Microsoft Corp. v. United States: International Crime Causing a Storm in the Cloud

This post is written by Associate Editor Robert Lotz. Opinions and views expressed herein are those of the writer alone.


28 U.S.C. §§ 2701-2711 is the Stored Communications Act (“SCA”), originally enacted in 1986 to protect the privacy of people who store data on the internet.[1]  This aging statute is still the primary tool used by the Government to access data and records stored on the internet or the cloud.[2]  § 2703 of the SCA gives the legal framework for disclosing data and records to the Government.[3]   Courts are split on whether requiring a United States service provider to disclose data stored internationally is legally required by a SCA warrant.[4]

The circuit split started on December 4, 2013, when a search warrant was authorized by United States Magistrate Judge Francis in the Southern District of New York for the search and seizure of information associated with a specified web-based e-mail account.[5]  The information requested was in the control of Microsoft, headquartered in Redmond, WA.[6]  Microsoft partly complied with the search warrant by disclosing the information that was stored on servers in the United States, but not internationally.[7]  However, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad because the target account and content requested was hosted in Ireland.[8]  This motion was denied by the magistrate judge and he concluded that a SCA § 2703 warrant authorized the disclosure of “information that is stored on servers abroad.”[9]

However, the Second Circuit reversed and found that “Congress did not intend the SCA’s warrant provisions to apply extraterritorially.”[10]  While the Second Circuit is the only appellate court to address this issue at the time of writing this, other district courts have faced this same question with differing analyses and outcomes.  Some found that a SCA warrant requiring disclosure of data stored abroad does not implicate an extraterritorial application because copying or transferring the data is not a seizure and when a search does occur by law enforcement, it is done in the United States.[11]  Others found that the location of the data is of no concern because a SCA warrant’s relevant subject is the service provider’s location; not the location of the data.[12]

On October 16, 2017, the Supreme Court granted certiorari to settle this matter and is still pending before the Court.[13]  First, the Government argues that it does not matter where data is stored because an SCA warrant is a domestic application of the statute.  They argue it is a domestic application because the privacy of the user is not invaded until the Government receives the data in the United States because, Microsoft is free to move the data at any time and moving the data from server to server is not a search or seizure.  Second, the warrant is directed toward the location of the service provider, not the location of the data.  Lastly, as a policy reason, a criminal could evade a warrant by simply storing data abroad.

However, as common sense would tell us, American law is not international law.  Microsoft argues that the issue of whether a United States service provider is required to disclose data stored abroad, pursuant to a SCA § 2703 warrant, is a policy question that should be answered by Congress rather than the judiciary system. [14]  Otherwise, American law would be applied upon the international server.  Further, it is the court’s job to interpret what Congress intended, not apply policy reasons or rational on why a law should be applied abroad.  Interpreting whether a statute applies abroad is common sense in the fact that Congress does not state that certain conduct is a crime in the United States because it is clear that statutes do not apply abroad unless stated otherwise.

The government has provided policy arguments for why a court should enforce a SCA warrant.  However, these policy reasons are only important when considering how to amend the SCA warrant provisions; not why a court should apply American law internationally without Congress’s approval.

This case has caught the attention and received amicus curiae briefs from 35 states, multiple foreign countries, and businesses from around the world.  Additionally, all nine Supreme Court Justices voted to grant certiorari.  Check out for updates.

[1] U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Electronic Communications Privacy Act of 1986, Justice Information Sharing, (last visited January 23, 2018).

[2] In re Two Email Accounts Stored at Google, Inc., No. 17-M-1235, 2017 U.S. Dist. LEXIS 101691, at *1-2 (E.D. Wis. June 30, 2017).

[3] In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 306 (3d Cir. 2010).

[4] The focus of the SCA statute determines where the application of the warrant takes place; compare Microsoft Corp. v. United States (in re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 829 F.3d 197, 220 (2d Cir. 2016) (holding that privacy is the focus of the warrant provisions of the SCA), with In re Information Assoc. with [Redacted], 2017 U.S. Dist. LEXIS 92601, *24-25 (D.D.C. June 2, 2017) (holding that disclosure is the focus of the SCA’s warrant provisions).

[5] In re A Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d, 467-68 (S.D.N.Y. 2014).

[6] Id.

[7] Id. at 468.

[8] Id.

[9] Microsoft, supra note 4, at 204.

[10] Microsoft, supra note 4, at 222.

