Congressional Reaction to Citizens United

by Gary L. Beaver

Democrats in Congress, led by Senator Chuck Schumer and Representative Chris Van Hollen, are pushing for rapid action to pass legislation intended to create new requirements for corporations spending money on political speech in light of the Citizens United v. FEC decision by the U.S. Supreme Court on January 21, 2010. The Citizens United Court held that there was no distinction between corporations and individuals with respect to political speech and struck down certain statutory limitations placed on corporate political speech. These Congressman believe that the Citizens United decision will open the floodgates to organizations spending money on political speech to influence election outcomes.

If publicized descriptions of the proposed new requirements are accurate, most appear to be reasonable. They would apply to corporations (including S-corporations) and labor unions and would require detailed disclosures to the FEC of who is funding the political speech, including requiring almost contemporaneous posting of information about the spending on the company's website. In addition, companies that are more than 20% owned by foreign interests or whose board of directors is more than half foreigners and companies receiving TARP money would be banned from spending on political speech (reportedly the ban on the TARP recipients would be lifted if the TARP money was already repaid). There is reportedly some language similarly banning political speech by companies receiving money through federal contracts. The scope of that provision will have to be closely examined. There is already a statute barring federal contractors from engaging in political activities (2 U.S.C. Section 441c) so adding this provision must be for some other purpose such as expanding the scope of the prohibitions in the existing statute. Perhaps it is intended to expand the ban from what is currently defined as the federal contractor to other companies that may be parents, subsidiaries, or affiliates of the contractor in order to add restrict additional corporations from political speech as many large corporations have subsidiaries receiving at least a small amount of revenue from federal contracts. In addition, there is one restriction being floated that is plainly biased against corporations. Some representatives, including Barney Frank, are pushing for language requiring publicly traded companies to receive shareholder approval before spending on political speech. That restriction, which apparently does not require unions to obtain member approval, appears to be unduly restrictive as it would be difficult to impossible to timely obtain such approval for political speech that may have to be shaped and aired quickly in the last days of a campaign. Another interesting requirement is for the CEOs of the companies paying for the ads to appear on camera to say that they stand by the ad similar to the "stand by your ad" requirements for politicians in the ads they run. Finally, a controversial provision would require candidates and political parties to be given the lowest unit rate for advertising to counter corporate and union advertising. Giving one speaker a leg up on another does not appear to be required by the First Amendment so the viability of that provision is questionable.

The pols are on the right track with the disclosure requirements and foreign investment restrictions which appear to be reasonable and appropriate. There are rational bases for restricting foreign interests in the amount of influence they can have on American elections and one would hope that the Supreme Court will agree. Likewise, there are good reasons for requiring timely and complete disclosures so that voters know exactly who or what is backing a candidate and those requirements would not restrict political speech but rather would enhance it by providing information about who is making the speech. Such requirements should easily withstand judicial scrutiny. However, I predict political fights over some of the other provisions which appear to place barriers designed to stifle corporate political speech and, if they are enacted, their ultimate demise in the courts for unduly restricting political speech.

Fourth Circuit extends Mohawk Industries v. Carpenter to appeals from civil contempt citations.

by Kirsten E. Small

Last week, the Fourth Circuit made a moderate and logical extension to the recent ruling of the United States Supreme Court that orders to produce attorney-client privileged material are not immediately appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Ass'n, 337 U.S. 541 (1949). United States v. Myers, No. 09-1212 (4th Cir. Jan. 28, 2010).

This procedurally complex case involves allegations that former West Virginia attorney Heidi Myers engaged in fraudulent billing for services to the state public defender. The grand jury investigating the case issued a subpoena duces tecum directing Myers to produce all closed case files not already seized pursuant to a search warrant. Myers produced some items but retained others, then moved to quach the subpoena as to the retained items on the basis that they were protected by her Fifth Amendment right against self-incrimination. Simultaneously, the government moved for a contempt citation against Myers as to the retained documents.

Myers was eventually cited for civil contempt for failing to obey production orders issued pursuant to the subpoenas. Myers attempted to appeal, acknowledging that she had refused to obey the orders (and thus, that the contempt citation was proper) but maintaining that the orders themselves were improper.

The Fourth Circuit held that it lacked jurisdiction. First, because the contempt order was civil, Myers could not avail herself of the rule that criminal contempt orders are immediately appealable. Second, the Court held that a civil contempt citation for refusal to produce allegedly privileged documents is not immediately appealable under Cohen. Noting that in Mohawk Industries the appellant sought review of the production order, not of a contempt citation, the Court nevertheless concluded that Mohawk Industries "clearly control[led]" and rendered the Court without jurisdiction.

Commentary: This ruling is not so much an extension of Mohawk Industries as it is a "dotting of the i" of that decision. A contempt citation is the procedural vehicle by which a production order may be challenged on appeal before resolution of the case on the merits. It is only logical, then, that if the underlying order is not immediately appealable, then neither should a contempt citation resting on that order.

South Carolina Court of Appeals holds that violating mandatory seatbelt law is not evidence of negligence.

By Manton Grier, Jr.

In Sims v. Gregory, Opinion No. 4649 (Ct. App. Jan. 28, 2010), the Court of Appeals held that violating a mandatory seatbelt statute was not evidence of negligence. In that case, a minor child was injured when the car her father was driving was hit by a third party. The child’s mother sued the father. Although the father was not responsible for the wreck, the mother argued that the father was responsible for some of the damages because he failed to ensure that his daughter was secured by a shoulder harness in addition to a lap belt.

The case was decided strictly on the basis of statutory interpretation. Although Section 56-5-6520 requires a driver to secure with proper seatbelts all passengers under 18, Section 56-5-6540(C) states that a “violation of this article is not negligence per se or contributory negligence, and is not admissible as evidence in a civil action.” The court further held that the duty to apply a seatbelt to a minor is only a statutory, and not common-law, duty. Thus, the clear meaning of Section 56-5-6540(C) precludes private right of actions under the mandatory seatbelt law.

Filling in the Fourth Circuit: Diaz and Wynn nominations proceed to full Senate.

by Kirsten Small

The Senate Judiciary Committee voted to send the nominations of Albert Diaz and James A. Wynn, Jr., both of North Carolina, to the Senate for a floor vote. Diaz, a former Marine with degrees from the Wharton School (B.A. Economics), NYU (J.D.), and Boston University (MBA), currently serves as one of three judges on the state's business court, a position to which he was appoined by the North Carolina Supreme Court.

Wynn is a decorated Naval officer who, like Diaz, holds three degrees: a B.A. in Journalism from UNC Chapel Hill, a J.D. from Marquette University, and an LLM in Judicial Process from UVA. Wynn has been a member of the North Carolina Court of Appeals since 1990. For Wynn, the third time may be the charm: he was nominated to the Fourth Circuit by President Clinton in 1999 and 2001. The 1999 nomination was blocked by Senator Jesse Helms, and the 2001 nomination was returned by President George W. Bush after he took office.

Wynn and Diaz join Barbara Keenan, a member of the Supreme Court of Virginia whose nomination to the Fourth Circuit was approved on October 29, 2009.

Assuming Wynn, Diaz, and Keenan are all confirmed by the full Senate, Obama nominees will hold four of the fifteen seats on the Fourth Circuit (the other Obama nominee is former U.S. District Court Judge Andre M. Davis, who was confirmed on November 9, 2009). And, the Court will be "short" only one judge, a situation that has not occurred since 1994, when the Court had 13 judges for its 15 available seats.

At this time, the nominations of judges Wynn, Diaz, and Keenan have not been scheduled for a vote on confirmation.