U.S. Senate’s Filibuster Rule Under Attack

 The U.S. Senate’s filibuster rule (Rule XXII) currently requires 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. It was designed to encourage full and careful debate, preventing the majority from steamrolling bills into law. In practice, the rule allows a minority – just 41 of the 100 senators — to stifle debate, not just slowing down the majority, but blocking it altogether.

For most of U.S. history, the Senate minority – Republican or Democratic – used the filibuster sparingly.

But in the two years of the 111^th Congress (January 2009-January 2011), the minority Senate Republicans staged at least 136 filibusters. In some cases, the majority was able to muster the 60 votes demanded by the filibuster rule and move ahead. But at least 80 times, the minority was able to block action, and even debate. And these are just the filibusters we know about; in other cases, the mere threat of a filibuster persuaded Senate Majority Leader Harry Reid to abandon legislation without even trying to bring it to the floor.

This practice of the minority Senate Republicans has continued in the 112th Congress (January 2011-January 2013).

Reform of the filibuster rule is one of the major issues supported by Common Cause, a nonpartisan, nonprofit advocacy organization for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

On May 14, 2012, Common Cause, four members of the House of Representatives and three private citizens sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief with respect to  Senate Rule XXII.

The Common Cause complaint asserts that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII). In particular, the complaint alleges that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the Vice President to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate–all of which in different ways assume majority rule. It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.

U.S. Senator Harry Reid

In the Senate itself last week U.S. Senate Majority Leader Harry Reid admitted that its filibuster rule should be changed and confessed he had erred in not supporting such changes at the start of this session of Congress in January 2011. The precipitating cause of this admission and confession was the Republican Senators’ using the filibuster rule to prevent a vote on reauthorization of the Export-Import Bank.

Reid’s belated support for changing the filibuster rule was welcomed in an editorial in the New York Times. But the newspaper endorsed one of the minimalist proposed changes: requiring 10 senators to start a filibuster and the supporters of a filibuster to speak continuously on the Senate floor to keep it going.

Even such a minimal change would be impossible during this congressional session because another Senate rule requires a two-thirds vote (67 senators) to change the rules. It would be easier to change the rules at the start of the next session (January 2013) when only a majority vote (51 senators) would be needed for such a change changes although some senators probably would argue that such a change would still require a two-thirds vote.

Prior posts have castigated the Senate Rules as a major deficiency in our government: “The Abominable Rules of the U.S. Senate;” “The Abominable Rules of the U.S. Senate Are Modified;”  and “Miniscule Proposed Reform of Dysfunctional U.S. Senate Rules.” A post with a more general critique of the Senate  and other aspects of our national government is “The Antiquated U.S. Constitution.”

Federal Appellate Court Grants Immunity to Author of Legal Memoranda Regarding U.S. Detention and Interrogation of Suspects in the “War on Terrorism”

U.S. Court of Appeals,        9th Circuit

John Yoo

On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”

This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.

Jose Padilla

This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.

After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.

The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that           “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.

John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”

Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’  before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”

The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”

The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.

According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . .  By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”

In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to  U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.

Miniscule Suggested Reform of the Dysfunctional U.S. Senate Rules

The U.S. Senate Rules, in my opinion, are an embarrassing blot on our democracy.

Just this week two Senators, Democrat Carl Levin and Republican Lamar Alexander, agreed that the Senate was “dysfunctional, gridlocked and broken.” They pointed out that the current Senate Rules require, at most steps of the legislative process, agreement from all 100 senators; absent unanimous agreement, the Rules entail a time-consuming process that requires a supermajority of 60 senators to move forward.

Levin and Alexander then proposed a revised rule that  would allow the majority leader to bring a bill to the floor for a vote without the 60-vote process on condition that the bill would be open to all relevant amendments, but not to non-relevant amendments.

Any change to the Senate Rules to reduce or eliminate the ability of one Senator to block consideration of important matters is better than none. But this proposed change is too miniscule as is true for other suggested reforms on this subject in recent years.

Instead I advocate more significant changes.

