“A Nuclear End To Republican Denial”: Seeing The World As It Is Rather Than Pining For A World That No Longer Exists
Those who lament the Senate Democrats’ vote to end filibusters for presidential nominations say the move will escalate partisan warfare and destroy what comity is left in Congress. Some also charge hypocrisy, since Democrats once opposed the very step they took last week.
In fact, seeing the world as it is rather than pining for a world that no longer exists is a condition for reducing polarization down the road. With their dramatic decision, Senate Democrats have frankly acknowledged that the power struggle over the judiciary has reached a crisis point and that the nature of conservative opposition to President Obama is genuinely without precedent.
What happened on Nuclear Thursday has more to do with the rise of an activist conservative judiciary than with the norms of the Senate. From the moment that five conservative justices issued their ruling in Bush v. Gore, liberals and Democrats realized they were up against forces willing to achieve their purposes by using power at every level of government. When the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case, they effectively admitted their opportunism. Dec. 12, 2000, led inexorably to Nov. 21, 2013.
Bush v. Gore set in motion what liberals see as a pernicious feedback loop. By giving the presidency to a conservative, the five right-of-center justices guaranteed that for at least four years (and what turned out to be eight), the judiciary would be tilted even further in a conservative direction.
Bush was highly disciplined in naming as many conservative judges as he could. His appointments of Chief Justice John Roberts and Associate Justice Samuel Alito bolstered the Supreme Court’s conservative majority. The court later rendered such decisions as Citizens United, which tore down barriers to big money in politics, and Shelby County v. Holder, which gutted a key part of the Voting Rights Act. Both, in turn, had the effect of strengthening the electoral hand of conservatives and Republicans.
With the conservatives’ offensive as the backdrop, Senate Democrats and liberals on the outside revolted in 2005 against the Republican threat to use the nuclear option when the GOP controlled the Senate. Progressives felt they had no choice but to throw sand into the gears of a juggernaut.
Liberals said things eight years ago that are being used by conservatives to accuse them of hypocrisy now. I didn’t have to look far for an example of what they’re talking about.
In a column in March 2005, I called the GOP’s effort to speed the confirmation of conservative judges “a blatant effort to twist the rules” that ignored “the traditions of the Senate.” I might take back the “traditions of the Senate” line, a rhetorical attempt to call conservatism’s bluff. But what animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts. Their goal is to do all they can to limit Congress’s ability to enact social reforms. At the same time, they are pushing for measures — notably restrictions on the right to vote — that alter the electoral terrain in their favor.
And it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dreamed of. Senate Majority Leader Harry Reid cited the Congressional Research Service’s (CRS) finding that in our history, there have been 168 cloture motions filed on presidential nominations. Nearly half of them — 82 — happened under Obama. According to CRS, of the 67 cloture motions on judicial nominees since 1967, 31 occurred under Obama. Faced with this escalation, senators long opposed to going nuclear, among them Reid and California’s Dianne Feinstein, concluded it was the only alternative to surrender.
Republicans gave the game away when all but a few of them opposed Obama’s three most recent appointments to the Court of Appeals for the D.C. Circuit not on the merits but by accusing the president of trying to “pack the court.” In fact, Obama was simply making appointments he was constitutionally and legislatively authorized to make. His nominees were being filibustered because they might alter the circuit court’s philosophical balance. The GOP thus demonstrated beyond any doubt that it cares far more about maintaining conservative influence on the nation’s second most important judicial body than in observing the rules and customs of the Senate.
This is why the Senate Democrats’ action will, in the end, be constructive. The first step toward resolving a power struggle is to recognize it for what it is. The era of denial is finally over.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, November 24, 2013
“All Voices Should Be Heard”: The Government Shutdown Shows Contribution Limits Are Needed More Than Ever
The Supreme Court must uphold the overall contribution limit in McCutcheon v. FEC, and certainly should not consider striking the base limits.
The Supreme Court has never struck down a federal contribution limit, maintaining that these limits are valid to prevent corruption and the appearance of corruption. Right now, when confidence in Congress is at an all time low, it would be extremely unwise to toss aside that precedent.
The fact is, contribution limits are already too high. Candidates for office are over-reliant on donors with the capabilities to give the most and current federal limits are far higher than what the average American can afford to give. As evidence of this, one need not look further than the 2012 elections, in which House candidates raised 55 percent of their individual contributions in chunks of $1,000 or more from just .06 percent of the population and Senate candidates raked in 64 percent in contributions of that size from about 133,000 individuals.
Striking the aggregate limit would make that problem significantly worse. Only a small handful of individuals comes even close to the aggregate limit. In 2012 only 1,219 people came within 10 percent of the $117,000 limit, which is not at all surprising when you consider that this is more than twice what the average American household earns in a year.
