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STUDENTS: Create a video, no more than three minutes in length, that inspires and reminds viewers why our freedoms, our Constitution and our Bill of Rights are worth defending. Help others learn why our founding documents matter to all Americans and to you personally. Share how our freedoms have enabled or motivated you to make a difference. What is it about these freedoms that makes America great? Tell a story. Interview a hero. Be creative.
First place is a $5,000 scholarship to the college of your choice, with $2,500 and $1,000 awards for the runners-up. For more information on the contest and to enter, visit us on Facebook. www.facebook.com/joe.foss.institute
TEACHERS: When your students win, you win too.
Encourage your Junior and Senior high school students to enter the Joe Foss Institute’s 2014 Video Scholarship Contest. If one of your student’s wins, you will receive prize money to reward your work in the classroom.
1st Place – $500
2nd Place – $250
3rd Place – $100
Make sure your student indicated you are the referring teacher.
America enters the election year 2014 with considerable uncertainty about two major constitutional issues: what will the rules be for financing the federal campaign, and what is the outlook for minority and poor voters at the ballot box? Two controversial Supreme Court decisions will have a continuing impact: the ruling four years ago in Citizens United v. Federal Election Commission, and the decision last June in Shelby County v. Holder.
It is not too much to say that the money side of national politics has been turned upside down by the Citizens United decision – a ruling that, after a century of restrictions on political financing by corporations and labor unions, turned them loose to spend as much as they liked as long as they did so independently from candidates running for Congress and the Presidency.
Interpreted by lower courts, that decision has gone well beyond the specifics of what the Supreme Court actually decided on spending freedom, and as a result contributions to election campaigns have now become almost as free as spending, leading to the rise of influence by secret “super PACS” and, in the process, to a weakening of the wall of separation between funding sources and candidates.
The changing world of campaign financing continues to prove the truth of a remark by two Supreme Court Justices a decade ago in a major funding case: “Money, like water, will always find an outlet.” No matter what restrictions Congress fashions from time to time to limit the influence of big donors, there are always new channels for the flow of money, and those are increasingly gaining approval in the federal courts.
While the Supreme Court and lower courts have continued to uphold the method of disclosure of campaign financing as the way to curb abuses, even mandated disclosure has become less effective as “super PACs” have found a loophole in the federal tax code that allows them to qualify for the kind of exemption from taxes that permits them to keep their donors secret. During 2014, the Internal Revenue Service will ponder closing that loophole, at least part of the way, but that, too, is almost certain to wind up in the courts. There are platoons of election-specialist lawyers ready and waiting to sue with each new attempt at control of the money. The cycle is now well established: a new money channel opens, a new limit is imposed, a lawsuit follows, and more often than not, the limit is narrowed or cast aside altogether – often on the theory that the First Amendment protects campaign finance as a form of “free speech.”
Even as the IRS ponders a way to limit the secrecy of major donors to politically active non-profit firms, another federal agency – the Securities and Exchange Commission – has taken off of its 2014 action agenda a request to force publicly owned corporations to disclose their political donations. The issue may not be dead, but it is certainly being postponed.
The year 2014 brings a new federal election campaign for members of Congress, and at this stage it appears that independent operators, including non-profit corporations functioning as “super PACs” or as advocacy organizations, will continue to play a dominant role. In fact, this has produced a paradox in American politics: those big-money sources are now far less restricted by finance rules than are the candidates themselves and the national political parties.
In the early months of 2014, the Supreme Court is expected to decide a test case that challenges the two-year ceilings that federal law imposes on any one donor in making contributions to support specific candidates or causes. There appears to be a better-than-even chance that wealthy donors will wind up in that case with more freedom to donate to more candidates.
One profoundly important development that will continue to unfold in the new year is the energetic challenge to the federal limits on coordination between candidates and their organizations, on one side, and, on the other, the supposedly independent “super PACs” and advocacy groups.
When other forms of campaign finance regulation were being pared down in the courts on the theory that they were no longer supported by a desire to avoid the corrupting influence of money in politics, the anti-corruption rationale had generally still been available to justify restrictions on direct coordination between funders and candidates. Now, that, too, has begun to face defeat, so that a funding source and a campaign organization can have some of the same people as their leaders, so long as they don’t actually run their campaign together as a unified whole. A federal appeals court just last month allowed that kind of linkage.
The year 2014 also is going to be a significant year for testing who can actually go to the polls and vote. A wave of new restrictions on voting qualifications, from photo ID requirements to proof of citizenship mandates, to bans on early voting, and to limits on where college students may vote, is under challenge in a variety of court cases – including two major cases pursued by the federal Justice Department, in Texas and North Carolina.
Those cases, aside from their focus on alleged voter suppression laws, will require the courts to settle an issue the Supreme Court did not resolve in its ruling last June in the Shelby County case from Alabama. In that ruling, the court struck down a key provision of the 1965 Voting Rights Act: a requirement that some states, with past histories of racial bias in voting, had to get official clearance in Washington before they could put into effect any change in election law or procedure, however minor. That “pre-clearance” requirement was in Section 5 of the 1965 law, and was considered the most effective guarantee in history for minority voting rights.
