Monday, June 30, 2014

Portrait: Life

Protesting at the Supreme Court against the death penalty
Washington, DC (30 June 2014)
© Fabrizio di Piazza, for GOVERNINGWorks

Tuesday, April 8, 2014

Cash In: Supreme Court Strikes Down More Campaign Finance



An aggregate limit on how many candidates and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.

2 April 2014


On Wednesday 2 April 2014, the Supreme Court issued its Opinion, written by Chief Justice John G. Roberts, Jr., in McCutcheon v. Federal Election Commission, striking down the limits the Federal Election Campaign Act of 1971, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), places on the total dollar amount an individual may contribute to political campaigns (candidates and committees), so-called “aggregate limits”—$48,600 to candidates for federal office and $74,600 to political committees.

The decision and related filings may be found at SCOTUSblog. Audio and transcript of the Oral Argument may be found at Oyez.

Tuesday, April 1, 2014

A Re-awakening: Reporting, Government & National Security



‘[A]ll of the mechanisms of accountability, all of the checking powers that exist in both political and civil society are re-awakened by transparency. And then we get to decide, collectively, where we want to draw the line.’
Barton Gellman
Sources + Secrets: A Conference on the Press,
the Government & National Security
21 March 2014


It is tempting—and commonplace—, in thinking about what we have learned about the power and scope of government surveillance, to focus on the person of Edward Snowden, only the latest and perhaps most controversial source of a vast amount of data on this issue.

Mr Snowden is not unimportant to the story, obviously. He is a story. 

There is the question of what Mr Snowden did and did not do. (Remember: Mr Snowden published nothing himself but rather made information available to media.) And, Mr Snowden has made personal choices after the publication of information he helped facilitate that perhaps complicate our assessment of him in an already complex context.

But, to focus on Mr Snowden to the exclusion of the information we now know is, I think, to miss larger (at least equal) considerations.


Tuesday, March 25, 2014

GWorks Reviews: What You See: An NYU Panel Addresses Supreme Court Transparency

But things that are indelicate can sometimes be beautiful.

—The Misses Allen
A Room With a View


Why not be taxonomical about things for just a minute.

There is a conversation about the Supreme Court that revolves around what people—We the People—know (and should know) about the Court. Depending on the This & That of the conversation, you might find yourself talking about (even bemoaning) how little We seem to know about the Court. The conversation might focus on what the Court might do to explain itself or what We might do to understand better what the Court does.

Again depending on the This & That of things, you might find yourself talking about ‘the Court and transparency.’ And in this discussion, it is common enough to focus on cameras in the court. It is the topic on which Senators at Supreme Court Confirmation Hearings so often focus. Why not us?

I am happy to report that there was a public conversation last Friday that went another way.

Supreme Sunshine: Shining a Light on the High Court, Friday 21 March 2014, was presented by the Coalition for Court Transparency, New York University (in Washington, DC) and the Reporters Committee for Freedom of the Press.

Dahlia Lithwick, a Senior Editor at Slate who “writes about the courts and the law,” including covering the Supreme Court, was moderator. Panelists were:

Bruce D. Brown is Executive Director, Reporters Committee for the Freedom of the Press.

William Jay is a Partner at Goodwin Procter, LLP. Mr Jay argues cases before the Supreme Court. He was a judicial clerk for Supreme Court Associate Justice Antonin Scalia, October Term 2004.

Clay Johnson is a Technologist and Presidential Innovation Fellow. His work includes RFP-EZ, “a web-based application...meant to make it easier for small businesses to sell their services to government buyers, and for contracting officers to buy small dollar value services.”

Eric J. Segall is the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law. He teaches Constitutional law and about the federal courts.

Sonja R. West is Associate Professor of Law at the University of Georgia School of Law. Professor West was a judicial clerk for Supreme Court Associate Justice John Paul Stevens, now retired, October Term 2004. She teaches Constitutional law, media law and about the Supreme Court.


Tuesday, March 18, 2014

Actually: A Supreme Court Free Speech Landmark Turns Fifty



A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.



Tuesday, February 25, 2014

Re-enfranchisement: Attorney General Holder Addresses Criminal Justice Reform



Whenever we tell citizens who have paid their debts and rejoined their communities that they are not entitled to take part in the democratic process, we fall short of the bedrock promise—of equal opportunity and equal justice—that has always served as the foundation of our legal system. So it’s time to renew our commitment—here and now—to the notion that the free exercise of our fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.

Attorney General Eric H. Holder, Jr.
Remarks on Criminal Justice Reform
11 February 2014
Georgetown University Law Center


[Editor’s Note: What follows is the official transcript of the Attorney General’s speech. GOVERNINGWorks has made few formatting changes to the text of the speech. But, the words of the Attorney General’s speech are in no way affected.]


Thank you, Wade [Henderson], for those kind words—and thank you all for being here. It’s a privilege to join so many criminal justice leaders, policy experts, public servants, and aspiring legal professionals at today’s Forum. And it’s a pleasure to be back at Georgetown University Law Center.

I’d like to thank Dean [William] Treanor and Nick Turner—along with their colleagues from the University, the Vera Institute of Justice, and the Leadership Conference Education Fund—for hosting this important discussion, and bringing this remarkable group together to confront some of the most complex, and urgent, criminal justice challenges of our time.

Today, we gather in recognition of the fact that, although our laws and procedures must be continually updated, our commitment to the cause of justice must remain constant. From its earliest days, our Republic has been bound together by its extraordinary legal system, and by the enduring values that define it. These values—of equality, opportunity, and justice under law—were first codified in our founding documents. And they are put into action every day by leaders like you—and the talented men and women who learn, at great institutions like Georgetown, what it means to be a steward of the law—and an advocate for those whom it protects and empowers.

