“Rights Not Safeguarded Can Be Eroded Or Lost”: Nation’s Voting Rights Laws Headed In Wrong Direction
One of the most painful scenes in Ava DuVernay’s film, Selma, about Martin Luther King Jr.’s protest marches in Selma, Ala., shows nurse Annie Lee Cooper, played by Oprah Winfrey, being turned away from registering to vote because she can’t name the state’s 67 county judges. Such ploys to block black people from voting were used in the South even after the 1964 Civil Rights Act. They ensured that unequal laws and systems endured, since elected officials were answerable only to the whites who had elected them. It took the Voting Rights Act in 1965 to make that civil right binding. Yet today that victory that legions of volunteers fought for is under attack.
Last year the U.S. Supreme Court upheld a Texas law to require voters to show photo ID cards. The law had been challenged by the U.S. Justice Department and struck down by a federal judge who said 600,000 registered voters in Texas had no government-issued ID, and that African-Americans were thrice as likely as whites to not have one. But the law was upheld by a federal Court of Appeals. Texas found ammunition in a 2013 Supreme Court ruling, Shelby County (Alabama) v. Holder, striking down a section of the Voting Rights Act that had required states with a history of voter discrimination to get federal approval before changing voting procedures. Various states have responded with new voting restrictions.
“If you live in rural Mississippi, and you have no license, you have no ID,” says Patti Miller, who just completed a documentary about the role of Iowans in the 1964 Freedom Summer. She noted that Hispanics in urban areas face the same problem.
Iowans Return to Freedom Summer, depicts five young white people, including Miller, who grew up in overwhelmingly white Iowa and answered a call from the Student Non-Violent Coordinating Committee to aid desegregation efforts in Mississippi. They were among 700 college students from around the country who flocked to Mississippi to help register black voters, teach black children in Freedom Schools and organize community centers. The experiences were life changing.
“I’m not sure if that sense of purpose has happened since,” reflected Miller at a preview of her film Monday. “It affects everything you do, your attitudes and outlook on life.”
For Marcia Moore, one of the Freedom Summer volunteers, seeing how hard Mississippi fought to keep black people down brought tough reckonings about her own country. Richard Beymer (who subsequently played Tony in West Side Story) found that summer a joyful time, even though “we were at war, in a sense.” He lived with seven other civil rights workers in a rented house without indoor toilet or shower, all resolute about confronting racism. Stephen L. Smith never fully got over a severe beating at the hands of Mississippi police. Yet he remained politically active, becoming the first American to burn his draft card. All reflect on their experiences in Miller’s film.
There were disagreements within SNCC about including white students, Miller recalls. “A lot felt it should be only blacks. But whenever white people were involved, the press covered it.”
The white students’ activism also “lit a fire” that prompted black people to start protesting, observes Lenray Gandy, a black Mississippi native, in Miller’s film. The movie depicts a Mississippi that didn’t just force blacks and whites to use separate drinking fountains and waiting rooms, but where black people weren’t allowed to try on shoes at the shoe store. A black man couldn’t walk down a street where a white woman was walking. Blacks couldn’t sit in the front of a bus and were expected to keep their eyes downcast when addressing whites.
But the deprivation that ensured all the others stayed in place was being unable to vote. Registrars would use a 95-question test to reject prospective black voters, according to Shel Stromquist, now a professor emeritus from the University of Iowa who took part in Freedom Summer and appears in the film.
Miller formed the Keeping History Alive Foundation because, as the saying goes, those who can’t remember the past are condemned to repeat it. But remembering may not be the problem for politicians enacting current voting restrictions. More likely they see some political advantage to suppressing the minority vote. So the question is whether fair-minded Americans will insist that Congress pass legislative fixes to ensure all qualified Americans have their voices heard.
Miller will forever be affected by the power of committed black and white people living, cooking, eating, working and risking their lives together. She went on to work with King’s organization in Chicago. So it’s disheartening for her to visit college campuses these days and see black and white students self-segregate in dining halls.
It’s easy to get complacent about battles won long ago. But rights not safeguarded can be eroded or lost. Celebrating King’s birthday, as we do this week, shouldn’t just mean reflecting on how far we’ve come, but on where we’re going, and what it will take to stay on track.
