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“Which Interests Does He Have In Mind?”: Jeb Bush Says He’s Going To Tackle Special Interests In Washington. Don’t believe Him

Jeb Bush didn’t just release 33 years of his tax returns this week. He also had his campaign create a snappy online presentation, complete with graphs, to help everyone understand them. In the accompanying narrative there was one line that caught my eye. While he may have made millions after leaving the Florida governor’s mansion, Jeb wrote, he didn’t debase himself by doing any lobbying. “That was a line I drew and it was the right one. And it’s a line more people should be drawing in Washington, D.C., where lobbying has become our nation’s premier growth industry. And this culture of special interest access is a problem I plan to tackle as President.”

I don’t know about you, but I’m eager to hear more. How exactly will Bush tackle the culture of special interest access? Does he have some strict new rules in mind to lock the revolving door between government and business? Or will it be merely the power of his personal integrity that will keep those dastardly special interests from getting what they want?

Bush might surprise us, but if I had to guess I’d say this is something he’ll pay lip service to during the campaign, but then do little or nothing about if he actually becomes president. He’d be following a well-worn path if he does — candidates always say they’re going to change Washington’s culture and reduce the power of special interests, but somehow they never do.

That’s in large part because the institutions, norms, and relationships of Washington, D.C., are so firmly entrenched that one administration can’t do too much about them. And whatever kind of reform a president might have in mind, it’s always secondary to the policy goals any administration has, so it’s easy to put it to the side in favor of more pressing issues.

While some might like to shut the doors of the Capitol to lobbyists, that’s impossible — their work is protected by the First Amendment, which after mentioning freedom of religion, speech, the press, and assembly, says that we all have a right “to petition the Government for a redress of grievances.” And though there’s plenty of petitioning going on and plenty of grievances crying out for redress, there has actually been a slight decline in the number of registered lobbyists in recent years: While the number peaked at 14,829 in 2007, last year it fell to 11,800. The drop may be due to any number of reasons, but one lobbyist friend told me he was leaving the business because a divided government means there just aren’t enough bills being passed to lobby about.

Even when they make a sincere effort, presidents have trouble transforming Washington culture. When Barack Obama took office, he announced that no registered lobbyists would be allowed to serve in his administration. That probably helps explain the reduction in registered lobbyists, since many Democrats hoped to get a job with the administration one day, but few people believe the rule has seriously diminished the influence of special interests. After all, the administration found over and over that people it wanted to hire had lobbyist pasts, so it kept making exceptions.

On the flip side, there are public-spirited people who claim they have been shut out by the administration for being the kind of registered lobbyists we would presumably want more of. We’re talking about people who lobbied for causes like domestic violence prevention and environmental protection.

Which brings up the question: How special does an interest have to be before it’s problematically special? When we hear that term, it’s always said with disdain, assuming that somebody’s getting something they don’t deserve. In practice, though, we think of only the interests we don’t like as the ones who shouldn’t have influence.

You could look at it this way: You just need to pick the constellation of special interests you prefer, and vote accordingly. Would you rather that labor unions, environmental groups, and civil rights organizations had the ear of the government, or oil companies, anti-abortion groups, and the NRA? They’re all special interest groups to one degree or another, even if they all believe that what’s good for them is good for America. Chances are that if you dislike a politician for being beholden to special interests, what really turns you off is which interests she listens to.

Of course, that tells only part of the story. Some of the most effective special interest influence is exercised in ways that don’t make headlines, on behalf of interests most people know little about, and much of that isn’t partisan. For years before the financial crisis of 2008, the banking industry was acknowledged by many as the single most effective special interest lobby in Washington, in part because the congressional committees that had oversight of the industry were basically in the industry’s pocket — and that applied to both Republicans and Democrats.

The truth is that special interests are always going to get what they want to at least some degree, because that’s just the nature of special interests. When you have a particular interest in something — let’s say you’re a defense contractor who really wants the government to fund your new fighter plane — you’re going to marshal all kinds of resources to make it happen. The rest of us may have a diffuse interest in the plane not being built, if it’s a boondoggle. But we probably won’t organize to fight it, and our voices won’t be heard by those making the decision.

