(Credit: AP)

Five of Pennsylvania’s state universities — Kutztown, Shippensburg, Edinboro, Slippery Rock and Millersville — will now allow students to carry firearms at school, due to advice from attorneys in the governor’s office and state higher education office claiming that “blanket firearms bans were vulnerable to constitutional challenge and exposed the universities” to lawsuits. Penn State, the largest university in the state, is maintaining its ban on weapons on campus, with exceptions for hunting or other recreational firearms stored with police.

Last year, a similar narrative played out in Colorado, when the state Supreme Court held that students with concealed carry permits must be allowed to carry weapons on campus due to a state law. University of Colorado’s Boulder and Colorado springs campuses reacted by creating special dorms for students wishing to keep a concealed weapon in their room, but no one wanted to live in these dorms as of late last year.

Under the federal Constitution, at least as interpreted by the five conservative justices in District of Columbia v. Heller, guns may be banned “in sensitive places such as schools and government buildings.”

The Senate’s filibuster rules gave the minority party power to shut down all judicial confirmations for much of 2012, and — if a Republican court’s decision eviscerating the recess appointments power is upheld — to effectively repeal two federal agencies. Over 90 percent of the country supports expanding background checks, but the Senate’s filibuster rules allowed a minority of the Senate to kill them.

And yet, even if the filibuster were abolished tomorrow, the the Senate’s broken rules would still provide Senate minorities with numerous opportunities to block progress. Consider the Senate GOP’s treatment of Environmental Protection Agency nominee Gina McCarthy last week:

Because Ms. Boxer’s committee was unable to hold a vote on Ms. McCarthy’s nomination — its rules state that at least two members of the minority party must be present for a quorum — she says she will use her own procedural trick.

It works like this: even if every member of the minority party is absent, committees can hold votes if all members of the majority are present. This has been a problem for Democrats because one committee member in their party, Frank R. Lautenberg of New Jersey, is ill and has not been in Washington in recent weeks.

So Mr. Lautenberg plans to travel to Washington on Thursday to give Democrats the quorum they need to force a vote that pushes Ms. McCarthy’s nomination to the Senate floor.

In case that’s not clear, the minority can bottle up McCarthy’s nomination in committee simply by refusing to show up. In order to defeat this, the majority must rouse a sick, elderly man from his convalescence and ensure that he is physically present in a Senate committee room. And this is what passes for legislative procedure in the world’s most powerful nation.

Senate Republicans used a similarly arcane tactic to delay a committee vote on Labor Secretary nominee Tom Perez last week. Under the Senate’s rules, “when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefore has been obtained from the majority leader and the minority leader.” Accordingly, Senate Republicans were able to block a committee vote on Perez’s nomination simply because it was scheduled in the afternoon.

Similarly, Sen. Dean Heller (R-NV) unilaterally blocked Judge Elissa Cadish’s nomination to a federal judgeship last March by invoking a Judiciary Committee procedure that allows just one senator to block a judicial nominee so long as that nominee is from their home state. Heller objected to the fact that Cadish accurately described the state of Second Amendment law prior to a Supreme Court decision that made the law more favorable to the NRA’s views.

So, while filibuster reform is essential in the wake of unprecedented obstruction of cabinet-level nominees and similar tactics, it is not sufficient in and of itself. The Senate’s rules and the rules governing its various committees are pervasively broken, and require a complete overhaul to prevent future obstruction.

U.S. Attorney General Eric Holder

Attorney General Eric Holder told reporters on Tuesday that he recused himself early on in the Department of Justice’s investigation of the Associated Press and possible national security leaks.

Holder was speaking at what was meant to be a Health and Human Services announcement of stricter rules on going after Medicare fraud. Instead, Holder found himself answering a slew of questions related to the DOJ’s subpoena of multiple phone records belonging to the AP. In sum, twenty phone lines were pulled, including the home phone numbers of several reporters. Asked about his role in the matter, Holder told the assembled crowd that he had recused himself early on “to avoid a potential conflict of interest” as the FBI had previously interviewed him in relation to the case.

