“Our Political System Is Morphing”: The Problem With The Koch Brothers Isn’t Their Politics. It’s Their Copycats
Did you see the “Creepy Carnival” from the Koch brothers on the Washington Mall the other day? Sponsored by the youth-outreach tentacle of the brothers’ operation, it featured Pennywise the Clown doppelgangers dunking millennials into “High-Risk Pools” – though, surely, they missed an opportunity to nail some old people to death panels. (There was no word about the presence of funhouse mirrors to artificially shrink the outsize influence of the Kochs on our national agenda.)
These two men have commanded center stage in the dark-money circus since the US supreme court started the political money free-for-all four and a half years ago. The Kochs have become the focus of electoral campaigns themselves.
But however effective they may be as conservative bogeymen, the real problem with the Kochs is not that they are ultra-conservative. The problem is that they are a leading indicator that our political system is morphing from elections based on ideology to elections based on the preferences of individual donors.
Big “fundraisers” like the Kochs don’t care so much about candidates or parties. They care about policies, and that tendency to narrowly target their dollars naturally pushes candidates to tailor their platforms to issues more than coherent ideologies. Jjust look at Sheldon Adelson and Israel, or Tom Steyer and green energy, or Paul Singer and gay rights – or the Koch brothers themselves, whose political manipulations have always been based in a fervent economic libertarianism more than purely Republican politics.
The negative focus on mega-donors on both sides of the aisle is having one effect: it’s turning Americans firmly against the current electoral financing system. According to Gallup, fully 50% of the country would support a federally funded campaign finance system with no private contributions whatsoever; 79% would vote for a law limiting contributions in some way.
As a result, the movement for a small-donor revolution in campaign finance is slowly clawing its way into the mainstream. The leading general in that revolution, Lawrence Lessig – who launched Mayday Pac to blow up big money in politics by raising big money – just surpassed his initial fundraising goal of $5m by raking in $7.6m in small donations. (Ironically, a few mega-donors will be kicking in another $5m in matching funds.)
But Lessig’s Kickstarter-esque project is itself the kind of single-issue project that has, to date, been the purview of fundraising behemoths: he plans to give the money only to candidates who hew to his vision of campaign finance reform. Like them, it lays the groundwork for the decentralization of parties, whether or not Lessig’s own goals are achieved.
As it stands, the number of Americans who identify with a particular political party do so now with unprecedented intensity, and the number of Americans who don’t identify with either party has grown as well. Sheer frustration could move some – or perhaps many – independents who currently favor a particular party to a more radicalized center.
Disillusioned with actual politicians, apolitical activists could make the candidates the least important part of a ballot by donating to and campaigning for policies, rather than politicians. And that is what issue-oriented Super Pacs, like Lessig’s and others, are counting on: small donors, and voters interested in issues over ideology – or, at least issues-as-ideology.
The idea of non-partisan issue activism is an old one, but what’s changed is the degree of overall partisanship and our expectations of infinite, individualized choice today. When we’ve got Uber in our hands and Spotify playlists inside our headphones, it seems reasonable to expect technology could do the same for democracy.
Anil Dash, a tech activist and entrepreneur, envisions a kind of Amazon for activism – a literal marketplace of ideas, wherein a donor with a little money and a few major passions could shop for candidates that fit an issue checklist. They could even target those who appear particularly “flexible”, based on a database matching their voting history to donors, or particularly in need of cash to keep the campaign going. These, of course, are tactics that big money donors have long used to sway the opinions of politicians. The question is whether the aggregation of enough small donors could be equally effective.
But do today’s policy crises even lend themselves to the micro-targeted solutions that app-enabled voters could select? Do we wind up with solutions to climate change, or just pockets of pollution? And what issues disappear entirely when pressures from both special interest big donors and special interest small donors push parties to the breaking point?
As it is, just the system is broken – or bent, leaning heavily in the direction of that easy mega-donor money. The undoing of campaign finance reform has made more and more obvious to more and more people; Larry Lessig’s project to leverage that disgust will spotlight the ugliness just in time for 2016. Perhaps it will drive at least some conversations, if not solutions.