Based on the behavior and the giving capability of those 1,219 donors, U.S. PIRG and Demos project in our new report that absent an overall limit those donors would increase their giving, pumping an estimated $1 billion dollars into the next four federal elections, making candidates more dependent on a small set of people for big money and minimizing the donations of everyday Americans. To play out what that would look like, we estimated that if the limit had not been in place in 2012, the 1,219 donors would likely have given about 150 percent of what President Obama and Governor Romney raised from over four million small donors.
Now in the second week of the shutdown, we are currently feeling the full effect of what happens when a handful of extreme individuals exerts disproportionate power in government. Lifting the overall limit, as McCutcheon is asking the Court to do, would give even more clout to a small set of very wealthy individuals. This is not only inherently anti-democratic but also has real world consequences. New research from Public Campaign shows that these big donors are highly partisan donors indicating that striking the limits would further exacerbate polarization in Washington.
In order for democracy to function every citizen should have meaningful opportunity to influence the actions of government and we must also have faith that our voices will be heard, regardless of whether or not we can afford to make a $9.9 million, $2,500, or even $200 political disbursement. The Supreme Court has long recognized this, emphasizing the importance of protecting against the appearance of corruption. However, it severely miscalculated the effect its decision in Citizens United would have in that arena.
Most Americans do not feel that our voices are being heard on Capitol Hill and who could blame us? In Citizens United the Supreme Court handed a giant megaphone to the wealthiest interests and on Tuesday it will consider turning up the volume even higher. It’s interesting that those who argue that limits threaten free speech seem unconcerned with the speaking ability of the majority of Americans who cannot afford to write a $50,000 check to a political party.
The last thing we need right now is to increase the giving of the donors with the deepest pockets. Rather, we should be increasing the breadth of Americans providing the funds needed to run campaigns. We need policies that encourage more everyday Americans to engage in politics by making small contributions to candidates and causes: low contribution limits, matching public funds, and a tax refund for small dollar gifts. We need the Supreme Court to respect longstanding precedent and to uphold the aggregate and the base contribution limits.
By: Blair Bowie, U. S. News and World Report Debate Club, October 8, 2013
“A Tough Decision”: Paul Ryan’s Choice, His Constituents Or His Deep Ties To The Koch Brothers
How’s this for irony:
When the City of Kenosha, Wisconsin, was preparing to formally petition Congress to take the necessary actions to get corporate money out of politics and to restore grassroots democracy, the congressman who represents the community was meeting secretly with the Koch brothers to plot election strategies and policy agendas.
Kenosha is the largest city in Wisconsin’s first congressional district, which Congressman Paul Ryan has represented since 1999—thanks to gerrymandered district lines and heavy infusions of cash from out-of-state special interests. With Congress out of session for the August recess and Ryan expected to head home to meet with constituents, members of the Kenosha City Council decided to deliver a message. They voted overwhelmingly to ask Ryan and other Wisconsin representatives “to amend the Constitution to bar corporate wealth from unduly influencing elections.”
That’s not a particularly radical request.
Sixteen states and roughly 500 communities have petitioned Congress to support a constitutional amendment to restore the power of the people—through their federal, state and local representatives—to place limits on the influence of big money, especially corporate money, in American politics. The official calls from states across the country, and from cities such as Kenosha, come in response to the High Court’s decision to remove restrictions on corporate spending to buy elections, which capped a series of rulings that undermined limits on the power of wealthy Americans to dominate the political and governing processes of the nation with unprecedented infusions of campaign money.
Ryan has been among the prime beneficiaries of the money-in-politics moment ushered in by the High Court. As the House Budget Committee chairman, he has collected millions of dollars from individuals and groups that stand to benefit from initiatives such as Social Security privatization and the development of voucher schemes to “reform” Medicaid and Medicare. The congressman has become a favorite of many of the biggest donors in the country, including billionaire industrialists Charles and David Koch.
The Koch brothers, prime funders of conservative causes and Republican politicians, were enthusiastic backers of placing Ryan on the 2012 Republican ticket. That move entered in a fiasco that saw Ryan fail to deliver Wisconsin for the ticket led by Mitt Romney. Ryan not only lost his hometown of Janesville but many of the other communities in his district, including Kenosha.
Casual observers might guess that Ryan would be listening a little more to his district, especially to the voters in cities such as Kenosha.
But they would guess wrong.
As Kenosha was petitioning for the redress of money-in-politics grievances, the congressman was at a posh resort near Albuquerque, New Mexico, where he had flown as soon as Congress went on recess. The Koch brothers had rented the entire Hyatt Regency Tamaya Resort and set up a private security perimeter so that no media—and certainly no citizens—could get near the elite retreat. And they invited Paul Ryan to spend several days with them as their guest of honor. Along with House majority leader Eric Cantor, American Enterprise Institute president Arthur Brooks and a few other worthies, the Kochs and their wealthy friends wined and dined with Ryan.
A source that spoke to Politico reported that Ryan was “well-received by donors.” According to the Politico report, “Ryan has developed deep ties to Koch World”—the vast network of political operations controlled by the billionaire brothers.