Holder also identified Deputy Attorney General James M. Cole as the Justice Department official who originally signed off on the subpoena of AP’s phone records, in conjunction with the U.S. Attorney in Washington, DC. Holder referred several questions about the investigation to a letter the Deputy Attorney General sent to AP in response to the scathing letter the wire agency released yesterday. In the letter, Cole sought to reassure the AP that their records “have not and will not be provided for use in any other investigations.” However, the Justice Department will not return the records to the AP as requested.

The Attorney General insisted that he was a strong advocate of protecting the First Amendment rights of the press, saying that sweeping, overbroad subpoenas are not a matter of administration policy:

HOLDER: That is certainly not the policy of this administration. If you will remember in 2009 when I was — my confirmation hearings, I testified in favor of a reporter shield law. We as an administration took a position in favor of such a law. It didn’t get the necessary support up on the Hill. It’s something this administration still thinks would be appropriate. We have investigated cases on the basis of the facts. Not as a result of a policy to get the press or to do anything of that nature. The facts and the law have dictated our actions in that regard.

While refusing to say exactly what was leaked to prompt the investigation into the AP, Holder lent credence to the idea that it was national security related, calling the subject matter a “very, very serious leak.” The lead “put the American people at risk,” Holder said. “That is not hyperbole. It put the American people at risk.” The Associated Press in 2009 published a story on a foiled terrorist plot in Yemen, which gave details related to a double agent planted among Al Qaeda in the Arabian Peninsula, and is likely the cause of the investigation.

“I’m proud of what we have done,” Holder said of the administration’s civil rights policies on the whole. “We have been, I think, very aggressive in our enforcement of the civil rights laws.” Despite that pride, the administration has been forced to confront a slew of troubling civil liberties issues in the recent weeks, including the use of actions deemed torture at Guantanamo Bay, the ongoing targeted killing program, the IRS possibly improperly targeting conservative groups, and now the possible curtailing of the free press.

(Credit: AP)

Yesterday, the Associated Press reported that phone records from nearly two dozen phone lines were obtained by the Department of Justice as part of what was likely an investigation into how AP reporters discovered the CIA’s involvement in foiling an Al Qaeda related bomb plot. As Hayes Brown explained yesterday, this investigation probably was motivated by concerns that reporting on CIA’s involvement could have compromised an intelligence operative working within Al Qaeda in the Arabian Peninsula.

Lawmakers on both sides of the aisle have expressed concerns over DOJ’s actions here, potentially providing a rare opportunity to enact law restricting government surveillance. Moreover, there are strong arguments for why DOJ should be required to obtain a warrant from a judge before obtaining journalists’ phone records, especially in a case such as this one where DOJ’s need for the information does not appear to be imminent, the information sought is particularly broad, and the records are likely to remain available even after a delay.

Yet, if change is going to happen, it will likely have to come from what is currently the most dysfunctional branch of government — Congress — rather than the one that is currently most capable of bold action — the judiciary. Ultimately, this incident is likely to be a test of whether Congressional Democrats who opposed expansive surveillance during the Bush Administration will also have qualms with DOJ’s actions now that one of their own is in the White House; and whether Republicans, many of whom had a very different view of media surveillance just a year ago, will be able to pause their political posturing to pass a law preventing similar incidents from occurring in the future.

While the full details of the investigation have not been revealed — AP’s reporting on the surveillance was based largely on a letter DOJ sent to AP informing them of the surveillance — it is unlikely that DOJ’s actions violate the Constitution as it has been interpreted by the Supreme Court. No evidence has emerged that DOJ obtained the contents of actual conversations by AP reporters. Rather, their investigation appears to be limited to discovering which numbers were dialed by AP employees subject to surveillance, and possibly a similar investigation of their incoming calls.

Under the Supreme Court’s 1979 decision in Smith v. Maryland, the Constitution’s ban on unreasonable searches and seizures simply do not apply to this kind of surveillance. According to the five justices who joined the majority opinion, individuals do not have a “reasonable expectation of privacy” in the numbers they dial on their phones because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” When information is voluntarily disclosed to a third party, the Court explained the person disclosing the information “assumed the risk that the information would be divulged to police.”

