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Legal news from Thursday, September 6, 2012




Cambodia genocide tribunal announces declassification of war crimes trial documents
Keith Herting on September 6, 2012 3:54 PM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website], Cambodia's UN-supported war crimes tribunal, announced Thursday that it would declassify more than 1,700 documents [press release, PDF] including "victims' 'confessions' and biographies, witness statements, transcripts of in camera hearings, and rogatory letters." The documents being declassified are those which were part of "Case 001" which resulted in a guilty verdict and life sentence [JURIST reports] for former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive]. The ECCC hopes that declassification will "promote a genuine public discussion of Cambodia's tragic past based on firm evidence."

Kaing is the only former Khmer Rouge leader to have been convicted by the ECCC. Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea were indicted [JURIST report] in September 2010. The ECCC ruled that Ieng Thirith was unfit to stand trial, but the Supreme Court Chamber in December ordered that she remain in detention [JURIST reports] and that the Trial Chamber exhaust all measures so that she can stand trial. The other three went on trial [JURIST report] in November. In July the ECCC appointed a new judge to prosecute two new war crime cases [JURIST report].




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South Korea to investigate Samsung antitrust complaints
Brandon Gatto on September 6, 2012 3:50 PM ET

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[JURIST] The Fair Trade Commission of Korea (KFTC) [official website] on Thursday said that South Korean regulators are investigating an Apple complaint alleging that Samsung Electronics [corporate website] is unfairly competing in the market to the disadvantage of its competitors. The antitrust claim avers [Reuters report] that Samsung is breaching fair trade laws by abusing its dominance in wireless technology patents. This is counter, alleges Apple, to the fair practice by which these standard-essential patents are supposed to be licensed in a nondiscriminatory fashion to allow other companies to adopt compatible technology. Samsung won a small victory on August 24 when a South Korean court ruled [JURIST report] that Apple had infringed upon two of the company's patents related to mobile-data transfer technologies. However, the court also found that Samsung had infringed upon an Apple patent related to a touchscreen feature, ultimately leading to a South Korea sales ban on certain products from each company.

Apple and Samsung are currently embroiled in several patent lawsuits in courts all over the world. In Asia last week, a Tokyo court dismissed a claim [JURIST report] that Samsung violated Apple's patents with its smartphones and tablets. In the US only two weeks ago, Apple moved to block eight Samsung products from being produced in the US just after it won a USD $1.05 billion judgment [JURIST report] against its competitor in California court. In Europe, a UK court ruled in July that Samsung tablets do not infringe on Apple's design. The original patent suit [JURIST report] was brought in California by Apple in April of last year.




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US to maintain control of foreign, new detainees at Afghanistan prison: NYT
Brandon Gatto on September 6, 2012 2:36 PM ET

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[JURIST] Government officials from both the US and Afghanistan have said that the American military will maintain control over foreign detainees [NYT report] at Bagram Air Base [official website; JURIST news archive] in Afghanistan for the indefinite future, and will also continue holding and screening newly captured Afghans. According to the New York Times, America's commitment to the control and maintenance of dozens of foreign prisoners comes despite preparing to hand over its detention operations to the Afghan government on September 9, as agreed to [Al Jazeera report] in March in a pact preceding the countries' Enduring Strategic Partnership Agreement [text, PDF]. Given that the March agreement covered only the 3,100 Afghan detainees at the time of its enactment, there has been relative uncertainty as to the fate of the additional 600 detainees added to Bagram since the signing. While concerns of arbitrary detentions have been raised [AFP report] by the Afghan government, namely that the agreement's no-trial detention system is contrary to the Afghanistan Constitution [text, PDF], William Lietzau [official profile], the Pentagon's top detainee policy official, maintains that the system is lawful as long as the war continues. The Afghan government has refused to ratify the agreement.

In July it was reported that the US would retain control of about 50 non-Afghan detainees [JURIST report] at Parwan Detention Center at Bagram. At that time the US again had to defend its position by asserting that its agreement with Afghanistan did not cover foreign nationals. The detainees have allegedly been held without access to legal assistance, prompting some human rights activists to question the deal's legitimacy and expand upon the criticism that the Bagram facility has been "the other Guantanamo" since its opening [JURIST report] in 2009. The plan for Afghanistan [JURIST report] to take over the US military's Parwan Detention Center was crafted in January with a goal of transferring all responsibilities to the Afghan government within six months.