[11] In re Search Warrant No. 16-960-M-01, 2017 U.S. Dist. LEXIS 15232, at *28-30 (E.D. Pa. Feb. 3, 2017).

[12] In re Info. Associated with One Yahoo Email Address that is Stored at Premises Controlled by Yahoo, No. 17-M-1234, 2017 U.S. Dist. LEXIS 24591 (E.D. Wis. Feb. 21, 2017).

[13] United States v. Microsoft Corp., 138 S. Ct. 356 (2017)

[14] Benz v. Compania, 353 U.S. 138, 147 (1957) (“[f]or us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.  It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain”).

U.S. Supreme Court Considers “Right-to-Work” Case, Janus v. AFSCME

This post is written by Senior Editor Rebecca Sheehan. Opinions and views expressed herein are those of the writer alone.

The U.S. Supreme Court is now ready to fully consider a case on the constitutionality of public-sector union agency fees.[1] On February 26, 2018, the Court heard oral arguments in Janus v. AFSCME on whether requiring non-union employees to pay a union’s agency fees violates the First Amendment.[2] Agency fees are the union’s cost of negotiating for a collective bargaining agreement (“CBA”) for the benefit of all employees on policies that affect their employment.[3] They do not directly fund a union’s political activities.[4]

In 1977, the Court in Abood v. Detroit Board of Education ruled that a government employer can require non-union, public-sector employees to pay agency fees to cover the union’s costs of negotiating for a CBA.[5] This is because every employee who benefits from union representation should share fairly in the cost.[6] Otherwise the non-union employees could free-ride off the memberships of the union employees.

Janus, an Illinois state child support specialist who is currently required to pay AFSCME’s agency fees, seeks to overrule Abood.[7] In support of his opposition to agency fees, he argues that public employee salaries, pensions, and benefits are inherently political issues, and even if agency fees are characterized as the cost of contract negotiation, they actually finance speech intended to influence the government’s personnel policies.[8] Therefore, requiring him to pay agency fees is no different from requiring him to pay for a union’s lobbying activities, and constitutes compelled speech in violation of the First Amendment.[9]

AFSCME argues that it prorates the agency fees to go only toward the actual cost of collective bargaining and spends no portion of them on political activities.[10] Collective bargaining allows employees to select a representative to voice their day-to-day concerns on wages, health and safety, and benefits.[11] It also provides public employers a mechanism for effective personnel management and grievance resolution.[12]

If the Supreme Court finds in Janus’ favor, which it is likely to do with Justice Gorsuch on the bench, the decision will impact an estimated 5.5 million government workers in the 22 states without right-to-work laws, including Illinois, Ohio, Pennsylvania, and Minnesota. Public-sector unions in these states will no longer be able to collect agency fees, which could be a devastating blow at a time when overall union membership is already low.[13]

[1] Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466 (U.S. filed Jun. 6, 2017).


[2] Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al, SCOTUSblog,


[3] See 16-1466 Janus v. American Federation: Questions Presented,,


[4] Amy Howe, Argument Preview: For the Third Time, Justices Take On Union-Fee Issue, SCOTUSblog,


[5] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).


[6] Xavier Becerra and Aimee Feinberg, Symposium: Agency Fees Benefit the Workplace—Just Ask the States, SCOTUSblog,


[7] Howe, supra Note 4.


[8] Id.

[9] Id.


[10] Brief for Respondent at 7, Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466 (U.S. filed Jun. 6, 2017).


[11] Becerra, supra Note 6.


[12] Id.


[13] Dave Jamieson, This Supreme Court Case Is the Biggest Threat to Organized Labor in Years, Huffington Post,

Should Unaccompanied Children In Removal Proceedings Have A Constitutional Right To Appointed Counsel?

This post is written by Associate Editor Anna Korneeva. Opinions and views expressed herein are those of the writer alone.

Immigrants in removal proceedings, regardless of age, are not entitled to appointed legal counsel.[1] This leaves unaccompanied child immigrants to represent themselves in a foreign country, language, and an extremely complex legal system that many courts have suggested “only an attorney can navigate.”[2]

First, these children must identify their options for legal relief. Then, they must prepare and timely present evidence, witnesses, and submissions, as well as legal arguments. And, of course, the proceeding is adversarial—a child’s case is refuted by a trained government lawyer who acts as a prosecutor, advocating for the child’s removal back to their home country, the place where the child is likely to be injured or even killed.[3]

Is it good policy to risk children’s safety by requiring them to act as their own lawyer? I don’t think so. But good morals and justice are not the only reasons children should have an opportunity to adequately present their case. There are legal concerns as well.

