky Commission on Human Rights finds that nearly one-in-four African Americans has lost the right to vote in Kentucky. The report makes clear that this shockingly high rate of disenfranchisement results from a racially biased criminal justice system and Kentucky’s archaic criminal disenfranchisement law.
Kentucky is one of the last two states [see pdf map] in the country (Virginia is the other) that denies the right to vote for life to anyone with a felony conviction, unless the current Governor restores the right through his clemency powers.
The Commission on Human Rights report covers a variety of subjects impacting African Americans in Kentucky, including graduation rates, employment by public agencies, socioeconomic status, unemployment rates, hate crimes, and interactions with the criminal justice system. Although the report acknowledges the progress that Kentucky has made in improving the status of African Americans as compared to a half century ago, it reveals that there is still a long way to go to eradicate racial bias.
Perhaps most troubling, the report reveals a racial bias deeply embedded in Kentucky’s criminal justice system. African Americans are three times more likely than whites to be arrested in Kentucky. Though African Americans make up just 7.7% of Kentucky’s population, they are nearly one-third of people who are incarcerated. The incarceration rate for African Americans in Kentucky is about five times that of whites. No matter how one views the numbers, Kentucky’s criminal justice system clearly has a disparate impact on African Americans.
The entrenched racial bias in Kentucky’s criminal justice system results in the mass disenfranchisement of African Americans. In 2004, Kentucky denied the right to vote for life to almost fifty thousand of its approximately two hundred thousand African American residents. Today, the disenfranchisement rate remains practically unchanged.
Because the current disenfranchisement law vests so much power in the Governor, the rate of disenfranchisement can vary widely depending on who is in office. A 2006 study by the League of Women Voters showed that the Governor approved rights restoration applications at half the rate of the one who preceded him. The number of applications for restoration nosedived primarily because the then Governor created several additional administrative hurdles for the restoration process, including requiring three character witnesses and an essay.
When Governor Beshear came into office, he took a positive first step by removing these burdensome requirements from the process. This is commendable, but only a first step. Kentucky’s General Assembly now has the opportunity to propose a constitutional amendment that would end the state's archaic and discriminatory scheme. However, the Senate version of the bill is sitting in Committee, where it has been for over a month. The Kentucky Senate should pass this bill and put the question on the ballot. Give Kentuckians who are eligible to vote the power and the opportunity to restore the vote to their fellow Kentuckians.
As the Kentucky Commission on Human Rights notes, there has been some progress in improving the status of African Americans in Kentucky. But the progress cannot hide that one-in-four African Americans in Kentucky cannot vote. It is time for Kentucky to modernize and simplify its voting rights restoration law.
Just a quick update on the farmworker’s rights bill battle that we blogged about last week:
On Monday, the bill’s sponsor, Senator Onorato, filed a motion for committee consideration, a new procedure that was enacted as a part of the Senate’s post-coup rules reform.
Now, according to Senate Rule VII § 3(e), the bill must receive consideration within the next two committee meetings. The Agriculture Committee’s normal meeting time is 9:30 on Tuesday mornings, but the committee does not appear to have posted a meeting agenda for today on the Senate’s website, so it seems unlikely that the two-meeting timeline will directly translate to two weeks.
It is a contest nobody wants to win, which you watch with your hand over your eyes. We’ve discussed, again and again and again, the singular dysfunction of New York’s legislature. But California, with a $20 billion deficit contributing to the worst credit rating in the country (now as creditworthy as Libya), and a recent mess in which they either confirmed or did not confirm a lieutenant governor, is fighting for the #1 spot.
The principal difference between the two states? As the New York Times reports today, on the western horizon there is a structural change that may offer some promise for the future.
The change has to do with redistricting. The 2010 census will tell us that different parts of the country have grown at different rates over the last ten years; after the census numbers are in, to ensure equal representation, states and counties and cities will go about redrawing the lines of their districts so that the population is roughly equal. In most of[pdf] the country[pdf], state legislators have assigned themselves the task of drawing the lines for state legislative districts.
That presents an odd conflict of interest, with politicians choosing their voters rather than the other way around. It has many effects, including the ability for incumbents to draw lines that cut promising challengers out of the district. Among the more notorious examples: here is Bobby Rush’s congressional district in 2000. You’ll find the residence of then-state-Senator Barack Obama in the northeast; Obama ran against Rush that year, and won more than 30% of the vote in the congressional primary. Here is the district in 2002, after redistricting. Obama's residence is still in the northeast – but if you zoom in, you’ll find that it has been surgically sliced out of the district, by a block or two on each side. In fact, all of Rush’s challengers in 2000 found themselves outside of the new district. It is hard to find an explanation for that that reflects any straight-faced conception of the public good.
In 2008, California voters narrowly passed Prop 11, a ballot initiative taking the power to draw districts for the state legislature out of the incumbents’ hands and giving it to a citizens’ commission (A description of the commission here). There are some very substantial limitations [pdf] on which citizens are eligible [pdf] for the commission, which have earned both praise and scorn; the heartening news, though, is that almost 26,000 apparently eligible Californians have applied for what will ultimately be 14 commissioner spots.
Though I have been telecommuting to the Brennan Center from California for a few years, and study redistricting for a living, I’m not one of the 26,000 applicants: I am too recent a resident to help draw the district lines that will drive state politics for the next ten years. I did, however, have the opportunity to participate in training [pdf] the panel of state auditors [pdf] tasked with picking the 60 most qualified would-be redistricters in the state. The panel has their work cut out for them, to be sure (see the powerpoint, below--it's an overview of what factors the panel should consider). But if an open and conscientious commission reflecting the diversity of the state can be assembled — and both proponents and opponents of Prop 11 are now working together in the hopes that it can — there will be a chance to shape legislative districts based on principles other than the electoral fortunes of those currently in office.
The change to the redistricting system won’t solve California’s legislative woes on its own. But it might help keep California out of the top dysfunctional spot, in a contest I’m happy to lose.
The long-anticipated Farmworkers Rights Bill appears to be waylaid after Senator Darrel Aubertine requested that the bill receive secondary reference to the Agriculture Committee, which he chairs. While the committee held a hearing on the bill on Monday, the bill did not appear on the committee’s agenda this week, and advocates fear that Aubertine is deliberately stalling on the bill.
The good news for the bill’s proponents, however, is that the new Senate rules allow them some options. Forty-five days after a bill has been referred to a committee (by my count, today is day 41) the sponsor may file a “motion for committee consideration” that compels a vote on the bill within two committee meetings (this short timeline is required under the rules for bills on second referral; if Agriculture were the committee of first referral, the chair would have 45 days to comply with the request).
If a committee fails to act on a bill within 45 days, the sponsor is also able to file a petition requesting that a bill be moved directly to the third reading calendar, circumventing a committee vote altogether. This motion, called a “petition for consideration,” will be honored if three fifths of the chamber’s members sign on.
As we’ve written before, the Senate’s improved rules mean nothing unless members take advantage of them. We don’t take a position on the farmworkers rights bill, but we do encourage frustrated advocates on all sides of the political spectrum to take advantage of these hard-fought new rules and hold Senate leadership accountable for their promises of reform.
Kentucky is one of the last two states [
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