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Michigan Supreme Court orders constitutional amendments on ballot
Keith Herting on September 6, 2012 2:27 PM ET

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[JURIST] The Michigan Supreme Court [court website] on Wednesday ordered [opinion, PDF] three proposed constitutional amendments to appear on the ballot during the November election. The court's decision outlined four proposed amendments, approving three of them for general approval by the voters. The three approved measures include a union-backed measure to amend the state constitution to include a right to labor unionization and collective bargaining, a measure to require either a statewide majority vote or a two-thirds vote of both houses of the Legislature to raise taxes, and a proposed amendment which would require a statewide majority vote before any new bridges could be built between Michigan and Canada. A proposed constitutional amendment which would have increased the number of casinos in the state was rejected as the court felt the text did not clearly indicate that it would lessen the authority of the state Liquor Control Commission. The most controversial of these measures was the "Protect Our Jobs" [advocacy website] initiative, which collected around 700,000 signatures—significantly more than required to put the proposal on the ballot—but faced difficulties when the Board of State Canvassers [official website] declined the measure before being overturned [JURIST report] by the Michigan Court of Appeals [official website].

Attempts to limit collective bargaining rights have been confronted with heavy opposition. Wisconsin faced a challenge against its legislation which limited the collective bargaining rights of public employee unions. In July the Wisconsin Supreme Court [official website] ruled [JURIST report] not to reopen a case challenging the state's Budget Repair Bill [text, PDF] because of a justice's refusal to recuse himself. Four votes were needed, but only three justices were in support of reopening the case. The court upheld [JURIST report] the bill in June 2011 thereby overruling the Dane County Circuit Court [official website] finding [JURIST report] a month earlier that legislators had violated the "open meetings" rule. The court ruled that the lower court had "invaded the legislature's constitutional powers." In March a judge for the US District Court for the Western District of Wisconsin [official website] ruled unconstitutional [JURIST report] certain provisions of the Budget Repair Bill reasoning that unions which supported Governor Scott Walker [official website] during his election were apparently given preferential treatment. Last November Ohio voters rejected [JURIST report] a bill which would have impacted Ohio's 400,000 public workers by limiting their ability to strike and collectively bargain for health insurance and pensions.




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US delivers Khadr documents to Canada authorities
Rebecca DiLeonardo on September 6, 2012 1:29 PM ET

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[JURIST] Canadian authorities received documents and materials about Canadian Guantanamo Bay [JURIST backgrounder] detainee and convict Omar Khadr [DOD materials; JURIST news archive] from US authorities on Wednesday and will now consider whether he can be transferred into Canadian custody. A spokesperson for Public Safety Minister Vic Toews [official website] told reporters that he will review the documents and make a decision [CP report] on the transfer of Khadr based on Canadian law. A former child soldier for al Qaeda, Khadr has expressed his desire to serve out his sentence in his home country. A request was formally sent to the Canadian government [JURIST report] in April, after being approved by the US government. In 2010 Khadr pleaded guilty to five charges [JURIST report] in a military tribunal, including killing a US soldier in Afghanistan in 2002. Toews is now expected to make a decision on Khadr's repatriation in the near future.

Khadr was charged after being captured subsequent to a firefight in Afghanistan in 2002 in which he threw a hand grenade that killed one US soldier and wounded another. In August 2010 a military judge rejected Khadr's claim that his confession was a byproduct of torture [JURIST report]. Earlier that month the same judge ruled that Khadr's confession was admissible at trial [JURIST report]. Canada had previously declined to seek Khadr's repatriation [JURIST report] after his former lawyers obtained a ruling in the Supreme Court of Canada [official website] that the interrogation of Khadr by Canadian officials while in detention violated section 7 of the Canadian Charter of Rights and Freedoms [text]. According to the ruling, Canadian officials questioned Khadr, even though they knew he was being indefinitely detained and that in March 2004 he was questioned with knowledge that he was subjected to three weeks sleep deprivation by US authorities. Regardless that ruling did not force the government to seek his repatriation.




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HRW urges China authorities to halt deportation of Myanmar refugees
Rebecca DiLeonardo on September 6, 2012 12:22 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday urged the Chinese government to halt the deportation of Myanmar refugees. In a letter [text, PDF] sent to the Chinese Minister of Foreign affairs, the rights group said that the return of at least 4,000 ethnic Kachin refugees from Myanmar is a violation of international law. HRW dismissed claims by the Chinese government that the individuals returned to Myanmar were either not refugees or chose to return home voluntarily, noting that the Chinese government has not officially considered the refugee status of any of the asylum-seekers. In the letter, HRW noted that it had published a report [text, PDF; JURIST report] in June finding that although China had generally accepted the Myanmar refugees into its borders, they typically lived in poor conditions without access to adequate food, shelter or health care. HRW called on the Chinese government to prevent future abuses of refugees by allowing the UN High Commissioner for Refugees access to the remaining asylum-seekers in China, and to set up a process for legally establishing refugee status for individuals fleeing violence and persecution.

