Consumer Law & Policy Blog

The world after McCutcheon v. FEC -- and amending the First Amendment

This article by Tony Mauro discusses the reactions of campaign-reform advocates to the Supreme Court's decision last week in McCutcheon v. FEC, which struck down congressional limits on how much money an individual may donate in total to all federal candidates or political committees in a particular election cycle. See 2 U.S.C. § 441a(a)(3) (deceased Apr. 2, 2014). The Court said that these limits violate the First Amendment. Mauro explains that a growing number of advocates now believe that, in light of a series of Supreme Court rulings, the only way that Congress can enact meaningful campaign finance reform is to amend the First Amendment. (Some advocates are also fearful that McCutcheon contains the seeds for another major blow: a holding that even the limits on individual contributions to single candidates upheld in Buckley v. Valeo violate the First Amendment.)

Some reformers, including Public Citizen, have been pushing a constitutional amendment for a while. Nearly two years ago, we told you about constitutional scholar Larry Tribe's proposed constitutional amendment:

Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.

 

Jon Stewart on the Supreme Court's new campaign-finance decision

Go here or click on the embedded video below to watch a series of pieces by Jon Stewart on the Supreme Court's campaign-finance ruling, McCutcheon v. FEC.

 

Jeff Gelles Story on the Fine Print Conference

Here.

Garcia Opposes En Banc Rehearing But Ducks Issues of Prior Restraint and Copyright Misuse

by Paul Alan Levy

I blogged recently about several of the issues raised by Cindy Lee Garcia's copyright claims against Google, which we addressed in an amicus brief filed well before the amicus due date, specifically to give her the chance to address those issues.  I suppose that I should be flattered that Garcia mentions the Public Citizen amicus brief in footnote 6 (page 8) of her response, but she mischaracterizes our argument (we discussed the issue of the heckler's veto in explaining Public Citizen's interest in maintaining robust section 230 immunity, not in addressing the panel opinion), while not responding to the issues of prior restraint and copyright misuse that we did raise for the panel's consideration.

The government tests cars for crashworthiness -- why not child car seats too?

That's the question implicit in today's NYT report on tests of child car seats run by our friends at Consumer Reports. The Times explains:

A new testing procedure, said by the magazine to represent an investment of more than a half-million dollars and over two years of work, was developed to evaluate the crash protection provided by child seats. The results are intended to equip parents with the information needed to compare the safety level of seats, in this case those designed for infants. . . .

While ratings of crash safety are readily available for new cars and trucks through the government’s New Car Assessment Program on a five-star scale, there is no comparable ranking of children’s car seats conducted by the National Highway Traffic Safety Administration.

The obvious question: why not? Consumer Reports tested the seats under tougher (and more realistic) conditions than required to meet federal safety standards, and found significant differences in results. Read more here.

Which Law Schools Are Teaching Consumer Law This Year?

by Jeff Sovern

In preparation for remarks at the University of Houston's  Teaching Consumer Law Conference, to be held this year in Santa Fe in May, I asked my research assistant, Preston Postlethwaite, to review the web sites of the ABA-accredited schools to see which are teaching consumer law courses this school year.  According to Preston, 49 schools offer a consumer law course or a consumer law clinic or both this year.  Many more schools list a consumer law class among their courses but are not providing it this year.  Because the data are based on school web sites, and such web sites are sometimes not updated timely or may not be accessible, the information is probably not completely correct.  Accordingly, I've pasted in the data below the fold.  If you know of a law school's information that is not correctly reported below, please so state in the comments.  Preston's data also indicate who is teaching the various courses and whether they are full- or part-time where that information is available. Please indicate any errors or omissions in that information as well. I'm disappointed to see that three-quarters of the ABA-approved law schools don't offer the course, especially since Brian Leiter's poll found that consumer law was the top choice for subjects that receive less attention in law schools than is deserved.  Thanks!

 

Supreme Court Denies Frequent Flyer's Claim Against Airline

By Adina Rosenbaum, Public Citizen

This morning, the Supreme Court handed down its decision in Northwest v. Ginsberg, holding that the Airline Deregulation Act (ADA) preempts Rabbi S. Binyomin Ginsberg’s claim that Northwest breached the covenant of good faith and fair dealing when it terminated his frequent flyer program membership.

Rabbi Ginsberg was a long-standing member of Worldperks, Northwest’s frequent flyer program.  In 2008, Northwest abruptly terminated his membership in the program. Rabbi Ginsberg filed suit, alleging, among other things, that the airline’s termination of his membership was a breach of the implied covenant of good faith and fair dealing. The district court held that his claim was preempted by a provision of the ADA that preempts state laws, regulations, and other provisions relating to air carrier prices, routes, or services.  The Ninth Circuit reversed, allowing the claim to go forward, and the Supreme Court took the case.

The Supreme Court’s decision this morning reversed the Ninth Circuit.  The Court held that covenant-of-good-faith claims are preempted if they seek “to enlarge the contractual obligations that the parties voluntarily adopt.”  It determined that, under Minnesota law (the law at issue in the case), covenant-of-good-faith claims are state-imposed obligations, rather than voluntarily-adopted obligations, because the State does not allow parties to contract out of the covenant and because the State has created various exemptions to the covenant for policy reasons, thereby implying that its decision not to exempt certain contracts from the covenant is also based on policy.  “When the application of the implied covenant depends on state policy,” the Court stated, “a breach of implied covenant claim cannot be viewed as simply an attempt to vindicate the parties’ implicit understanding of the contract.”

In addition, the Court rejected the argument that common-law claims are not preempted by the ADA because they do not involve a “law, regulation, or other provision having the force and effect of law.”  It also rejected the argument that claims related solely to membership in a frequent flyer program (rather than to flights themselves) are not preempted because they are not related to airline prices, routes, or services.

[Guest blogger Adina was counsel for Ginsburg in the Supreme Court.]

Fifth Circuit revives Texas offshoot of Dukes v. Walmart class action

After the Supreme Court (in)famously reversed class certification in the nationwide Dukes v. Walmart employment discrimination class action in 2011, smaller class actions have gone forward in its place in various parts of the country. The case against Walmart in Texas was dismissed by the district court based on the statute of limitations. This week, the Fifth Circuit reversed, holding that the class members' claims were tolled in accordance with a California district court's order in the prior case.

Supreme Court strikes down federal aggregate campaign donation limits under First Amendment

That's what the Court did today, by a 5-4 vote, in McCutcheon v. Federal Election Commission. The main opinion was written by Chief Justice Roberts. Justice Thomas, concurring in the judgment, would have gone further and overruled Buckley v. Valeo, which, among other things, upheld certain individual limits on contributions to particular candidates. No surprise there. He has urged that Buckley be ditched before. The aggregate limits at issue in McCutcheon limit (or, I guess I should say now, used to limit) how much money a donor may contribute in total to all candidates or political committees in a particular election cycle. See 2 U.S.C. § 441a(a)(3). Justice Breyer wrote the dissenting opinion.

 

Ryan Budget Would Subject the CFPB to the Congressional Appropriation Process

No surprise, in view of past Republican attempts to cripple the CFPB by doing just that, but still an unfortunate proposal. The Hill has the story here.