Former Supreme Court Justice Stevens: “President Obama Right To Criticize Court Ruling On Citizens United”
President Barack Obama ruffled some feathers two years ago when he lambasted the Supreme Court for its Citizens United decision during a State of the Union speech. It was unusual for a president to criticize the justices as they sat before him.
Now, retired Justice John Paul Stevens has taken the equally unusual step of saying the president was right in challenging the court’s opinion.
Obama said the 5-4 ruling freeing corporations to spend unlimited sums on elections “reversed a century of law,” adding it would “open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”
“In that succinct comment, the former professor of constitutional law at the University of Chicago made three important and accurate observations about the Supreme Court majority’s opinion,” Stevens said in a speech Wednesday evening. “First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America’s most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities.”
Stevens dissented from the 2010 decision, and he said again Wednesday that he could not understand why, if “corporations have no right to vote,” they should have the right to sway elections.
The justice also said he did not see why those with the most money should be permitted to dominate the airwaves during election campaigns. “During the televised debates among the Republican candidates for the presidency, the moderators made an effort to allow each speaker an equal opportunity to express his or her views,” he said, speaking in Little Rock, Ark. If there were six candidates, he said, they were given roughly the same amount of time to speak.
“Both the candidates and the audience would surely have thought the value of the debate to have suffered if the moderator had allocated the time on the basis of the speakers’ wealth, or it they had held an auction allowing the most time to the highest bidder,” Stevens said.
The 92-year old retired justice has reason to feel kindly toward Obama this week. He was awarded a Presidential Medal of Freedom at the White House on Tuesday, and Obama described his “signature style: modest, insightful, well-prepared and razor-sharp … always favoring a pragmatic solution over an ideological one.”
Stevens retired in 2010, and Obama chose Justice Elena Kagan to replace him.
By: David Savage, McClatchy-Tribune News Service, May 30. 2012
“Supernatural Beliefs”: More Americans Believe In Witchcraft Than Agree With Citizens United
In Citizens United v. FEC, the Supreme Court justified its conclusion that corporations and wealthy individuals can spend unlimited money to influence elections because it believed that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” According to a recent survey conducted for the Brennan Center for Justice, however, this places the five conservatives who joined this opinion in very lonely company. According to the poll, “69% of respondents agreed that ‘new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.’ Only 15% disagreed.”
To put this in perspective, a 2007 poll found that 19 percent of Americans believe in “spells or witchcraft,” and that’s just one of the supernatural beliefs that are more common than agreement with the conservative justices’ bizarre reasoning in Citizens United:
Put Conrad, a homemaker from Hampton, Va., firmly in the camp of the 34% of people who say they believe in ghosts, according to a pre-Halloween poll by The Associated Press and Ipsos. That’s the same proportion who believe in unidentified flying objects — exceeding the 19% who accept the existence of spells or witchcraft. . . .
A smaller but still substantial 23% say they have actually seen a ghost or believe they have been in one’s presence, . . . Three in 10 have awakened sensing a strange presence in the room.
To be fair, only 14 percent of Americans believe that they have personally seen a UFO, or one percent less than those who think that Citizens United was correctly decided.
By: Ian Millhiser, Think Progress, April 24, 2012
Democratize The “Mother’s Milk Of Politics”: How To Beat Citizens United
We are about to have the worst presidential campaign money can buy. The Supreme Court’s dreadful Citizens United decision and a somnolent Federal Election Commission will allow hundreds of millions of dollars from a small number of very wealthy people and interests to inundate our airwaves with often vicious advertisements for which no candidate will be accountable.
One would like to think that the court will eventually admit the folly of its 2010 ruling and reverse it. But we can’t wait that long. And out of this dreary landscape, hope is blossoming in the state of New York. There’s irony here, since New York is where a lot of the big national money is coming from. No matter. The state is considering a campaign finance law that would repair some of the Citizens United damage, and in a way the Supreme Court wouldn’t be able to touch.
