Supreme Court Roundup Part One: McCutcheon v. FEC

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Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
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Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

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Attorney General Candidates Raise Profile of Low-Key Race in Eckstein Hall Debate

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Near the end of an hour-long debate Sunday between the two candidates for Wisconsin attorney general, moderator Mike Gousha asked if either wanted to bring up something that hasn’t gotten enough attention during the campaign.

Democrat Susan Happ, the district attorney of Jefferson County, answered first and talked about consumer protection.
Republican Brad Schimel, district attorney of Waukesha County, answered that the entire race hadn’t gotten enough attention. It’s an important race, he said, and there should be more awareness of it.

Indeed, the race has not sparked widespread public attention. A Marquette Law School Poll released on Oct 1 found that about four out of five of those polled did not have an opinion of either Schimel or Happ. Overall, the race was close, according to the poll, but people expressed an opinion on who they would vote for only in response to a question that identified each candidate by party.

With a little over three weeks to go until the Nov. 4 election, the debate Sunday, in the Appellate Courtroom of Eckstein Hall, may have helped give awareness of the race a boost. The debate, co-sponsored by Marquette Law School and WISN-TV, was broadcast live across Wisconsin. The candidates are scheduled to take part in two more debates. Read more »

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Reflections on Judicial Contract Interpretation and the Boden Lecture

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Category: Business Regulation, Judges & Judicial Process, Public, Speakers at Marquette
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agreement-signingThis week in my Contracts class we are discussing how to interpret a contract — that is, how to give contractual language meaning. This discussion inevitably focuses on how courts interpret contracts, because Contracts casebooks primarily examine principles of contract through case law. Cases do, in fact, provide a useful lens through which to study contract interpretation, for they allow an examination of courts’ goals and tools in approaching conflicting arguments about how to interpret an ambiguous term. Yet we also considered judicial interpretation of contracts from a policy perspective.

Specifically, in light of Professor Robert Scott’s Boden lecture “Contracts Design and the Goldilocks Problem,” I asked my Contracts students to reflect on the wisdom of judicial determination of the meaning of ambiguous contractual language. Read more »

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New Marquette Lawyer Magazine Looks At Evolution of Important Issues

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fall-2014-coverHow did we get where we are today? Consider that a central question underlying many of the stories in the Fall 2014 Marquette Lawyer magazine, being mailed this week and now available online.

As Wisconsin’s heated election for governor heads to a conclusion Nov. 4, the cover story of the new magazine provides both rich detail and thoughtful perspective on how Wisconsin, especially the Milwaukee area, became so politically polarized. Craig Gilbert, the Washington Bureau chief of the Milwaukee Journal Sentinel, spent much of the 2013-14 academic as Marquette Law School’s Sheldon B. Lubar Fellow for Public Policy Research. Gilbert worked closely with Charles Franklin, the Law School’s Professor of Law and Public Policy and director of the Marquette Law School Poll, in developing insightful data that show the changes. Gilbert calls southeastern Wisconsin “the most polarized part of a polarized state in a polarized nation.” Six experts provide perspective on what Gilbert’s findings mean in essays that accompany the piece. You may read it all by clicking here. Read more »

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Packers CEO Wants to Enhance “Fan Experience” at Lambeau

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Category: Public, Speakers at Marquette, Sports & Law
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The Green Bay Packers have sold out every home game since the Fourteenth Century, right? Nothing to worry about when it comes to attracting fans and providing them a good experience, right?
Not right if you’re Mark Murphy. In an “On the Issues with Mike Gousha” program at Eckstein Hall on Tuesday, the president and CEO of the Packers described in detail the team’s efforts to improve the “fan experience” and to make Lambeau Field a year-round destination for events and experiences that extend well beyond game days.

Murphy told a capacity audience in the Appellate Courtroom that, as much as Lambeau is revered as a football shrine, until the large-scale renovation of the stadium in 2003, it was used for 10 games or so each year and not for much else. He called the decision to add a large atrium which includes the Packer Pro Shop and areas for eating and drinking “a brilliant decision” that opened the way to making Lambeau a year-round facility. “It completely changed the organization and particularly Lambeau Field,” Murphy said.