• First, the Senate should operate by majority rule except where the Constitution requires a supermajority (two-thirds) vote for (a) overriding a presidential veto or (b) consenting to the ratification of treaties or (c) proposing constitutional amendments or (d) expelling a member.

• Second, the Senate should have weighted voting so that a Senator from a more populous state would have more clout than a Senator from a sparsely populated state. For example, a Senator from Wyoming (the least populous state) would have one vote while a Senator from California (the most populous state) would have 66 votes.

Such significant changes would recognize that in a democracy the wishes of the majority of the people should be the fundamental governing principle (except when the Constitution otherwise provides) and that our primary allegiance is as U.S. citizens, not citizens of 50 states.

 

The Antiquated U.S. Constitution

U.S. Constitution

With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.

As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.

I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.

We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?

The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.

There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.

I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.

To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.

Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.

As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.

I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.

This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.

The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.

International Law Regarding Freedom of Religion

We in the U.S. are familiar with our constitutional protections of freedom of religion.[1] In addition, international law has recognized the right to religious freedom. Here are the most important ones for those of us in the Western Hemisphere.

Under Article 18 of the Universal Declaration of Human Rights, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[2]

Under Article 18(1) of the International Covenant on Civil and Political Rights, “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[3]

Under Article 12(1) of the American Convention on Human Rights, “Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.”[4]

In addition, under Article 1(A)(2) of the Convention Relating to the Status of Refugees, a “refugee” is defined to include “any person” who has a “well-founded fear of being persecuted for reasons of . . . religion. . . , is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country . . . . ” [5]

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[1] U.S. Const., First Amend.

[2] Universal Declaration of Human Rights, http://www1.umn.edu/humanrts/instree/b1udhr.htm.

[3] International Covenant on Civil and Political Rights, http://www1.umn.edu/humanrts/instree/b3ccpr.htm.

[4]  American Convention on Human Rights, http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm.

[5] Convention Relating to the Status of Refugees,  http://www.unhcr.org/3b66c2aa10.html.

The Personal Jurisdiction Requirement for Civil Lawsuits in U.S. Courts

A certain connection between a defendant and the geographical jurisdiction of a court is necessary in order for a civil lawsuit to proceed in the U.S.

This connection exists, for instance, if an individual defendant is served with a summons and complaint while he is in the geographical jurisdiction of the court or if the defendant waives the defense of lack of personal jurisdiction. Similarly there is clearly personal jurisdiction when an individual defendant is a resident of the geographical jurisdiction of the court or a defendant corporation or other business entity was organized under the laws of that jurisdiction or is “doing business” there.

U.S. Supreme Court Building

In addition, there is personal jurisdiction if the defendant has sufficient “minimum contacts” with the forum state, such that summoning the defendant to the forum state would not offend “‘traditional notions of fair play and substantial justice.’ ” This is the U.S. Supreme Court’s articulation of the requirement under the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court also has said that a defendant’s “minimum contacts” with the forum must be more than “random,” “fortuitous,” or “attenuated.” Sufficient contacts exist when “the defendant’s conduct and connection with the forum . . . are such that he should reasonably anticipate being haled into court there.” In assessing the defendant’s reasonable anticipation, there must be “ ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum . . ., thus invoking the benefits and protections of its laws.’ ”[1]

This test is the same whether the defendant is from another state in the U.S. or from a foreign country. However, as the United States Supreme Court has stated, “ ‘Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.’ ”[2]

Thus, any defense lawyer in a civil case immediately must determine whether personal jurisdiction obviously is established or whether there is a legitimate basis to challenge this requirement by asserting the defense in the answer to the complaint or by moving to dismiss the case before anything else happens.[3]

As a civil litigator, I encountered this issue all the time in my practice. In two cases for foreign clients I obtained dismissal of the complaint for lack of such jurisdiction at the start of the cases.