By: Ana Marie Cox, The Guardian, July 28, 2014
“It’s Time For Progressives To Reclaim The Constitution”: Challenging Conservative Claims About What The Constitution Really Demands
You cannot talk for very long to a conservative these days without hearing the words “constitutional” and “constitutionalist.”
Formulations such as “I am a constitutional conservative” or “I am a constitutionalist” are tea party habits, but they are not confined to its ranks. Many kinds of conservatives contend that everything they believe is thoroughly consistent with the views and intentions of our 18th-century Founders.
Wielding pocket-sized copies of the Constitution, they like to cite it to settle political disputes. Writing in the YG Network’s recently issued conservative manifesto, “Room to Grow,” Ramesh Ponnuru argues that there is a new and salutary “popular interest in constitutionalism.”
“Instead of treating the Constitution as the property of lawyers and judges,” he notes, “it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation.”
One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery.
Moreover, because the Constitution was written primarily as a foundation for government, it can answer only so many questions. David Strauss of the University of Chicago Law School authored a book called “The Living Constitution” to make plain that there is a lot more to this concept than its detractors suggest. He notes that “a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground.”
The problem with “originalists,” Strauss says, is that they “take general provisions and make them specific,” even when they’re not. One might add that the originalists’ versions of specificity often seem to overlap with their political preferences.
Nonetheless, progressives should take Ponnuru’s proposal seriously and think constitutionally themselves. In doing so, they would challenge conservative claims about what the Constitution really demands.
In the May issue of the Boston University Law Review, Joseph R. Fishkin and William E. Forbath of the University of Texas School of Law show that at key turning points in our history (the Jacksonian era, the Populist and Progressive moments and the New Deal), opponents of rising inequality made strong arguments “that we cannot keep our constitutional democracy — our republican form of government — without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone.”
Their article is called “The Anti-Oligarchy Constitution,” though Forbath told me that he and Fishkin may give the book they’re writing on the topic the more upbeat title “The Constitution of Opportunity.” Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution’s central commitment to shared self-rule.
“Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship,” they write. “In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme.”
While their overarching vision contrasts sharply with Ponnuru’s, they make a similar critique of what they call an excessively “court-centered” approach to constitutionalism. “Constitutional politics during the 19th and early 20th centuries” was very different and the subject of democratic deliberation. In earlier eras, they say, the Constitution was seen as not simply permitting but actually requiring “affirmative legislation . . . to ensure a wide distribution of opportunity” and to address “the problem of oligarchy in a modern capitalist society.”
The authors remind us of Franklin Roosevelt’s warning that “the inevitable consequence” of placing “economic and financial control in the hands of the few” would be “the destruction of the base of our form of government.” And writing during the Gilded Age, a time like ours in many ways, the journalist James F. Hudson argued that “imbedded” in the Constitution is “the principle” mandating “the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence.”
The idea of a Constitution of Opportunity is both refreshing and relevant. For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it’s they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 6, 2014
“Supreme Anointment Court”: Sheltered From Sun And Light In Our Nation’s Holiest Building
True Blood, the magic, devilish, vampire TV world of shape-shifters where blood is a bottled commodity to drink in a bar and extreme graphic violence and sex is recklessly paired will finally have the stake driven into its heart and exit at the conclusion of this seventh season.
I remember the show’s big surprise lesson from season one that no matter how scary and powerful, vampires cannot enter your home without being invited. However, there is no end in site of the bad true bloody struggles between the five conservative and four liberal justices of our Supreme Court, and no matter how societal changing a Court decision is, the public mostly never gets invited in, never gets to be witness to these omnipotent secret cultish figures dressed in robes sitting elevated and fortressed behind sacred wood protected in their house from uninvited intruders while drinking their own ideological dogmatic “blood.” We never get to see their clever shape-shifting after taking up the bar forever in residence chambered and sheltered from sun and light in our nation’s holiest building. We never get to experience these high priests of the constitution experiencing the life we live that they interpret for us. We never get to see whose influential blood and money they drink that becomes the magic elixir of their last words that toss the ingredients of our melting pot. We never get to see their expressions as indicators of how bad the blood between them might really be as they depart company after each session to take solace and recharge in their secluded coffined off chamber.
