“The Constitutional Excuse For Subverting Democracy”: Just Another Conservative Heads-We-Win-Tails-You-Lose Proposition
To anyone puzzled or confused about the preferred Tea Party self-identification buzzword “constitutional conservative,” George Will has done a fine job in his latest column spelling it all out, by way of touting a new book by Timothy Sandefur of the Pacific Legal Foundation. Progressives believe the Constitution provides a process that facilitates democracy. Conservatives understand that it’s a safeguard against the limitation of “natural” rights by democratic majorities.
This sounds reasonable if you accept the rather cartoonish idea that progressives do not acknowledge any limitations on popular majorities, or that the two sides mean roughly the same thing when they talk about individual rights. Here Will is not as forthcoming as he might have been, but his extensive discussion of the alleged incorporation of the Declaration of Independence into the Constitution–an invariable touchstone for Constitutional Conservatives–alludes to the common conservative belief that via the Declaration certain divinely granted or naturally endowed “rights”–particularly the untrammeled enjoyment of private property and the “right to life” of zygotes–trump the founding document itself.
You can think of it as a vastly more sweeping conservative version of the “penumbra” theory whereby Justice Douglas identified an implicit “right to privacy” in the Bill of Rights. And indeed, critics of Douglas’ opinion in Griswold v. Connecticut (itself a precedent for Roe v. Wade) have sometimes compared it to the “substantive due process” concept of the Lochner v. New York decision under which progressive social and economic legislation was routinely struck down as violating immutable private property rights until Lochner was overturned in 1937. It’s no accident that Will’s hero Sandefur is a latter-day defender of Lochner.
I’m no constitutional lawyer, and so won’t go into the argument over Lochner (or for that matter, Griswold) in detail, but it’s worth noting the practical effect this idea of supra-constitutional limitations on democratic majorities has on conservative political argumentation. When they aren’t describing America as a “center-right nation” or predicting perpetual Republican electoral landslides, or indulging in a “populist” appeals whereby “real Americans” are told they are being illegitimately outgunned by voter fraud or voter bribery, conservatives are prone to retreat into this impregnable fortress of constitutionalist theory which prohibits as a matter of fundamental law most progressive legislation. This redoubt makes it psychologically very easy to rationalize restrictions on voting, or mendacious campaign ads, or unlimited campaign spending by wealthy individuals, or abuse of the filibuster or other anti-democratic mechanisms. After all, conservatives are simply defending themselves against laws and policies that really ought to be struck down by the courts as unconstitutional–you know, like the Lochner-era courts routinely did with progressive legislation up through the early New Deal.
It’s at bottom just another heads-we-win-tails-you-lose proposition whereby American conservatives tend to support the constitutional arguments that in any given circumstance happen to support their policy goals.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 17, 2014
“A Government Of Laws, Not Of Men”: Uncivil Disobedience And The Opposite Of Patriotism
Back when George W. Bush was president, liberals were regularly accused of being disloyal or anti-American if they disagreed with the policies the administration was undertaking. As Bush himself said, you were either with us or with the terrorists, and as far as many of his supporters were concerned, “us” meant the Bush administration and everything they wanted to do, including invading Iraq. You may have noticed that now that there’s a Democrat in the White House, conservatives no longer find disagreeing with the government’s policies to be anti-American; in fact, the truest patriotism is now supposedly found among those whose hatred of the president, and the government more generally, burns white-hot in the core of their souls.
We’ve gotten used to that over the last five years, but I’ve still been surprised at the conservative embrace of Cliven Bundy, the Nevada rancher who has been in an argument with the Bureau of Land Management over grazing fees. Briefly: for 20 years Bundy has been taking his cattle to graze on federal land, but he refuses to pay grazing fees as the law demands and as other ranchers do, despite numerous court orders. So the BLM seized some of his cattle, and in the ensuing standoff, hundreds of armed right-wing nuts came to Bundy’s defense, trooping out to aim their weapons at federal employees.
I’m sure there are some conservatives who view this conflict in the clear, simple terms it deserves. This guy wants to use resources that don’t belong to him without paying for them, which is what we generally refer to as “stealing.” The reason he thinks he can do it is, as he put it in a radio interview, “I don’t recognize the United States government as even existing.” In other words, he isn’t standing up for principle, he’s a nut case.
And yet, prominent conservatives are not only rushing to his defense, they’re casting him as a patriotic American. Here’s part of an absolutely incredible column from The National Review‘s Kevin Williamson:
Of course the law is against Cliven Bundy. How could it be otherwise? The law was against Mohandas Gandhi, too, when he was tried for sedition; Mr. Gandhi himself habitually was among the first to acknowledge that fact, refusing to offer a defense in his sedition case and arguing that the judge had no choice but to resign, in protest of the perfectly legal injustice unfolding in his courtroom, or to sentence him to the harshest sentence possible, there being no extenuating circumstances for Mr. Gandhi’s intentional violation of the law. Henry David Thoreau was happy to spend his time in jail, knowing that the law was against him, whatever side justice was on.