The idea is that to offset the power of large donors, citizens without deep pockets should be encouraged to flood the system with small contributions that the government would match. Gov. Andrew Cuomo (D) has pledged to a state overhaul of this sort, based on the one already in force for New York City elections. In his state of the state address in January, Cuomo spoke of how urgent it is to “reconnect the people to the political process and their government.” He could make himself into a reform hero across the country if he and the Legislature created a model law for other states, and the nation.
The New York City program is straightforward: The government gives participating candidates $6 in matching funds for every dollar raised from individuals who live in the city, up to the first $175. At a maximum, this means a $175 contribution is augmented by $1,050 in public funds. That’s a mighty incentive for politicians to involve more citizens in paying for campaigns. In the city system, participating candidates have to live within certain spending and contribution limits. In a new statewide system, there are likely to be no spending restrictions but lower limits on contributions.
The beautiful thing is that this approach should answer most of the criticisms offered by those who defend the Citizens United world. I say “should” because advocates of current arrangements will find a way to oppose any reforms. But the New York Revolution, if it happens, would undercut many of their arguments — including their constitutional claims.
The New York reform does not limit anyone’s capacity to participate. It creates incentives for more people to participate. It does not reduce the amount of political speech. It expands the number of people speaking through their contributions. It does not protect incumbents. On the contrary, it opens the way for candidates who might otherwise be driven from the competition by established politicians with access to traditional funding sources.
In short, it makes our democracy democratic again.
And it works. A study of the New York City program published recently by Michael Malbin, executive director of the nonpartisan Campaign Finance Institute, and his co-authors Peter W. Brusoe and Brendan Glavin concludes that the evidence “suggests that multiple-matching funds can stimulate participation by small donors in a manner that is healthy for democracy.”
In particular, they discovered that the reform substantially increased involvement by residents of poor and minority neighborhoods. Suddenly, politicians are hanging around with people other than those with yachts, private jets and complicated tax breaks. Malbin and his colleagues put it more soberly: A matching-funds approach means politicians “spending time with a more diverse set of constituents than he or she would if all of his or her fundraising engaged the upper middle class and rich.”
As for those who object to “taxpayer financing of elections,” consider that a candidate doesn’t get a dime unless he or she raises money from willing private donors. Besides, the Malbin paper notes, “political and civic participation are public goods” and elections “are, after all, the public’s business.” Conservatives fond of vouchers in so many other areas should see this as an opportunity to create Democracy Vouchers.
It will take courage for incumbent politicians to risk establishing a bold new system that could put some of them in danger. But in the course of our history, New York has been a proudly innovative place. A nation looking for a way out from under the money regime created by Citizens United badly needs the example of politicians who believe in democracy enough to democratize the mother’s milk of politics.
By: E. J. Dionne, Jr, Opinion Writer, The Washington Post, April 22, 2012
“The Inactivity Room”: The Fruitless Search For The Supreme Court’s Rationale
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court’s conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court’s interpretation of the Constitution’s commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can’t toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. “You have built a fantasy mansion on the Commerce Clause,” the lawyer tells Smith. “You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called ‘inactivity,’ lock the door, and don’t let you in.” None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there’s something going on among liberal commentators, both those who think the Court will strike down the ACA and those who think they might uphold it, to try to look through the oral arguments in the case and in recent decisions to determine, not necessarily the outcome of the decision, but the reasoning that might accompany it. This, I fear, is fruitless.
I’ll get to why in a second, but here are a couple of good examples just from yesterday. At TPM, Sahil Kapur looks at Justice Roberts’ concurrence in a recent case to suggest that he may be particularly sensitive to preserving the Court’s integrity and reputation, which could lead him to be reluctant to take such a partisan action as overturning the signature legislation of a president from the other party. Jonathan Bernstein, in a post not far from the position I’m taking, says, “The core problem here is that those who want a pre-New Deal reading of the Commerce Clause and the rest of the Constitution want to impose something that, in practical terms, would be highly unpopular, affecting laws such as the minimum wage. There’s really no easy way to do what conservative judicial activists want to do. And that leaves them with options that are going to look, to most people, very arbitrary.” But I really don’t think they care.
