“Clearly In Peril”: Thomas Jefferson’s View Of Equality Under Siege
On the 236th anniversary of our nation’s birth — squalling to the world in our very first utterance that all men were created equal and endowed with unalienable rights — the essence of our politics remains who exactly are those men who are self-evidently equal and inherently vested with those rights. Over the subsequent two-plus centuries, we’ve invoked the spirit of our primal shout every time we’ve expanded our definition of equal men — when we moved to popular elections, abolished slavery, gave women the vote, enacted civil rights legislation and today, when gays and lesbians are winning the equal status and unalienable rights that heterosexual Americans take for granted.
But the author of our founding declaration was concerned with more than legal equality. Thomas Jefferson envisioned a nation of yeoman farmers (and, to be sure, slaveholders like himself) and wanted it to remain chiefly rural to avoid the concentration of wealth and power that would come if the nation urbanized and if finance grew into a dominant sector. His great rival Alexander Hamilton feared that the nation would remain a backwater absent cities, finance and manufacturing. As Treasury secretary, Hamilton used the powers of the nascent republic to foster industry and development. As the United States grew into the world’s dominant economy, the concerns that Jefferson voiced grew more acute. How could the United States retain its formal equality and civic virtue in the face of towering economic inequality that enabled the rich to dominate our political system?
In the first half of the 20th century, both Roosevelts and their allies devised reforms to restore some of Jefferson’s egalitarianism in what was, by then, Hamilton’s America. Progressive taxation, the establishment of wage and labor standards and the legalization of unions reduced economic inequality, while the prohibition of corporation donations to political campaigns diminished, somewhat, the wealthy’s sway over government.
But that, as they say, was then. The war that the American Right and corporate elites have waged against the Roosevelts’ Jefferson-Hamilton synthesis for the past 40 years has largely prevailed. Taxes have grown radically less progressive, the minimum wage has declined as a percentage of the median wage and unions’ legal protections to organize in the face of employer opposition have eroded. In consequence, wages are at their lowest level since the end of World War II as a share of the national income, and U.S. median household income is at roughly the same level it was 20 years ago. The nation is richer and more productive than it was 20 years ago, but all that added income and wealth has gone to the top 10 percent, and disproportionately to the richest 1 percent.
The growing concentration of wealth has led to a growing concentration of political power as well. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission struck down 100 years of legal restraints on corporations’ ability to fund campaigns and buy elected officials. The court permitted unions to dip into their treasuries to fund campaigns too, but, as I noted last week, its decision last month in Knox v. Service Employees International Union, Local 1000 — issued by the same five conservative justices who promulgated Citizens United — created a legal double standard between unions and corporations. By virtue of Knox, a union must ask its members’ permission to spend on political campaigns, but a corporation need not ask its shareholders.
So how is our foundational assertion of equality faring on this July Fourth? As to social parity, it has seldom looked more robust. As to economic equality and the political equality with which it is inextricably intertwined, the picture is bleak. The mega-banks that plunged us into deep recession have had the political power to forestall their breakup. A handful of billionaires continues to donate unprecedented sums to election campaigns. The share of national income and wealth that goes to the vast majority of Americans continues to decline. The Republican Party — and the five Republican appointees to the Supreme Court — are committed to doctrines that will make these disparities more glaring. The recent exception to this trend is the health-care-reform act, which partially extends the Declaration’s assertion of equal rights to the realm of medical access. That’s no small achievement, but, with that single exception, on this July Fourth, Jefferson’s vision of equality is clearly in peril.
By: Harold Meyerson, Opinion Writer, The Washington Post, July 3, 2012
“Keeping The Faith”: Why The Supreme Court Will Uphold The Constitutionality Of Obamacare
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
By: Robert Reich, Robert Reich Blog, June 27, 2012
“Elected By Nobody”: Our Supreme Court Has Lost Its Honor
Once upon a time, in a place called America, there was a government with three equal branches. That America no longer exists.
One branch now rules American life.
It is the Supreme Court, and it consists of nine people elected by nobody. They rule for life. Their power is absolute.
To overrule them requires an amendment to the Constitution, a process so politically difficult, it is nigh on impossible. (The most recent amendment, the 27th, which deals with congressional salaries, took 203 years to ratify.)
Technically, the justices can be removed from office for high crimes and misdemeanors, but none ever has been.
There is no aspect of American life — from civil rights to sports, to guns, to religion, to sex — over which the justices have not exerted control.
There are no qualifications to serve on the Supreme Court.
Though the Constitution lists qualifications to become a president, a senator or a representative, none are listed for the high court. The justices need not be of a certain age or have been born in the United States or even be a citizen.