Myanmar has been working to eliminate sectarian violence within its borders, but has recently been criticized by different groups for its methods and for human rights abuses. Earlier this week Physicians for Human Rights (PHR) released a report concluding that Myanmar's army is still committing human rights abuses [JURIST report] against ethnic minorities in Karen state. Last week the country sentenced two UN staff members [JURIST report] to prison for their involvement in sectarian violence. This was one week after President Thein Sein announced creation of a 27-member commission [JURIST report] to investigate causes of the violence. Earlier this month, however, HRW accused Myanmar forces of committing multiple human rights violations [JURIST report] following an outbreak of sectarian violence. UN High Commissioner for Human Rights Navi Pillay also expressed concern [JURIST report] last month about both the continued violence in Myanmar and the country's human rights abuses committed in dealing with it.




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HRW urges Pakistan to protect Shia Muslims
Max Slater on September 6, 2012 11:44 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] called on the government of Pakistan [press release] on Wednesday to ensure that minority Shia Muslims [Islam Awareness backgrounder] in Pakistan are protected from attacks by Sunni militant groups. HRW noted that attacks against Shia communities have increased recently and that 320 Shia have been killed in targeted attacks in 2012. HRW Asia Director Brad Adams suggested that Pakistan has turned a blind eye to these attacks and should ensure that the government should hold the militant groups accountable for the attacks:
Deadly attacks on Shia communities across Pakistan are escalating. The government's persistent failure to apprehend attackers or prosecute the extremist groups organizing the attacks suggests that it is indifferent to this carnage.
Although Pakistani authorities claim to have arrested dozens of suspects in attacks against Shia, HRW contended that few people have been charged and held responsible for their actions.

Pakistan has been under pressure recently to improve human rights conditions. In June UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Pakistani government to continue to work to improve its human rights situation [JURIST report]. In particular, Pillay stressed that the government must work to eliminate institutionalized discrimination and to prevent torture and corruption. In May Pakistani President Asif Ali Zardari signed a bill authorizing the creation of an independent human rights commission [JURIST report] in Pakistan. Last year the Human Rights Commission of Pakistan [official website], a non-government organization, harshly criticized the Pakistani government [JURIST report] for its poor human rights record and called on government officials to fix the human rights abuses occurring in the country.




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Ninth Circuit rules cities cannot destroy property of homeless
Max Slater on September 6, 2012 10:54 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Wednesday that the city of Los Angeles violated the Fourth and Fourteenth Amendments [Cornell LII backgrounders] to the US constitution when it seized and destroyed the abandoned property of homeless people. The plaintiffs were several homeless people whose possessions were seized by the city and destroyed. The Ninth Circuit ruled 2-1 that the city's random seizure of homeless people's property without notice and an opportunity to be heard violated the homeless' due process rights:
Because homeless persons' unabandoned possessions are "property" within the meaning of the Fourteenth Amendment, the City must comport with the requirements of the Fourteenth Amendment's due process clause if it wishes to take and destroy them. ....We reject the City's suggestion that we create an exception to the requirements of due process for the belongings of homeless persons.
One judge dissented, arguing that the Fourth Amendment's restrictions on governmental seizures do not protect unattended personal property in public spaces.

The rights of homeless people [JURIST news archive] have been a contentious legal issue recently. In August JURIST guest columnist Sapphire Jule King asserted that states need to enact comprehensive legislation [JURIST comment] to protect the homeless from discrimination. In July JURIST guest columnist Linda Tashbook argued that Rhode Island's recently-passed Homeless Bill of Rights [text, PDF; JURIST report] provides an improved set of standards [JURIST op-ed] by which states should treat their homeless citizens. In April the US Department of Justice [official website] found that ordinances criminalizing homelessness may violate human rights [JURIST report] as well as the Fourth and Eighth Amendments. The Supreme Court of Georgia ruled in 2008 that current state laws regarding sex offenders are unconstitutional as applied to homeless people [JURIST report]. The state court determined that the law, which did not permit listing "homeless" as an acceptable address, "[did] not give homeless sexual offenders without a residence address fair notice of how they can comply with the statute's registration requirement." In 2008 New York City Mayor Michael Bloomberg announced that his administration had reached a settlement [press release; JURIST report] in a long-standing lawsuit over homeless families' right to use shelters throughout the city.