Fraser Bridge, Delta, B.C., Canada

In one case, my client was a Canadian corporation from Delta, British Columbia that was a subcontractor to a company from the State of Washington that had an agreement with a Twin Cities FM-radio station to provide certain electronic equipment for the station. The equipment was manufactured by the Canadian company and sold to the Washington company that in turn sold it to the radio station. The equipment allegedly did not work properly so the station sued the Canadian company in a Minnesota state court. The trial court granted the motion to dismiss for lack of personal jurisdiction, and the appellate court affirmed. The latter emphasized that the Canadian company never had an office, owned property or filed tax returns in Minnesota, had never had a mailing address or telephone number in this State, and did not negotiate any agreement with the radio station. While the Canadian company, upon request, shipped the equipment directly to the station in Minnesota and later sent a technician to the state to attempt to fix the equipment, hand delivered a part for the equipment to the station and mailed certain drawings of the equipment directly to the station for use by its consultant, these contacts were insufficient to justify jurisdiction.[4]

Singapore skyline

In the other case, my clients were parent and subsidiary companies from Singapore. Again the trial court (Post: Minnesota’s Federal Court (June 28, 2011) dismissed the case for lack of personal jurisdiction, and the appellate court affirmed. The latter court noted that the Singapore subsidiary had sent numerous letters and faxes and made several telephone calls to Minnesota in connection with the contract and that the contract contained a Minnesota choice-of-law provision. In addition, the Singapore subsidiary sent four samples of the product in question to Minnesota. These, however, the court held to be insufficient to justify personal jurisdiction.[5]

The appellate court in this second case concluded by saying that the negotiations, meetings, production, and delivery were all centered in Singapore. The contacts with Minnesota appeared at best as inconsequential rather than substantial under these circumstances. The Singapore subsidiary did not create a substantial connection between itself and Minnesota, it merely engaged in negotiations with a purchaser who happened to reside in Minnesota. Given the nature and quality of the Singapore subsidiary’s  contacts with Minnesota, traditional notions of fair play and substantial justice indicated that it would not expect to litigate in the State of Minnesota.[6]

The personal jurisdiction issue is part of the regular tool kit of the trial lawyer and litigator. Yet it is built on the constitutional bedrock of fair play.

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[1]  U.S. Const., Amend. V (no person “shall be deprived of life, liberty, or property, without due process of law”); U.S. Const., Amend XIV, § 1(no “State [shall] deprive any person of life, liberty, or property without due process of law”); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Burger King, 471 U.S. at 475, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).

[2] Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 115, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987), quoting United States v. First Nat’l City Bank, 379 U.S. 378, 404, 85 S.Ct. 528, 542, 13 L.Ed.2d 365 (1965) (Harlan, J. dissenting).

[3] E.g., Federal Rules of Civil Procedure 8 (c ), 12(b)(2).

[4]  KSTP-FM, LLC v. Adtronics Signs, Ltd., 602 N.W.2d 919 (Minn. Ct. App. 1999).

[5] Digi-Tel Holdings, Inc. v. Proteq Communications, Inc., 89 F.3d 519 (8th Cir. 1996).

[6]  Id.

A “Virtual” Constitutional Convention

In 1996 eleven other former Rhodes Scholars and I were “delegates” to a virtual U.S. constitutional convention.[1]

The other delegates were far more accomplished than I: (1) Samuel Beer, a distinguished author and political science professor at Harvard University;[2] (2) John Brademas, former Member of Congress and President of New York University;[3] (3) Jack Justice, a Philadelphia lawyer;[4] (4) Philip Kaiser, a former U.S. diplomat;[5]  (5) Jonathan Kozol, author, educator and activist about children;[6] (6) Jason McManus, a journalist and executive with Time/Life;[7] (7) Larry Sabato, author and professor of government, University of Virginia, and Director of its Center for Politics;[8] (8) Frank Sieverts, a specialist in refugee and relief issues at the State Department for 25 years and later an executive in the Washington office of the International Committee of the Red Cross; [9] (9) Reginald Stanton, a New Jersey lawyer and former state court judge; [10] (10) Lester Thurow, author and professor of management and economics, MIT;[11] and (11) Edwin Yoder, journalist and professor of journalism and humanities, Washington and Lee University .[12]