In Mathews v. Diaz, the Supreme Court confirmed the Constitution’s recognition of the rights of removable aliens, even if their presence is “unlawful, involuntary, or transitory.”[4] So what constitutional rights may provide unaccompanied child immigrants with appointed counsel?

Gideon v. Wainwright declared that under the Sixth Amendment of the United States Constitution “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”[5] But the Sixth Amendment right to appointed counsel applies only to criminal proceedings and does not extend to immigration proceedings because they “are civil in nature.”[6]

Relatively recent case law establishing the categorical right to appointed counsel for mentally disabled immigrants in removal proceedings represents the singular foothold of civil Gideon in the immigration realm.[7] In Franco-Gonzalez, the Central District of California found a right to appointed counsel for disabled immigrants, specifically holding that §504 of the Rehabilitation Act required the appointment of qualified representatives for mentally-incapacitated persons.[8] Yet by explicitly predicating its reasoning on the plaintiffs’ disability claims, the court did not address the plaintiffs’ constitutional claims (but even then, the idea that appointed counsel is required for individuals with limited-cognitive ability can easily extrapolate to children whose cognitive skills are not fully developed).[9]

Still and all, courts have specifically noted the Fifth-Amendment implications in immigration court: “[A]n alien has a right to counsel if the absence of counsel would violate due process under the Fifth Amendment.”[10]

The Ninth Circuit is the only jurisdiction that has examined the Fifth-Amendment right to appointed counsel of unaccompanied children as a class.[11] The court in J.E.F.M. looked to the test established in Matthews v. Eldridge, which focuses on three key factors: (1) “the nature of the plaintiff’s interest”; (2) “the risk of erroneous deprivation”; and (3) “the fiscal or administrative burdens on the government associated with additional or substitute safeguards.”[12] Unfortunately, the district court in J.E.F.M. did not engage in the full Matthews analysis since it was only considering a motion to dismiss for failure to state a claim.[13] However, the court did find that the plaintiffs had a plausible basis for relief under the due-process claim.[14]

In briefly analyzing the first factor, the court noted that deportation is a “drastic measure and at times the equivalent of banishment or exile.”[15] Further, the court rejected the defendants’ argument that it should focus only on the administrative act of deportation itself, and ignore the “potential effect of removal, which might be the same or worse than incarceration for some minor aliens.”[16]

Then, in briefly considering the second factor, the court again found for the plaintiffs.[17] Specifically, the court cast aside the defendants’ allegation that the risk of erroneous deprivation was minimal because plaintiffs could always appeal their cases, noting the circularity of such an argument.[18] The court reasoned that, if lack of counsel caused erroneous deprivation in the original proceeding, appeal is a hollow safeguard because appellate “review is generally limited to the administrative record” and the “absence of counsel in the underlying proceeding is likely to affect the shape and scope of such record.”[19] It also noted that one plaintiff had already been improperly ordered to be removed, which was sufficient to indicate a high risk of error.[20]

The court was unable to fully address the third Matthews factor because of the limited evidentiary record.[21] It did, however, reject the defendants’ broad concerns of “wheels . . . grinding to a halt,” and fears that “even more youngsters [would] journey illegally to the United States,” indicating that such concerns were unsupported. [22]

In total, the Ninth Circuit’s Matthews analysis demonstrates that the Fifth Amendment due process comports with, if not requires, the appointment of counsel for unaccompanied-child migrants.

In the alternative, it has been argued, “the benefits of appointed counsel for unaccompanied children ‘may be outweighed by the cost.”’[23]

While the appointment of counsel in removal proceedings may initially result in additional costs, it will eventually yield concrete savings, as the process will be more orderly and efficient.[24] For example, counsel representing a child can review potential claims, provide legal advice, and pursue valid claims for relief from removal.[25] Counsel familiar with immigration court proceedings has the ability to create a more efficient environment than a child who appears pro se, unskilled in the procedural intricacies of presenting evidence and making arguments.[26] Additionally, counsel is more adept than children at locating family members or other entities willing to serve as guardians, thereby reducing the government’s burden of detaining unaccompanied minors throughout their removal proceedings.[27]

Accordingly, appointment of counsel will increase the efficiency of proceedings and the immigration system as a whole, expedite family reunifications, and reduce unwarranted detentions.[28]

Lastly, as former Attorney General Eric Holder put it, “How we treat those in need, particularly young people who must appear in immigration proceedings—many of whom are fleeing violence, persecution, abuse or trafficking—goes to the core of who we are as a nation.”[29]



[1] 8 U.S.C.A. § 1362 (West).