I’m not arguing for cynicism, or saying that every administration is equally steeped in the kind of legalized corruption that is endemic to Washington. But when a politician tells us he wants to get rid of the special interests, we ought to ask him which interests he has in mind, and exactly how he’s going to go about it. Because chances are it’s little more than posturing.


By: Paul Waldman, Senior Editor, The American Prospect; Contributor, The Week, July 2, 2015

July 5, 2015 Posted by | Jeb Bush, Lobbyists, Special Interest Groups | , , , , , , , | Leave a comment

“All Corporations Go To Heaven”: Can CEO’s Impose Their Religious Convictions On The People Who Work For Them?

Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.

A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.

Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.

The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Cowen also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”

The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.

Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.

Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”

The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.

Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn’t mean they trumped everything else. As we have advanced as a society—beyond slavery, segregation, homophobia, and sexism—we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It’s never been a perfect accommodation. It can’t be. But religious liberty interests are rarely the only—or even the most important—interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses.

In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” None of this guarantees how the Supreme Court will decide the contraception mandate. If recent history is any predictor, it may be as fractious as the Affordable Care Act decisions themselves.

The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful. The notion that secular corporations—created by government to maximize shareholder profits and limit liability—might lay claim to their owners’ human rights of religious conscience is doubly astounding when you consider that their principal reason for being is to dissociate themselves from the frailties of human conscience in the first place.


By: Dahilia Lithwick, Slate, August 1, 2013

August 6, 2013 Posted by | Corporations | , , , , , , , , | Leave a comment

“Circling The Media Wagons”: Journalists Are No Different Than Other Citizens In The Eyes Of The Law

When will journalists take responsibility for what they do without circling the wagons and shouting that the First Amendment is under attack?

I’m talking about the case of Fox News correspondent James Rosen.

The case should be described as a State Department contract worker who signed a non-disclosure agreement, yet is alleged to have leaked Top Secret/Special Compartmented Information (TS/SCI) in violation of criminal law. He also is alleged to have lied to the FBI.

Search for a story analyzing damage to intelligence collection caused by the leak and what will emerge are stories about the threat to the First Amendment and journalists.

Some background: On June 11, 2009, Rosen published a scoop on Fox News’s Web site that disclosed how North Korean officials planned to hold another nuclear test in response to an expected U.N. Security Council resolution condemning Pyongyang for recent tests of nuclear and ballistic missiles.

It wasn’t the substance of the leaked info that most deeply concerned the intelligence community. Rather it was that Rosen’s story alerted the North Koreans that the United States had penetrated their leadership circle. A second concern was how quickly someone with access to TS/SCI information — a limited, top-level security classification applied primarily to electronically intercepted messages — had leaked it.

As Rosen noted in his article, the CIA had “only learned of North Korea’s plans this week” and from “sources inside North Korea.” In short, the story warned Pyongyang’s counterintelligence specialists that the United States had probably obtained conversations or messages of top-level North Korean officials by electronic intercepts or through agents.

The U.S. leak probe quickly focused on 96 individuals who, before Rosen’s story or on publication day, had access to the relevant intelligence report. Five of those with access to the North Korean report had had contact with Rosen in the weeks or days leading up to his story’s publication.

As of May 28, 2010, 11 months after the probe began, only Stephen Jin-Woo Kim, a senior intelligence adviser in the State Department’s Bureau of Verification, Compliance and Implementation, had “accessed the intelligence report and . . . had contact with the reporter [Rosen] on the date of publication of the June 2009 article,” according to an affidavit by FBI Special Agent Reginald B. Reyes.

The probe showed that the report had been called up on Kim’s computer three times earlier on the day Rosen’s story appeared. Investigators also found records showing that about the same time the classified report was on Kim’s computer screen, “two telephone calls were placed from his desk phone to the reporter,” meaning Rosen, according to the Reyes affidavit.

Using State Department security-badge records that show comings and goings at State’s main building, investigators realized that an hour after those phone calls Kim and Rosen left the building within a minute of each other. Thirty minutes later they returned within four minutes of each other. Several hours later, Rosen’s story appeared on Fox’s Web site.

Recent articles have implied that the government was physically following Rosen, but investigators had simply used federal records to track him.

Further investigation of Kim showed seven calls between his desk phone and Rosen’s phones on the day of the article, and about 29 others between May and July 2009. In a Sept. 24, 2009, FBI interview, Kim denied being Rosen’s source and having any contact with Rosen after meeting him in March 2009.