We first were asked to state in writing what, if any, constitutional changes we would propose in a contemporary constitutional convention. Then we were asked to comment in writing on the others’ suggestions. (This was before the advent of electronic, interactive communications technology with which we are familiar today.)[13]

I made two suggested constitutional changes. One was a federal campaign finance amendment that would assign individual financial contributions to a federal election fund that, in turn, would provide financing to federal election candidates. Such an amendment would overturn the Supreme Court’s interpretation of the First Amendment as protecting money as speech, an amendment needed even more now after the Court’s 2010 decision in Citizens United v. Federal Election Commission. The other suggested constitutional amendment was to increase the term of office of members of the House of Representatives from two to four years with their election the same time as the president. This should result, I said in 1996, in less divided and stalemated government.[14] We could have benefited from such an amendment in 2010.

In my rebuttal, I observed that nearly everyone objected to the idea of holding a real constitutional convention in the late 1990′s, that no one had proposed a radically new concept of a constitution and that everyone had offered ideas for incremental change.[15]

Our most important proposals, I thought, all were designed to facilitate the people’s voice being heard through the electoral process. Three others joined me in suggesting campaign finance amendments. No one suggested term limits for members of the House or Senate, and several wanted repeal of the XXII Amendment that imposed a two-term limit on the president. A number of proposals were made to make changes in the electoral college for the election of the president and vice president. Larry Sabato wanted to make voting in the presidential election mandatory. Two other delegates proposed increasing the Representatives’ term to four years as did I. Some noted the increasing anti-majoritarian nature of the U.S. Senate and suggested reallocating Senate seats from smaller to larger states to remedy that problem, and one “delegate” proposed making ex-presidents ex-officio members of the Senate.[16]

In my rebuttal I disagreed with Jonathan Kozol’s desire for children’s rights amendments. His comments, reminded us, however, I said, of the profound need to counter-balance the voting ranks of the retired people. I, therefore, offered for debate the idea of extending the voting franchise to children of all ages. There were obvious administrative problems that would have to be solved to make that possible.[17]

Interestingly in terms of the political debates of 2011, no one suggested there be a balanced budget amendment. Moreover, John Brademas reiterated his public opposition to such an amendment as “dangerous to national security and the nation’s economy.” This idea and others like it, he said, “attempt to decide current political controversies outside the regular give-and-take of the legislative process. The effect of such proposals is to trivialize the Constitution and diminish respect for its central, fundamental place in the American system of governing.”[18]

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[1] A “Virtual” Constitutional Convention, American Oxonian, Fall 1996, at 232.

[2] Samuel Hutchison Beer, Harvard Scholar of British and American Politics, Dies at 97, ces/news/press-releases/beer-04102009.shtml.

[3] Wikipedia, John Brademas, http://en.wikipedia.org/wiki/John_Brademas.

[4] Register of Rhodes Scholars 1903-1005 at 183.

[5] Wikipedia, Philip Mayer Kaiser, http://en.wikipedia.org/wiki/Philip_Mayer_Kaiser.

[6] Wikipedia, Jonathan Kozol, http://en.wikipedia.org/wiki/Jonathan_Kozol; Jonathan Kozol, http://www.learntoquestion.com/seevak/groups/2002/sites/kozol/Seevak02/                                                                          ineedtogoHOMEPAGE/homepage.htm.

[7] Wikipedia, Jason McManus, http://en.wikipedia.org/wiki/Jason_McManus.

[8] University of Virginia, Larry J. Sabato, http://www.centerforpolitics.org/staff_sabato.html; Larry Sabato, http://www.larrysabato.com.

[9]  Stout,  Frank A. Sieverts, 70, Specialist In Refugee Issues at State Dept., N.Y. Times (April 7, 2004).

[10] Walker Research, Reginald Stanton, eprofile/R/Reginald__Stanton_400170555.html.

[11]  Lester Thurow, http://www.lthurow.com; MIT, Lester Thurow, http://mitsloan.mit.edu/faculty/detail.php?in_spseqno=146&co_list=F.

[12] Wikipedia, Edwin Yoder, http://en.wikipedia.org/wiki/Edwin_Yoder.

