“Justice Roberts Defends The Embattled Rich In McCutcheon”: With Laundered Contributions, You Can Now Buy Off Whole Committees
Chief Justice John Roberts’s majority opinion in McCutcheon v. Federal Election Commission, in which the Supreme Court struck down aggregate limits on campaign donations, offers a novel twist in the conservative contemplation of what Nazis have to do with the way the rich are viewed in America. In January, Tom Perkins, the Silicon Valley venture capitalist, worried about a progressive Kristallnacht; Kenneth Langone, the founder of Home Depot, said, of economic populism, “If you go back to 1933, with different words, this is what Hitler was saying in Germany. You don’t survive as a society if you encourage and thrive on envy or jealousy.” Roberts, to his credit, avoided claiming the mantle of Hitler’s victims for wealthy campaign donors. He suggests, though, that the rich are, likewise, outcasts: “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he writes:
If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
So the problem is that even Nazis are treated better than rich people—less constrained by public anger in their ability to speak out. Or pick your analogy: when thinking about people who want to donate large sums of money to candidates, should we compare their position to that of the despised and defeated, like the Nazis in Skokie, Illinois, in the nineteen-seventies, or of scorned dissidents, like flag-burners, trying to get their voice heard with their lonely donations?
As in Roberts’s opinion in Shelby v. Holder, in which the Court overturned parts of the Voting Rights Act last year, the people we think of as having the power are, in fact, embattled, the victims of schemes, driven by popular opinion, meant to “restrict the political participation of some in order to enhance the relative influence of others,” as Roberts put it. “The whole point of the First Amendment is to afford individuals protection against such infringements,” he wrote, adding:
No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.”
There is, apparently, a fine line between efforts to keep our political system from being for sale and a social experiment in levelling.
Roberts’s opinion left intact limits on how much a person can donate to a single candidate or party committee, but it took away the limit on how much money in total a person can give directly to candidates. Until this case, the totals were $48,600 to individuals and $74,600 to committees per election cycle. (Shaun McCutcheon, the plaintiff, said he wanted to keep giving directly to Republicans after he’d reached his limits; the Republican National Committee joined him in the case, saying it would be happy to take his money.) Roberts recognized, as the Court long has, that the government has an interest in preventing corruption which allows it to limit the size of a check that one person can hand one candidate. Earlier decisions allowed the aggregate limits in order to prevent donors from using multiple contributions to get around the cap, by giving to numerous committees that might pass the money around and get it to the candidate anyway. Stephen Breyer’s dissent—he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—lays out a number of quite practical ways this could happen, but Roberts dismisses those arguments as silly.
“It is hard to believe that a rational actor would engage in such machinations,” Roberts writes, after examining how a person could donate to a hundred PACs to get money to a hypothetical candidate named Smith. He may simply be lacking in imagination here: the immediate effect of McCutcheon is likely to be the development of structures and vehicles for effectively laundering contributions through many small channels, and the emergence of specialists who know how to set these things up. Roberts might think that the complexity—the potential paperwork—is a guarantor against corruption, but he has too little faith. We’ve got the technology to get it done.
Roberts’s other argument is a little sad: “That same donor, meanwhile, could have spent unlimited funds on independent expenditures on behalf of Smith.” In other words, aggregate limits wouldn’t foster corruption, because using money to influence a campaign is much easier with the sort of independent expenditures that Citizens United makes possible.
Citizens United or no, McCutcheon will set up a large-scale experiment in how money is used and passed around, with new kinds of mega-bundling, and how coördinated donations either impose uniformity on a party’s far-flung candidates or help to solidify regional or ideological blocs. It may be a different kind of leveller than Roberts imagines; it could also be a way to financially fuel intra-party civil wars. And that is quite separate from the new potential for influence peddling. Instead of targeting a single Congressman, you can try to buy off a whole committee.
But then Roberts relies on a very narrow measure of corruption: “Ingratiation and access … are not corruption,” he writes, quoting Citizens United. (There are a number of citations of Citizens United in this decision.) The argument of McCutcheon, in effect, is that a political party itself cannot, by definition, be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.” The gratitude may only be for a place of safety where donors, assailed by the popular opinion of bitter, poorer people, can find a little bit of solace.