Yes, you read that right: he compares Cliven Bundy to Gandhi. And he ends with this stirring call:
Prudential measures do not solve questions of principle. So where does that leave us with our judgment of the Nevada insurrection? Perhaps with an understanding that while Mr. Bundy’s stand should not be construed as a general template for civic action, it is nonetheless the case that, in measured doses, a little sedition is an excellent thing.
Williamson’s boss, NR editor Rich Lowry, also said that Bundy’s actions are “within the finest American tradition of civil disobedience going back to Henry David Thoreau.” Which just shows how little these people understand about civil disobedience, and about American traditions.
Civil disobedience means breaking a law, publicly and calmly, and then accepting the punishment the law provides, in order to draw attention to a law that is unjust and should be changed. The law Cliven Bundy is breaking says that if you graze your cattle on land owned by the federal government, you have to pay grazing fees. I haven’t heard anyone articulate why that law is unjust. People are saying that the government owns too much land in Nevada, and maybe it does, but until the government sells it to you and you own it, you have to pay to use it. There isn’t any fundamental question of human rights or even the reach of government in question here at all. Mr. Bundy also doesn’t have the right to walk into the local BLM office and stuff all their staplers and pens into his knapsack and walk out.
Secondly, and just as important, there’s nothing “civil” about Bundy’s disobedience. If it was civil disobedience, he’d pay what he owes and then try, through the courts and public opinion, to change what he sees as these unjust grazing fees. But he hasn’t done that. He just refused to pay, and then led a heavily-armed standoff with the government.
I’m sorry, but if you’re defending Bundy, no matter how many times you toss the phrase “We the people” into what you say, you just have no clue about how democracy works. When you become a United States citizen, or when you take public office in America, you don’t pledge to honor whatever particular notion you have of what this country ought to be. You pledge to uphold the Constitution. The whole point of democracy is, as John Adams put it, “a government of laws, not of men.” The system embodies the will of the people and allows for change. When there’s something about that system you don’t like, you can’t just shout “Tyranny!” and refuse to obey the laws. You work to change them through democratic means.
What Cliven Bundy and his supporters are doing is the opposite of patriotism. It isn’t principled opposition to Barack Obama, or to the policies of the federal government; it’s opposition to the American system of democracy itself. And the people who are defending him ought to be ashamed of themselves.
By: Paul Waldman, Contributing Editor, The American Prospect, April 16, 2014
“Pity The Poor Plutocrats”: Time’s Winged Chariot Draws Near, And There’s No Baggage Compartment
Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt…a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.
–President Dwight D. Eisenhower, in a 1954 letter to his brother Edgar
Pity the poor plutocrats, victims of the envious mob. You can hardly open the Wall Street Journal these days without reading a self-pitying screed by some billionaire hungry for love.
A while back it was venture capitalist Tom Perkins, who equated criticism of the wealthy with the Holocaust.
“I would call attention to the parallels of fascist Nazi Germany to its war on its ‘one percent,’ namely its Jews, to the progressive war on the American one percent, namely the ‘rich,’” he opined in a letter to the newspaper.
Makes sense to me. One day they’re saying Wall Street bankers should pay the same tax rate as the guys who rotate their tires, next day they’re flinging them into concentration camps. Soon billionaires will be hiding in attic penthouses, quietly fondling stock certificates. Their limos will be disguised as UPS trucks, their yachts as humble tugboats.
In a subsequent San Francisco speaking engagement, Perkins suggested that the United States formally adopt a one-dollar, one-vote electoral system. Citizens, he said, should be like shareholders in a corporation.
“You pay a million dollars in taxes, you get a million votes. How’s that?”
The audience laughed, but Perkins claimed to be dead serious. Kleiner Perkins Caufield & Byers, the investment firm he co-founded, called itself shocked, and emphasized its disagreement.
More recently, Charles Koch, the elder of the infamous Koch brothers of legend and song, contributed an op-ed to the Journal bitterly complaining that people targeted by TV attack ads he’s paid for are actually allowed to talk back. The brothers, you see, are pure idealists campaigning for liberty.
So that when their Tea Party front groups oppose a public transport system in Nashville, Tennessee, work to forbid Georgia Power from investing in solar technology, or spend big on a county referendum on open pit mining in Wisconsin, it has nothing whatsoever to do with Koch Industries’ oil, gas and mining profits. It’s all about freedom.
And when the same organizations spend millions on TV commercials featuring actresses reading prepared scripts, pretending to have been injured by the Affordable Care Act and attacking Democratic U.S. senators in Arkansas, Louisiana and Alaska, that too is all about liberty.