[13]  American Oxonian, Fall 1996, at 232.

[14]  Id. at 235-36.

[15]  Id. at 259-61.

[16]  Id.

[17]  Id.

[18]  Id. at 244-45.

Buying Banks and Selling Hot Dogs Are the Same Under the Law

Federal Reserve Building, Washington, D.C.

In the early 1970′s the Board of Governors of the Federal Reserve System (the Board) approved the acquisition of two Iowa (Bettendorf and Keokuk) banks by Minneapolis-based Northwest Bancorporation (Northwest).[1]

At the time, federal law provided that no acquisition of a state bank by an out-of-state bank holding company was permissible unless such an acquisition was “specifically authorized by the statute laws of the State in which . . . [the acquired] bank is located.”[2] An Iowa statute at the time generally barred out-of-state bank holding company acquisitions of Iowa banks “unless such bank holding company was on January 1, 1971, registered with the federal reserve board as a bank holding company, and on that date owned at least two banks in [Iowa].”[3] This is what is colloquially called a “grandfather clause,” and at the time Northwest was the only out-of-state bank holding company owned or controlled any Iowa banks and thus was the only person covered by this grandfather clause.[4]

The Board’s approval was contested and challenged by the Iowa Independent Bankers Corporation (Iowa Bankers), an association of over 400 Iowa banks on various grounds. The key ground was the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The Iowa Bankers argued that the Iowa statute violated equal protection by creating two classes of out-of-state bank holding companies: (a) those owning one or no Iowa banks and (b) those owning two or more Iowa banks with Northwest being the only such holding company in the latter class.[5]

The Board in approving the acquisitions declined to rule on this constitutional objection. It said that only the judiciary could do so.[6] Thus, the Iowa Bankers petitioned the appropriate federal court of appeals in Washington, D.C. to set aside the Board’s approval on this and other grounds.

Faegre & Benson was the regular outside general counsel for Northwest, and I was designated as the Faegre lawyer responsible for defending the Board’s approval of the acquisitions. With the help of others at the law firm, I wrote the appellate brief for Northwest and argued the case before the appellate court.

U.S. Courthouse, Washington, D.C.

In February 1975, the appellate court unanimously affirmed the Board’s approval of the acquisitions and dismissed the petition by the Iowa Bankers.

On the Equal Protection issue, the court stated that as the Iowa statute did not create a suspect classification or impinge upon fundamental rights, the court’s review was limited to determining whether the statute had a rational relationship to a legitimate state purpose. The appropriate classes under the statute, said the court, were those holding companies not owning any Iowa banks and those that already did. More importantly, the court concluded it was “perfectly rational for the Iowa legislature to determine that Northwest . . .  [had] a pre-existing stake in the Iowa banking system and [had] . . . proven itself to be a positive force in the system [and] should be allowed to compete on the same basis as other Iowa banks . . . .” Likewise it was rational for the Iowa legislature, according to the court, to decide that Iowa would not be well served if other out-of-state holding companies “were allowed wholesale entry into the Iowa market.”[7]

Jackson Square, French Quarter, New Orleans

French Quarter, New Orleans

At the same time as the Northwest litigation, the same legal issue was presented to the U.S. Supreme Court. In City of New Orleans v. Duke, a New Orleans ordinance banned pushcart vendors in the French Quarter except for those who already had done so continuously for over eight years with only two such vendors (one hot dogs; the other, ice cream) qualifying under that grandfather clause.[8] The Supreme Court held that the ordinance was constitutional. It stated, “When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations.” Such regulations are valid, according to the Court, so long as their classifications are “rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” Therefore, the Supreme Court concluded that the “record makes abundantly clear that the . . .  ordinance, including the ‘grandfather provision,’ is solely an economic regulation aimed at enhancing the vital role of the French Quarter’s tourist-oriented charm in the economy of New Orleans.”[9]

That is why I say buying banks is the same as selling hot dogs under the law.

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[1] Iowa Independent Bankers v. Board of Governors, 511 F.2d 1288 (D.C. Cir. 1975), cert. denied, 423 U.S. 875 (1976). Northwest Bancorporation in 1983 changed its name to Norwest Corporation, which in 1998 was merged into Wells Fargo & Company of San Francisco.