Throughout much of our history, we have mostly accepted, obeyed, revered and patiently waited with undying respect for the Court’s directives. We knew they knew better what was better for our society. For Americans, this was the place where evil, malice, patronage, cronyism, politics, and the compromising inducements of avarice and greed humans are so easily soiled by held to a higher standard that truly defined how great a system ours was. We hardly ever get to see this side of the court any more. Just as divided and unpredictable as the world depicted in True Blood, the Supremes on the Court dominated by extremist conservatives are driving the stake into the disunited states of America.
Recent polling supports the perception of a society absolutely at odds with all forms of government. The Supreme Court has lost the confidence of Americans. We are now adrift without a moral compass, without checks and balances, without a credible mandate voice in any of our three plus media equals four branches of government. A majority of voters elected President Obama twice with such a mandate. But increasingly, we are witnessing a court that has anointed itself as representative to its secreted world to drive The Stake to drain the blood of Obama-ism. What after-world can and will emerge in such a divided state and in what state of health and personhood will each of us be in at that time? As we do get to witness many hot spots around the globe descend into horror, can we save America and ourselves?
By: Allen Schmertzler, The Huffington Post Blog, July 3, 2014
“A Revival Of 20th Century Lochner”: The Roberts Court Thinks Corporations Have More Rights Than You Do
The Supreme Court of the mid-twentieth century led a First Amendment revolution, turning a rarely enforced constitutional provision into the crown jewel of our Bill of Rights. While these rulings protected the speech of all Americans, they most frequently came in cases involving disfavored or even despised litigants, from Jehovah’s Witnesses to Nazi sympathizers. The Roberts Court is leading a free speech revolution of its own, but this time for the benefit of corporations and the wealthy.
This revolution is unfolding across a wide range of First Amendment provisions and doctrines, from Citizens United v. FEC, which protects political speech by corporations to Sorrell v. IMS, which makes it easier for corporations to challenge laws that regulate commercial speech. Today’s bitterly divided rulings in Burwell v. Hobby Lobby and Harris v. Quinn continue this trend by turning the First Amendment’s protection for the free exercise of religion and freedom of association into a sword to free corporations and other powerful interests from government regulation. More than the Court’s earlier First Amendment revolution, this series of deeply divided rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century that struck down laws designed to prevent the exploitation of workers. During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. Today, we are seeing a revival of Lochner in the name of protecting free speech and free exercise of religion.
This story, of course, begins in earnest with the 2010 ruling in Citizens United v. FEC, the case that, perhaps more than any other, defines the Roberts Court. There the Court’s five conservatives united to hold that the Constitution gives corporations the right to spend unlimited sums of money on elections. Corporations cannot vote in elections, run for office, or serve as elected officials, but the Court nevertheless ruled that they can overwhelm the political process by using money generated by special privileges that corporations alone possess. In 2011, the Court continued this corporate-friendly trend in Sorrell v. IMS, holding that forms of market research, such as data mining, are “speech” protected by the First Amendment.
This term, Chief Justice Roberts has opened new fronts in his First Amendment revolution. Prior to 2014, the Supreme Court had never held that a secular, for-profit corporation is entitled to protections for the free exercise of religion and had never struck down a federal law limiting campaign contributions. This year, the conservative Justices did both. In both cases, the Court’s conservative majority built off of Citizens United. In Hobby Lobby, in an opinion written by Justice Samuel Alito, the Court held that closely-held, secular, for-profit corporations were entitled to the guarantee of the free exercise of religion, treating corporations simply as the artificial embodiment of its owner or shareholders. Dismissing the fact that corporations cannot pray and have never, in more than two centuries, been conferred with rights of conscience and human dignity, the Court’s conservative bloc concluded that secular for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s requirement that employer-sponsored health insurance plans cover the full range of FDA-approved contraceptives. The Court’s opinion—the first in history to require a religious exemption from generally-applicable regulation be given to a commercial enterprise—exalts the rights of corporations over those of individuals, giving corporations the right to impose their owners’ religious beliefs and extinguish the rights of their employees. As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent and empowered commercial enterprises to “deny legions of women who do not hold their employees’ beliefs access to contraceptive coverage.”