However, wicked “collectivists” who “promise heaven but deliver hell,” — hell evidently being reliable health insurance not subject to cancellation on an employer’s whim — have called the Koch brothers out. One such is Senate Majority Leader Harry Reid, who went so far as to call their secretive methods “un-American.”
“Instead of encouraging free and open debate,” Charles Koch whined, “collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that…Saul Alinsky famously advocated in the 20th [century], and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society.”
“Despots,” mind you. Boo-hoo-hoo. Far from being abashed, Senator Reid must have been thrilled that his taunts lured Koch out of hiding. These boys normally prefer to hide the hundreds of millions they spend purchasing U.S. Senate seats behind benign-sounding outfits like “Americans for Prosperity.”
Because who’s against prosperity, right?
That said, I do think it’s wrong to call anybody “un-American.” To the contrary, the Koch brothers are every bit as American as John D. Rockefeller, H.L. Hunt or Scrooge McDuck, dabbling in his private bullion pool. The comic-heroic figure of the tycoon furiously stamping his little webbed feet because people are free to disagree with him has long been a staple of national life.
Like Charles and David Koch, who inherited hundreds of millions from their oilman father — a founding member of the John Birch Society, which famously held that President Eisenhower was a card-carrying member of the International Communist Conspiracy — their legacy often includes crackpot megalomania. Hence “collectivists,” a polite euphemism.
Koch’s Syndrome, you might call it: combining an obsessive-compulsive need to accumulate money — these boys are worth $100 billion, but they’re nevertheless bitter about paying taxes — along with a deep-seated fear of being found unworthy. Surrounded by obsequious underlings all their lives, they’ve no idea if they’ve ever really deserved it.
It may also be significant that Tom Perkins is 82, the Koch brothers 78 and 73, respectively.
Time’s winged chariot draws near, and there’s no baggage compartment.
By: Gene Lyons, The National Memo, April 9, 2014
“Wake Up, People, And See The Danger We’re In”: While Watching With Eyes Glazed, Democracy Is Being Stolen
This is a column about campaign finance reform.
And your eyes glazed over just then, didn’t they?
That’s the problem with this problem. Americans know that government truly of, by and for the people is unlikely if not impossible so long as the system is polluted by billions of dollars in contributions from corporations and individual billionaires. Half of us, according to Gallup, would like to see public financing of campaigns; nearly 80 percent want to limit campaign fundraising.
And yet somehow, the issue seems to lack a visceral urgency in the public mind. William Ostrander understands that all too well.
“There are people that will go nuts over the Second Amendment,” he says in a telephone interview. And not to diminish the importance of self-defense, he adds, but “when you look at the practical character of it, what’s going on in campaign finance corruption is far more injurious to their lives, their well-being and their children’s lives than anything most people have had to deal with with the Second Amendment.”
Ostrander is a farmer in tiny San Luis Obispo, CA, and the director of something called Citizens Congress 2014. Its members include a schoolteacher, a small-business man, a firefighter, a general contractor and a doctor — your basic average Americans — who have collectively invested thousands of volunteer hours to set up a summit (June 2-5) of lawyers, lawmakers, academics, advocacy groups and other experts.
Their aim: to brainstorm strategies and craft a plan of action to eliminate the influence of big money in politics.
Quixotic? Perhaps. But Ostrander says he has commitments from a number of high-profile individuals, including: former labor secretary Robert Reich, Harvard law professor Lawrence Lessig; and Trevor Potter, the former chairman of the Federal Election Commission, who is probably best known for his appearances on The Colbert Report, where he helped Stephen Colbert set up a SuperPAC.
We should wish them success. Because truth is, while many of us watch with eyes glazed, democracy is being stolen right out from under us. Consider that last week, the Supreme Court issued a ruling further loosening the limits on campaign donations. Consider the unseemly way four presumptive presidential aspirants ran to Las Vegas to kiss Sheldon Adelson’s ring when the billionaire casino magnate announced he was looking for candidates to support. Consider what billionaire Tom Perkins said in February: Only taxpayers should have the right to vote and the rich should have more votes.
We’re already moving in that direction. As new Voter ID laws and other restrictive measures cull the electorate of poor people, brown people and young people, as the Supreme Court further tilts the playing field toward the monied and the privileged, the notion of one person, one vote, the idea that we each have an equal say in the doings of our government, comes to feel … quaint if not downright naive.
So the politician, though she came to office determined to do right by her constituents, finds she must pay greater attention to the needs of a large donor than to those of the people she was elected to represent. And you get paradoxes like the one last year, where, although 91 percent of us wanted criminal background checks for all gun sales, somehow that didn’t happen, didn’t even come close.
It’s not the politicians’ fault, says Ostrander. “There are some really great people in Congress, honestly. It’s the system that’s broken. The system needs an intervention.”