By: Rekha Basu, The National Memo, January 21, 2015
“The Real Mainstay Of The Future Roberts Court”: Samuel Alito, More Than Just A Face In The Conservative Crowd
In an important piece today that’s worth reading and remembering, the New York Times‘ Linda Greenhouse profiles Samuel Alito–beginning his tenth year on the Supreme Court–as the true conservative titan of the U.S. Supreme Court, more so than the unreliable Roberts and Kennedy, the erratic Scalia or the eccentric Thomas.
[T]o the political right, and to a degree that has escaped general attention, Sam Alito is much more than just a face in the conservative crowd. He’s something special. He is a rock star — and not only for his headline appearances at gatherings of the conservative Federalist Society. He is the redemption of the promise that failed a quarter-century ago, when John H. Sununu, chief of staff to President George H.W. Bush, assured worried conservatives that the president had selected a hole-in-one Supreme Court nominee: David H. Souter.
Greenhouse does well to remind us of the Souter nomination, a grievous “stab in the back” to conservatives for which the Bush family has been doing penance ever since.
In the November issue of the religious journal First Things, Prof. Michael Stokes Paulsen, describing Justice Alito as the “man of the hour,” accurately labeled him “the most consistent, solid, successful conservative on the court,” adding: “There are louder talkers, flashier stylists, wittier wits, more-poisonous pens, but no one with a more level and solid swing than Justice Samuel Alito….”
He delivers: not only in the big cases, like Hobby Lobby last June, in which he wrote the majority opinion upholding the right of a corporation’s religious owners to an exemption from the federal mandate to include contraception coverage in their employee health plan, but also in less visible moves that don’t get much public attention but that speak powerfully to the base.
It sounds discordant to suggest that a Supreme Court justice has a base, but Sam Alito has one. One of several recent hagiographic articles in the right-wing press was one in the American Spectator back in May, describing Samuel Alito as “one of the noblest men in American public life today.”
Greenhouse goes on at some length to document Alito’s ideological consistency, and also his strategic savvy, particularly in signaling which kind of cases might offer the conservative bloc on the Court to undo some key progressive precedents. Indeed, the more you read about Alito, the more you can see him becoming the fulcrum of a future Roberts Court that’s been supplemented by another conservative appointment or two from a Republican president. He’s only 64, a relative youngster in the SCOTUS context. So he’s biding his time until the Court has been turned crucially in his direction. It’s all a bit chilling.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, January 9, 2015
“Playtime Is Over For Obamacare’s Foes”: And Still, Republicans Don’t Have A Serious Plan B
Friends of Obamacare, horrified that the Supreme Court has taken a case that could blow up the federal health insurance exchanges, should recalibrate their dread. While the health reforms were safely humming along, there was little political price for demanding their demise. Thanks to the Supreme Court, now there is.
Years of carpet-bombing assaults on Obamacare have left many Americans thinking that they don’t like the Affordable Care Act. But close down the federal exchanges covering 6 million people (so far) in 36 states and they may think otherwise. With a vengeance.
Here are the stakes in King v. Burwell: Should the justices strike down subsidies for coverage in the federal exchanges, only the very sick would hang in. That would be the end of the federal exchanges.
Donald Taylor, a health policy expert at Duke University, likens the Obamacare attackers to a dog chasing a car. “What’s the dog going to do if it catches the car?” he said to me.
Subsidies would be untouched in the 12 or 14 state-run exchanges (depends on how you define them), the majority of which are in blue states. Red-state politicians — oddly the biggest foes of a law that in effect transfers tax dollars from high-income liberal states to poor conservative ones — would have a mess on their hands.
“Some Southern states will be back up to 20 percent uninsured,” Taylor said, “and that doesn’t sound politically stable.”
The solution for Republicans would be a plan B. But they don’t have a serious plan B.
Republicans do have a proposal of sorts, composed early last year by three senators — Richard Burr of North Carolina, Orrin Hatch of Utah and now-retired Tom Coburn of Oklahoma. But it was written mainly as a political document with which to hit Obamacare over the head during the 2016 campaign — not as a ready-to-plug-in substitute.