By: Amy Davidson, The New Yorker, April 2, 2014
“In Florida, Anything Can Happen”: Vampires, RINOs And Things That Go Bump In The Night
From the state that gave us Katherine Harris and Mark Foley came news this week that a vampire is running for Congress.
This particular bloodsucker — actually, he does role-playing as a vampire after dark — is trying to defeat Rep. Ted Yoho in a Republican primary in central Florida. The fanged contender believes Yoho — a tea party conservative — is a liberal who has “embarrassed” his constituents.
Speaking of embarrassing, the SaintPetersBlog Web site reported that this challenger, 35-year-old attorney Jake Rush, has moonlighted as a participant in a Gothic troupe engaged in “night-to-night struggles ‘against their own bestial natures.’ ” Rush, a former sheriff’s deputy, issued a news release.
“I’ve been blessed with a vivid imagination from playing George Washington in elementary school to dressing up as a super hero last Halloween for trick-or-treaters,” Rush’s statement said, adding that he also is a “practicing Christian” who “played Jesus” in a church play.
Running for office in the Sunshine State poses some unique problems for vampires, not least their difficulty of campaigning in daylight hours. Yoho will probably keep his seat, particularly if he remembers to wear garlic.
But the Rush candidacy reminds us of an important truism in politics: In Florida, anything can happen.
For more evidence of this, consider what is happening next weekend on Amelia Island, not far from where Jake Rush and the other undead play. There, House Majority Leader Eric Cantor and Majority Whip Kevin McCarthy will speak at a fundraiser for Republican moderates. In today’s Republican Party, moderates are less popular than vampires, so it is extraordinary that these two young leaders, who have assiduously courted the tea party the past five years, are willing to associate themselves with those the tea partiers deride as RINOs, Republicans in Name Only.
“It’s great news,” says Steve LaTourette, who runs the Republican Main Street Partnership and is a board member of its offshoot political action committee, which is hosting the gathering at the Ritz-Carlton. “The fact that they want to come is very encouraging as a centrist Republican. . . . That they at least want to break bread with us I give them credit for, because they’re certainly getting attacked for it.”
That they are, in the blogosphere, on talk radio and even in fundraising pitches from tea party candidates. “Next weekend, John Boehner, Eric Cantor, Kevin McCarthy, and 25 other members of Congress are flying to Amelia Island to collaborate with a group dedicated to defeating conservatives in Congress,” conservative pundit Erick Erickson harrumphed.
Actually, House Speaker Boehner has addressed the group before but will be on foreign travel this time. More significant is the first-ever attendance of Cantor, who has been seen as a potential threat to Boehner from the right.
The presence of Cantor and McCarthy shows their increased confidence in defying the purity demands of organizations such as the Club for Growth, Heritage Action and FreedomWorks. You can’t get much more defiant than siding with LaTourette, who, in a Post op-ed in September, likened 30 to 40 conservative Republicans in the House to trained monkeys, writing that “the monkeys are running the zoo.”
LaTourette, a former (moderate) Republican congressman, thinks it’s a sign of things to come. He noted that of the 10 Republican House members targeted for primaries by the Club for Growth’s “primarymycongressman.com” project, nine belong to his organization. “We’re not going to lose anything,” LaTourette predicted. He noted that conservative groups have gone from saying “they’re going to kick our ass” to saying “we’re going to win one.”
It’ll be a long time before the 52 House Republican members of the Main Street group gain any real power, but from Florida anything seems possible. Florida has given us everything from former representative Allen West, the most militant of conservatives, to Rep. Alan Grayson, the most strident of liberals. Charlie Crist, the former Republican governor who lost a Senate bid as a Republican and then as an independent, is running for governor again — as a Democrat — and just might win.
Florida, too, gave us Republican Rep. Trey Radel, who recently resigned after a cocaine arrest, and Democratic Rep. Tim Mahoney, who succeeded Foley after the congressional-page scandal by promising to restore family values; he lost the seat after it was reported that he paid a staffer $121,000 to keep their affair quiet.