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HRW: Bush administration engaged in torture, rendition of Gaddafi opponents
Maureen Cosgrove on September 6, 2012 10:02 AM ET

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[JURIST] During the administration of former US president George W. Bush [JURIST news archive], the US government tortured opponents of former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive] and transferred them to Libya, Human Rights Watch (HRW) [advocacy website] announced in a report [PDF] released Wednesday. The report, entitled "Delivered Into Enemy Hands: US-Led Abuse and Rendition of Opponents to Gaddafi's Libya," details the ill-treatment and torture, including instances of waterboarding, of detainees in US custody. The information contained in the report comes from detainees who have since been liberated, as well as documents and files uncovered after the fall of the Gaddafi regime. HRW documented instances of rendition to countries with known torture practices, with inadequate procedural standards and where detainees were held in incommunicado detention. The report also examines the roles that other national governments played in the abuse of detainees and unlawful renditions. HRW made recommendations to the US government and the various national governments scrutinized in the report to investigate allegations of torture and abuse, acknowledge past injustices and take steps to end the use of torture.

Bush and other national leaders have come under fire for allegedly engaging in torture and human rights abuses. Earlier this week Nobel Peace Prize laureate Desmond Tutu [backgrounder] called for [JURIST report] Bush and former UK prime minister Tony Blair [JURIST news archives] to stand trial at the International Criminal Court (ICC) [official website] for their roles in the 2003 invasion of Iraq. In February 2011 the Center for Constitutional Rights (CCR) and the European Center for Human Rights (ECCHR) [advocacy websites] urged [JURIST report] the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [press release] against Bush. In July 2010 HRW urged the Obama administration to begin a criminal investigation [JURIST report] into alleged detainee abuses authorized by the Bush administration following the 9/11 terrorist attacks [JURIST backgrounder]. Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report].




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Federal judge upholds Arizona immigration law
Maureen Cosgrove on September 6, 2012 8:47 AM ET

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[JURIST] A judge for the US District Court for the District of Arizona [official website] on Wednesday upheld [opinion, PDF] a controversial provision of Arizona's immigration law [SB 1070, PDF] that requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. Judge Susan Bolton, after hearing arguments [JURIST report] on the law in August, denied the plaintiff's request for a preliminary injunction in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report] which upheld the provision. Arizona Governor Jan Brewer [official website] praised [press release] the court's ruling, saying this "most critical section" of the law will "empower state and local law enforcement." Alessandra Soler, executive director of the American Civil Liberties Union of Arizona (ACLU) [advocacy website], expressed concern [press release] over the ruling:
Latino members of our community should not be subjected to unlawful stops based on their race or perceived immigration status. Once this 'show me your papers' provision goes into effect, racial profiling will become rampant statewide ... and we intend to ramp up our reporting and litigation efforts to seek justice on behalf of the victims of police abuse.
The court also granted a preliminary injunction on federal preemption grounds for part of the law that criminalizes the harboring and transportation of illegal immigrants. Bolton had enjoined several provisions of SB 1070 [JURIST report] in July 2010, including the one that requires law enforcement officials to check the immigration status of suspects.

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states, Arizona being the first, have passed laws giving state and local officials more power to crack down on illegal immigration. In August the US Court of Appeals for the Eleventh Circuit [official website] struck down [JURIST report] several provisions of Alabama's controversial immigration law [HB 56, PDF], upheld a few sections of the law and rejected part of Georgia's immigration law [HB 87, text]. That same month, the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the recent Supreme Court ruling. The lawsuit against the South Carolina immigration law was put on hold [JURIST report] in January pending the outcome of Arizona v. United States. Last May the ACLU and the National Immigration Law Center filed a class action lawsuit challenging Utah's immigration law, the same month that the ACLU filed a class action [JURIST reports] in the US District Court for the Southern District of Indiana [official website] challenging that state's immigration law.




