ACLU Archives - Shopfloor

So Many Bills, So Little Time — Thank Goodness

By | Briefly Legal, Human Resources | One Comment

From The Hill, “Groups allied with the Democrats go for broke“:

The ACLU is lobbying the Senate to pass the Paycheck Fairness Act, which is expected to come up for a cloture vote as soon as Wednesday. The measure, which already passed the House, is designed to close the wage gap between men and women in the workplace. 

Last week, the civil rights group sent a letter to senators saying that the group would be “scoring both the cloture vote and the vote on the merits” when the bill comes up for debate. 

Odd. We had always thought the ACLU was a “civil liberties” organization defending the Bill of Rights, but here they are pushing legislation to redistribute wealth via federal mandates and lawsuits against employers. It’s almost as if they’re a generic left-wing outfit, not a civil rights group at all.

Anyway, The Hill’s story cites the National Association of Manufacturers’ “Key Vote” letter against the Paycheck Fairness Act, S. 3772.

The Wall Street Journal also publishes a good op-ed (subscription) on the legislation by June O’Neill of the American Enterprise Institute, “Washington’s Equal Pay Obsession: There’s no epidemic of gender discrimination. So why is Congress proposing another law?

Women in the workplace don’t face rampant pay discrimination, and yet the Senate may soon pass a bill—already passed in the House—premised on the erroneous charge that they do. The Paycheck Fairness Act (PFA) would be a harmful addition to the many federal laws that already protect women and men from labor-market discrimination.

Sen. Tom Harkin (D-IA) gave a floor speech Monday anticipating Wednesday’s cloture vote on the Paycheck Fairness Act. It’s just the start, he suggests. Next, the Fair Pay Act!

DISCLOSE Act: Hide or Hides?

By | Briefly Legal, First Amendment and Lobbying | One Comment

Funny how both the verb and noun were used by Senate leadership Tuesday to summarize their arguments over S. 3628, the DISCLOSE Act.

Sen. Mitch McConnell (R-KY), the Senate Republican leader, closed his floor comments commenting: “We’re here to protect the Constitution, not our own hides.”

Senate Majority Leader Harry Reid (D-NV) closed his remarks by saying: “The only ones fearful of transparency are those with something to hide. That is what this legislation is all about.”

The AFL-CIO opposed the legislation.

The ACLU issued a statement declaring its opposition, “Bill Raises Serious First Amendment Concerns.”

What do they have to hide?

DISCLOSE Act: Still Chilling Political Speech

By | Briefly Legal, First Amendment and Lobbying | 2 Comments

President Obama is scheduled to make a statement in the White House Rose Garden at 2:20 p.m. today about the DISCLOSE Act, pending legislation in the Senate that supporters call “campaign finance reform” but is really legislation meant to chill political speech during the 2010 campaign.

Sen. Charles Schumer (D-NY) on Thursday introduced a new, slightly modified of the DISCLOSE Act, the legislative response to the U.S. Supreme Court’s decision in Citizens United v. FEC, which affirmed the First Amendment rights of groups — including trade associations and corporations — to spend money to express a political point of view. The new bill, S. 3628, offers marginal improvements, but the underlying attack against political speech remains unacceptable.

The Schumer changes — or change: requiring disclosure when unions transfer funds among affiliaites — allow supporters to pretend sans guffaw that the bill isn’t quite as one-sided for Big Labor as critics claim.

Sean Parnell of the Center for Competitive Politics outlines why the bill remains hostile to business while favoring labor. From “DISCLOSE Act still overwhelmingly favors unions“:

Then as now, the two main provisions of DISCLOSE that severely restrict the First Amendment rights of business corporations while ignoring unions with similar alleged conflicts are the ban on government contractors and on business corporations with even minimal foreign investment making expenditures.

The contractor ban is the most sweeping and far reaching, and would effectively prohibit political speech by most large corporations in the country. The fact is that most companies of any large size in the country probably has some government contract…[snip]

Meanwhile, unions who represent workers at these companies are free to run all the ads they want. While there have been a few feeble attempts to justify this sort of disparity, the fact is that the likelihood of undue influence, corruption, or its appearance is identical at government contractors as it is with the unions at government contractors.

The conventional wisdom is that Senate Majority Leader Reid is bringing the DISCLOSE Act to a vote this week as political calculation, knowing that he lacks the votes to break a filibuster but still believing the measure will be popular with voters. But the polling we’ve seen on the issue has been tendentious, designed to produce the desired results and sound-bites about “foreign oil companies drowning out the public.” Supporters of the bill are the usual suspects: either partisans or goo-goo activists who are offended by robust speech.