[2] 12 U.S.C. § 1842(d).

[3] Iowa Code Ann. § 524.1805.

[4] 511 F.2d at 1291-92.

[5] Id. at 1292, 1294.

[6] Id. at 1292-93.

[7] Id. at 1294-96.

[8] City of New Orleans v. Duke,  472 U.S. 297 (1976).

[9] Id.

[10] Iowa Independent Bankers v. Federal Reserve Board, 423 U.S. 875 (1975).

Minneapolis Police’s Pretextual Arrests of Political Dissidents in 1970

Early 1970 was a turbulent time in the U.S. We were still in the Viet Nam War in the Nixon Presidency. On February 18th a Chicago jury found the “Chicago Seven” guilty of conspiring to incite a riot at the 1968 Democratic National Convention. On March 6th a bomb being constructed by members of the Weathermen political dissenters group for use at an upcoming military dance exploded in Manhattan, killing three members of the group. On March 17th the U.S. Army charged Lieutenant Calley and other officers of suppressing information related to the 1968 My Lai massacre in Viet Nam. On April 29th the U.S. invaded Cambodia to hunt out the Viet Cong, sparking antiwar protests throughout the U.S. On May 4th four students at Kent State University in Ohio were killed and nine others wounded by Ohio National Guardsmen at a protest against the Cambodian incursion (only 10 days later (May 14th) two other students were killed and 12 injured at antiwar demonstrations at Jackson State University in Mississippi). On May 9th an estimated 100,000 marched on the Pentagon to protest the war and the killings at Kent State.[1]

These protests also touched Minnesota. On May 9th there was a large crowd that marched from the University of Minnesota (UM) campus in Minneapolis to the State Capitol Building in St. Paul. There also was a student strike at the UM.[2]

David Lykken

At the same time, a Minneapolis fundraiser was being planned by “People Against Missiles,” an ad hoc group, for Saturday night, May 9th, at the south Minneapolis home of Professor David Lykken, a noted UM behavioral geneticist and professor of psychology and psychiatry.[3] The fundraiser sought to raise money to send people to North Dakota to protest a proposed antiballistic missile installation. It was publicized by mailing postcards to people on local peace organizations’ mailing lists, by including notices in newsletters of several organizations and by distributing flyers primarily at the UM. The flyer stated that there would be “donations and cash bar.”[4]

Two days before the fundraiser, a Minneapolis policeman saw the flyer and took it to a meeting with the head of the Department’s Morals Squad. Since selling liquor without a license was a violation of a city ordinance, the Department head instructed two other policemen to “handle it in the usual manner,” which meant sending an officer to the gathering undercover and attempting to purchase some liquor.[5]

On the night of May 9th, 20 or so middle-aged adults attended the fundraiser. They were quiet, mainly engaging in small-group conversation about the antiballistic missile system, protesting the system, and current political issues, including the protest march earlier that day at the UM. Some had coffee and soda; others, beer. No one had wine or hard liquor. There was a basket for donations; another for “Donations, Beer 50 cents, Pop 25 cents.”[6]

Around 10:00 p.m. two police officers, under cover, came to the fundraiser. One of them had a beer and left a marked $5 bill in the basket and later 50 cents for another beer. He stayed for about an hour and engaged in conversation about the missile system and the activities of “People Against Missiles.”[7]

He and the other undercover policemen left the house for a nearby meeting with another officer of the Morals Squad and others from the Tactical Squad. They then made a plan for arresting the people at the professor’s home.[8]

Around midnight 10 to 20 uniformed officers descended on the house, arrested everyone and took them all (except the professor’s wife and their young son) downtown to Police headquarters where they were charged with being in a disorderly house and the professor with operating a disorderly house and selling liquor without a license; they also were fingerprinted, photographed and then released.[9]

One of the Police leaders conducted a search of the house and seized beer (and wine and hard liquor that was not available at the event) as well as every piece of paper in sight on the first floor of the house, including People Against Missiles and other anti-war literature.[10]