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ACLU asks federal appeals court to rehear cell phone tracking case
Jaimie Cremeans on September 6, 2012 8:39 AM ET

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[JURIST] The American Civil Liberties Union [official website] (ACLU) on Tuesday asked [amicus brief, PDF] the US Court of Appeals for the Sixth Circuit [official website] to reconsider a case in which it decided [opinion, PDF; JURIST report] last month that police use of GPS tracking on a person's cell phone is not an illegal search under the Fourth Amendment [text]. The ACLU asserts that this decision "is an unusually important and weighty precedent given its status as the first appellate decision in the nation to apply [United States v. Jones] to GPS tracking via cell phones and severely undercuts the Jones decision by effectively limiting it to its facts." In Jones [opinion, PDF], the US Supreme Court [official website] decided [JURIST report] that attaching a GPS tracking system to a vehicle without a warrant constituted a search under the Fourth Amendment. In the Sixth Circuit's case, the police coordinated with a cell phone company to use the defendant's GPS on his phone to track him down before they had obtained a warrant or even shown probable cause. The ACLU said it thinks the Sixth Circuit misapplied Jones to this case and urged it to reconsider its ruling.

Government use of technology to locate and obtain information about people has caused much controversy. In July a member of the US House of Representatives released a report showing an increase in requests by law enforcement [JURIST report] agencies to access cell phone records from major wireless carriers. In March the US Court of Appeals for the Seventh Circuit [official website] ruled [JURIST report] that a warrantless search of a suspect's cell phone to obtain the suspect's phone number is not a violation of the Fourth Amendment. Last year a federal court ordered the Department of Justice [official website] to release information [JURIST report] about when it had used cell phone location data to track down suspects in a suit filed by the ACLU.




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UN domestic worker rights treaty to take effect next year
Jaimie Cremeans on September 6, 2012 7:25 AM ET

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[JURIST] The International Labor Organization (ILO) [official website] announced Wednesday that the Convention on Domestic Workers (CDW) [text], which states that workers who manage families and households for a living should be guaranteed the same labor rights as all other workers, will go into effect next year [press release] following ratification by the Philippines. The CDW was adopted [JURIST report] by the ILO at its annual conference in Geneva last year. Uruguay was the first country to ratify it in June, followed by the Philippines [JURIST report] last month. The convention required ratification by two countries before it could go into force, so now that the Philippines has ratified it, it will go into effect next year. The CDW guarantees domestic workers rights to collective bargaining, minimum wage, at least one day a week of rest and many other labor rights not currently given to many of them throughout the world.

Rights of domestic workers has been a controversial issue for years. Last year the UN warned Lebanon [JURIST report] specifically that it needed to create more laws to protect rights of domestic workers. In 2010 Human Rights Watch (HRW) [advocacy website] expressed the same opinion [JURIST report], stating that Lebanon needed to do more to protect domestic workers in its country and prosecute those who violate their rights. HRW also released a statement [JURIST report] in 2008 saying that migrant and domestic workers were facing human rights abuses throughout the Middle East and Asia.




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Federal appeals court strikes down Minnesota political contribution disclosure law
Jerry Votava on September 6, 2012 6:50 AM ET

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[JURIST] The US Court of Appeals for the Eighth Circuit [official website], sitting en banc on Wednesday, ruled [opinion, PDF] that Minnesota's disclosure requirement law for political contributions is unconstitutional, reversing an earlier decision [JURIST report] by a three-judge panel. The law reaches nearly all associations and requires that all donations for political purposes require record-keeping and disclosure. The court found, "under Minnesota's regulatory regime, an association is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term morass of regulatory red tape." The court went on to state:
Minnesota's law hinders associations from participating in the political debate and limits their access to the citizenry and the government. The law manifestly discourages associations, particularly small associations with limited resources, from engaging in protected political speech. ... In short, the collective burdens associated with Minnesota's independent expenditure law chill political speech.
The opinion was decided by a narrow 6-5 margin. The full panel did uphold a Minnesota law that prohibited corporations from making political contribution directly to political candidates.

Campaign finance laws have been a contentious issue recently. In June the US Supreme Court struck down a Montana campaign finance law that restricted the amount of money corporations can spend on campaigns, holding that Citizens United [JURIST reports] invalidated the Montana law. That decision, American Tradition Partnership, Inc. v. Bullock [SCOTUSblog backgrounder] reversed a decision by the Montana Supreme Court upholding the law [JURIST report]. Also in June the US Court of Appeals for the Fourth Circuit cited Citizens United and ruled [JURIST report] that a district court erred in holding that corporations can contribute directly to political campaigns. In February the Supreme Court blocked enforcement [JURIST report] of the Montana Supreme Court ruling.




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