JURIST - Paper Chase: Sunday, February 19, 2012

[JURIST] The US Supreme Court [official website] on Friday blocked enforcement [order, PDF] of a Montana Supreme Court ruling, which upheld a state law [JURIST report] limiting the amount of money corporations can spend on campaigns, until it can consider an appeal from the corporations challenging the law. The Montana court ruling in Western Tradition Partnership, Inc. v. Montana [opinion, PDF] appears to conflict with the 2010 US Supreme Court ruling in Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], which struck down a regulation that prohibited corporations and unions from using their general treasury funds for "electioneering communications" aimed at supporting or opposing a political candidate. The 1912 Corrupt Practices Act [text] upheld by the Montana Supreme Court prohibits the same activity. The plaintiffs will now have to apply for a writ of certiorari to have the case heard by the Court. If cert is granted, this case is likely to play out as an attempt to narrow the scope of, or overrule [SCOTUS blog] Citizens United.

American Trade Partnership, Montana Shooting Sports Association [advocacy websites] and Champion Painting, plaintiffs in this case, petitioned the US Supreme Court [JURIST report] to overturn the Montana court's decision last week. The Montana court ruled that the law did not violate the First Amendment and distinguished it from Citizens United because it still allowed for corporations to voice their political opinions in other ways, including lobbying and creating political action committees. The plaintiffs argue that upholding this law directly conflicts with the Citizens United ruling. Campaign finance [JURIST news archive] has been a hot button issue ever since that ruling, which led the US Court of Appeals for the Seventh Circuit strike down [JURIST report] a Wisconsin law that limited the amount any individual could donate to political action committees in a year. The Supreme Court also struck down [JURIST report] an Arizona law that provided subsidies for candidates who have had independent expenditures used against them. The US Court of Appeals for the Eighth Circuit, however, upheld [JURIST report] a Minnesota law in May that prohibited direct contributions to candidates and affiliates.

[JURIST] US Representatives Edward Markey and Joe Barton, members of the Congressional Bi-Partisan Privacy Caucus [official website], and Cliff Stearns, of the Subcommittee on Oversight and Investigations [official website], sent a letter [text, PDF] to the Federal Trade Commission (FTC) [official website] on Friday asking it to look into possibly unlawful privacy practices by Google. The letter was a response to a Wall Street Journal article [text] published Friday, which charged that Google has been bypassing privacy settings of the Safari [official website] web browser so that it can track users without their consent. Safari, which is the default web-browser on all Apple products and most used browser on all mobile devices, is designed to block websites from being able to track users. Google got around this by using a special code that prevented Safari from recognizing it and allowed it to track users through almost any website. In their letter, the Congressmen asked the FTC to investigate whether these practices are in violation of a 2011 settlement agreement [JURIST report] it reached with the Commission after a breach of privacy rights during the launch of its social networking site Google Buzz. Under the settlement, Google is prohibited from misrepresenting its privacy policies to consumers and and must obtain consent from users before sharing their information with third parties.

The Congressmen also said that these practices are a "major concern" in light of the controversy surrounding announcement of its new privacy policy [text] set to take place on March 1. Earlier this month, the Electronic Privacy Information Center [advocacy website], a consumer privacy research center, filed suit [JURIST report] against Google, alleging that the new policy is in violation of its settlement agreement. Legality of the new policy has also been called into question by the EU, which sent a letter [JURIST report] to Google earlier this month asking it to delay implementation until it can fully investigate the policy. That letter was sent a day after Google responded to a letter from US Congressmen [JURIST reports] posing 11 questions about how consumer privacy rights will be affected by the changes.

[JURIST] US Attorney General Eric Holder [DOJ profile] sent a letter [text] Friday to Speaker of the House John Boehner (R-OH) [official profile] stating that the Department of Justice (DOJ) [official website] has decided that denying same-sex couples military and veterans benefits violates the equal protection component of the Fifth Amendment [text]. In the letter, Holder explains that denying such benefits to same-sex couples legal married under state law on the basis of Title 38 [text], sections 101(3) and 101(31) is unconstitutional. Section 101(3) defines "surviving spouse" as a person of the opposite sex and section 101(31) defines the term "spouse" in general as a person of the opposite sex. As such, Holder has instructed the Department of Justice to cease legal defense of those provisions. He says in the letter:

The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of the Defense of Marriage Act.

Holder's rationale comes out of a determination that "classifications based on sexual orientation should be subject to a heightened standard of scrutiny under equal protection principles." The letter informs Boehner of how the DOJ will procede in a pending case, McLaughlin v. Panetta, involving veterans benefits.

This is the latest in the Obama Administration's fight for marriage equality. The ruling is likely to affect a suit [text, PDF] brought earlier this month over the denial of disability benefits to a same-sex spouse of a veteran [JURIST report]. President Barack Obama reaffirmed his commitment [JURSIT report] to repealing the Defense of Marriage Act (DOMA) [text] last October. He has also made it clear that he supports the proposed Respect for Marriage Act [text], proposed last March [JURIST report]. In February 2011, the DOJ issued a ruling announcing that it would no longer defend the constitutionality of the DOMA [JURIST report].