On Nov. 9, 2009, investigators got a warrant and searched Kim’s e-mail accounts. They found that he and Rosen had set up aliases and that Rosen sought intelligence about North Korea.

All reporters covering national security, including myself, recognize we regularly seek classified information. We also know that sources can be accused of breaking the law if caught passing highly classified information to those not cleared to receive it, such as journalists.

While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.

To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.

Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.

When First Amendment advocates say Rosen was “falsely” characterized as a co-conspirator, they do not understand the law. When others claim this investigation is “intimidating a growing number of government sources,” they don’t understand history.

The person or persons who told the Associated Press about the CIA operation that infiltrated al-Qaeda in the Arabian Peninsula, and Kim — or someone else — who informed Rosen about North Korea, were not whistleblowers exposing government misdeeds. They harmed national security and broke the law.

The White House Correspondents’ Association board issued a statement May 21 saying, “Reporters should never be threatened with prosecution for the simple act of doing their jobs.” But it admitted, “We do not know all of the facts in these cases.” The board added: “Our country was founded on the principle of freedom of the press and nothing is more sacred to our profession.”

I worry that many other journalists think that last phrase should be “nothing is more sacred than our profession.”


By: Walter Pincus, The Washington Post, May 27, 2013

June 3, 2013 Posted by | Journalists, National Security | , , , , , , , | 2 Comments

“Rewarded With Media Attention”: Code Pink Heckler Was Just Plain Rude And Disrespectful

It says something when the president’s handling of a heckler becomes a story in and of itself, especially when that story is a sideline to a very important and substance-filled speech about the future prosecution of terrorists and the use of unmanned drones. And what it says isn’t good.

President Obama was interrupted several times by a woman (later identified with being with the left-leaning group Code Pink) who badgered him with questions about closing the detention facility at Guantanamo Bay. This is an important question, to be sure, and Obama has yet to follow through on a campaign promise to close it. But yelling at the chief executive – no matter who he is or what you think of him – in the middle of a speech is just rude. The fact that she did it while he was in the middle of addressing that very question is even more irritating. And it exposes what the true motivation was on the part of the protester: to draw attention to herself.

Obama handled it well, acknowledging her presence and her questions (an unnecessary concession to anyone who disrupts for the sake of disrupting) and finally reminding her that free speech means that she needs to listen, as well, while he is talking. The woman undermined her own legitimate cause by making it more about herself and the theater of it all than about the issue itself. And that is a theme that is becoming increasingly pervasive.

Court-watchers are horrified that convicted murderer Jodi Arias was allowed to give interviews while the jury was still deliberating on her (yet undetermined) penalty. That’s an understandable emotion – who wants to hear from someone found guilty of a brutal killing? But when the media (and viewers) turn the criminal justice system into a three-act play, we can’t be shocked if one of the main characters wants to deliver a closing soliloquy.

The hearings on Capitol Hill over a series of controversies – some far more serious than the others – have also become low-grade theater, with the accusations, rhetoric and character assessments dominating the process. The sheer soap opera tone of it all threatens to overshadow the very serious and important role of Congress in overseeing the executive branch. But the setup of the modern system, in which everything is televised, 24/7, promotes the idea of government as theater.

As for Obama and his heckler, how sad that the issue has become not why an adult person would behave so rudely, denying the president the right to speak in the name of the First Amendment, but how the president handled the situation. It’s unfortunately become acceptable – or at least, accepted – for grown people to scream at hosts at town hall meetings, shout over people espousing opposing viewpoints on TV, and even to interrupt the president of the United States while he is delivering a formal speech on a deadly serious topic. Most of us learned at the age of about four that such behavior would be punished, and so stopped doing it. Such behavior is now rewarded with media attention.

By: Susan Milligan, U. S. News and World Report, May 24, 2013

May 25, 2013 Posted by | Media | , , , , , , , | 1 Comment

“A Massive Media Deflection”: There Is No Scandal in Tracking Down Leaks

In the middle of the other “scandals,” i.e. Benghazi and the Internal Revenue Service, that the Obama Administration has to deal with – and which may change the general direction of politics in America at the next general election – there is also the Department of Justice going after the Associated Press in a criminal investigation into leaks of classified information.

