Monday round-up

By James Bickford
on Mar 28, 2011 at 8:59 am

The weekend’s coverage of the Court focused on two major cases being argued this week.  Today, the Court hears argument in McComish v. Bennett (consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett) which Warren Richey of the Christian Science Monitor calls “the most important test of a campaign finance reform law since last year’s Citizens United decision.”  Nina Totenberg of NPR reports that “reform advocates face an uphill battle.” As Joan Biskupic describes it in USA Today, “The dispute centers on an Arizona public-financing system that provides extra funds to candidates who participate in the system when their opponents who don’t participate raise and spend money beyond a set limit. The question is whether the law that triggers a second set of public matching funds, beyond an initial lump sum, impinges on the opponents’ free speech by discouraging them from spending extra money in their campaigns.”  On this blog, Lyle Denniston describes the Arizona system in greater detail and notes that “both sides claim that what is at stake for them is free speech, and each is claiming that the other side wants to curtail political speech.”  Robert Barnes of the Washington Post sets McComish in the context of Citizens United, while David Savage and Nicholas Riccardi of the Los Angeles Times tell the story of David Schapira, “the youngest member of the state Senate as well as its Democratic leader, [who] credits his rapid rise in politics to the Clean Elections Act.”  The Arizona Daily Sun reports that the fate of the state law may ultimately be decided out of court: opponents of public financing are attempting to amend the Arizona constitution to eliminate the system altogether.

Opinion writers and editorial boards have also shown interest in McComish.  The editorial page of USA Today notes that “[n]othing in Arizona’s law bars privately funded candidates from raising and spending as much as they can and, at a certain point, the public financing system stops matching private money.”  (The paper also wonders whether the Court tipped its hand when it enjoined Arizona from distributing the controversial funds during last year’s election cycle.) The editorial board of the Washington Post questions the provisions that provide additional funds to candidates facing opposition from independent groups, but argues that “the law’s core should be upheld, in no small part because the provisions in question were enacted in pursuit of the legitimate and compelling interests of reducing the corrupting influences of big money and special interests of all sorts.”  The editorial board of the New York Times takes a similar view, arguing that the funds in question “support, expand and promote political speech, carrying out a central purpose of the First Amendment.”  On the op-ed page of the Times, Charles Fried and Cliff Sloan argue that American free speech law does not accept the notion that privately funded speech could be “drowned out” by Arizona’s public funding scheme.  At the Huffington Post, Doug Kendall supports the law and suggests that a decision striking it down “could have a profound impact on the viability of… efforts to clean up the selection process for our state courts.”  On the op-ed page of USA Today, William Maurer (who will argue the case today) lays out the contrary view, writing that “proponents of the law promoted it as a means to limit spending in elections, drive out speakers with whom they disagreed, and skew the political playing field to favor government-funded candidates.”

Tomorrow will bring oral arguments in Wal-Mart v. Dukes, which will decide whether a very large class of women claiming employment discrimination by the retailer can go forward with their suit for damages.  Kali collected early coverage in Friday’s round-up, while Joan Biskupic offers a preview in USA Today and John Dimsdale does the same for Marketplace.  Greg Stohr of Business Week emphasizes the potential scale of the class action.  In the Washington Post, Robert Barnes relates the case to two ongoing storylines: the Court’s approach to business cases, and its now one-third female membership.  Mark Sherman of the Associated Press (via the Kansas City Star) profiles Christine Kwapnoski, one of the named plaintiffs in the suit.  In the New York Times, Adam Liptak examines the work of the professor whose “social framework analysis” was used to identify the Wal-Mart policies that the plaintiffs claim led to unlawful discrimination; his controversial methodology is at the center of the case.  In the ABA Journal, Mark Walsh crisply lays out the two legal issues in the case: “whether the certified Wal-Mart class meets the federal rules’ basic prerequisites for certifying class actions” and “[w]hether claims for monetary relief can be certified in a section of the Federal Rules of Civil Procedure that deals chiefly with injunctive relief under class actions.”  Andrew Cohen of the Atlantic rounds up some additional commentary, and suggests that Wal-Mart v. Dukes “could dramatically alter the balance of power in civil cases between corporate defendants and the plaintiffs’ bar.”

Finally, at ACSblog Amanda Frost continues the conversation about whether the Supreme Court should abide by the federal judicial Code of Conduct.  Frost defends her signature on a letter in which many law professors offered their support for a bill that would apply the Code to the Court.