Now Florida is giving us vampires, RINOs and other things that go bump in the night. It is fun to believe they might be real.
By: Dana Milbank, Opinion Writer, The Washington Post, April 4, 2014
“The Politics Of Losing Sorely”: How McCutcheon, Citizens United And Voting Restrictions Are Hurting Our Democracy
So let’s get right down to it: when you really think about it, what makes America different from other countries? Yes, there are lots of good answers, but if you ask me, it has something to do with this: one person, one vote.
It’s a pretty simple phrase, but in it lies the promise that no matter who you are, or where you come from, when the rubber hits the road your voice is worth just as much as anyone else’s. You have a say. And no one else’s say is more important than yours.
But for that to work, every citizen in good standing has to have a meaningful opportunity to participate in the process. And the question before us today is: Is that getting easier or harder, and which option is more consistent with our concept of American democracy?
Take a look at cases like Citizens United and, this week, McCutcheon, for example. They do one thing: give the very wealthy more influence over elections in the United States. It’s like saying: instead of an electoral process where everyone’s voice is given the same weight, some people, by virtue of their wealth, are going to get megaphones. Yes, that’s been true, in one way or another, for years, but in its recent rulings the Supreme Court’s been busy making those megaphones even louder.
Something similar is happening on the state level, if only from a different direction. You can see it in the tougher voter ID requirements, the diminution of early voting, law after law aimed at making it harder for some people to vote – in this case, people who just happen to be more likely to vote Democratic. The end result is an electorate with an artificially higher concentration of conservative voters. Terrific for Republicans. Less good for democracy.
Take the federal and state efforts together and it’s a kind of a pincer movement aimed at producing a “representative” government that’s actually a lot more conservative than its constituents, a representative government that’s not really all that, you know, representative.
This is what happens when one segment of the population says: We’ve been losing too much and we’re sick of it. But instead of retooling our arguments to better match where the American electorate is, or trusting in the traditional American way of persuading a skeptical audience, we’re instead going to lift the hood on the democratic process itself and see if we can change the system so that outcomes we prefer become more likely – not because they are more representative of the American people but because we’ve figured out how to get a few more of our fingers on the electoral scale.
But here’s the thing: being a good loser is, actually, an essential part of the American system. Every few years, we expect our politics to spit out a government that roughly reflects the priorities and interests of a majority of its citizens, because we all get to participate in the process equally. We may not like what that government looks like, but we don’t go storming across the Rubicon, angry pitchforks in hand because the inclusiveness of the process gives it a kind of legitimacy that you don’t find in a lot of other places. We live with it because we know it basically reflects the views of our peers (as opposed to: some remote cabal) and because we’ll have a meaningful opportunity to change it next time around.
And the fact of the matter is: its good for the process when someone loses on the merits. Because losing fair and square encourages the loser to stop regurgitating the same losing arguments over and over again, and instead to come up with something better. Isn’t that what we want the competition of ideas that plays out in every election to produce? Or are we instead going to stand by and let the sorest of the losers say: If I can’t win the game as its supposed to be played I’m going to change the game, and I don’t much care if doing so undermines one of the very things that makes America a beacon of liberty in an increasingly Putinized world.
Of course, it isn’t entirely up to us, but that’s what happens when the Supreme Court steps in. For me, that only increases the urgency of the following question: is there a point at which changing the nature of electoral inputs, either by giving some outsized influence over the process or making it harder for others to participate at all, gets so out of whack that it begins to undermine the legitimacy of electoral outcomes? If you really love America qua America, you know that’s a place we should never be.
No we’re not there yet.
But it’s sure not getting any easier.
By: Anson Kaye, U. S. News and World Report, April 4, 2014
“An Endless Battle”: The Next GOP Scheme To Manufacture Obamacare “Horror Stories”
After the administration met a target of seven million new private insurance signups under the Affordable Care Act, and after pretty much every Obamacare “horror story” featured in a Koch-funded attack ad has turned out to be either completely false or extremely misleading at best, and after even some conservatives are telling their brethren to stop fooling themselves into thinking the ACA will inevitably implode, you might think that we could now start having a reasonable, factually grounded discussion about how we might improve the ACA going forward.