While framed as a narrow minimalist ruling, Justice Alito’s opinion in Hobby Lobby is anything but. First, its central holding strongly suggests that all corporations—not merely those like Hobby Lobby that are closely-held—are entitled to demand religious exemptions from generally-applicable business regulation. Second, its reasoning invites an avalanche of new claims by corporations and others for religious exemptions, making it very difficult for the government to defeat claims for religious exemptions, even when those exemptions extinguish the rights of employees. The Court’s opinion, as Justice Ginsburg explained, opens the floodgates for a number of “me too” religious objections by other companies on matters ranging from anti-discrimination law to other medical procedures such as blood transfusions or vaccinations.
Earlier this term, in McCutcheon v. FEC, the Court’s conservatives continued their assault on the nation’s campaign finance laws, striking down the federal aggregate limit that permitted individuals to contribute up to $123,000 to candidates per election cycle and opening the floodgates to the wealthiest Americans to contribute millions of dollars at a time to elect candidates to do their bidding. As in Citizens United, the conservative majority turned a blind eye both to constitutional principle and reality, treating the $123,000 contribution limit as an especially severe burden on freedom of speech and artificially limiting the government interest in ensuring electoral integrity to cases of bribery. To the Founders, preventing corruption of the government was at the core of the Constitution, necessary to ensure, as Madison put it, that government was “dependent on the people alone” and that our system of representative democracy remained “not [for] the rich more than the poor.” Rather than grappling with the government’s authority to ensure electoral integrity—an interest deeply rooted in the Constitution’s text and history—Chief Justice Roberts caricatured it. While campaign contribution limits still remain, it seems only a matter of time before those too are invalidated by the Roberts’ conservative majority.
Harris, too, represented a fundamental reinterpretation of the First Amendment, striking down an Illinois law that allowed public-sector unions for home health care workers to collect fees from non-union workers to cover the costs of a union’s bargaining activities. In doing so, Justice Alito dismissed a long line of precedents going back nearly 40 years that had upheld precisely these kinds of arrangements, dealing a serious blow to organized labor. In past cases, the Roberts Court has upheld government regulation of employee speech, giving the government broad leeway in choosing how to run a workplace. But, in a stark about face, Justice Samuel Alito’s opinion ratcheted up the First Amendment rights of anti-union employees, powerfully illustrating Adam Liptak’s observation that in the Roberts Court, “[f]ree speech often means speech I agree with.” In a blistering dissent, Justice Elena Kagan argued that the Court’s conservative majority was perverting established First Amendment law, effectively creating a special set of First Amendment principles only for union fee cases.
Justice Alito’s opinion in Harris invites anti-union activists to file a host of new lawsuits aimed at state laws that allow public-sector unions to collect the costs of collective bargaining from union and non-union member alike. Indeed, much of the Harris opinion is devoted to showing why the past precedent in this area is wrong and ought to be overruled. These precedents survive, if at all, by a thread.
Chief Justice John Roberts is known for playing the long game, issuing decisions that, quietly but decisively, move the law to the right. His greatest successes in this area have come in campaign finance cases, where in just a decade, the Court’s opinions have decimated campaign finance law. Today’s decisions in Hobby Lobby and Harris open new avenues for corporate interests looking to attack regulation, and in years to come we are certain to see a host of new challenges to business regulation, all in the name of free speech or free exercise. In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.
