Category: Issue 3

Citizens United Spurred Increase in Spending by Nonprofit Groups

This Article focuses on changes in campaign spending after the United States Supreme Court decision in Citizens United v. Federal Election Commission in 2010. The Author explains that the Citizens United decision paved the way for an explosion of spending by nonprofit groups that do not have to disclose their donors and for the creation of super-political action committees (super-PACs) that can take in unlimited corporate, union, and individual donations. While super-PACs must disclose their contributors, these nonprofits do not, which has created a debate about whether nonprofits engaged in political activity should also be required to disclose contributors. The Author explains how some advocate that these new campaign-finance vehicles facilitate speech, while others argue that secret spending makes the political process less transparent, thus harming American democracy. Finally, the Author describes how efforts to require disclosure have thus far been unsuccessful and forecasts that the courts will ultimately decide this issue.

Citizens United and Social Welfare Organizations: The Tangled Relationships among Guidance, Compliance, and Enforcement

This Article examines how the IRS engendered the continuing controversy over claims of misapplication of the Tax Code targeting Tea Party groups applying for tax-exempt status. By surveying the Tax Code, legislative history, and reports in light of the scandal, this Article proposes these challenges actually stem from a fundamental IRS failure-the failure to issue meaningful administrative guidance on key definitions such as social welfare and permissible election campaign activities of Section 501(c)(4) organizations. As such, this Article faults the long-term laxity of the IRS and its failure to resolve statutory ambiguities for creating conditions conducive to arbitrary enforcement and the de facto restructuring of tax-exempt organizations under Section 501(c)(4) as permissible campaign-finance vehicles. Further, this Article discusses how the United States Supreme Court contributed to the shift of utilizing Section 501(c)(4) organizations for furthering political funding goals by analyzing the Court’s decision in the landmark case, Citizens United v. Federal Election Commission. This Article foreshadows new challenges navigating laws regulating tax and campaign finance by highlighting the impact of the lingering effect of the Court’s decisions to adhere to a limited agency role in election law and to protect political free speech.

Citizens United and the First Amendment of Labor Law

The Supreme Court’s decision in Citizens United v. Federal Election Commission sparked a widespread dialogue about the fundamental First Amendment right of free speech and the future of election spending. This Article contributes to that dialogue with a focus on how the Citizens United decision affects labor unions.

After explaining the Court’s rationale in Citizens United, the Author juxtaposes Citizens United with earlier cases concerning the First Amendment rights of labor unions. Specifically, the Article explores inconsistencies in two areas: first, labor protest rights, as to which pre-Citizens United Supreme Court decisions upheld certain speaker-based restrictions on protest tactics; and second, protections for dissenting union-represented employees. Next, the Author evaluates whether post-Citizens United First Amendment cases resolve this established tension. The Article closes by expressing concern about what these inconsistencies may mean in the future, especially in the context of two important cases from this Term’s Supreme Court docket: McCutcheon v. Federal Election Commission and Harris v. Quinn.

Curtailing Voter Intimidation by Employers after Citizens United

Protection against voter intimidation may undergo significant change in the wake of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In that case, the Court greatly expanded First Amendment protections afforded to corporations. With this increased protection, corporations are emboldened to increase their efforts to persuade employees to vote for particular candidates or initiatives that may favor the corporation or those at its helm with little fear of being prosecuted for voter intimidation.

This Article explains why the current environment of voter intimidation laws is untenable. The Author discusses and then rejects that the resolution propounded by the Supreme Court in NLRB v. Gissel Packing Co., which addresses voter intimidation in the context of employee unionization, could be a workable solution to the problem when it comes to political elections. Instead, the Author proposes a solution based on the decision rendered in Kunkle v. Q-Mark, Inc.; in that case, a federal court in Ohio determined that a public policy exception to the at-will employment rule exists to permit an employee to bring a civil tort action against his or her employer for adverse employment decisions based on how the employee votes in a political election. The Author argues that recognition of the public policy tort would adequately deter employers from future voter intimidation and curtail the problems made possible by the decision in Citizens United.

Clearing up the Confusion: Aiding Court Decisions regarding Trademark Infringement and the Internet

Trademark law protects the interests of the holder of trademarks as well as the interests of consumers, and thus attempts to avert confusion by preventing misleading usage of a trademark. As the Internet has expanded into the primary marketplace for consumers researching and purchasing items, the need to protect one’s trademarks has also increased.

This Article explores the doctrine of initial interest confusion in trademark infringement specific to pre-purchase or Internet technologically based claims. The Author explores the circuit split in the tests that different circuit courts apply when analyzing trademark keyword advertising claims. The Article proposes that, despite calls to abolish the initial interest confusion doctrine, the doctrine should be applied within the framework of trademark protections provided by the Lanham Act. By combining the initial interest confusion doctrine with the likelihood of confusion factors commonly used by courts, the Author asserts that trademarks and their associated interests will be better protected on the Internet. Additionally, the Author asserts that such a merger would better prepare courts to address future Internet issues.

Drone Legislation: Keeping an Eye on Law Enforcement’s Latest Surveillance Technology

Having originally drawn national attention for playing a part in the targeted killings of terrorist suspects abroad, unmanned aerial vehicles– commonly referred to as “drones”-recently became the subject of an even greater debate: law enforcement’s use of the technology to monitor American citizens. Drone surveillance stretches the boundaries of Fourth Amendment jurisprudence, forcing courts to consider whether the two traditional tests for finding a Fourth Amendment violation-physical intrusion and reasonable expectation of privacy adequately protect citizens’ constitutional rights.

This Article posits that under the Fourth Amendment’s current doctrinal framework drone surveillance fails to amount to a “search.” As such, traditional Fourth Amendment jurisprudence inadequately protects citizens from unreasonable government intrusion by failing to address two key issues-length of surveillance and sophistication of the technology used by law enforcement. Moreover, this Article explains the two dominant remedial theories in public discussion-the mosaic theory, which if implemented would effectively alter the way courts view law enforcement action for Fourth Amendment purposes, and drone legislation. Ultimately, the Author rejects the mosaic theory as an unworkable framework, arguing that its nebulous standard fails to provide law enforcement officers with a practical, bright-line rule. Instead, the Author argues that citizens’ Fourth Amendment rights would be best protected by legislation that addresses both the acceptable forms of technology to be mounted on drones and the acceptable durational limits that should accompany drone usage by law enforcement.