I Campaign Contributions
A. Contributors: organized groups, such as large corporations, unions and trade associations; so interests focus on:
a. maintaining existing capitol investments
b. the financial stake of the contributors
c. immediate economic consequences
à children benefit from new investment schemes, are incapable of political organization and have an interest in long term impacts
B. Solutions – Campaign Regulation:
a. Amount limitations per election per candidate; evaded by:
(i) independent expenditures
(ii) soft money: contributions to national and state political parties
b. Buckley v. Valeo
SC distinguished between campaign contributions and campaign expenditures
(i) Expenditures: protected by first amendment and can’t be regulated
(ii) Contributions: paying someone to talk for you, can be regulated
c. Requirement of public identification of contributors; evaded by:
(i) Contributions just before of after the vote
d. 2002 Bipartisan Campaign Reform Act:
(i) prohibits unions and corporations from making contributions for candidates through party giving (soft money);
(ii) unions or corporations cannot fund ads for federal office candidates within 60 of general election or 30 days of primary election
(iii)Problems:
(a) Independent expenditures by political action committees (PAC) remain lawful
(b) Corporations and unions can fund ads outside the 60/30 day limit
(c) Does not apply to IRS §527 organizations
(d) Does not apply to state and local office
(e) Raises the limit on hard money contributions
II Legislature and Lobbying:
A. Variables affect lobbying power:
a. Organization: those who are able to organize are able to lobby;
(i) Horizontal Organization Trend: organizing with others in similar positions, through associations and pear groups
b. Passive System:
(i) Legislature: acts on the interests of those who lobby (generally not children because they aren’t organized)
(ii) Judiciary: they hear only what is brought before them
(iii)Executive: agencies are dominated by the industry they are regulating, industries tend to be more organized and able to lobby for changes that suit them
c. Focus on Immediate Concerns: lobbyists tend to be more focused on immediate concerns and benefits, recovering return on investments
d. Ex Parte Contacts: lobbying consists primarily of private conversations, where the other party is not able to offer the opposing view (whereas the court system allows both sides to present their view and disallows ex parte contacts)
à children represent the weak end of all variables
B. Solutions: Regulate what lobbyist can do and pay for
III Courts
A. Access to the Courts:
i. Children can’t hire council
ii. Children don’t have access to courts to appoint a guardian as litem (GAL)
B. Standing:
i. children do have standing to litigate when their property, liberty and interests are at stake, but access to the courts is limited by competency
ii. Guardian ad Litem: represents a child in court; appointed by the court and court has discretion over whether to appoint at all; does not need to be an attorney; conflicts of interest arise when they are also representing a state agency
iii. Other Barriers:
a. Gaining access to a court to enable the appointment of a Gaurdian ad Litem
b. Anti-solicitations standards inhibit attorney initiated contact
c. Lack of sophistication/contacts to arrange representation
d. Confidentiality of court proceedings
e. Lack of financial resources
f. Limitation of legal authority to speak to a child w/o parental consent
iv. How cases reach courts:
a. Parent or guardian brings an action on behalf of child
b. Child brought before the court by other persons (juvenile, family or probate proceedings)
c. Child may be included in en masse suit
C. Legal Aid:
i. Restrictions on what legal aid can do for children
a. No class action suits if entity is getting federal money
(i) 2 approaches:
(a) If you get federal money, you can’t do A, B, or C at all
(b) You can’t use federal money to do A, B, or C
(ii) Problem: Much Legal Aid focuses welfare, and since legal aid is the legal mechanism for the poor and children, restricting legal aid funding from litigation restricts these people’s ability to litigate these issues
b. No communication about legal rights by phone, mail by legal aid
c. No federal money to collect atty fees
d. Entity assisted may not challenge const of 1996 PRA
ii. Legal Services Corporation v. Carmen Valezquez:
a. Facts:The above restrictions on legal are challenged when LA wants to challenge welfare reform acts.
b. Held/Rule:Restriction on use of LSC funds to challenge the welfare system violates the first amendment
(a) could be framed as Due Process which may wipe out 2 of the restrictions on legal aid
(b) could be framed as a Separation of Powers violation (Congress cant tell the judiciary what to decide), which would wipe out all 4
(c) Holding allows statute to go forward without #4
c. Rationale: it prohibits the lawyers speech and expression of certain legal issues (*on which the court relies to reach the correct conclusion) and the clients who rely on LSC often have no alternate route through which to litigate the issue
d. Dissent: (Scalia) the limitation defines the scope of a federal subsidy program, and it does not directly regulate speech.
D. Leverage and Generalization:
*Once you get into court, you want your affect to be as broad as possible; various methods of doing so:
E. Stare Decisis:
(published case) allows the rule to be applied later, note the limitation is that you can only get to t
states allow their citizens (individual or public interest group) to serve as a private attorney general and bring actions on behalf of the general public; are not subject to the same requirements as regular class actions
Committee on Children’s Television v. General Foods
Facts:Class action brought by private AG charging defendants with fraudulent, misleading and deceptive advertising in marketing of sugared breakfast cereals.
Held/Rule: SC held that: (1) complaint stated causes of action for injunctive relief and restitution under both unfair competition law and false advertising law; (2) organizational plaintiffs had standing to sue under both unfair competition law and false advertising law; (3) with regard to organizational plaintiffs, complaint failed to state a cause of action for fraud inasmuch as organizations asserted no viable damage claim; (4) with regard to individual plaintiffs allegations claiming fraud were insufficiently certain and specific on element of damages, but deficiencies could be cured by amendment; and (5) allegation that cereal manufacturer owed, and breached, fiduciary obligation to child plaintiffs failed to state a cause of action.
G. Framing
frame the issue as broadly as possible – “on its face” arguments rather than “as applied” allow the entire statute/rule to be struck down, rather than just its implementation
H. Mandamus:
action in equity when a public official violates a duty to act or not to act, court may direct the agency to act
(i) still want it to be published so that it applies to entire state, agency, etc.;
(ii) best brought where you have easily ascertainable breach or violation
(iii)Good alternative to class actions
(iv)Very promising for children
(v) Quick and gets priority
(vi)Bad news is courts like to grant public officials discretion
(vii) Court will say there is not remedy for this provision, too broadly written
(a) The more specific the better
I. Attorney’s Fees
i. Fee Shifting Statutes: which the responsibility to pay attorney fees is statutorily or otherwise transferred from the prevailing plaintiff or class to the defendant
(i) PRA
(ii) 42 USC §1983
Lodestar Method: the primary way of calculating fees under fee shifting systems, lodestar is produced by multiplying the number of hours reasonably expended by co