And that won’t happen until or unless more Americans wake up from their stupor and recognize this as the clear and present danger it is. Ever feel your government doesn’t represent you?
That’s because it doesn’t.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; Published in The National Memo, April 9, 2014
“The War Against American Citizens”: Metastasizing Money Drowns Out The Voices Of Actual Americans
In 1971, before becoming a Supreme Court justice, Lewis F. Powell Jr. penned a memo to his friend Eugene Sydnor of the U.S. Chamber of Commerce advocating a comprehensive strategy in favor of corporate interests. Powell wrote, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”
In last week’s ruling in McCutcheon v. Federal Election Commission , the Supreme Court was not a mere instrument so much as a blowtorch, searing a hole in the fabric of our fragile democracy.
This predictable decision from the 1 Percent Court to repeal federal limits on overall individual campaign contributions overturns nearly 40 years of campaign finance law.
It also completes a trifecta of rulings that started in 1976 with Buckley v. Valeo, and the Midas touch of judicial malpractice, turning money into speech. As Justice Stephen Breyer wrote in an impassioned dissent to McCutcheon, taken together with the 2010 ruling in Citizens United, “today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
This, foreshadowed in Powell’s decades-old memo, has always been the right’s plan — to shift the system in favor of the wealthy and powerful. Put it this way: If the limit hadn’t existed in 2012, the 1,219 biggest donors could have given more money than over 4 million small donors to the Obama and Romney campaigns — combined.
But McCutcheon was not the only body blow to our democracy, in what was possibly the worst week in the history of campaign finance reform.
New York Gov. Andrew Cuomo (D) let his proposal for publicly financed statewide elections die after years of promises to restore the public trust. In a state that’s often a laboratory of democracy, the governor has agreed to what is little more than a clinical trial — a single comptroller’s race this year — that some experts claim is “designed to fail.”
The American experiment seems to be run by a smaller and smaller control group as billionaires — like the Koch brothers and Sheldon Adelson — get expanding seats at the shrinking political table.
NASCAR drivers wear the corporate logos of their sponsors on their suits. The justices who sided with plutocracy ought to wear sponsorship logos on their robes, too.
Conversations about court rulings and policy proposals can obscure what’s really at stake: the well-being of the American people. The Court and Cuomo gave the 1 percent even more opportunities to, effectively, buy the kind of access to elected officials that most voters and small donors could never dream of. The weakening of campaign finance laws tracks with the widening income gap, as the wealthiest have secured policies, from lower taxes to deregulation — that enrich themselves at the expense of everybody else.
This, to paraphrase Massachusetts Sen. Elizabeth Warren (D), is why the system is rigged. Metastasizing money drowns out the voices of actual Americans, and suffocates policies such as raising the minimum wage and equal pay that would benefit workers. It also skews the playing field, not just between the haves and have-nots, but also between male and female candidates.
We live in a world where elected officials care less about checks and balances and more about their checkbooks and balance sheets. Where fundraising is more important than legislating. Where public policy is auctioned off to the highest bidder.
That’s why getting money out of politics is not a partisan issue. According to Gallup, nearly eight out of 10 Americans think campaigns should be limited in what they can raise and spend, while a 2012 CBS poll shows that about two-thirds of Americans believe in limiting individual campaign contributions.
Hopefully, popular outrage will boost the pressure for reform; there has already been a sharp increase in grassroots action. In the hours and days after the ruling, coalitions such as Public Citizen have mobilized thousands of people in 140 demonstrations across 38 states to protest the McCutcheon ruling. Nearly 500 local governments and 16 states and the District have called for a constitutional amendment to wrest our elections back from the elite. Move to Amend, which supports a constitutional amendment to reverse Citizens United and McCutcheon, and end the fiction that corporations are people and money equals speech, already has over 300,000 members.
A resolution from Sen. Tom Udall (D-N.M.) — with a House companion introduced by Rep. Jim McGovern (D-Mass.) — calling for a constitutional amendment to allow Congress to fully regulate campaign contributions, and to encourage states to regulate and limit campaign spending, already had 29 co-sponsors and picked up 3 more on the day the Roberts Court announced its decision. Citizens in New York, who are furious at Cuomo for failing to enact reform, are renewing the drive to hold him accountable for his actions. And even while pushing for a constitutional amendment — an uphill battle —supporters of clean elections in Congress and outside are fighting for increased disclosure and public financing of elections.
The all-out assault against campaign finance reform, on the heels of the Court’s gutting of the Voting Rights Act in Shelby County v. Holder , is just one more example of our democratic system in crisis. “Under the leadership of Chief Justice John Roberts,” my Nation colleague Ari Berman recently wrote, “the Supreme Court has made it far easier to buy an election and far harder to vote in one.” But the fear of democracy’s premature death doesn’t look like it’s silencing people; instead, it is inspiring a renewed commitment to fight for its survival.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, April 8, 2014
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