Later all of the criminal charges were dismissed by the local court, and another lawyer (Bill Kampf[11]) and I volunteered to be the pro bono (no fee) lawyers on behalf of the Minnesota Civil Liberties Union[12] for those who had been arrested in a lawsuit for damages against the policemen who were involved for violation of their constitutional rights. We did just that with a complaint by the 20 people who had been arrested against the 20 or so policemen and other officials who had been involved.[13]  The case was filed in Minnesota’s federal court.[14]

During the course of pretrial discovery, I obtained what turned out to be critical evidence in the Police files. These documents indicated that immediately after the arrests the Police leader of the raid called the local office of the FBI to report the identity of the arrestees and the political nature of the seized documents. Some, for example, mentioned the Socialist Workers Party.[15]

Eventually Bill Kampf and I tried the case before to the court without a jury. U.S. District Judge Philip Neville[16] conducted the trial and concluded that three of the policemen were liable to the 20 plaintiffs for $11,500 compensatory damages plus $7,500 punitive damages. As the court stated, these three policemen “instigated, planned, and directed the raid [with two of them] . . . actually effecting the arrests. They had first-hand knowledge of the true nature of the gathering . . . and were the only ones who effectively might have and should have prevented the raid. . . . Their decision . . . not only evidences bad judgment . . ., but more importantly displays a callous disregard for the constitutional rights of other who may have been of different political persuasion. Such activity . . . will not be tolerated. . . .”[17]

In concluding that the three policemen had violated the plaintiffs’ constitutional protection under the U.S. Constitution’s  Fourth Amendment’s ban on unreasonable searches and seizures, the court stated, “the arrests . . . were improperly motivated, undertaken not in furtherance of good faith law enforcement but for the purpose of harassing those at the gathering because of their political beliefs.” Under all the circumstances, the “police could only have been motivated by a desire to harass the guests at the fundraiser, and/or attempt to set an example for others who might stage antiwar gatherings.” Important in that regard was the evidence of the lead Policeman’s immediately calling the FBI about the political documents that were seized.[18]

After the judgment was entered against the three policemen, the Minneapolis City Council voted to pay the judgment on behalf of the three, a decision that was upheld by the Minnesota Supreme Court in a taxpayer’s lawsuit.[19]

This case shows how the U.S. political passions of 1970 affected a city in the middle of the country. It also illustrates the importance of lawyers willing to defend civil liberties on a pro bono basis and of a strong, independent judiciary.

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[1] Wikipedia, 1970, http://Wikipedia.org/wiki/1970.

[2] Lykken v. Vavreck, 366 F. Supp. 586, 588 (D. Minn. 1973. I found copyrighted photos of the large May 9th crowd in front of the Minnesota Capitol under the heading Minnesota State Capitol Demonstrations at http://www.flickr.com/photos/minnesotahistoricalsociety.

[3] Obituary, David Lykken, U of M psychology professor, StarTribune (Sept. 20, 2006).

[4] 366 F. Supp at 587.

[5] Id. at 588.

[6] Id.

[7] Id. at 588-89.

[8] Id. at 589.

[9] Id.

[10] Id. at 590.

[11] Lerner, Attorney W. Kampf dies; was expert on bankruptcy, StarTribune (Sept. 18, 2005). As Bill and I worked on the case together, we became friends and often joked that we brought our different skills to make a good team. I was organized, methodical and persistent, and Bill was more instinctive and risk-taking.

[12] The Minnesota Civil Liberties Union was an affiliate of the American Civil Liberties Union and is now known as the American Civil Liberties Union of Minnesota, http://www.aclu-mn.org.

[13] 366 F. Supp. at 587, 590.

[14] See Post: Minnesota’s Federal Court (June 28, 2011).

[15] 366 F. Supp. at 590; Minnesota Historical Society, Socialist Workers Party: Minnesota Section (Box 2), http://www.mnhs.org/library/findaids/00632.xml; Minnesota Historical Society, Minnesota Civil Liberties Union (Box 23), http://www.mnhs.org/library/findaids/00497.xml.