[2] 6 U.S.C.A. § 279 (West). See, e.g., Lok v. Immigration & Nat. Serv., 548 F.2d 37, 38 (2d Cir. 1977) (noting that the Immigration and Nationality Act bears a “striking resemblance … [to] King Minos’s labyrinth in ancient Crete”); see also Castro-O’Ryan v. U.S. Dept. of Immigration & Nat., 847 F.2d 1307, 1312 (9th Cir. 1988) (“A lawyer is often the only person who could thread the labyrinth [of immigration laws].”).

[3] See McKayla M. Smith, Scared, but No Longer Alone: Using Louisiana to Build A Nationwide System of Representation for Unaccompanied Children, 63 Loy. L. Rev. 111, 114 (2017).

[4] Matthews v. Diaz, 426 U.S. 67, 77 (1976).

[5] 372 U.S. 335, 344 (1963).

[6] United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987).

[7] Franco-Gonzalez v. Holder, 2013 WL 3674492, at *20 (C.D. Cal. Apr. 23, 2013).

[8] Id. at *3.

[9] Id. at *9.

[10] United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987).

[11] J.E.F.M. v. Holder, 107 F. Supp. 3d 1119 (W.D. Wash. 2015).

[12] Id. (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).

[13] Id. at 1137, 1139-43.

[14] Id.

[15] J.E.F.M., 107 F. Supp. 3d at 1140.

[16] Id.

[17] Id. at 1140-42.

[18] See id. at 1140-41 (“Defendants [argue that] … the availability of appellate and judicial review is a sufficient substitute for the assistance of counsel in removal proceedings …. [This] contention runs counter to common sense. Under this theory, counsel would be unnecessary even in a criminal proceeding because the accused, if convicted, could always appeal.”).

[19] J.E.F.M., 107 F. Supp. 3d at 1141.

[20] Id. at 1141-42.

[21] Id. at 1142-43.

[22] Id. at 1142-43 (citations omitted) (“Rather than attempting to quantify the financial and administrative burdens associated with plaintiffs’ requested relief or possible alternatives, defendants speak broadly in ‘slippery slope’ terms …. They also seem to fear that the Court will inadvertently create a loophole through which parents, guardians, or other adult aliens might receive the services of an appointed attorney.”).

[23] Linda Kelly Hill, The Right to be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children, 31 B.C. THIRD WORLD L.J. 41, 63-64 (2011); Matthews v. Eldridge, 424 U.S. 319, 348 (1976).

[24] Hill, supra note 23, at 67-68.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 66-67.

[29] Justice Department And CNCS Announce New Partnership To Enhance Immigration Courts And Provide Critical Legal Assistance To Unaccompanied Minors, 2014 WL 2536422 (D.O.J).

Plain Writing Act of 2010: Putting the “Ease” in Legalese

This post is written by Associate Editor Justin Wayne. Opinions and views expressed herein are those of the writer alone.


There is a secret language lawyers use to communicate and it strikes fear into the heart of millions. Its name is Legalese and it is pervasive throughout the legal community. Lawyers train almost their whole life to understand the mechanisms of legalese, and what is still left unclear is honored as part of the legal tradition. Linguists call it “jargon,” which is a language loaded with special words and phrases for a specified use in a profession. What happens when the general population encounters legalese? The imagination can run wild with that question. In reality, it could cost the average person some huge headaches, including hundreds of thousands of dollars or even their freedom.


There are many people that will never step foot in a court room or take part in any process of a legal proceeding. Somethings are wholly unavoidable, like death and taxes. Even post mortem, the law proscribes rules of conduct, but it is unlikely the dead will be experiencing this first hand. Back in the realm of the living, there are a lot of issues that govern the day to day, much like taxes. The deadline is only a few months away and most will not seek professional legal or tax advice when filing each year. Instead, many people will consult the numerous publications issued by the IRS. This is where legalese becomes a problem for the public.


The IRS is not the only agency of the United States Government issuing publications and communications to the public. Arguably, it might be one of the most notorious due to the direct impact to the public and the complexity of the legal codes behind it. Other agencies, like the Consumer Financial Protection Bureau, the Department of Housing and Urban Development (HUD), and the Social Security Administration have a heavy impact on the way the Federal Government is involved in the lives of citizens. The rise of the internet and the instant access to information made it clear that the language used to communicate with the masses needed to remove the legalese to make it easier to understand.