Opponents, on the other hand, span the political spectrum, from the American Civil Liberties Union — which urged a Senate no vote today — and the National Right to Life Committee, which sent Senators a letter expressing strong opposition last week. What unites these groups is a belief in the rights of citizens to express their political views.

We await the President’s remarks this afternoon, hoping that he, too, believes in that right.

The DISCLOSE Act, Statements, Commentary

By | First Amendment and Lobbying, General, Regulations | One Comment

The National Rifle Association issued a statement defending its deal with the House leadership on H.R. 5175, the DISCLOSE Act, which exempted the group from some of the more onerous disclosure requirements. From “The National Rifle Association On H.R. 5175, The Disclose Act“:

Through the courts and in Congress, the NRA has consistently and strongly opposed any effort to restrict the rights of our four million members to speak and have their voices heard on behalf of gun owners nationwide.  H.R. 5175 would put a gag order on the NRA during elections and threaten our members’ freedom of association, by forcing us to turn our donor lists over to the federal government.  We would also be forced to list our top donors on all election-related television, radio and Internet ads and mailings—even mailings to our own members.  We refuse to let this Congress impose those unconstitutional restrictions on our Association.

The American Civil Liberties Union opposes H.R. 5175. From its letter to the House:

The election of public officials is an essential aspect of a free society, and campaigns for public office raise a wide range of sometimes competing civil liberties concerns. Any regulation of the electoral and campaign process must be fair and evenhanded, understandable, and not unduly burdensome. It must assure integrity and inclusivity, encourage participation, and protect privacy and rights of association while allowing for robust, full and free discussion and debate by and about the candidates and issues of the day. Measures intended to root out corruption should not interfere with freedom of expression by those wishing to make their voices heard, and disclosure requirements should not have a chilling effect on the exercise of rights of expression and association, especially in the case of controversial politicalgroups. Small donations to campaigns – and contributions of any size to political communications that are wholly independent of any candidate for office – have not been shown to contribute to official corruption. Accordingly, disclosure of such donations serves no legitimate public purpose.

Unfortunately, the DISCLOSE Act would wipe away such donor anonymity –most notably, that of small donors to smaller and more controversial organizations, even when those donors have nothing to do with that organization’s political speech. It would also restrict speech rights in an arbitrary manner, favoring one type of organization over another. While this bill may have been intended to shine a light on the core funders of political advertising, it goes far beyond that goal. The DISCLOSE Act blurs the line between issue and campaign advocacy and puts at risk of exposure the heretofore confidential donor records of millions of Americans and thousands of legitimate nonprofit advocacy organizations.

The self-styled “watchdog” group and supporters of speech regulation, Citizens for Responsiblity and Ethics in Washington, issued a statement supporting the legislation even with the NRA’s exemption. Excerpt: Read More

FISA Update: Finally, Judge Grants Telecom Immunity

By | Briefly Legal, Communications | No Comments

San Francisco Chronicle, “Telecom immunity upheld as judge tosses suits“:

A federal judge on Wednesday upheld an immunity law for telecommunications companies and dismissed dozens of lawsuits by customers who accused AT&T and other carriers of collaborating in illegal government wiretapping.

The law, pushed through Congress last year by President George W. Bush, validly authorized the attorney general to protect phone companies from liability without having to publicly disclose whether a company had actually allowed the government to eavesdrop on its customers, said Chief U.S. District Judge Vaughn Walker of San Francisco.

Hours later, however, Walker rejected the Obama administration’s attempt to sidetrack another suit challenging the legality of Bush’s electronic surveillance program and scheduled a hearing for Sept. 1.

The law, the FISA Amendments Act, passed through Congress last year with strong bipartisan support after thorough debate. Critics of the Administration’s foreign policy had targeted the telecommunications companies in the courts as a tactic in their attack against U.S. surveillance practices. The law granted civil immunity to the telecoms if they demonstrated they were following an official government request to assist in the surveillance.*

In passing the law that led to Judge Walker’s ruling, Congress affirmed the important principle that private companies should not be punished for acting in good faith when following legitimate government requests for assistance in defending the nation from terrorist attacks. Good corporate citizenship must not be an invitation for activists and trial lawyers to sue private parties as proxies in foreign policy and national security disputes.

UPDATE (noon): Judge Walker’s ruling is available here, posted by the Electronic Frontier Foundation. Of course, the predictable reaction, “EFF and ACLU Planning to Appeal Dismissal of Dozens of Spying Cases

*The EFF and ACLU speak in terms of surveillance of U.S. citizens, but in fact the targeted surveillance was overseas communications and communications among non-U.S. citizens.