By: David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center; The New Republic, July 1, 2014
“The Profound Depth Of Religious And Male Norms”: The Supreme Court Ruled In Favor Of Patriarchy, Not Democracy
On Monday morning, the Supreme Court delivered a severe blow to women in the United States when it ruled that “closely-held” corporations, such as Hobby Lobby, can refuse to provide insurance coverage for birth control based on owners’ religious beliefs. Liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor partially joined Justice Ruth Bader Ginsberg in a 35-page dissent against the majority decision of the five conservative, male justices.
That the Court ruled this way should surprise no one. What should surprise, however, is the continued expectation that we overlook patriarchal religious fundamentalism, its collusion with constitutional “originalism” and its discriminatory expression in our political system.
Most analyses of this case will parse the law and, in doing so, make no challenges to two fundamental assumptions: 1) that the law and the Court are both “neutral” to begin with and 2) that we should not question the closely held religious beliefs of judges and politicians, even when those beliefs discriminate openly against women. This is a judgment. And judgments come from norms. And norms are based on people’s preferences. The Court is made up of people who have beliefs, implicitly or explicitly expressed.
In the practice of many religions, girls’ and women’s relationship to the divine are mediated, in strictly binary terms, by men: their speech, their ways of being and their judgments. Women’s behavior, especially sexual, is policed in ways that consolidate male power. It is impossible to be, in this particular case, a conservative Christian, without accepting and perpetuating the subordination of women to male rule. It is also blatant in “official” Catholicism, Mormonism, Evangelical Protestantism, Orthodox Judaism and Islam.
The fundamental psychology of these ideas, of religious male governance, does not exist in a silo, isolated from family structures, public life or political organization. It certainly does not exist separately from our Supreme Court. Antonin Scalia, for example, makes no bones about his conscientious commitment to conservative Catholic ideals in his personal life and the seriousness of their impact on his work as a judge. There are many Catholics who reject these views, but he is not among them. These beliefs include those having to do with non-procreational sex, women’s roles, reproduction, sexuality, birth control and abortion. The fact that Scalia may be brilliant, and may have convinced himself that his opinions are a matter of reason and not faith, is irrelevant.
What is not irrelevant is that we are supposed to hold in abeyance any substantive concerns about the role that these beliefs, and their expression in our law, play in the distribution of justice and rights. They are centrally and critically important to women’s freedom, and we ignore this fact at our continued peril.
Ninety-nine percent of sexually active women will use birth control at some point in their lives. The Court’s decision displays the profound depth of patriarchal norms that deny women autonomy and the right to control our own reproduction—norms that privilege people’s “religious consciences” over women’s choices about our own bodies, the welfare of our families, our financial security and our equal right to freedom from the imposition of our employers’ religious beliefs. What this court just did was, once again, make women’s bodies, needs and experiences “exceptions” to normatively male ones. This religious qualifier was narrowly construed to address just this belief and not others, such as prohibitions on vaccines or transfusions. It is not a coincidence that all three female members of the Court and only one man of six dissented from this opinion.
While there are hundreds of bills and laws regulating women’s rights to control their own reproduction, I’m not aware, after much looking, of any that similarly constrain men or tax them unduly for their decisions. As a matter of fact, we live in a country where more than half of our states give rapists the right to sue for custody of children born of their raping and forcible insemination of women. Insurance coverage continues to include medical services and products that help men control their reproduction and enhance their sexual lives.
As Ginsburg outlined in her dissent, the costs that this decision will accrue to women are substantive. The argument that employers shouldn’t pay for things they don’t believe in is vacuous. Insurance benefits are part of compensation. Even if you reject that notion, it is clear that we all pay for things we don’t like or believe in through our taxes and, for employers, through insurance. That’s how insurance and taxes work—except when it comes to women and their bodies. That’s sexism.
That we live with patriarchy is evident. That this dominance is and always has been the opposite of democracy is not to most people. SCOTUS’ decision is shameful for its segregation of women’s health issues and its denial that what should be valued as “closely held” in our society is a woman’s right to make her own reproductive decisions. American women’s equality continues to be undermined by the privileging of religion in public discourse.
By: Soraya Chemaly, Time, June 30, 2014
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