No such luck. In fact, there’s a new misleading “horror story” on its way: the worker whose hours are being cut back so their boss won’t have to comply with the ACA’s employer mandate. Watch out for it, because it’s coming.
Just as before, the decisions of private companies to attempt to screw over ordinary people are going to be blamed not on those companies, but on Obamacare. Before it was insurance companies, who tried to shunt their customers into overpriced policies when cheaper options were available on the exchanges. How many news stories did we see that featured someone’s anger at an insurer’s letter telling them they should sign up for a new, more costly plan, without even asking what other options the person had?
This time, the “horror story” will feature workers whose employers are trimming their hours back to avoid having to give them health insurance. Yesterday the House passed a bill, with every Republican voting in favor (along with 18 conservative Democrats) changing the law’s definition of full-time work from 30 hours a week to 40 hours a week. The purpose is to allow an employer to cut a full-time worker down to 39 hours and claim they’re “part time,” to avoid giving them health coverage (as it stands now, they’d have to cut them down to 29 hours).
President Obama would veto any such bill if it actually passed both houses. But still: this is the opening of a new front in the endless battle over the ACA.
So some context is in order. The ACA mandated that all companies with 50 or more workers offer health coverage. It’s vital to understand that this mandate actually affects only a small portion of workers, because most companies of that size already offer coverage. According to the Kaiser Family Foundation, 91 percent of firms with between 50 and 199 employees offer coverage today, before any mandate has taken effect. For companies with 200 or more employees, it’s virtually all of them (over 99 percent). Even most companies with fewer workers — 85 percent of those with between 25 and 49 employees — offer coverage.
So if, in the coming days, you see a story about an employer that’s trying to find ways not to cover their employees, the first thing to remember is that this an employer who is not giving their workers the benefits most people get. The second thing to remember is that the mandate has already been delayed. Companies with between 50 and 99 workers now have until 2016 to get their workers insured.
To be clear, there’s an argument for restructuring the employer mandate completely; there are other ways you could make sure that employees are covered. And as we learned in the Hobby Lobby case, the mandate isn’t truly a mandate; if a firm wants, it can decline to cover its workers, and pay a tax (which will cost a lot less than health coverage) to help defray the cost of them getting insurance through the exchanges.
I don’t even believe that people should be getting insurance through their employers at all; the fact that we do is an artifact of history that doesn’t have much practical rationale, particularly now (it started during World War II, when wage controls meant employers couldn’t give raises, so they began offering health benefits instead). But once coverage is required from all mid-size and large firms, it will be part of the cost of doing business for all of them — just as it is today for nearly all of them.
And by the way, this is true of lots of regulations: minimum wage laws, worker safety laws, laws against dumping toxic waste in the creek behind your factory, and a whole host of other laws that may increase a company’s expenses but get worked into the prices they charge for their goods and services.
As long as this is the system we have and there’s a mandate scheduled to take effect in 2016, we should be honest about what it means. If the claims about people getting dropped from individual coverage have taught us anything, it’s that whenever we see a new “Obamacare horror story,” it’s probably bogus. And this one will be no exception.
By: Paul Waldman, The Plum Line, The Washington Post, April 4, 2014
“Enough With Puff Pieces About Painting”: Bush Crew’s Deplorable Return, How Their Reemergence Sends A Deadly Message
It’s been more than five years since Dick Cheney left the White House and nearly eight years since Donald Rumsfeld was booted from the Pentagon. With the obvious exception of George W. Bush himself, no two men were more responsible for the United States’ disastrous and criminal invasion of Iraq, as well as its embrace of a counter-terrorism model built on the twin barbarities of indefinite detention and systematic torture. In the years that have passed since their departure from public office, both men have released best-selling memoirs, made countless media appearances and no doubt added substantially to their already considerable wealth.