Defending the First Amendment

By | Briefly Legal | One Comment

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, and the American League of Lobbyists have sent the White House counsel, Gregory Craig, a letter asking President Obama to rescind Section 3 of the President’s March 20th directive, “Ensuring Responsible Spending of Recovery Act Funds.”

This is the provision that prohibits registered lobbyists from speaking to Executive Branch officials on any specific project that might be funded by the American Recovery and Reinvestment Act, i.e., the stimulus bill. (See earlier post.)

The provision is an affront to First Amendment — you can’t speak to public officials? — but as if being unconstitutional weren’t enough, the restriction also will also produce bad government. From the letter:

First, banning lobbyists from in-person and telephonic communications will not advance the stated purpose of ensuring public transparency and accountability and avoiding improper influence or pressure in the decision-making process. For example, non-lobbyists employed by potential recipients of Recovery Act funds, who are permitted oral contact with executive branch officials, may well have contributed significant funds to the presidential campaign and/or to the campaigns of members of Congress who sit on the committees with oversight jurisdiction over the Department of Treasury, the Federal Reserve and the expenditure of Recovery Act funds.

They may hold positions of enormous power in the business world and have influence in Washington far beyond that of the average registered lobbyist. In addition, many of these nonlobbyists may have a substantial pecuniary interest in whether or not the government awards Recovery Act funds for a particular project, application or applicant. Also, nothing in this memorandum prevents a member of Congress from attempting to influence a funding decision, such as recently occurred with OneUnited Bank. Banning lobbyists from engaging in oral communications, but not bank vice presidents, corporate directors, and others who might seek to influence decision makers is unlikely to result in any real public benefit. Limiting the applicability of Section 3 to registered lobbyists wholly misses the risks inherent in communications with such individuals, while significantly restricting the free speech rights of others who may have no such pecuniary conflict.


A Vote Next Week on Government Wage Setting

By | Briefly Legal, Human Resources, Labor Unions | No Comments

More updates on yesterday’s 26-17 vote by the House Education and Labor Committee to report out H.R. 1338, the Fair Pay Act, which seeks to mandate equal pay based on gender. If employers fail to meet the law’s standards, lawyers are standing by to sue, encouraged by the bill’s lifting of all caps on damages. Expect the bill on the House floor toward the middle of next week.

News release from Chairman George Miller (D-CA), “House Labor Committee Passes Bill to Help Close Gender Wage Gap“: “This is a historic day in the fight for equal rights for women. If we are serious about closing the gender pay gap, we must get serious about punishing those who would otherwise scoff at the weak sanctions under current law,” said Rep. George Miller (D-CA), chairman of the committee. “Any wage gap based on gender is unacceptable, especially during these tough economic times. By allowing wage discrimination to continue, we hold down women and their families while harming the American economy as a whole.”

News release from Rep. Buck McKeon (R-CA), Ranking Member,Democrats Favor Trial Lawyers Over Working Families“: “This bill isn’t about paycheck fairness.  It’s already against federal law to discriminate, in pay or other employment practices, on the basis of sex.  And rightfully so,” said Rep. Howard P. “Buck” McKeon (R-CA), the senior Republican on the committee.  “This bill is about making it easier for trial lawyers to cash in under the Equal Pay Act, and making it more difficult for employers to make legitimate employment decisions based on factors other than sex.”

Update from the Washington Labor & Employment Wire from Akin Gump,Paycheck Fairness Act (H.R. 1338) Passes Out of House Committee.

News release from the ACLU, “ACLU Supports the Paycheck Fairness Act“: “There should be no doubt that improvements to the Equal Pay Act are necessary,” said ACLU Washington Legislative Office Director Caroline Fredrickson. “More than four decades after the enactment of the Equal Pay Act, women still make only 77 cents for every dollar made by their male counterparts, a wage disparity that cannot be explained by differences in qualifications, education, skills, training, responsibility or life choices. Rather, in many cases, the pay disparity has resulted from unlawful sex discrimination.”

Good thing for the ACLU that inflammatory falsehoods are constitutionally protected. All of the above assertions are demonstrably incorrect. We point you to the diligently documented testimony of the Hudson Institute’s Diana Furchtgott-Roth, an economist, as well as to her op-ed from the New York Sun, “Who’s the Better Feminist?