Democratic Representative Bruce Braley from Iowa realized this and introduced a bill into the House in February of 2009. The purpose of the bill was to grant citizens more access to government information and services and the information provided in a way that is easily understood. This bill was signed into law by President Obama in 2010 and became the Plain Writing Act of 2010. (Plain Writing Act of 2010, 111 Bill Tracking H.R. 946, 2010 Bill Tracking H.R. 946, 111 Bill Tracking H.R. 946.)


The Plain Writing Act does not cover all the law of the Federal Government, but instead it details the “covered documents” that should be communicated in “plain writing.” These are documents that relate to federal benefits or services (i.e. Social Security and taxes), and how to comply with requirements of the Federal agencies. The Act does not include any regulations written by the agency, but only the paper or electric information that can be accessed on their websites or offices. It also details how each agency should implement the Act by designating an official to train employees and oversee ongoing compliance. (PLAIN WRITING ACT OF 2010, 111 P.L. 274, 124 Stat. 2861, 2862, 111 P.L. 274, 2010 Enacted H.R. 946, 111 Enacted H.R. 946.)


One of the public interest advocates for the passage of the Plain Writing Act of 2010 was the Center for Plain Language, a non-profit organization formed in 2003 to enhance the ability of government agencies to be more clear in their communication with the public. In response to the Act’s passage, the Center for Plain Language developed a grading system in 2012, with different types of information examined and graded each year submitted by the various agencies. (


In 2012, the Center for Plain Language focused mainly on compliance with the Act and the design of agency’s general information:




The Center for Plain Language examined the Frequently Asked Questions (FAQs) and infographics available on agency websites as part of the 2017 evaluation:




The latest marks in 2017 are based on a small amount of data compared to the whole of agency actions, but it does raise some serious red flags. The two pieces of information are two that the average citizen could presumably reference most often: FAQs and information graphics such as flow charts or illustrations. HUD and the Department of the Treasury, which houses the IRS, have the lowest marks. HUD governs the housing market and can be especially damaging to low income citizens that may rely on this information to get government housing or assistance. The materials from the Department of the Treasury, including the IRS, touch almost every aspect of daily life. It is incredibly important that this information be presented clearly free from confusing terms and legalese. Otherwise, the average citizen relying on this unclear information turns into the lawyer’s client.


The Plain Writing Act of 2010 is an incredibly important piece of legislation to help citizens understand how to work with their government. Some lawyers might be concerned that removing the legalese will negate the years spent studying the complexities of the legal language and hurt the bottom line. The inverse might be true. When agencies fail to conform to the plain language requirement it has a greater potential to confuse the non-lawyer, or create a situation where a non-lawyer seeks a simplified version of their complex factual issue. Where the lawyer comes in is the application of law to facts. It is that skill that changes lawyer to hero and allows them to navigate the seas of legalese towards a successful resolution for their client.


This post is written by Associate Editor Jennifer Moore. Opinions and views expressed herein are those of the writer alone.

“We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we cannot have both.”

                                                   -Justice Louis D. Brandeis-

Campaign season is upon us and news outlets are reporting on how many millions of dollars in campaign contributions small groups of wealthy donors’ plan on spending to buy the candidates of their choosing. A Washington Post article reports that the Koch brothers held their semi-annual meeting in Indian Wells, California with 550 ultra-wealthy donors to formulate plans that include the spending of $300 million-$400 million dollars on the 2018 midterms.[i] This spending is 60% more than the network of donors spent in the 2016 election.[ii] And this group of politically active, wealthy donors is but one of many groups that intend to spend enormous amounts of cash on the upcoming 2018 mid-term elections. Excessive amounts of money that flow into national party campaign coffers and political action committees (or PAC’s) result in a growing disparity of influence in legislative policy outcomes that strike at the core of our democratic ideals. It’s time to reassess the principle that money equals speech. And it’s time to question whether any limits on political spending that do not trigger a narrow definition of quid pro quo corruption violate the First Amendment. And it’s time to enact strong, meaningful legislation that regulates all forms of political spending. Regulations need to address not only those contributions that flow into national political parties and registered PAC’s, but also those contributions that flow through streams of dark money.