In fact, to get a real sense of just how little these men have had to pay for their sins, consider three recent examples.
One is a recent comment from Dick Cheney, delivered in public — not in private, not on background, not via unknown insiders with intimate knowledge of the former vice president’s thinking, but in public — about whether he still supports waterboarding (or torture, as most people besides Cheney tend to call it): “If I had to do it all over again,” Cheney said, “I would.”
The second is the new documentary, “The Unknown Known,” by Errol Morris and about Donald Rumsfeld. Estimations of the film’s quality vary, but all reviewers are unanimous in at least one regard: Rumsfeld, as he comes off in the film, truly has no regrets. Asked by Morris if invading Iraq for the second time, causing hundreds of thousands of innocent deaths and turning millions more into refugees, was worth it, Rumsfeld shrugs off the question and settles for a fittingly cold and glib answer: “Time will tell.”
The third story is, to my mind, the most disturbing. It’s a piece in the New York Times, published Friday, about a third man, a man who ignored warnings of a terrorist attack, plunged his country into two disastrous wars, invaded a sovereign nation without sanction from the United Nations and on false pretexts, signed off on the implementation of a worldwide torture regime, secretly initiated domestic surveillance on an unprecedented scale, oversaw the destruction of one of the world’s greatest cities, and cut taxes for, and thwarted regulations against, the Wall Street power-players who destroyed the global economy and consigned millions of people to lives of poverty, unemployment and deferred dreams. That man is George W. Bush, and the article is a puff piece about his kitschy paintings.
Obviously, the fact that these men continue to live charmed lives offends our sense of fairness. But it has a more tangible consequence, too. Consider the state of foreign policy thinking within the Republican Party today. Granted, with the recent ascendance of the relatively isolationist Sen. Rand Paul, the GOP’s view of foreign policy is somewhat in flux. But Paul is still an outlier, and a quick glance of the Mitt Romney campaign’s foreign policy experts is enough to show that neoconservatives like Cheney, Rumsfeld, Wolfowitz, Feith and the rest of that ghoulish clique still call the foreign policy shots for national Republicans. Despite their abject failures — both technocratically and morally — Bush, Cheney and Rumsfeld remain in good standing with the people who run one of America’s only two serious political parties. If Mitt Romney were president right now, with Dan Senor by his side, the United States could be ramping up for war with Iran or Russia, preparing to once again spread freedom from the barrel of a gun as if Fallujah and Abu Ghraib never happened.
There’s next to no chance any of these men will ever be officially held accountable for their crimes. All three clearly harbor no regrets. These are the fruits of belonging to the American elite in an era of widespread inequality, when not only the economy, but many pieces of the state itself, act to reinforce and perpetuate the divide separating those who have from those who do not.
Of course, Cheney, Rumsfeld and Bush are hardly the first American war criminals to escape justice. Richard Nixon, in whose administration the former two men served, immediately comes to mind. Henry Kissinger, too. As was the case for Nixon and Kissinger, Bush and Cheney and Rumsfeld have benefitted from a decision of the political ruling class — and, to a lesser degree, of the general public— that it’s best not to dwell too much on the nastier bits of America’s recent history. Back when some touchingly naïve souls thought it a possibility, President Obama used to dismiss the notion of holding his predecessors accountable for torture by urging America to “look forward.” This was an order that the vast majority of Americans showed themselves willing to follow.
This same dynamic, this resistance on the part of the powerful to hold their fellow elites to account — as well as the general public’s silent acceptance of these different, looser ethical standards — was also a key driver of the government’s response to the financial meltdown of 2008. After the crisis had passed and the Obama administration had begun reconstituting the financial sector (mostly in its prior form, sadly), there were public demands that some of the Wall Streeters responsible be prosecuted for the damage they wrought. But these flashes of public discontent were mostly ignored by the White House, and here we are, five years later, with essentially no Wall Street villain having had to worry about seeing the inside of a jail cell. Jamie Dimon and Lloyd Blankfein are richer and more powerful than ever.