Tuesday, February 18, 2014

Presidents Day (2014): George Washington's First Inaugural Address

All I dare hope is that if, in executing this task, I have been too much swayed by a grateful remembrance of former instances, or by an affectionate sensibility to this transcendent proof of the confidence of my fellow-citizens, and have thence too little consulted my incapacity as well as disinclination for the weighty and untried cares before me, my error will be palliated by the motives which mislead me, and its consequences be judged by my country with some share of the partiality in which they originated.

President George Washington
17 January 1789


Fellow-Citizens of the Senate and of the House of Representatives:

Among the vicissitudes incident to life no event could have filled me with greater anxieties than that of which the notification was transmitted by your order, and received on the 14th day of the present month. On the one hand, I was summoned by my Country, whose voice I can never hear but with veneration and love, from a retreat which I had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years—a retreat which was rendered every day more necessary as well as more dear to me by the addition of habit to inclination, and of frequent interruptions in my health to the gradual waste committed on it by time. On the other hand, the magnitude and difficulty of the trust to which the voice of my country called me, being sufficient to awaken in the wisest and most experienced of her citizens a distrustful scrutiny into his qualifications, could not but overwhelm with despondence one who (inheriting inferior endowments from nature and unpracticed in the duties of civil administration) ought to be peculiarly conscious of his own deficiencies. In this conflict of emotions all I dare aver is that it has been my faithful study to collect my duty from a just appreciation of every circumstance by which it might be affected. All I dare hope is that if, in executing this task, I have been too much swayed by a grateful remembrance of former instances, or by an affectionate sensibility to this transcendent proof of the confidence of my fellow-citizens, and have thence too little consulted my incapacity as well as disinclination for the weighty and untried cares before me, my error will be palliated by the motives which mislead me, and its consequences be judged by my country with some share of the partiality in which they originated.

Tuesday, February 4, 2014

Mitt Questions: A Documentary Film & the Candidate We Never Knew

Does it matter what you know about a political candidate’s personal life? How does it relate to your vote?

If you think about questions like these, you should consider Mitt, a new Netflix documentary about Mitt Romney’s unsuccessful 2008 and 2012 Presidential campaigns. The film trades in these questions with the personal story of candidate Mitt Romney, drawing on years-long, seemingly unfettered behind-the-scenes access to Mr Romney and his family as he runs for President.

The film, directed by Greg Whiteley, begins in a Boston hotel room in 2012, where a stunned silent Romney family, prodded by Mr Romney, begins to think about what to say in a concession speech, the loss to President Barack Obama dawning slowly. The shot fades, and we are delivered to a Romney home in 2006. We see the family gathered in the living room, Mr Romney with pen and legal pad in hand, wrestling with why Mr Romney would run for President of the United States.

No handlers. No consultants. Just family. And, remarkably, a camera shooting up into the middle of the discussion.

Tuesday, January 28, 2014

State of the Union (2014): President Obama's Address to Congress


Mr. Speaker, Mr. Vice President, Members of Congress, my fellow Americans:

Today in America, a teacher spent extra time with a student who needed it, and did her part to lift America’s graduation rate to its highest level in more than three decades.

An entrepreneur flipped on the lights in her tech startup, and did her part to add to the more than eight million new jobs our businesses have created over the past four years. 

An autoworker fine-tuned some of the best, most fuel-efficient cars in the world, and did his part to help America wean itself off foreign oil.

A farmer prepared for the spring after the strongest five-year stretch of farm exports in our history. A rural doctor gave a young child the first prescription to treat asthma that his mother could afford. A man took the bus home from the graveyard shift, bone-tired but dreaming big dreams for his son. And in tight-knit communities across America, fathers and mothers will tuck in their kids, put an arm around their spouse, remember fallen comrades, and give thanks for being home from a war that, after twelve long years, is finally coming to an end.

Tonight, this chamber speaks with one voice to the people we represent: it is you, our citizens, who make the state of our union strong.

Tuesday, January 21, 2014

Signals Moment: President Obama Balances Surveillance & Liberty


Regardless of how we got here...the task before us now is greater than simply repairing the damage done to our operations or preventing more disclosures from taking place in the future. Instead, we have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals and our Constitution require. We need to do so not only because it is right, but because the challenges posed by threats like terrorism and proliferation and cyber-attacks are not going away any time soon. They are going to continue to be a major problem. And for our intelligence community to be effective over the long haul, we must maintain the trust of the American people, and people around the world.
President Barack Obama
17 January 2014


At the dawn of our Republic, a small, secret surveillance committee borne out of the “The Sons of Liberty” was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots.

Throughout American history, intelligence has helped secure our country and our freedoms. In the Civil War, Union balloon reconnaissance tracked the size of Confederate armies by counting the number of campfires. In World War II, code-breakers gave us insights into Japanese war plans, and when Patton marched across Europe, intercepted communications helped save the lives of his troops. After the war, the rise of the Iron Curtain and nuclear weapons only increased the need for sustained intelligence gathering. And so, in the early days of the Cold War, President Truman created the National Security Agency, or NSA, to give us insights into the Soviet bloc, and provide our leaders with information they needed to confront aggression and avert catastrophe.

Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances—with oversight from elected leaders, and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.

Friday, January 17, 2014

Signals Intelligence Activities (PPD-28)

[T]his directive articulates principles to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes.