“Scalia’s Boring Legacy”: He Simply Became A Reliable Tool Of Retrograde Social Conservative Orthodoxy And Corporate Power
I was determined yesterday not to comment on Justice Antonin Scalia’s legacy on the Supreme Court, choosing to focus instead on the political implications of the vacancy. I remain committed to that, in large part because the man only barely passed away and I feel that anything I might say about his impact on law, culture and jurisprudence would be tinged with inappropriate (?) negative passion I might later regret.
Fortunately, I don’t have to. Back in 2014 here at Washington Monthly, Michael O’Donnell wrote a fantastic book review of Bruce Allen Murphy’s “Scalia: A Court of One,” that says most of it for me:
Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court and his votes in some crucial 5-4 decisions have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raisingly nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.
In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. As O’Donnell says:
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“A Stinking Open Sewer”: Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’
On today’s anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures – the modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt – it is worth recalling the false promise made by the justice who wrote the majority opinion in that case.
Justice Anthony Kennedy masterminded the Supreme Court’s January 21, 2010 decision to undo a century of public-interest regulation of campaign expenditures in the name of “free speech.” He had every reason to know how damaging to democratic values and public integrity that decision would prove to be.
Once billed as a “moderate conservative,” Kennedy is a libertarian former corporate lobbyist from Sacramento, who toiled in his father’s scandal-ridden lobbying law firm, “influencing” California legislators, before he ascended to the bench with the help of his friend Ronald Reagan.
While guiding Citizens United through the court on behalf of the Republican Party’s billionaire overseers, it was Kennedy who came up with a decorative fig leaf of justification:
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
As Jane Mayer’s superb new book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right reveals in excruciating but fascinating detail, Kennedy’s assertion about the Internet insuring disclosure and accountability was nothing but a little heap of happy horse-shit. “Independent” expenditures from super-rich right-wing donors have overwhelmed the opponents of their chosen candidates, promoting a durable Republican takeover of Congress — often through the deployment of false advertising and false-flag organizations.
Late last year, Kennedy confessed that his vaunted “transparency” is “not working the way it should,” a feeble excuse since he had every reason to know from the beginning that his professed expectation of “prompt disclosure” of all political donations was absurdly unrealistic.
The Citizens United debacle led directly to the Republican takeover of the Senate as well as the House. Last week, the Brennan Center for Justice released a new study showing that “dark money” – that is, donations whose origin remains secret from news organizations and voters – has more than doubled in Senate races during the past six years, from $105 million to $226 million in 2014.
During the past three election cycles, outside groups spent about $1 billion total on Senate races, of which $485 million came from undisclosed sources. In the 11 most competitive Senate races in 2014, almost 60 percent of the spending by “independent” groups came from those murky places, and the winners of those races benefited from $171 million of such spending.
In elections gone by, when anonymous smear leaflets would appear in local races — funded by nobody knew whom — political operatives would shake their heads and mutter about “sewer money.”
Today we can thank Anthony Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer.
What a legacy.
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, January 21, 2016
“Is Vast Inequality Necessary?”: Inequality Is Inevitable; The Vast Inequality Of America Today Isn’t
How rich do we need the rich to be?
That’s not an idle question. It is, arguably, what U.S. politics are substantively about. Liberals want to raise taxes on high incomes and use the proceeds to strengthen the social safety net; conservatives want to do the reverse, claiming that tax-the-rich policies hurt everyone by reducing the incentives to create wealth.
Now, recent experience has not been kind to the conservative position. President Obama pushed through a substantial rise in top tax rates, and his health care reform was the biggest expansion of the welfare state since L.B.J. Conservatives confidently predicted disaster, just as they did when Bill Clinton raised taxes on the top 1 percent. Instead, Mr. Obama has ended up presiding over the best job growth since the 1990s. Is there, however, a longer-term case in favor of vast inequality?
It won’t surprise you to hear that many members of the economic elite believe that there is. It also won’t surprise you to learn that I disagree, that I believe that the economy can flourish with much less concentration of income and wealth at the very top. But why do I believe that?
I find it helpful to think in terms of three stylized models of where extreme inequality might come from, with the real economy involving elements from all three.
First, we could have huge inequality because individuals vary hugely in their productivity: Some people are just capable of making a contribution hundreds or thousands of times greater than average. This is the view expressed in a widely quoted recent essay by the venture capitalist Paul Graham, and it’s popular in Silicon Valley — that is, among people who are paid hundreds or thousands of times as much as ordinary workers.
Second, we could have huge inequality based largely on luck. In the classic old movie “The Treasure of the Sierra Madre,” an old prospector explains that gold is worth so much — and those who find it become rich — thanks to the labor of all the people who went looking for gold but didn’t find it. Similarly, we might have an economy in which those who hit the jackpot aren’t necessarily any smarter or harder working than those who don’t, but just happen to be in the right place at the right time.
Third, we could have huge inequality based on power: executives at large corporations who get to set their own compensation, financial wheeler-dealers who get rich on inside information or by collecting undeserved fees from naïve investors.
As I said, the real economy contains elements of all three stories. It would be foolish to deny that some people are, in fact, a lot more productive than average. It would be equally foolish, however, to deny that great success in business (or, actually, anything else) has a strong element of luck — not just the luck of being the first to stumble on a highly profitable idea or strategy, but also the luck of being born to the right parents.
And power is surely a big factor, too. Reading someone like Mr. Graham, you might imagine that America’s wealthy are mainly entrepreneurs. In fact, the top 0.1 percent consists mainly of business executives, and while some of these executives may have made their fortunes by being associated with risky start-ups, most probably got where they are by climbing well-established corporate ladders. And the rise in incomes at the top largely reflects the soaring pay of top executives, not the rewards to innovation.
Don’t say that redistribution is inherently wrong. Even if high incomes perfectly reflected productivity, market outcomes aren’t the same as moral justification. And given the reality that wealth often reflects either luck or power, there’s a strong case to be made for collecting some of that wealth in taxes and using it to make society as a whole stronger, as long as it doesn’t destroy the incentive to keep creating more wealth.
And there’s no reason to believe that it would. Historically, America achieved its most rapid growth and technological progress ever during the 1950s and 1960s, despite much higher top tax rates and much lower inequality than it has today.
In today’s world, high-tax, low-inequality countries like Sweden are also both highly innovative and home to many business start-ups. This may in part be because a strong safety net encourages risk-taking: People may be willing to prospect for gold, even if a successful foray won’t make them quite as rich as before, if they know they won’t starve if they come up empty.
So coming back to my original question, no, the rich don’t have to be as rich as they are. Inequality is inevitable; the vast inequality of America today isn’t.
By: Paul Krugman, Op-Ed Columnist, The New York Times, January 15, 2016
“The Festival Of Populist Passion”: Republicans Displayed Their Passion For The Little Guy At Wednesday’s Debate. It Was A Total Scam
If you knew absolutely nothing about American politics and tuned into the Republican presidential debate Wednesday night, you would have come away convinced that the GOP is the party of the little guy, the party that wants to advocate for low-wage workers, middle-class families, and those who are struggling. And the wealthy? Screw those guys — Republicans can’t stand them. If somebody told you that this party’s last presidential nominee got in a heap of trouble for contemptuously saying that 47 percent of Americans are lazy leeches who just want to live off government handouts while the morally upstanding wealthy do all the work, you’d respond, “Surely you must be mistaken.”
In case you didn’t tune in to this festival of populist passion, here are a few of the highlights:
Like many of the candidates, Ted Cruz has a flat tax plan, which because it eliminates tax progressivity would entail huge tax cuts for the wealthy. He described it by saying, “The billionaire and the working man, no hedge fund manager pays less than his secretary.”
In the course of arguing (from what I could tell) that all taxation is theft, Mike Huckabee said, “This is for the guy, you know, who owns a landscaping business out there. If somebody’s already stolen money from you, are you going to give them more?”
Carly Fiorina, a former corporate CEO whose biggest accomplishment was the disastrous merger between HP and Compaq, and who is worth tens of millions of dollars, railed against corporate mergers and the wealthy. “Big and powerful use big and powerful government to their advantage,” she said. “It’s why you see Walgreens buying Rite Aid. It’s why you see the pharmaceuticals getting together. It’s you see the health insurance companies getting together. It’s why you see the banks consolidating. And meanwhile, small businesses are getting crushed….Big government favors the big, the powerful, the wealthy, and the well-connected, and crushes the small and the powerless.”
Marco Rubio related, for the eight zillionth time, the fact that his father was a bartender and his mother was a maid. John Kasich showed why he isn’t in the top tier of candidates by failing to bring up the fact that his dad was a mailman.
Ted Cruz said, “The truth of the matter is, big government benefits the wealthy, it benefits the lobbyists, it benefits the giant corporations. And the people who are getting hammered are small businesses, it’s single moms, it’s Hispanics. That is who I’m fighting for.”