While nullifying that provision as no longer necessary, in view of the nation’s claimed progress toward racial equality, the court left undisturbed another part of the 1965 Act that permits the Justice Department to ask that a state be put back under a pre-clearance regime if it has continued to discriminate against voting on the basis of race or other factors.
The Justice Department is trying to use that very method to regain pre-clearance authority over new voting laws or methods in Texas and North Carolina, in response to a tough new voter ID law in Texas and a sweeping new package of voter-limiting restraints in North Carolina.
Decisions on that issue in lower courts could set the stage for the Supreme Court to return to the issue of government power to protect voting opportunity, especially for minorities and the poor.
Even with rulings on those issues, at least in lower courts, the passion to control elections is sure to continue to generate new campaign laws, especially by Republican-controlled state legislatures. Thus, 2014 is not likely to bring an end to the legal wars over voting.
Reposted from the National Constitution Center. Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
When James Madison spoke to the First Congress he proposed 20 amendments for a Bill of Rights, and not the 10 we all know about. So what did Congress delete from the final list that was ratified by the states?
There were some very significant deletions as his proposed list went through the House and Senate, and Madison himself took part in the decisions to edit out some of his own ideas.
In the end, 12 of the 20 amendments survived the congressional approval process. Enough states approved 10 of those 12 amendments to make the Bill of Rights a reality on December 15, 1791. One of two bypassed amendments was eventually ratified in 1992 as the 27th Amendment; it restricted the ability of Congress to change its pay while in session. (The other proposed amendment dealt with the number of representatives in Congress, based on the 1789 population.)
But if Madison had his original way, our Constitution would have a two-part Preamble that includes part of Thomas Jefferson’s Declaration of Independence before the current preamble.
On June 8, 1789, Madison told Congress the Preamble needed a “pre-Preamble.”
“First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.
That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”
In essence, Madison wanted to bury arguably the most famous sentence in American history, “We the People,” in the middle of a combined Preamble.
Roger Sherman of Connecticut was among the first to question the move to downplay “We the People.”
“The truth is better asserted than it can be by any words what so ever. The words ‘We the People’ in the original Constitution are as copious and expressive as possible,” he said. And in time, Congress deleted the entire “pre-Preamble” as the Bill of Rights went through committees.
Another item that Madison proposed was making sure at least three of the liberties guaranteed in the Bill of Rights applied to all states.
“No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” Madison said in the fifth part of his original Bill of Rights proposal.
The selective incorporation of parts of the Bill of Rights to the states didn’t happen until the early part of the 20th century as the Supreme Court interpreted the 14th Amendment’s Due Process Clause in a series of cases.
Madison also wanted to clearly spell out that each branch of government had clear, distinct roles.
“The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments,” he said in the last part of his proposed Bill of Rights.
Neither of these items made it through the congressional review process. But Madison felt strongly enough about the separation of powers clause that he wanted it as the new Article VII in the Constitution.
And the second part of the new “Article VII” did survive in the Bill of Rights. It read, “The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.”
Another interesting twist in Madison’s proposed Bill of Rights was a different version of what became the Second Amendment.
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person,” said Madison.
And the final, big difference that Madison wanted was the entire Bill of Rights interwoven within the Constitution, and not appended at the document’s end.
That idea didn’t pass muster with Congress because there were concerns of an appearance that the Constitution was being rewritten. Madison dropped his support of “interweaving” the amendments during the House debate about moving his already amended Bill of Rights to the Senate.
In the end, many of the core ideas introduced by Madison in June 1789 made it into the ratified version of the Bill of Rights.
“I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government,” Madison said in his address to Congress.
Bill of Rights Day is December 15. Have your students rank their rights. This tool gets students thinking about what rights are most important to them and which amendment protects that right.
Legend has it that on the night of December 2, 1777, Philadelphia housewife and nurse Lydia Darragh single-handedly saves the lives of General George Washington and his Continental Army when she overhears the British planning a surprise attack on Washington’s army for the following day.
During the occupation of Philadelphia, British General William Howe stationed his headquarters across the street from the Darragh home, and when Howe’s headquarters proved too small to hold meetings, he commandeered a large upstairs room in the Darraghs’ house. Although uncorroborated, family legend holds that Mrs. Darragh would eavesdrop and take notes on the British meetings from an adjoining room and would conceal the notes by sewing them into her coat before passing them onto American troops stationed outside the city.
On the evening of December 2, 1777, Darragh overheard the British commanders planning a surprise attack on Washington’s army at Whitemarsh, Pennsylvania, for December 4 and 5. Using a cover story that she needed to buy flour from a nearby mill just outside the British line, Darragh passed the information to American Lieutenant Colonel Thomas Craig the following day.
The British marched towards Whitemarsh on the evening of December 4, 1777, and were surprised to find General Washington and the Continental Army waiting for them. After three inconclusive days of skirmishing, General Howe chose to return his troops to Philadelphia.
It is said that members of the Central Intelligence Agency still tell the story of Lydia Darragh, one of the first spies in American history.
Reposted from History.com.