Let’s look at the Republican plan that we aren’t supposed to examine too closely.
For starters, it would empower private insurers to play a bigger role in the relationship between you and your doctor — encouraging them to shrink the network of doctors and hospitals you may visit. So much for “choice.”
It also would cut government subsidies for many working stiffs who earn too much to claim poverty but too little to afford decent private coverage. And it would enable insurers to charge older people far more for their insurance. Obamacare lets them charge three times as much. The Republican plan would let them charge five times as much.
Gone would be the minimal coverage standards. That means the insurers could more easily deny payment for services that Obamacare considers basic. For all these gifts to private insurers, the industry actually prefers Obamacare because its subsidies create many more customers for their products.
The Republican replacement plan (as written so far) contains lots of other controversial elements pretty much ignored because few have taken it seriously. For example, it would tax employer-sponsored health benefits. (Obamacare’s “Cadillac tax” on luxurious coverage does some of that, for which it continues to take a beating.)
A group of conservative economists, led by Douglas Holtz-Eakin, has scored the Burr-Hatch-Coburn plan and claims that it would cut deficits by $1 trillion. These are reputable economists, Taylor says, but the text they were working with was “incredibly vague” on where the cap on the taxes would be put.
“The score is a number, and the text on which they did the score was ambiguous,” he said. “It shows just how hard this is.”
So now Obamacare won’t be the only piñata in town.
The Supreme Court will take up King v. Burwell in March. We do live in interesting times.
By: Froma Harrop, The National Memo, January 8, 2015
“The Poorly Financed Causes Of Little People”: In Black Lives Matter Protest, Corporate Rights Trump Free Speech
Minnesotans protesting police violence and institutional racism could face “staggering” fees and criminal charges for a protest at Mall of America, with the City of Bloomington announcing plans to force organizers to pay for the mall’s lost revenue during the exercise of their free speech rights, highlighting important questions about free speech in an era of privatized public spaces.
“Youth leaders of color [are] under attack,” Black Lives Matter-Minnesota said in a statement. “It’s clear that the Bloomington City government, at the behest of one of the largest centers of commerce in the country, hopes to set a precedent that will stifle dissent and instill fear into young people of color and allies who refuse to watch their brothers and sisters get gunned down in the streets with no consequences.”
Around 3,000 people flooded the mall on Saturday, December 20, to sing carols and chants following police killings of unarmed African-American men like Eric Garner, Michael Brown, Tamir Rice, and Dontre Hamilton. The protests were peaceful, and some mall workers stepped outside of their businesses and raised their hands in support. Police closed around 80 stores during the two-and-a-half hour protests, and locked down several mall entrances.
Days after the action, Bloomington City Attorney Sandra Johnson announced that she will not only seek criminal trespass and unlawful assembly charges against the protesters, but will also seek to have them pay for the mall’s lost revenue and overtime for police officers–a cost that she says will be “staggering.”
Can the Mall of America prohibit the exercise of free speech and assembly on its premises? And can it pick-and-choose who it allows to assemble? Last year, for example, the Mall allowed around 7,000 people to gather in the same rotunda to honor a young white man who died of cancer.
The First Amendment protects against government suppression of speech, but not private responses to the exercise of free speech and expression. And the Mall of America is considered private property, despite receiving hundreds of millions in public subsidies since it was built, including an additional $250 million approved last year.
For decades, courts have struggled with how to protect free speech in public forums that have grown increasingly privatized.
Mall “Born of a Union with Government,” but Not a Public Space
In many communities, town squares and downtown business districts have largely been replaced by privately-owned shopping malls, particularly in suburban areas. In Bloomington, Minnesota, for example, there is no public space that offers the same level of visibility as a protest at the Mall of America–which is why protesters chose the location on December 20.
Even traditional public spaces like parks are increasingly owned by private entities, most famously in New York’s Zuccotti Park, where Occupy Wall Street was born, and where Occupiers faced eviction after the park’s owners changed the rules.
Mall of America’s status as a public space under the Minnesota state constitution was challenged in the 1990s by anti-fur activists who wanted to protest outside Macy’s. A Minnesota trial court initially found that, thanks to the Mall’s substantial public subsidies, the Mall of America was “born of a union with government” and could only impose reasonable time, place, and manner restrictions on protest.