They do not have to be lawyers, though all have been. (Some, however, never went to law school.)
You could be a justice of the Supreme Court. I could. Justin Bieber, age 18 and a Canadian citizen, also could be, though Senate approval would not be likely.
The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
These are the words of John Marshall, the fourth U.S. chief justice, written in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress.
Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision. (There were only six members on the court at the time and two were sick.)
The Supreme Court would, over its history, come up with some terrible decisions countenancing slavery, locking up Japanese-American citizens in camps, supporting “separate but equal” segregation and approving the forced sterilization of the mentally ill.
But these were anomalies. Overall, the court would help create a vibrant and free society where citizens could live under the rule of law, where nobody was above the law and where equal rights were promised to all.
For much of modern times, the court has been seen as being above politics. This was very important as a balance to its vast power. Even though justices were appointed by political presidents and approved by political senators, their own politics was to be suppressed.
We realized they were human beings with political opinions, but we expected them to put those opinions aside.
And then came 2000 and the court’s 5-4 decision that made George W. Bush the president of the United States. The decision was nakedly political. “The case didn’t just scar the Court’s record,” Jeffrey Toobin wrote in The New Yorker, “it damaged the Court’s honor.”
Its honor has never fully recovered. Our current court is led by Chief Justice John Roberts, who was appointed by Bush in 2005 after having worked on Bush’s behalf in Florida in 2000.
The signature of the Roberts Court, Toobin wrote, has been its eagerness to overturn the work of legislatures. This is hardly conservative doctrine but today, politics trumps even ideology. In Citizens United v. Federal Election Commission, the court “gutted the McCain-Feingold campaign-finance law” which amounted to “a boon for Republicans.”
“When the Obama health-care plan reaches the high court for review,” Toobin predicted 18 months ago, “one can expect a similar lack of humility from the purported conservatives.”
At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.
The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.
Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.
By: Roger Simon, Politico, June 27, 2012
“More Elections For Sale”: Supreme Court Reaffirms That The Robber Barons Are In Charge
The US Supreme Court may still retain some familiarity with the Constitution when it comes to deciding the nuances of cases involving immigration policy and lifetime incarceration. But when it comes to handing off control of American democracy to corporations, the Court continues to reject the intents of the founders and more than a century of case law to assure that CEOs are in charge.
Make no mistake, this is not a “free speech” or “freedom of association” stance by the Court’s Republican majority. That majority is narrowing the range of debate. It is picking winners. To turn a phrase from the old union song, this Court majority has decided which side it is on.
The same Court that in January 2010 ruled with the Citizens United decision that corporations can spend freely in federal elections—enjoying the same avenues of expression as human beings—on Monday ruled that states no longer have the ability to guard against what historically has been seen as political corruption and the buying of elections.
The court’s 5–4 decision in the Montana case of American Tradition Partnership v. Bullock significantly expands the scope and reach of the Citizens United ruling by striking down state limits on corporate spending in state and local elections. “The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the majority wrote. “There can be no serious doubt that it does.”
Translation: if Exxon Mobil wants to spend $10 million to support a favored candidate in a state legislative or city council race that might decide whether the corporation is regulated, or whether it gets new drilling rights, it can. But why stop at $10 million? If it costs $100 million to shout down the opposition, the Court says that is fine. If if costs $1 billion, that’s fine, too.
And what of the opposition. Can groups that represent the public interest push back? Can labor unions take a stand in favor of taxing corporations like Exxon Mobil?
Not with the same freedom or flexibility that they had from the 1930s until this year. Last Thursday, the Court erected elaborate new barriers to participation in elections by public-sector unions—requiring that they get affirmative approval from members before making special dues assessments to fund campaigns countering corporations.
How might it work? If Walmart wanted to support candidates who promised to eliminate all taxes for Walmart, the corporation could spend unlimited amounts of money. It would not need to gain stockholder approval. It can just go for it.
But if AFSCME wants to counter Walmart argument, saying that eliminating taxes on out-of-state retailers will save consumers very little but will ultimate undermine funding for schools and public services, the union will have to go through the laborious process of gaining permission from tens of thousands, perhaps hundreds of thousands of members. And even then, it will face additional reporting and structural barriers imposed by the Court.
Campaign finance reformers had held out some hope that states might be able to apply some restrictions on corporate spending, as Montana did with its 100-year-old law barring direct corporate contributions to political parties and candidates. That law, developed to control against the outright buying of elections by “copper kings” and “robber barons,” was repeatedly upheld. Until now.
Now, says Marc Elias, one of the nation’s top experts in election law, “To the extent that there was any doubt from the original Citizens United decision [that it] broadly applies to state and local laws, that doubt is now gone.… To whatever extent that door was open a crack, that door is now closed.”