“Wall Street is doing great,” Cruz said later, and “today the top 1 percent earn a higher share of our income than any year since 1928,” while the Federal Reserve has apparently caused the price of hamburgers to skyrocket.
Rand Paul agreed that the Fed “causes income inequality.”
Ben Carson said that when it comes to regulations, “The reason that I hate them so much is because every single regulation costs in terms of goods and services. That cost gets passed on to the people. Now, who are the people who are hurt by that? It’s poor people and middle class. Doesn’t hurt rich people if their bar of soap goes up ten cents, but it hurts the poor and the middle class.”
“The simple fact is that my plan actually gives the middle class the greatest break,” said Jeb Bush.
As it happens, the truth is that Bush’s tax plan showers its biggest benefits on the wealthy, not the middle class, both in percentage terms and in absolute terms. And this is true of all the tax plans that have been released by the Republican candidates so far. They all either use a flat tax, which by definition cuts the taxes of the wealthy, or they reduce income taxes for the wealthy and eliminate other taxes the wealthy pay; for instance, Marco Rubio would completely eliminate both capital gains taxes and inheritance taxes. As Doyle McManus of the Los Angeles Times wrote, “among the proposals with real detail, there’s a rough consensus, and it comes down to this: lower taxes for everybody, but especially for the wealthy.”
Republicans would have a couple of responses to this objection. The first is that if you’re going to cut everyone’s taxes, of course the wealthy will benefit more, because they pay at higher rates and their incomes are higher. As Rubio himself said during the debate, “5 percent of a million is a lot more than 5 percent of a thousand. So yeah, someone who makes more money, numerically, it’s going to be higher.” But there’s no requirement that if you’re going to cut taxes you have to give everyone the same percentage reduction.
The second response Republicans have is that their tax plans, combined with eliminating regulations, will super-charge the economy to such a degree that people in the poor and middle class will benefit tremendously. There’s a name for that idea: trickle-down economics.
And it isn’t like we’ve never tried this before. You may remember a guy named George W. Bush, who was president not that long ago. He instituted a program pretty much exactly like what today’s Republican candidates propose: large tax cuts targeted mostly at the wealthy combined with slashing regulations. And what happened? Anemic growth, culminating in the worst economic disaster since the Great Depression. If Republicans are right, how could such a thing have happened?
If you ask them, they’ll reply that Bush wasn’t true to conservative economic orthodoxy because he didn’t cut the size of government. But if that’s your explanation for why his economic record was so poor, then you’re saying that neither cutting taxes nor cutting regulations would make much of a difference; all that matters is the size of government.
But then how could they explain the Clinton years, when the economy added 22 million jobs despite the fact that taxes went up, regulations increased, and government grew? It’s a real head-scratcher.
Let me suggest something shocking: The Republican presidential candidates do not actually want to cut regulations, slash safety net programs (which didn’t come up in the debate), and eliminate regulations on corporations because of their deep and abiding concern for the poor and middle class.
Some things don’t change in American politics, one of which is that conservatives believe that making life easier for the wealthy and corporations is not just a good idea in practical terms but also a moral imperative. It’s the latter that makes the former less important. Even when those policies fail to deliver us all to the economic Shangri-La conservatives promise, they do not lose faith in the policies’ righteousness.
But other things do change. Right now we’re in a time of economic anxiety, when inequality and stagnant wages have made trickle-down economics particularly unappealing. So if you aren’t going to offer something different than what you have before, the next best thing is to clothe it in populist rhetoric. It remains to be seen whether anyone will buy it.
By: Paul Waldman, Senior Writer, The American Prospect; Cintributor, The Week, October 29, 2015
“Did Ben Carson Already Break Campaign Law?”: Campaign Law Bars Corporations From Donating To Presidential Candidates
On October 9, Ben Carson appeared at the National Press Club to promote his new book. His campaign manager, Barry Bennett, told The Daily Beast that Carson’s publishing company set up the event and paid for his transportation to D.C. to speak there.
And just like that, Carson may have violated campaign finance law.
The Republican presidential candidate made headlines last week when ABC News reported that he would suspend his campaign for a tour promoting his new book, A More Perfect Union: What We The People Can Do To Reclaim Our Constitutional Liberties.
Carson’s team took issue with the story, saying his presidential campaign is still very much underway even though he’s making room in his schedule to sell books.
But here’s where it gets complicated.
Carson’s publishing company Sentinel—an imprint of Penguin publishing—is paying for the tour, according to Bennett. And that puts the former neurosurgeon in a tight spot.
