Citizens United? Evaluating the 2012 Presidential Election in a "Super PAC" World

The 2012 presidential election has been the most expensive to date. The whopping $2 billion that has been spent by both campaigns can be partially attributed to the Citizens United v. the Federal Election Commission decision by the Supreme Court.

This decision, as many of you know, held that corporations and labor unions have a First Amendment right to make independent expenditures that advocate election or defeat of candidates in certain federal elections.

This has led to the creation of “Super-PACs” that can spend an unlimited about of money in federal elections. This has led to a very large increase in paid media advertising. Many believe our campaign finance system is broken.

The American Bar Association Section on Individual Rights and Responsibility is holding a panel discussion to consider the effects of Citizens United on the 2012 presidential election.  Free-speech proponents, proponents of campaign donation regulation and election law practitioners will meet to discuss the lessons learned from this election and how campaign finance has changed.  The legal ramifications of Citizens United, such as the potential effects of shareholder litigation challenging campaign expenditures, will also be discussed.

Campaign finance is a critical issue. This panel is a timely opportunity for those in the DC area to hear civil discourse about an interesting subject. It is free, unless you are requesting CLE credit, in which case it costs $25.

To register for CLE credit, email the Section at irr@americanbar.org.  For more information, contact Patrice Payne at (202) 662-1030.

Supreme Court Case on EPA’s Power to Order Environmental Compliance

On January 9, 2012, the Supreme Court will hear oral argument on a case that may establish the extent, both under law and the Constitution, of the power of the EPA to order compliance with certain environmental laws – and seek judicial enforcement of those orders.

The two questions presented to the Court are 1) whether parties can seek pre-enforcement review of EPA administrative compliance orders under the Administrative Procedure Act, 5 U.S.C. §704 (“APA”); and 2) whether, if not, the inability to seek pre-enforcement review is a violation of the Due Process Clause of the Constitution.

The Court granted certiorari to hear an appeal of Sackett v. U.S. Environmental Protection Agency (Docket No. 10-1062) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1062.htm. This case comes up from the Ninth Circuit Court of Appeals, the Circuit with the most cases, by far, recently reviewed and overturned by the Supreme Court. In the last term, the Supreme Court reversed the Ninth Circuit in 19 out of 26 cases, an extremely high 79% reversal rate.

The facts of the case are about the actions Chantell and Michael Sackett took on their own 0.63-acre -vacant lot near Priest Lake in Idaho. The Sacketts filled in a portion of the lot with dirt and rock to build a house. EPA issued a compliance order alleging that the filled in area of the property is a wetland subject to regulation under the Clean Water Act, 33 U.S.C. §1251 et seq. (“CWA”), and that the Sacketts were unlawfully discharging pollutants into waters of the United States without a permit, in violation of 33 U.S.C. § 1311(a).

The Sacketts, without first seeking a CWA Section 404 permit, a jurisdictional determination or informal guidance from the Army Corps of Engineers or EPA, sought a hearing with EPA to challenge the finding that their property was subject to the CWA; EPA refused to grant the hearing, so the Sacketts filed suit in the US District Court seeking an injunction and declaration from the Court that EPA did not have jurisdiction, alleging that EPA’s compliance order was (1) arbitrary and capricious under the APA; (2) issued without a hearing in violation of the Sackett’s due process rights under the Constitution; and (3) issued on an unconstitutionally vague standard of “any information available.”

The District Court granted EPA’s motion to dismiss based on lack of subject matter jurisdiction, agreeing with the government that the CWA precludes judicial review of EPA compliance orders before EPA initiates an enforcement action in federal court. The Ninth Circuit agreed (622 F.3d 1139), stating that “We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process.” Id. at 1141.

This case has become a big deal for the environmental law cognoscenti. Amicus briefs in support of the Sacketts were filed by many, including the American Farm Bureau Federation, the U.S. Chamber of Commerce, the Competitive Enterprise Institute, the Mountain States Legal Foundation and the American Petroleum Institute, among many others.

Interestingly, the APA Watch, a nonprofit organization which describes itself as devoting “significant effort to combating federal agencies’ exceeding their authority under the Administrative Procedure Act…” filed a brief supporting neither party but expressing its concerns about issues not raised by the parties to this litigation under the APA to protect future litigants.

While not raised by the Sackett’s in their case, APA Watch points out that parties injured by non-final agency action have an independent right of redress under the APA §10(c), even when that action is not made reviewable by the underlying statute.

This case presents equities on both sides of the question. On the one hand, agencies charged with protecting the environment must have the statutory and judicial tools necessary to enforce against parties who take action – even on their own properties – that violate the environmental laws that were enacted to protect all of us; on the other hand, the Constitution sets forth due process principles intended to restrain unfair and inequitable governmental actions.
I look forward to seeing how the Supreme Court balances these equities; my guess is that whatever the decision, the Court will recognize and protect the APA interests articulated by APA Watch.