[16] Judge Neville also was in charge of the consolidated pretrial proceedings in the private IBM antitrust cases. (See Post: The IBM Antitrust Litigation (July 30, 2011).)

[17] 366 F. Supp. at 599.

[18] Id. at 593.

[19] Douglas v. City of Minneapolis, 304 Minn. 259, 230 N.W.2d 577 (1975).

Dysfunctional U.S. Congress Careens Towards U.S. Default

Yesterday’s actions in the U.S. House of Representatives and Senate regarding the U.S. debt ceiling were depressing signs of the dysfunctionality of our system of government.[1]

In the House Speaker Boehner rejected my advice to craft a truly bipartisan bill to increase our debt ceiling.[2] Instead he added another provision to his bill to gain additional support from the Tea Party members for passage of the Republican measure to increase the debt ceiling. That new provision would require Senate and House approval of a balanced budget amendment to our Constitution before there could be a second increase in the debt ceiling, presumably next year. Even with that provision, the bill was only approved 218 to 210. (In the House, a simple majority is necessary; that currently is 217.)[3]

This is not any way to go about amending our Constitution, in my opinion. Such action should be done calmly and cautiously, as suggested by the constitutional requirement for a two-thirds vote in each house for such amendments.[4] There should be fair and open hearings in both houses of the Congress for careful consideration of the pros and cons of any proposed amendment, including this one. Such has not happened on this proposal. Although I have not studied this particular proposed amendment, I am very skeptical of the merits of the idea for two main reasons. First, I believe it would be difficult to run the federal government under such a system. Second, Keynesian economics suggests the need for the federal government to run deficits during economic recessions.

Now attention turns to the U.S. Senate which yesterday immediately tabled this House bill, 59-41.

Thus, we now enter the world governed by the abominable Senate Rules.[5] Yesterday Majority Leader Reid made a motion to limit debate, and under Senate Rules the earliest that motion can be voted upon is tomorrow (Sunday) at 1:00 a.m. Passage of that motion requires 60 votes, meaning that if all 53 Democratic and Independent Senators support the motion, seven Republican votes are needed for that motion to be adopted. Yesterday Senator Reid said he did not yet have the 60 votes needed for cloture. If the cloture motion is adopted, then under the Senate Rules there has to be 30 hours available for debate, meaning that the earliest the Senate could vote on the merits of the Reid debt-ceiling bill would be 7:30 a.m. on Monday (August 1). (In the unlikely event of unanimous consent, the measure could be voted on before then.)[6]

If somehow the Senate actually adopts a debt-ceiling bill, then it has to go back to the House for its approval by 217 votes. If all the 193 Democratic representatives supported such a bill, then at least 24 Republican representatives would have to join them in order for it to pass the House. Is that possible? (I shudder to think that the House would pass a slightly different bill that would require a conference committee and subsequent votes by the two houses.)[7]

World financial markets already are signaling the adverse impact of an U.S. failure to increase the debt ceiling and an U.S. default on its obligations.

I pray that my analysis is wrong and that somehow by next Tuesday both houses of Congress can pass a debt-ceiling bill that President Obama can sign into law.

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[1] See Post: Disgusting U.S. Political Scene (July 23, 2011).

[2] See Post: A Message for Speaker Boehner (July 29, 2011).

[3] Hulse & Pear, Senate Quickly Kills Boehner Debt Bill, N.Y. Times (July 29, 2011).

[4]  U.S. Const., Art. V. Actually such action by the two houses of Congress would result in a proposed amendment that would have to be approved by three-fourths (or 38) of the states in order for the constitutional  amendment to be adopted. (Id.)

[5] See Post: The Abominable Rules of the U.S. Senate (April 6, 2011).

[6] Helderman, Senate headed for critical vote Sunday, Washington Post (July 30, 2011).

[7] Yesterday, the House Republicans said that they would have a symbolic vote today to show that the Reid approach to debt ceiling cannot pass the House. (Hulse & Pear, Senate Quickly Kills Boehner Debt Bill, N.Y. Times (July 29, 2011).)