Ever since Buckley v. Valeo[iii], almost 41 years ago, the Court has tried to strike a balance between the freedom of people to spend money in political campaigns without restricting their First Amendment rights to free speech and the need for restrictions that prevent corruption of elected offices by wealthy donors.  According to the Supreme Court, the fundamental presumption of legislation determining limits on political spending assumes that it is permissible for Congress to pass legislation that deters or prevents the corruption of the political process. The presumption also holds that it is impermissible for Congress to pass legislation limiting political spending that does not have the appearance of quid pro quo corruption.[iv]

By narrowly defining corruption as only a quid pro quo arrangement between the candidates and their wealthy donors, as the majority opinion of the Court affirms in Citizens United[v] and McCutcheon,[vi] the Court dismisses the corrupting connection between the enormous amounts of campaign dollars lavished on candidates or spent on behalf of a candidate’s election through political action committees (PAC’s) and the outsized influence those donors have on adopted policies. It has resulted in a government that is far less responsive to the majority of Americans and far more likely to cater to the policy desires of wealthy donors. Even though it is within the power of the Court to broaden the definitions of corruption and the appearance of corruption, the Court has declined to do so. Instead, the Court adheres to the idea that Justice Kennedy put forth in McConnell, that favoritism and influence are not avoidable in representative politics.[vii] He explained that it is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.[viii] He opined that democracy is premised on responsiveness.”[ix]  But the current easing of political spending limits has resulted in responsive democracy for only the wealthy few.

In a study published in 2014, Martin Gilens and Benjamin Page researched theories of influence that different political groups have on US government policy.[x] In their research, a central point that emerged from the research was that economic elites and organized groups representing business interests have substantial impacts on government policy, while mass-based interest groups and average citizens have little or no independent influence.[xi] Generally, the research found that strong support among high-income Americans roughly doubles the probability that a policy will be adopted , while strong support among the middle-class has essentially no effect on policy.[xii] The affluent are better at blocking policies they dislike. When they strongly oppose a policy that the middle class doesn’t strongly oppose, then that policy has only a 4 percent chance of being adopted.[xiii] Many instances exist where high- and middle-income Americans hold similar views on policies, which usually result in a higher probability for both groups to have their preferred policies adopted.[xiv] Gilens and Page call this “democracy by coincidence.”[xv] But this isn’t real democracy at all, it is merely a pale imitation.[xvi]

If the Courts are unwilling to prevent the outsized influence that a few wealthy donors have through stronger limits on campaign spending, then at least the courts could more aggressively insure that public disclosure measures are enforced.  The Court in both Citizens[xvii] and McCutcheon[xviii] seemed to rely on disclosure mechanisms as a preventive to any potential corruption and as a way of providing the public with the information they need to stay informed about how the campaign efforts of PAC’s and the candidates are funded. However, a large percentage of the political expenditures in recent election cycles flow through 501(c) organizations. These political nonprofits are under no legal obligation to disclose their donors.[xix] When they choose not to, they are considered Dark Money groups.[xx] Super PACs can also be considered Dark Money groups in certain situations.[xxi] While these organizations are legally required to disclose their donors, they can accept unlimited contributions from political non-profits and “shell” corporations who may not have disclosed their donors, in these cases they are considered dark money groups.[xxii]

Unfortunately, the agency that is solely authorized to regulate federal election campaigns under the Federal Election Campaign Act, the Federal Election Commission (or FEC), has been crippled by deadlock and inaction for many years now.  A New York Times article from August 2014 notes that the Commission, which is made up of three Democratic members and three Republican members, has deadlocked on 3-3 votes more than 200 times in the preceding six years.[xxiii] The article goes on to suggest that instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.[xxiv] Through this disfunction, the FEC doesn’t just allow dark money groups to pump millions of dollars into the PACs under the radar. The FEC’s lax oversight of these organizations may have also allowed spending from foreign governments to flow into our elections. A news outlet has reported recently that an ongoing FBI investigation has unearthed Russian oligarch’s contributions to the NRA, an organization that has aggressive participation in elections both federally and in local and state elections.[xxv] While it is illegal to use foreign money to influence federal elections, there is not much oversight at the FEC to guard against this.

Congress could draft legislation that would at the very least bolster the disclosure laws that could shine a light on dark money and other forms of political expenditures, without restricting free speech rights. Instead, a handful of leaders in Congress are quietly, behind the scenes, trying to make it even harder for Americans to discover which wealthy donors are funding the candidates.[xxvi] They have attempted to pass policy riders into important legislation in order to make it harder broaden the avenues for dark money and to make it harder for other government agencies to create rules that require donor disclosure from PAC’s.[xxvii] It appears that many members of Congress are now largely captured legislators, much like government agencies can become captured by the very industries they are meant to police.