The best argument for applying a different rule to the AP is that journalists are different from other phone users. Journalists often depend on sources who will refuse to speak to a reporter if their conversation is not kept confidential. If government can discover who reporters have been speaking to, they will chill sources from providing information to journalists, and the public will ultimately be less well informed about the information they need to participate in a democracy. Most significantly, the First Amendment explicitly protects “the freedom of. . . the press,” so a strong textual argument can be made that activities that are essential to journalism enjoy heightened protection under the Constitution.

This argument, however, is unlikely to be embraced by our current Supreme Court. In Citizens United, the conservative justices did not just authorize corporations to spend unlimited money to influence elections, they also dismissed the idea that “the institutional press has any constitutional privilege beyond that of other speakers.” At least until one of these five justices leaves the bench, a robust interpretation of the First Amendment’s freedom of the press is unlikely.

The Constitution isn’t the beginning and the end of American law, and Justice Department regulations do place some significant restrictions on federal law enforcement’s ability to subpoena telephone records from journalists. Beyond requiring the surveillance of AP to eventually be disclosed to AP, they also typically require actions targeting journalists to be personally approved by the Attorney General. What they do not require, however, is for DOJ investigators to obtain a warrant before they conduct the surveillance at issue here. Placing this decision in the hands of the Attorney General is not nothing — the sheer volume of Eric Holder’s workload prevents him from personally reviewing and approving very many things — but it is also not an independent check on DOJ’s ability to target journalists.

At the moment, there appear to be a bipartisan consensus forming that the current checks on DOJ surveillance are not enough — at least in the media context. The question is whether Congress will actually decide to do something about it, or whether they will default to partisan posturing and reliance on a Supreme Court that shows little interest in protecting journalism.

The Internal Revenue Service is under fire from both parties for improperly targeting certain groups for additional scrutiny because their names included keywords such as “Tea Party” and “patriot.” But the challenge of addressing the skyrocketing numbers of “social welfare” groups registering for tax exempt status could be lessened by fixing the broken disclosure laws for political advertisers.

Since the Supreme Court’s controversial 5 to 4 ruling in the Citizens United v. FEC case in 2010, the IRS has seen a more than 100 percent increase in the number of groups applying for 501(c)(4) status — the section of the federal tax code that governs non-profit groups dedicated to social welfare — from 1,500 in 2010 to 3,400 in 2012.

Not all 501(c)(4) engage in political activity of any kind — the United States Chess Federation, for example, is a fairly apolitical group. Political 501(c)(4) groups are required to adhere to certain rules, including that they not be “primarily engaged” in electioneering activity. In a failed attempt to sort out which groups were apolitical and which needed additional scrutiny, the IRS reportedly tried a variety of ineffective screening methods, including flagging “patriot” groups as well as groups that focused on making “America a better place to live.”

As long as it is not their primary purpose, Citizens United allows (c)(4) groups to spend unlimited funds on “independent expenditure” ads aimed at swaying voters and the deadlocked Federal Election Commission allows these groups to avoid any disclosure of who bankrolls these advertisements. And since the 2002 law governing political advertisements came before the ruling, it does not adequately address the specific issue of disclosure for independent expenditure ads.

Because of this loophole, groups seeking to influence elections through campaign ads groups and to avoid having to make their donors public have often registered as (c)(4)s, rather than as super PACs (tax-exempt groups which can also raise and spend unlimited amounts on “independent expenditures,” but must make public all large donors). After bankrolling super PACs in the 2012 elections, mega-donors including millionaire investor Foster Friess and billionaire casino mogul Sheldon Adelson have vowed to keep future political spending secret, by giving to opaque 501(c)(4) committees instead. And good government groups have demanded the IRS investigate whether (c)(4)s like Crossroads GPS, the Commission on Growth, Hope and Opportunity, and the American Future Fund are really just super PACs in disguise.

The guidelines for what is and is not an acceptable level of political activity for a (c)(4) has never been clear — a vague “primary purpose” test — and has been little enforced. With limited staff and resources, even before massive furloughs forced by the sequester, the IRS has proved ill-equipped to monitor which (c)(4)s are really (c)(4)s and which ones are pretenders.

Congressional Republicans have thus far blocked efforts to require disclosure of political ad spending by (c)(4) groups. The proposed DISCLOSE Act and the Follow the Money Act would help bring parity to the disclosure rules goverrning independent campaign ads, without impeding on the legitimate activity of (c)(4)s. But if groups like Crossroads GPS were required to disclose the major donors behind their $70 million-plus campaign ad spending, there would be little incentive for them to masquerade as social welfare groups.