Campaign law bars corporations from donating to presidential candidates—whether those donations are checks or in-kind contributions of goods or services. “Campaigns may not accept contributions made from the general treasury funds of corporations, labor organizations or national banks,” reads the FEC’s guide for candidates. (PDF)
That’s why it gets dicey (though not unheard of) when presidential candidates go on book tours; if the hotel stays, restaurant meals, and publicity associated with a book tour are paid for by the publishing company, candidates can get in trouble if they hold campaign events while traveling on that company’s dime.
According to Larry Noble, senior counsel for the Campaign Legal Center, Carson may have already broken that rule.
He said that the October 9 stop at the Press Club looked suspiciously campaign-related. The event was billed it as “NPC Luncheon with Dr. Ben Carson, Author and Presidential Candidate.” More troublesome is the fact that Carson used the appearance to explicitly tout his presidential ambitions.
“[U]nder a Carson administration, if another country attacks us with a cyber attack, they’re going to get hit so hard, it’s going to take them a long time to recover,” he said, according to a transcript of the speech (PDF) he gave there.
After the candidate’s remarks, National Press Club President John Hughes questioned Carson more about what he would do if he gets elected. Carson said he would work with Turkey to establish a no-fly zone over Syria and that he would call a joint session of Congress to tell them to “recognize that the people are at the pinnacle, and that we work for them, and they don’t work for us.”
All of that sounds way more like presidential politicking than book-selling.
“Even though he never says ‘Vote for me as president,’ he’s clearly discussing his candidacy. What he’s supposed to say in that situation is, ‘I‘m really not here to discuss my campaign for president; I’m here to to discuss my book,’” Noble said.
That, of course, is not what Carson said.
Noble added that if another campaign filed a complaint with the FEC regarding Carson’s comments at the Press Club, the commission would likely take that complaint seriously.
“They’d at least need to take a look at it,” he said.
Carson is not under investigation by the FEC but formal complaints can be filed by any person who spots a potential violation. The FEC doesn’t comment on the activity of candidates and has noted in the past that there is always a possibility that matters related to the campaign could come before the commission.
Bennett said he doesn’t think Carson has broken any FEC rules.
“The book publisher has attorneys and we have attorneys,” he said. “It was all vetted.”
A publicity contact for Sentinel has not yet returned a request for comment. We also left a voicemail for Premiere Collectibles, which is billed as promoting his tour, and didn’t get a response by press time.
Carson’s Press Club comments aren’t the only part of his book tour to worry campaign finance law watchdogs. Bennett confirmed to The Daily Beast that from October 4 to October 11, the publisher paid for Carson’s transportation and lodging because he was promoting his book. During this time, the candidate made the rounds on cable TV, discussing current events and his presidential campaign.
“My view is that multiple appearances by a candidate on talk shows to discuss politics amounts to campaign activity and, consequently, that the campaign should have paid some of the transportation and lodging expenses,” emailed Paul Ryan, a spokesperson for the Campaign Legal Center.
Ryan added that similar situations have divided the FEC.
“At any rate, the commission deadlocked so there’s no formal guidance from the commission on this point of law,” he said.
That means Carson stepped into a legal gray area every time he did interviews with political reporters during the week of October 4. Two days later he appeared on Fox and Friends to discuss his campaign.
“I don’t want to be the establishment candidate,” he said. “What has the establishment really gotten us?”
He added that he wouldn’t have met with the families of victims of the Umpqua shooting if he were president.
“I would have so many things on my agenda that I would go to the next one,” he said.
He also appeared on The View on October 6, The Kelly File later that day, and on Hannity on October 7.
This week Carson will juggle fundraising events and book tour stops in Texas, Oklahoma, Missouri, Kansas, Iowa, and Nebraska. On some days, like October 18, campaign events are wedged in between book tour stops. Next Sunday, Carson will promote his book in the Woodlands, Texas, at 2:30 p.m., hustle to a forum at a Baptist church in Plano at 5:25 p.m.—which is a campaign event—and get to San Antonio by 8 p.m. for another book stop. In an effort to avoid FEC violations, the campaign says staffers will only show up at the Plano pit stop.
“FEC rules and regulations call for the separation of campaign and non-campaign finances,” said Ying Ma, deputy communications director for the Carson campaign. “We’re trying to do our best to abide by all requirements. Campaign staff will be at campaign events. That’s what campaign staff do.”
By: Gideon Resnick and Betsy Woodruff, The Daily Beast, October 19, 2015
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