I’m hardly the first to notice the difference between how not only society, but also the state, treats the powerful and the rest of the public. Salon alum Glenn Greenwald has made the same point, as has MSNBC’s Chris Hayes. But while it’s a point well worth repeating, I don’t bring it up in order to shed light on the past but rather to sound a warning about the future. Because as bad as accountability norms have already become in the United States, there’s ample reason to worry that they’re soon to get even worse.
For an example of how this might be, consider the recent, much-talked-about essay in the Wall Street Journal by billionaire industrialist and right-wing donor Charles G. Koch. The piece is an odd one, residing somewhere between a talking-points-filled press release and a list of conservative maxims that are too hoary for all but the dullest politicians and the most thoughtless ideologues (despite his political activities, Koch is much more the latter). It’s littered with pablum about liberty and “the principles of a free society,” and is defined by the kind of sloppy, lazy thinking that lays claim to “dignity, respect, equality before the law and personal freedom” without acknowledging that, in the real world, disagreements over the proper application of these universally agreed upon values is the essence of democratic politics.
As Koch goes on, however, it begins to make quite a bit of sense, his inability to recognize the basic mechanics of American democracy. It’s not merely that he’s an unsophisticated and unoriginal thinker (though he certainly is), it’s that he truly doesn’t understand what democracy even is. Nowhere is this more obvious than in the brief, passive-aggressive section of the essay in which Koch defends himself against unnamed “collectivist” bullies. Responding to a fusillade of criticism sent his way by Senate Majority Leader Harry Reid, Koch complains that “collectivists” reject “a free and open debate” and “strive to discredit and intimidate opponents” like himself with “character assassination,” just as “so many despots” and Saul Alinsky did before. (Small consolation, I suppose, that Koch is self-aware enough not to actually call his opponents Hitler, choosing instead to merely make the implication.)
Beyond his comically exaggerated sensitivity, what Koch’s mini jeremiad shows is that the man can’t quite fathom the idea that free speech is not the same thing as freedom from critical speech. At no point in his many attacks has Harry Reid — or any other Democrat of significance, for that matter — said anything about Koch’s private life or soul. Throughout, the criticism has been directed toward his politics and the groups he pays to promote them. Reid has said that Koch wishes to establish a political status quo that shields his power and wealthy from scrutiny or competition. Reid cannot authoritatively speak to what goes on inside Koch’s brain, but his interpretation of Koch’s motives is hardly outside the realm of acceptable discourse in American politics. Keep in mind that ours is an era in which politicians malign the the poor as having bad values, bad habits, bad families and bad minds. People infinitely less influential than Charles Koch, in other words, routinely suffer much worse.
Then again, Koch, in so many ways, isn’t like most people. Unlike most people, he can directly reach any Republican politician in the country by simply picking up the phone. Unlike most people, he can spend hundreds of millions of dollars on misleading attack ads and cynical, quixotic campaigns to persuade young people to forego health insurance. Unlike most people, he can take advantage of Citizens United in order to funnel countless millions through shadowy outside groups, largely obscuring his political activities and denying Americans the right to know whose interests are being represented when a politician swears to fight higher taxes on the wealthy and roll back regulations on industrial pollution. Unlike most Americans, Koch can now take advantage of McCutcheon, the Supreme Court’s sequel to Citizens United, which lifted aggregate caps on political donations and took us one more step closer to having no limits whatsoever on how America’s wealthiest citizens can use their largesse to influence the political process.
And that, from all appearances, is how Koch and his ilk like it. With Republicans in Congress stymying any attempt to make political donations transparent, so people at least can follow the money, and with the conservative Supreme Court widely considered to be far from finished destroying campaign finance law from within, Koch can rest easy knowing that his power will remain not only overwhelming but also little understood. He can go on supporting politicians who thwart Medicaid expansions one minute and funding outside groups who castigate Obamacare for not covering more people the next. He can keep bankrolling anti-Obamacare ads that stretch the truth so thin as to render it translucent. He can keep polluting our air, contaminating our water and destroying our environment without having to even pay for the privilege.
He can keep being unaccountable.
By: Elias Isquith, Salon, April 5, 2014
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