The real “news” for us on this last one is that it is no scandal, even though the media are spinning it that way.

Why? Simple: They want to continue getting – from “leakers” inside government – classified information and then publishing it. To them,  it’s just another “hot story,” while for the people actually involved in the situation, it may mean risking their lives or the failure of an operation that could jeopardize our national security. In short, it sells us all out.

This is also why, in our Constitutional form of government, there is absolutely no right or protection for anyone to publish national security information – and “anyone” includes the media and press. Not only that, let’s say that a classified document is stolen or taken from an authorized government facility and given to a reporter. In this situation, the government clearly has the right – and even the obligation – to investigate the disappearance of the document and retrieve it by any legal means. This includes getting warrants for telephone records, wiretaps and even carrying out physical searches. And this same logic applies in the digital world.

Is it “legal” for the Justice Department to go after the AP as part of a criminal investigation into the loss or unauthorized disclosure of classified information? Absolutely, and the suggestion of a “scandal” is a massive deflection by the media. Again, the First Amendment simply does not “allow” the publication of national security information – never has, never will.

For some international perspective: We may be the only democracy in the world not to have what is called an “official secrets act,” a law that makes it a crime to publish national security information. This explains why we rarely – if ever – see similar situations arise, for example, in Canada, the United Kingdom or most other European countries. In these countries, their media simply do not – under penalty of criminal law – publish their classified information, much less actively seek it out, as they do here.

Do we need such a law here? Again, it is simply impossible to get an objective discussion of this question because of the emotional “freedom of the press” arguments, which begin from the false premise that there is somehow a constitutional right to publish government secrets. There is no such “right.”

On the other hand, does the government classify way too much information and keep it classified way too long? Yes. However, this problem has been addressed and readdressed over the years by rules that limit the number of “classification authorities,” by periodic reviews of classified information and by limitations on the number of years information can be classified. Of course, because of the immense damage some information could cause if it were released, there have to be exceptions – but this is the very nature of national security related information.

Ultimately, it is the president, as commander in chief, who is responsible for establishing, protecting and eventually releasing this kind of information – not the media.

Accordingly, when I was bi-partisan General Counsel to the Senate Select Committee on Intelligence (SSCI), I drafted this rather innocuous provision for inclusion in the fiscal 2001 Intelligence Authorization Act:

Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person’s authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than three years, or both.

Was there “method to my madness”? Sure, however, it was also surprisingly easy for me to get bipartisan agreement to the language in both Houses of Congress – and also agreement from the White House in a “SAP,” a “Statement of Administration Policy.” And, after all, who could possibly disagree with it? It was “motherhood and apple pie,” as they say in Washington. I held my breath.

Then some media lobbyist must have actually read the legislation and the whole media industry came unglued and went to “general quarters” to defeat actual enactment of the law. So, notwithstanding that the law had already passed both Houses of Congress with bipartisan support, they got to Bill Clinton with an enormous and personal effort: And, Clinton vetoed the law in his final days as president.

At least the Washington Post – one of the world class publishers in this country, along with the New York Times, of leaked U.S. classified information – showed  its “true colors” in this vapid editorial about the legislation:

“We don’t pretend to be neutral on this subject. Newspapers publish leaked material; our reporters solicit leaks. And some of the leaked material we publish is classified. But it is a mistake to imagine that all leaks of classified information are bad.” Editorial, The Washington Post, Aug. 24, 2001

I don’t know about you, but I don’t want any newspaper editor deciding whether to declassify presumptively sensitive national security information – they simply have no business doing it, regardless of how “hot” the story is or how well connected their “leaker” source is.

Hopefully, it’s this sad fact of political life in Washington that has the Obama Administration actively going after classified “leakers” – more than any administration has ever done. But far more effective would be some form of an “official secrets act” to better protect our nation.

Stated simply: It should be against the law to publish national security secrets – the First Amendment does not protect such irresponsible “journalism,” no matter how salacious the story might be. And, in this respect, we should be no different than our Canadian or British friends – no one there dares publish their national security secrets and no one here should dare publish ours.


By: Daniel J. Gallington, U. S. News and World Report, May 20, 2013

May 22, 2013 Posted by | Media, Press | , , , , , , , | Leave a comment

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