The question is whether the congressman retains deep ties to Kenosha.
In case the congressman missed the message, the Kenosha City Council was joined in mid-August by the Kenosha County Board—the governing body of the populous southeastern Wisconsin county that is entirely within Ryan’s district—in calling for an amendment to overturn Citizens United. And constituents like Jennifer Franco, of Kenosha, are saying it’s time for their elected representatives to “stand with the people to proclaim that money is not speech, that artificial entities are not persons, and that every person’s voice carries the same weight.”
The juxtaposition of events in New Mexico and Wisconsin leaves Ryan with a clear choice to make: he can either stick with the Koch brothers or he can respond to the call from Kenosha for a meaningful response to the threat posed to democracy by the buying of elections and the policymaking process.
By: John Nichols, the Nation, August 22, 2013
“All Corporations Go To Heaven”: Can CEO’s Impose Their Religious Convictions On The People Who Work For Them?
Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.
A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.
Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.
The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”
Cowen also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”
Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”
The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.
The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.
Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.
Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”
The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.
Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn’t mean they trumped everything else. As we have advanced as a society—beyond slavery, segregation, homophobia, and sexism—we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It’s never been a perfect accommodation. It can’t be. But religious liberty interests are rarely the only—or even the most important—interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses.
In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” None of this guarantees how the Supreme Court will decide the contraception mandate. If recent history is any predictor, it may be as fractious as the Affordable Care Act decisions themselves.
The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful. The notion that secular corporations—created by government to maximize shareholder profits and limit liability—might lay claim to their owners’ human rights of religious conscience is doubly astounding when you consider that their principal reason for being is to dissociate themselves from the frailties of human conscience in the first place.
By: Dahilia Lithwick, Slate, August 1, 2013
“Big Money Begets Massive Influence”: How The Koch Brothers Are Buying Silence Without Spending A Dime
Between buying elections, billionaire brothers Charles and David Koch shop for big pieces of American media and culture. And, hey, why not?
We already knew of the Kochs’ efforts to buy Tribune Company, the parent of the Los Angeles Times and the Chicago Tribune, among other major newspapers. Then, last week, The New Yorker‘s Jane Mayer took a thoughtful, in-depth look at the machinations that led New York’s PBS station, WNET, to pull from the air a documentary critical of David Koch, one of the station’s biggest funders. The story raises plenty of questions about the extent to which the public owns public media and the role of money in the arts and culture (see anything at Lincoln Center’s David H. Koch Theater lately?). But it also provides a rare intimate look at what happens when big money begets massive influence, often without a dime changing hands.
Mayer describes the fate of two documentary films. One took on income disparities in America by profiling the inhabitants of one tony Park Avenue building — including David Koch. Under pressure, WNET aired the film but, in a highly unusual concession, offered Koch airtime to rebut it after it aired. The second film, “Citizen Koch,” made by the very talented, Academy Award nominated team of Tia Lessin and Carl Deal, explored the influence that Koch and others like him have on our elections in the post-Citizens United world. But in the face of Koch’s wrath, the film’s distributor, a public television player with a history of gutsy moves, uncharacteristically lost its stomach for the fight and dumped the film entirely. Regardless, Koch decided to not give a hoped-for gift after the first film aired. Without lifting a finger or even taking out his checkbook, Koch cast a pall over the documentary film world.
The process that led to “Citizen Koch” being pulled from the airwaves illustrates exactly the point that Lessin and Deal’s film makes: Money can not only buy action in our democracy, it can also buy silence. As former Republican presidential candidate Buddy Roemer points out in the film, “Sometimes it’s a check. Sometimes it’s the threat of a check. It’s like having a weapon. You can shoot the gun or just show it. It works both ways.”
Koch and his brother Charles, both billionaire industrialists, pledged to spend a whopping $400 million on the 2012 elections, the overwhelming majority of it on behalf of Republican candidates. But that doesn’t just mean that Republicans are jumping to please the brothers — it means that many of those in positions of influence, regardless of their political leanings, need to take into account whether or not it’s worth the trouble of unnecessarily antagonizing the Kochs. Just as the public is unlikely to hear about the film PBS didn’t run, it’s almost impossible to know about the principled progressive stands that our allies in government decided not to take.
Koch’s billions are a formidable political weapon, even without owning any influential newspapers. Thanks to the Supreme Court’s ruling in Citizens United, it’s a more powerful weapon than ever, and we know it’s having an impact even when they don’t choose to deploy them. The result is a distorted government that responds to the whims of billionaires more easily than the needs of ordinary Americans.
As activists work to undo the damage being done by Citizens United, one of our main challenges is reminding voters of the dangerous, invisible effects that decision has on the country. It’s a remarkable irony that by trying to hide a film about the danger of money in politics, the Kochs may have made it clearer than ever before.
By: Michael B. Keegan, The Huffington Post, July 31, 2013
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