If Congress simply treated all spending on independent campaign advertisements uniformly — allowing voters to know who was really speaking and to evaluate the speech accordingly — the IRS would not have to use these clearly imperfect tests to decide what is and isn’t a legitimate 501(c)(4).

Note: ThinkProgress is a project of the Center for American Progress Action Fund (CAPAF), which has been recognized by the IRS as a 501(c)(4) organization. CAPAF does not endorse candidates, nor does it fund “independent expenditures” or any other kind of candidate-related advertising.

Vermont House weighs "death with dignity" bill (Credit: WPTZ)

On Monday night, the Vermont legislature passed a bill allowing doctors to help terminally ill patients die if the patient requests it. The controversial proposal, which Gov. Peter Shumlin (D-VT) has pledged to sign into law, is the first to pass a legislative body in the nation. Vermont will become the fourth state to allow doctors to prescribe lethal doses to patients with 6 months or less to live, after a court order in Montana and ballot initiatives in Washington and Oregon legalized the practice.

Vermont’s bill protects physicians from criminal, civil or professional punishment for prescribing lethal doses of medication to mentally competent, terminally ill patients. Before taking this option, a patient must state their request 3 times, get 2 medical opinions, be offered a psychiatric examination, and wait 17 days to fill the prescription. In 3 years, Vermont’s stricter requirements would expire and professional practice standards would begin to govern the law.

According to a study in one Seattle hospital, loss of autonomy was the reason 97 percent of cancer patients chose to end their lives. As the AP notes, Vermont is one of the fastest-aging states in the nation, with a quarter of its population projected to reach 65 years or older by 2030.

During two days of debate in the packed State House, proponents and opponents alike shared emotional stories of watching loved ones waste away or learning of a friend’s suicide. One woman testified that she had been misdiagnosed with an incurable disease by 2 doctors and warned that others who have been misdiagnosed may kill themselves before learning they were untrue. Others told stories of family members who outlived bleak prognoses.

Despite the fierce debate on both sides of the deeply fraught issue, few patients actually take advantage of physician-assisted suicide. Since Washington passed their law in 2010, just 255 people have received a lethal prescription, some of whom later chose not to go through with the program. These low numbers suggest that the program is used sparingly in only the most desperate cases. Moreover, a majority of Americans believe doctors should be allowed to comply with the wishes of terminally ill patients who want to hasten their death.

Former RNC Florida Hispanic Outreach Director Pablo Pantoja. Credit: Tampa Bay Times

When Republicans appointed Pablo Pantoja to State Director of Florida Hispanic Outreach for the Republican National Committee, they hoped he would be able to bridge the sizable gap that only expanded during the 2012 elections, when the state’s 4.3 million Hispanic voters supported Barack Obama over Mitt Romney by a 20 percent margin.

But after months of inaction by Congressional Republicans on comprehensive immigration reform and stiff resistance by Republican-leaning groups like the Heritage Foundation, Pantoja has had enough; on Monday, he announced via email that he was leaving the party and registering as a Democrat:

Friend,

Yes, I have changed my political affiliation to the Democratic Party.

It doesn’t take much to see the culture of intolerance surrounding the Republican Party today. I have wondered before about the seemingly harsh undertones about immigrants and others. Look no further; a well-known organization recently confirms the intolerance of that which seems different or strange to them.

Pantoja goes on to specifically cite last week’s revelation — that an author of Heritage’s false report on the cost of the Gang of Eight’s immigration bill wrote a dissertation in which he suggested that Hispanics are at a permanent disadvantage because they have lower IQs — as the final straw in his political evolution.

Prior to assuming the role of state director, Pantoja served in the National Guard, doing multiple tours abroad in Kuwait and Iraq before returning to the states and getting involved in Republican politics. In 2010 he served as a field director in Florida during the midterm elections.

Republicans have for months tried to find ways to make inroads with the country’s growing hispanic population, especially in the swing state of Florida. Hispanics there turned out to vote at a rate of more than 62 percent in 2012, significantly higher than the national turnout rate of 48 percent and the highest rate of Hispanic turnout in the country.