These issues specifically center around political speech, not any other kind of speech. As Justice Breyer notes in his dissent in McCutcheon there is a constitutionally necessary “chain of communication” between the people and their representatives.[xxviii] The First Amendment functions to secure these chains of communication between political speech and government action.[xxix] Permitting these enormous political expenditures by a wealthy few drowns out the political speech of those citizens who cannot afford thousands of dollars’ worth of “speech.” As Breyer also states, where enough money calls the tune, the general public will not be heard.[xxx] The Court cannot so willfully continue to turn a blind eye to these corrupting influences on our democracy. The influence these wealthy donors have on our government may not have a quid pro quo connection, but it certainly is corrupting.

[i] James Hohmann & Matea Gold, Koch Network to Spend $300 Million to $400 Million on Politics, Policy in 2018 Cycle, WASH. POST (Jan. 29, 2017),

[ii]  Cailtin Owens, Koch Network to Spend 4300-400 Million on 2018 Midterms, AXIOS, (Jan. 27, 2018).

[iii] Buckley v. Valeo, 424 U.S. 1 (1976).

[iv] McCutcheon v. FEC, 134 S. Ct. 1434, 1438 (2014).

[v] Citizens United v. FEC, 558 US 310, 356-357 (2010).

[vi] McCutcheon, 134 S. Ct. 1434.

[vii] McConnell, 540 U.S. 93, at 297 (2003).

[viii] Id.

[ix] Id.

[x] Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 AM. POL. SCI. ASS’N. 564 (Sept. 2014).

[xi] Id. at 565.

[xii] Martin Gilens & Benjamin I. Page, Critics argued with our analysis of U.S. Political inequality. Here are 5 ways they are wrong, WASH. POST. (May 23, 2016),

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Citizens, 558 U.S. 310.

[xviii] McCutcheon, 134 S. Ct. 1434.


[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Nicholas Confessore, Election Panels Enacts Policies By Not Acting, N.Y. TIMES, Aug. 25, 2014,

[xxiv] Id.

[xxv] Peter Stone & Greg Gordon, FBI Investigating Whether Russian Money Went to NRA to Help Trump, McCLATCHY, (Jan. 18, 2018),

[xxvi] Ciara Torres- Spelliscy, Congress Could Hardwire Dark Money into Our Democracy, THE HILL (Dec. 4, 2017),

[xxvii] Id.

[xxviii] McCutcheon, 134 S.Ct., at 1467.

[xxix] Id.

[xxx] Id.



This post is written by Associate Editor Brison Wammes. Opinions and views expressed herein are those of the writer alone.

On November 30, 2017, the Securities and Exchange Commission announced that it had ratified their prior appointments of several Administrative Law Judges.[1]  This is a significant turn of events for the case of Raymond J. Lucia and Raymond J. Lucia Companies Inc. v. SEC, a case currently pending before the Supreme Court of the United States.  In this case, the SEC is arguing against a claim by Raymond J. Lucia that the SEC’s Administrative Law Judges are officers of the United States that fall under the Appointments Clause of the United States Constitution.[2]  By ratifying the appointments of these SEC Administrative Law Judges, the SEC now claims that because these judges have been appointment in accordance with the Appointments Clause of the Constitution, no further proceedings are necessary, as the Petitioner’s claim is now moot.[3]  However, the case is still set to continue, with oral arguments to be heard by the Supreme Court in the upcoming term.[4]

Lucia has the potential to be a monumental case with regards to prior cases decided by these Administrative Law Judges of the SEC and other executive agencies as well.  If the Supreme Court finds that these judges were officers within the scope of the Appointments Clause, this would call into question every decision made by Administrative Law Judges that were appointed in a similar fashion to those of the SEC.  The result of this would be administratively catastrophic.  Hundreds, if not thousands, of cases will be called into question and the courts will be flooded with the petitions of previously scorned opponents of executive agencies.

[1] Press Release, Securities and Exchange Commission, SEC Ratifies Appointment of Administrative Law Judges (November 30, 2017) (on file with author).

[2] See Raymond J. Lucia and Raymond J. Lucia Companies Inc. v. Securities and Exchange Commission, 868 F.3d 1021, cert. granted, 2018 U.S. LEXIS 621 (U.S. Jan. 12, 2018) (No. 17-130).

[3] Order, In re Pending Aministrative Proceedings, Securities Act Release No. 10,440, at 1 (Nov. 30, 2017) (“Ratification Order”).

[4] Supreme Court of the United States, Granted & Noted List Cases for Argument in October Term 2017 (Jan. 12, 2018),

Circuit Courts Show Diversity Amid the Diversification of Corporate America

This post is written by Senior Editor Cody Dalton. Opinions and views expressed herein are those of the writer alone.

A common trend in employment in recent times is to try and create a diverse workforce.  Having diversity in the workplace has many benefits ranging from learning from cultural customs that may not seem quite customary from your own point of view to creating diverse insight into issues that the company may be facing.  Focusing on inclusiveness in the workplace can also lead to higher moral of employees.  Overall having a workforce that is diverse fosters cohesion amongst people from various races, backgrounds, and belief systems tends to improve the overall dynamic and public perception of almost any organization.

Cultural awareness is at an all time high.  In a day in age where we can turn on the news and see debates about organizations like Black Lives Matter or whether white supremacists should be able to speak their point of view, there is special attention being paid to how we should treat other people who are not like ourselves.  In the context of the work place, Title VII of the Civil Rights Act is in place to ensure that companies treat their employees in an equal manner with respect to their cultural attributes.   Title VII protects against discrimination by employers to employees on the basis of sex, race, color, national origin, and religion.[1]  However, these definitions do not cover all of the biases and prejudices that exist in the world today.  Most notably are the issues that are being faced by the LBGTQ community.

In the wake of Obergefell, the case which gave same sex couples the right to marry[2], society has begun to recognize a need to ensure civil rights are extended to protect the LGBTQ community.  Both gender and sexual orientation are classes that are not currently covered by Title VII, however, there is some movement in the appellate courts which have been changing that construct.  Last year the U.S. Court of Appeals for the 7th Circuit decided Hively in which an adjunct professor at Ivy Tech Community College was fired on the basis that she was a lesbian.  The court held that Hively’s sexual preference was in fact protected under the Title VII.[3]  This is directly contradictory to rulings that have been handed down in other Circuits across the country.

In the 11th Circuit the issue had recently become ripe for appeal to the Supreme Court.  In Evans a split panel made a stare decisis type of ruling on whether sexual orientation would be a protected class under Title VII, indicating in its opinion that it must rely on prior precedent to determine the case and that only an en banc decision could overturn the ruling of the state court which simply said that sexual orientation is not a protected class.[4]  The court declined a motion for reconsideration en banc leaving the 11th Circuit’s dismissal with prejudice in place.[5]  The Supreme Court subsequently denied a petition for certiorari.  The ruling in Evans is in direct contradiction to rulings such as the one given by the 7th Circuit in Hively.  Because of the circuit court split, we may see the Supreme Court take a stance on the issue sooner than later.  A potential reason for denying such an issue could have been the vacant seat of the late Justice Scalia, which has now been filled by Justice Gorsuch; now that there is a full panel of judges, the court may be more inclined to take on these types of pressing issues.

This may leave employers asking, “So is sexual orientation protected or not?”  The answer is not going to be easily addressed for the time being and the best answer may be, “it depends on where you are operating.”  Lawyers may want to take special precautions in advising employers who operate on a national level because the legal outcome of an employment scenario involving sexual preference in one place may be completely different than the outcome in another place, even if the cases appear to be doppelgangers.  The best advice would probably be to avoid this type of discrimination across the board in order to mitigate liability because as cultural trends progress, the law will always grow to protect fundamental civil liberties.  As could be gleaned from the Obergefell ruling and dissent taken as a whole, the principle of stare decisis will not or should seldom be more important than the personal dignity granted to an individual for being who they are.  I would forecast that in the near future, the protections offered by Title VII will include not only sexual orientation but probably gender as well; but only time will tell.



[1] Civil rights Act of 1964, Title VII.

[2] Obergefell v. Hodges 135 S.Ct. 2584.

[3] Hively v. Ivy Tech, 830 F.3d 698 (7th Cir. Ct. App. 2017).

[4] See Evans v. Georgia Regional Hospital, 850 F.3d 698 (11th Cir. Ct. App. 2017).

[5] See Ford & Harrison LLP, Eleventh Circuit Sets the Stage for U.S. Supreme Court Certification on Whether Sexual Orientation is Protected by Title VII, Lexology, July 11, 2017,