Finally, from Secretary of Labor Chao’s letter to the committee: “H.R. 1338 would unjustifiably amend the Equal Pay Act (EPA) to allow for, among other things, unlimited compensatory and punitive damages, even when a disparity in pay was unintentional. It would also require the Department to replace its successful approach to detecting pay discrimination with a failed methodology that was abandoned because it had a 93 percent false positive rate. For these reasons and those outlined blow, if H.R 1338 were presented to the President, I would recommend that he veto the bill.”



FISA Update: Litigation, Of Course

By | General | No Comments

Upon President Bush’s signing of H.R. 6304, the ACLU immediately filed suit in U.S. District Court for the Southern District of New York, seeking a court order to declare the law unconstitutional and stop it cold. The ACLU’s news release is here. The actual complaint in Amnesty v. McDonnell is available here.

We don’t intend to follow this aspect of the FISA debate because it’s the aggrieved versus government and the issue of civil immunity for the private sector is not raised. (As this New York Sun story notes.) Perhaps that side of the litigation will be handled by the Electronic Frontier Foundation, which for now is just protesting the new law in order to raise money.

Although, the congeries joining the ACLU in its suit is interesting and colorful.

The SEIU, eh? They’re just so busy with everything these days.

FISA Update: Reaction and Litigation

By | Briefly Legal, Communications | No Comments

Reaction and excerpts from statements and news releases on the Senate passage Wednesday of H.R. 6304, the FISA Amendments Act.

  • President Bush’s statement, “President Bush Pleased by Passage of FISA Reform Legislation“: “This bill will help our intelligence professionals learn who the terrorists are talking to, what they’re saying, and what they’re planning. It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government. It will uphold our most solemn obligation as officials of the federal government to protect the American people.”


  • Sen. Jay Rockefeller news release, “Rockefeller Calls Final Pasage of New FISA Law Critical for National Security“: “Far too often, national security issues have been sidelined or delayed because of accusations and attempts to score political points. That’s what makes today so remarkable. Both sides have come together for the sake of national security and passed a bill that will modernize the nation’s surveillance laws so that they are effective and relevant in the 21st Century.


  • Sen. Kit Bond news release, “Bond hails Senate passage of surveillance bill“:  Bond praised his colleagues for rejecting the misinformation spread by left-wing fringe groups like Moveon.org and instead putting our intelligence community back in the business of listening in on foreign terrorist in foreign countries.  Before the final vote, the Senate again rejected attempts to kill the terrorist tracking program by stripping civil liability protection for telecommunications providers.  Bond stressed that it is only right to give these patriotic companies who assisted the government in the aftermath of the 9-11 attacks protection from frivolous law suits.  Also, civil liability protection is critical to the future cooperation of our private partners, without whom the terrorist surveillance program could not operate.


  • ACLU news release, “Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies“: “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.” 


  • Electronic Frontier Foundation news release, “Senate Joins House in Caving to White House Immunity Demands…Telecoms Let Off the Hook for Illegal Spying – For Now”: “”We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president’s illegal surveillance is not over,” said EFF Senior Staff Attorney Kurt Opsahl. “Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”


A FISA Compromise Nears

By | Briefly Legal, Communications | No Comments

According to published reports, Congress could vote sometime this week on a measure to update federal surveillance authority to intercept foreign communications that may have a U.S. nexus. CQ Politics reported talks among top legislative aides last Friday, and the discusssions continued today. Roll Call reports (subscription only) that the goal is to bring a “compromise package to the Senate floor as early as Wednesday and then to the House floor on Thursday.”

A key compromise being discussed would allow a federal district court to determine the legality of the telecommunications companies agreeing to assist law-enforcement officials with interceptions of suspected terrorist communications after the 9/11 terrorist attacks. The telecoms were presented with what they were told were lawfully drawn orders, but now the companies are being sued by a coalition of privacy absolutists, anti-Administration activists and trial lawyers.

The Senate bill, which passed with a bipartisan 68-29, provided retroactive legal immunity to the telecoms, but the measure was blocked by House leadership. Based on the limited press accounts, there’s no way of telling whether the new compromise gives law enforcement and intelligence the ability to effectively monitor threats while respecting the constitutional rights of U.S. citizens. Our primary concern remains efforts by the trial bar and its allies to punish the private sector for being good corporate citizens. If a compromise respects the role and intentions of the telecoms, then fine. For now, we’re counting on the good will of the negotiators or at least the salubrious effects of competing political pressures.

The ACLU, not knowing what’s in the deal, is still appalled. But then, that’s their default switch. The angry left is angry, but then…Oh, and this left-wing outfit is attacking Majority Leader Hoyer for selling out for campaign contributions. Hard to see how that helps their case.