Jamie’s Work Defending the Constitution, the Bill of Rights, and Democracy for All

Joseph Scheidler et al v. National Organization for Women et al, Brief of Amicus Curiae of the Rutherford Institute in Support of Petitioners, 537 U.S. 393 (2003)

This was an 8-1 decision and Jamie’s side won. Four pro-choice Justices—Justice Ruth Bader Ginsburg, Justice Sandra Day O’Connor, Justice David Souter and Justice Anthony Kennedy—all agreed with the position that Jamie advocated on behalf of unions, environmentalists, students and other citizens who were concerned that this case could become the basis for using the criminal and civil RICO (Racketeer Influenced and Corrupt Organizations Act) laws against Greenpeace protesters, anti-war activists and other civil disobedients.

The question was whether political protesters who blockade a building - such as a corporate headquarters, a draft induction center, or a health or abortion clinic - can be prosecuted like mafia bosses and organized criminals for racketeering and “extortion” under RICO. Jamie took the position, upheld by 8 justices, that protesters in this situation do not “obtain the property” of the people being picketed and therefore there is no extortion within the meaning of the Hobbs Act or RICO.

Jamie’s statement about the case: “I got interested in this issue representing Greenpeace in the Ninth Circuit in a case we won called Monterey Plaza Hotel v. Local 483. This union and Greenpeace and other progressive groups faced really serious problems if the government could prosecute them for RICO offenses and send them to jail for ten or twenty years for civil disobedience. Sure, someone who blocks a building should be tried for disorderly conduct and blocking ingress and egress. But they shouldn’t go to prison for decades under a law designed for mobsters when there’s simply no extortion or other felony involved.

Under the interpretation of the law that Senator Ruben apparently favors (but which the Supreme Court fortunately rejected), Rev. Martin Luther King, the suffragettes who chained themselves to the White House fence during World War I (such as the founders of my law school at AU!), and the Berrigan brothers would have been treated like felons and mobsters and spent most of their lives rotting in federal prison.

There is a difference between misdemeanors and felonies, and that difference is crucial for political protest and labor picketing to survive in America. I was not about to let us turn non-violent picketers into mobsters even if it meant intervening in a case where anti-choice zealots, whose politics I abhor, were the parties. You don’t pick and choose which cases go to the Supreme Court and you have to stand up for the principle involved. I would gladly do it again and am proud that we won.”

Perot et al v. FEC et al, 97 F. 3d 553 (D.C. Circuit, 1996)

In 1996 Jamie, as a citizen, actively supported President Bill Clinton, whose Justice Department Transition Team he had served on in 1992. As a constitutional lawyer, Jamie was approached by Ross Perot, who had heard of Jamie’s passionate defense of democratic rights from Reverend Jesse Jackson. (Jackson had hired Jamie to be General Counsel of the National Rainbow Coalition in the late 1980s to defend voting rights and democracy in the Democratic Party.)

Perot asked Jamie whether he would represent him in challenging his exclusion from the 1996 presidential debates. Jamie agreed, telling Perot that he supported Clinton for president but would gladly champion Perot’s “right to debate”--a right that Clinton himself publicly agreed with. It was Republican contender Bob Dole who wanted to keep Perot out of the debates, understanding how Perot’s presence in the 1992 debates hurt the Republicans and helped elect Clinton.

Jamie’s challenge was based on the argument that, since the Commission on Presidential Debates was bankrolled by large corporations, including Anheuser-Busch, Philip Morris, General Electric, and Sprint, a national televised debate that included two candidates on the ballot but excluded a third constituted an illegal corporate contribution to the two candidates included. Although both the United Stats District Court and the Federal Election Commission refused to rule on the merits before the debates took place, the General Counsel of the Federal Election Commission later issued a meticulous 37-page decision upholding Jamie’s argument and even going further to recommend a Justice Department investigation of the campaign finance violations that took place. The members of the FEC reversed their own General Counsel.

Jamie’s statement about the case: “I am totally opposed to the manipulation of our debates to predetermine electoral outcomes. Ross Perot was on the ballot in 50 states and the District of Columbia, he had received 17 million votes in 1992 and he had just been given $30 million in taxpayer money because of his strong performance in the last election. He had every right to be in that debate and the Commission on Presidential Debates made a mockery of the law. Clinton’s campaign publicly acknowledged that Perot should be in – everyone knows that Perot’s presence in the debates and the race in 1992 helped Clinton and Gore. So my legal principles and political desires were perfectly aligned. The idea that I ‘supported’ Ross Perot is preposterous. I represented his legal position.”

Jamie has written a very exciting chapter in his Washington Post Bestseller, “Overruling Democracy: The Supreme Court versus the American People,” about this case and “heartily recommends it to all readers.”

National Committee of the Reform Party of the United States of America et al v. Democratic National Committee et al, 168 F. 3d 360 (9th Circuit,1999)

In this case, the plaintiffs challenged the legality under the Federal Election Campaign Act (FECA) of large corporations funneling hundreds of millions of dollars in so-called "soft money" into the political parties. Jamie Raskin argued that this practice violated FECA's categorical ban on corporate contributions in federal races. Although the Ninth Circuit said that this was an issue for Congress to deal with, Congress acted quickly to ban such corporate soft money contributions to the parties in the McCain-Feingold legislation.

Raskin in this case also challenged Congressional restrictions on then-President Clinton's power to appoint Federal Election Commission Members, restrictions that essentially forced him to appoint Republicans. Raskin argued that, under the Appointments Clause of the Constitution, Democratic presidents cannot be forced to name Republicans to independent commissions. The Ninth Circuit ruled that the plaintiffs lacked standing to raise the issue. Jamie wrote a law review for the Administrative Law Review on the case called "'A Complicated and Indirect Encroachment': Is the Federal Election Commission Unconstitutionally Composed?" 52 Administrative Law Review 609 (2000).

Jamie's Statement: "I guess it doesn't surprise me that Senator Ruben disagrees with a lawsuit that challenged corporate soft-money contributions to the parties and that helped lead to the McCain-Feingold legislation. In our race Senator Ruben takes huge corporate contributions and I refuse to take any at all. I want to ban corporate contributions in Maryland the way that they have been banned federally and in nearly half the states. She has said that she is probably against my proposal but isn't sure. After three decades in office, she has not been able to figure out what role corporate contributions play in our politics. Here is a hint, Senator: look at energy deregulation, which you voted for seven times. Take the corporate money out of the equation and you have a very different debate in the State Senate.

A corporation is not a citizen or a voter and has no rightful place in our electoral politics. As Justice White put it in First National Bank of Boston v. Bellotti, the state need not permit its own creature to devour it. Does Senator Ruben really oppose McCain-Feingold? I'm curious why she attacks me here.

As for the Appointments Clause question, I remain adamant that Congress has no authority to require a Democratic President to appoint Republicans to independent commissions or vice versa. The constitutional argumentation is rather complex so let me just direct everyone who may not have gotten around to reading it yet, especially Senator Ruben (who has taken such a deep personal interest in my constitutional jurisprudence), to my law review article in the Administrative Law Review on the subject. It is called "'A Complicated and Indirect Encroachment': Is the Federal Election Commission Unconstitutionally Composed?" 52 Administrative Law Review 609 (2000).

Obviously nothing in this case hindered the Democrats' presidential prospects in any way. It was well established that the corporate soft money loophole worked overwhelmingly to the advantage of the Republicans. By abolishing the soft money in McCain-Feingold, Democrats were able in 2000 to close the fundraising gap with the Republicans.