Murphy joined the team in 2008 and is overseeing several hundred million dollars in continuing expansion and improvements to Lambeau, including the addition of 7,000 seats, a new sound system, two HD video boards, and a large gate at the north end of the stadium. Read more »

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Snowden Attorney Praises Whistle Blowers and Journalists Who Unveil Secrets

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Imagine what we would know and what we would not know without whistle blowers and journalists who have spread knowledge of actions by those within the federal government who wanted to keep secret improper and illegal things they were doing.

Ben Wizner suggested doing that Monday during an “On the Issues with Mike Gousha” session at Eckstein Hall. His partial list of things that might not have come to light included CIA secret prisons around the world, warrantless surveillance of American citizens, and the abuse of prisoners by American military personnel in the Abu Ghraib prison in Iraq.

And then there’s Edward Snowden, the National Security Administration contractor who released a large volume of records about secret surveillance of huge numbers of people, both in the United States and around the world. Wizner, director of the American Civil Liberties Union Speech, Privacy & Technology Project, is one of the main attorneys on Snowden’s defense team. Snowden has been living in asylum in Russia. Read more »

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Robb Rauh: In Pursuit of Life, Liberty, Happiness, and Educational Success

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Category: Education & Law, Milwaukee Public Schools, Public, Speakers at Marquette
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Life, liberty and the pursuit of happiness – what’s more at the core of America’s identity than those words? But what do they mean if you’re living in the central city of Milwaukee?

Robb Rauh, the CEO of Milwaukee College Prep, a set of four high-performing schools with about 1,900 students on the north side, focused on those questions as he set the context for the mission of the schools during an “On the Issues with Mike Gousha” session Tuesday in Eckstein Hall.

Life? Infant mortality rates are much higher in Milwaukee than in the nation and even in some third-world countries, Rauh said, and life expectancy is lower than elsewhere. Liberty? Wisconsin has the highest incarceration gaps between white and black people in the nation. The pursuit of happiness? “One of the things that defines happiness is being able to have choices in life,” Rauh said, and without at least a high school degree, a person’s choices are limited. The overall situation of African American children in Wisconsin has been described as the worst or one of the worst in the United States.

“We want to prove that it can be done,” to bring terms like life, liberty, and the pursuit of happiness to life by increasing the educational success and opening the doors to better futures for children, particularly along the North Avenue corridor where all four Milwaukee College Prep schools are located, Rauh said. Among schools in Milwaukee with high percentages of African American students, all four schools are at or near the top of the list when it comes to scores in the newly-released state report cards. Read more »

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The Howard Fuller You Probably Don’t Know: An Advocate’s Remarkable Life

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Category: Civil Rights, Education & Law, Milwaukee, Milwaukee Public Schools, Public, Speakers at Marquette
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Fifty-five minutes into Thursday’s one-hour “On the Issues with Mike Gousha” program, prominent education advocate Howard Fuller finally began talking about the last 20 years of his life. Because the conversation was dragging on? Definitely not. It was because Fuller has led such a remarkable life, with so many chapters (and so many stories to tell) that talking about earlier years was appealing and confining even a well-paced interview to an hour was hard.

Many people in Milwaukee associate Fuller with his nationally significant role as an advocate for private school vouchers and charter schools in the last couple decades. But the full story of his life offers not only a remarkable personal narrative, but provocative perspective on the development of political thinking and advocacy among African Americans in the United States since the 1950s.

Fuller, 73, provided a healthy dose of that narrative and perspective in the session with Gousha, Marquette Law School’s Distinguished Fellow in Law and Public Policy, before a capacity audience in the Appellate Courtroom of Eckstein Hall. In much more detail, it is what he provides in his autobiography, No Struggle, No Progress: A Warrior’s Life from Black Power to Education Reform, published this month by Marquette University Press. Read more »

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“I Want to Make Sure I Don’t Educate Monsters”

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During an “On the Issues with Mike Gousha” discussion at Eckstein Hall on Sept. 11, Michael Berenbaum, a prominent scholar of the Nazi Holocaust, described the Wannsee Conference held near Berlin on Jan. 20, 1942, when 15 leaders from branches of the German government met to develop ways to cooperate effectively in killing Jews by the hundreds of thousands. The leaders did not set the policy of killing Jews, he said, but they greatly increased the pace and efficiency of the genocide. At the time of Wannsee, four out of five of the six million Jews murdered during the Holocaust were still alive, Berenbaum said. Fifteen months later, four of five were dead.

What Berernbaum noted about the conference was that all 15 participants had university degrees. Eight had doctorates. Seven were lawyers.

A responsibility of all teachers, he said, is “to make sure that we do not create educated monsters who have all the skills and the abilities of modern men and women, all the genius of modern technology, all the capacity for creative thought, and no moral core.”

“I want to make sure that I don’t educate monsters,” Berenbaum said in summarizing his goal as an educator. Read more »

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Lovell Wants to Build on “Penned Up Energy” of Marquette Community

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One thing Michael Lovell has learned about Marquette University since starting as president on July 1 is that there are many people on campus who have great pride in the institution and who want to make it better.

“There’s a lot of penned up energy,” Lovell said during an “On the Issues with Mike Gousha” session at Eckstein Hall on Tuesday. “People have some great ideas and they’re just waiting to go . . . For some reason or other, they just didn’t feel empowered to take those great ideas and just make them happen.”

That will be one of his main goals, Lovell said: Providing the resources and guidance for fresh ways to improve Marquette in all its aspects.

But Lovell held off on giving many specifics on what his agenda will be. For one thing, he said he is planning to unveil some plans during the events marking his inauguration next week. He reiterated previous statements that filling “a lot of open senior positions,” as he put it, is his first priority. “It is so important to get the right thought leaders in place.” Read more »

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Forward Looking: New Marquette Lawyer Magazine Looks at Present and Future of Key Issues

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Marquette Lawyer - Summer 2014Past, present, future—the Summer 2014 Marquette Lawyer focuses its attention on important and interesting facets of all three. But let us draw your attention to it foremost for its thoughts on the future, including:

The future of campaign spending. In the cover story, Heather K. Gerken, the J. Skelly Wright Professor at Yale Law School, examines the impact of the Citizens United decision of 2010, in The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties. Based on her Boden Lecture last fall at Marquette Law School, Gerken suggests that the case’s most important result could be a gulf between the elites involved in national political campaigns and the rank and file party members who have historically been the backbone of the parties. The article may be found by clicking here. Read more »

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Conference Probes the Depth and Breadth of Political Polarization

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Category: Media & Journalism, Milwaukee, Political Processes & Rhetoric, Public, Speakers at Marquette
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“I believe in my heart that we have a lot more in common than we have differences,” said Tom Meaux, Ozaukee County Administrator.

But if you do the numbers, we have a dramatic amount not in common. And no one has done the numbers the way the Marquette Law School and the Milwaukee Journal Sentinel have.

The numbers – voting data, polling results, a wide range of demographic statistics – spell out the polarization that has become a dominant fact of politics in Wisconsin and especially in southeastern Wisconsin. A six-month fellowship at the Law School, funded by the Lubar Fund for Public Policy Research, allowed Craig Gilbert, Washington bureau chief of the Milwaukee Journal Sentinel, to collaborate with Professor Charles Franklin, director of the Marquette Law School Poll, in producing an analysis of the growing political divide that offers remarkable depth and breadth.

The result was a four-part series in the Journal Sentinel and a conference Thursday at Eckstein Hall, sponsored by the Law School and the Journal Sentinel, that brought together Gilbert, Franklin, political leaders, and academic experts to discuss what unites us, what divides us, and what lies ahead, given the intense current divisions. Read more »

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