If the Court’s conservatives do strike down the ACA, the reasoning they’ll use to do so is irrelevant. That’s the whole point of having a Court like this one: it’s all about the outcome. Let’s recall the most revealing line in the Bush v. Gore decision: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, don’t even think about ever trying to use this case as precedent for anything, because we don’t even believe what we’re saying. And the Roberts Court is even more conservative and partisan than the Court that decided Bush v. Gore was. William Rehnquist was replaced by Roberts (not much difference there), and the centrist Sandra Day O’Connor was replaced by the hard-right Samuel Alito. They would be more than happy to hang their invalidation of the ACA on the novel “inactivity” justification, then never consider the rationale again. Imagine there was some future piece of conservative legislation passed by a Republican president and Congress that regulated “inactivity” in some similar way, and liberals sued to overturn it. Is there anyone of any ideology who actually believes the conservatives on this Court would say, “Well, we’ll have to be consistent about this”? Of course they wouldn’t. The outcome is the only thing that matters.
So it isn’t that they’ll build a room called “inactivity” down that dusty corridor and lock the door. It would be more accurate to say that they’ll grab the nearest unlabeled closet and cram the ACA inside, leaving no room for anything else before they shove the door closed and break off the key in the lock. Then they’ll never look at the closet again, unless it serves the purpose of striking down more progressive legislation.
By: Paul Waldman, The American Prospect, April 9, 2012
What If “The Bogeyman Disappears”: How High Court Ruling Could Backfire On GOP
At WaPo’s ‘The Fix,’ Aaron Blake has an interesting read, “On health care, Supreme Court loss could be electoral win.” Blake believes the GOP’s glee about the upcoming Supreme Court ruling on the ACA could backfire — in an unexpected way. Blake explains:
…Some Republicans are worried that their big challenge to Obama’s health care law could backfire come election time.Obama, of course, does not want to see his signature initiative overturned by the Supreme Court, which holds oral arguments on the bill next week and should render a decision by late June. And Republicans who have long railed against the bill would certainly be overjoyed to see the bill struck down.
But in an electoral milieu (yes, we just used that word) in which winning is often based more on voting against something rather than voting for it, losing at the Supreme Court may be the best thing that could happen to either side — and particularly Democrats.
“In a perverse way, Obama is helped if it is overturned, because then he can use it to rally his base,” said GOP pollster Glen Bolger. “If it is not overturned, then Republicans have a frying pan to bash over the Democrats’ head…”
That last point may be a bit of a stretch. It’s just as easy to imagine the GOP looking like whiners, grumbling about a pro-Republican court saying the law is sound. Plus it may be overstating the intensity of opposition to the mandate — many who don’t like it may be willing to at least give it a try, especially if the High Court says it’s OK.
In addition, don’t forget that polls indicate many who opposed the bill wanted a stronger role for government. Asked “What, if anything, do you think Congress should do with the health care law? Expand it. Leave it as is. Repeal it.” in a Pew Research poll conducted March 7-11, 53 percent said “expand it” (33 percent) or “leave it as it is” (20 percent), with just 38 percent supporting repeal.
Blake is on more solid ground, however, in arguing:
Republicans already hate the law, and if it gets struck down, there’s nothing to unite against. Obama may pay a price from his political capital for enacting a law that is eventually declared unconstitutional, but all of a sudden, the bogeyman disappears, and the GOP loses one of its top rallying cries.The Democratic base, meanwhile, would be incensed at the Supreme Court, which has generally tilted 5-to-4 in favor of conservatives on contentious issues, and could redouble its efforts to reelect Obama so that he could fill whatever Supreme Court vacancies may arise.
Blake argues less persuasively that Republicans will still put energy into repealing the law, even after the Supreme Court’s ruling. Seems to me that this would be a huge loser for the GOP. The public was tired of the legislative debate a long time ago. I would agree with Blake’s assessment, however, that Dems may “have more to gain than Republicans do” in terms of the election — even with an adverse ruling.
By: J. P. Green, The Democratic Strategist, March 23, 2012
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