There may still be a few legislative avenues left for countering the “money power” of the new “copper kings” and “robber barons.” But they are rapidly being closed off by a partisan high court majority.
That’s why US Senator Bernie Sanders, the Vermont independent who has emerged as a leading proponent of moves to amend the US Constitution to restore the rule of law in elections, says: “The U.S. Supreme Court’s absurd 5-4 ruling two years ago in Citizens United was a major blow to American democratic traditions. Sadly, despite all of the evidence that Americans see every day, the court continues to believe that its decision makes sense.”
When billionaires can “spend hundreds of millions of dollars to buy this election for candidates who support the super-wealthy,” argues Sanders, “this is not democracy. This is plutocracy. And that is why we must overturn Citizens United if we are serious about maintaining the foundations of American democracy.”
Sanders says he will step up his efforts to enact a constitutional amendment to overturn not just the Citizens United ruling but the democratically disastrous rulings that extend from it.
“In his famous speech at Gettysburg during the Civil War, Abraham Lincoln talked about America as a country ‘of the people, by the people and for the people.’ Today, as a result of the Supreme Court’s refusal to reconsider its decision in Citizens United, we are rapidly moving toward a nation of the super-rich, by the super-rich and for the super-rich,” explains Sanders. “That is not what America is supposed to be about. This Supreme Court decision must be overturned.”
By: John Nichols, The Nation, June 25, 2012
“Horribly Misguided”: Supreme Court Again Smacks Down Campaign-Finance Reformers
The Supreme Court’s rejection of a long-shot legal challenge to let states bar corporate and union political contributions in their own elections underscores the legal quandary in which many left-of-center campaign finance reformers find themselves.
The court, in a 5-to-4 vote split along ideological lines, refused on Monday to strike down a Montana ban on corporate political spending. The decision effectively upholds its landmark 2010 decision Citizens United v. Federal Election Commission, which held that corporations and unions were entitled to the same free speech protections as citizens, or at least allow state law to supersede it.
Because the Supreme Court decided Citizens United only two years ago and its conservative majority remains intact, few legal experts expected it to rule in favor of the challenge.
The current case, American Tradition Partnership v. Bullock, stemmed from a century-old Montana law that prohibits corporations from spending money on political campaigns. The effort, joined by more than 20 states, stipulated states should be allowed to carve out their own rules to regulate political fundraising and spending, an argument backed by the Montana Supreme Court when it ruled in favor of the state law last year.
But the Supreme Court, in a one-page per curiam opinion that shut the door on the possibility of oral arguments, curtly dismissed the notion that federal law didn’t apply.
The Citizens United decision, combined with other court cases and FEC rulings, has dramatically loosened fundraising and spending regulations for independent political organizations, which have proliferated since 2010 and become a major force in campaigns. Effort to curb the spending through the judiciary have thus far proven fruitless; Paul Ryan, senior counsel to the Campaign Legal Center, a left-of-center interest group, called the ruling “disappointing but predictable.”
“Unfortunately the only surprise would have been if the Supreme Court had taken the opportunity to revisit its horribly misguided decision in Citizens United,” Ryan said. “Clearly, the Supreme Court has decided to wash its hands of the disastrous results of its earlier decision. Apparently the same five Justices who gave us Citizens United are not troubled by the fact that special interests are picking the winners and losers in our federal and state elections.”
In a dissent, Justice Stephen Breyer agreed. He reiterated his existing objection to the Citizens United decision, arguing that the proliferation of political spending amounted to a quid pro arrangement between politicians and political spenders. He also backed the state’s right to decide on its own whether corporate spending constituted to a corrupting influence, the threshold conservative justices have argued laws must pass to be constitutional.
“Thus, Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so,” Breyer wrote.
But even as the liberal justice signaled he would like to reconsider Citizens United, he acknowledged the court’s unchanging conservative majority means he doubts there is a “significant possibility” the court will reverse itself — something that left conservatives pleased.
“This closes the door on the argument that unique facts in a certain state can be employed to overturn [Citizens United],” said Jim Bopp, an Indiana campaign finance attorney who has spearheaded an array of challenges to campaign finance laws across the country. “Further, it means that independent expenditures are never corrupting as a matter of federal constitutional law.”
Senate Minority Leader Mitch McConnell, a longtime advocate for loosening campaign finance regulations, hailed it as “another important victory for freedom of speech.”
“Clearly, the much predicted corporate tsunami that critics of Citizens United warned about simply did not occur,” he said in a statement.
By: Alex Roarty, The Atlantic, June 25, 2012
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