The Minnesota Supreme Court, though, reversed the lower court in 1998 and declared that the state constitution’s protection of free speech “does not apply to a privately owned shopping center such as the Mall of America, although developed in part with public financing.”
Suburban Malls as Public Spaces?
Initially, however, the U.S. Supreme Court viewed privately-owned suburban shopping malls through the same lens as the public town squares they were replacing.
In 1968, in an opinion authored by Justice Thurgood Marshall, the Court held that suburban shopping malls were serving the same public function as a town square, and therefore should be subject to similar constitutional constraints.
“The shopping center premises are open to the public to the same extent that as the commercial center of a normal town,” Marshall wrote in the case, which involved the Logan Valley Mall in Pennsylvania. “So far as can be determined, the main distinction in practice between use by the public of the Logan Valley Mall and of any other business district … would be that those members of the general public who sought to use the mall premises in a manner contrary to the wishes of the [owners] could be prevented from so doing.”
Subsequent decisions, however, chipped away at that “public function” doctrine, most notably in a 1972 decision authored by Justice Louis Powell.
Powell, a former corporate lawyer who had authored the Powell Memo for the U.S. Chamber of Commerce the previous year, declared in the Lloyd Corp. v. Tanner decision that a mall does not “lose its private character merely because the public is generally invited to use it for designated purposes.”
A new opening for states to protect free speech in shopping malls emerged in the 1980 Pruneyard Shopping Center v. Robbins decision. In that case, the Court opened the door to states finding that their own constitutions protect free speech in shopping malls or other privately-owned public spaces. The California constitution’s broader free speech protections, for example, allow for protests and leafletting in that state’s malls.
Minnesota’s Supreme Court, though, came to a different outcome in that 1998 case involving the fur protesters. The state constitution, the justices declared, does not bar Mall of America’s owners from limiting the exercise of free speech on mall property, or choosing to allow some forms of speech but not others.
“The Poorly Financed Causes of Little People” Yield to Corporate Rights
In recent years, the First Amendment has undergone a revolution in the U.S. Supreme Court–in cases like Citizens United, Hobby Lobby, and McCutcheon–but largely in favor of expanding the “free speech rights” of corporations and the wealthy few, rather than protecting what Justice Hugo Black described in 1945 as “the poorly financed causes of little people.” When average Americans raise their voices in protest, they can still be muffled by corporate interests.
By: Brendan Fischer, The Center For Media And Democracy, December 26, 2014
“Pretending They’ve Come To The Rescue”: Republicans To Play Blame Game On Obamacare Subsidies?
I’ve been saying for a while now that Republicans could be in a jam if the U.S. Supreme Court announces a decision in June invalidating the insurance premium subsidies for people living in the 36 states utilizing federally establishment exchanges under Obamacare, if only because the immediate impulse of rank-and-file conservatives will be to dance and sing even as millions are in danger of losing affordable health care coverage.
Perhaps behind the scenes conservatives are beginning to plan an education campaign to explain to The Troops via Fox News or other “trusted” sources why they can’t just let the subsidies die. Last week I noted that Ramesh Ponnuru had begun talking about Republicans agreeing to fix the subsidy problem while pivoting (presumably as part of some national “deal”) rapidly to an Obamacare “replacement.” But he didn’t sound terribly confident about selling this strategy to the GOP. Since we’re unlikely to find out where SCOTUS is going until June, there is time for sober reflection on the consequences of taking away the subsidies among a constituency that’s a lot more likely to include a lot of Republican voters than the subjects of a Medicaid expansion. The question is whether it can be effectively and quickly communicated to people who have been told since 2010 that the Affordable Care Act is the work of the devil.
Now one of Ramesh’s reformicon colleagues from National Review, Yuval Levin, has (with his collaborator on one of hte Obamacare “replacement” proposals, James Capretta) written a careful message to conservatives via the Wall Street Journal suggesting they get ahead of the curve:
In essence, if the court rules today’s subsidies illegal, those state officials could face a choice between creating a state exchange (and so reinforcing ObamaCare) or seeing some residents lose coverage they now have. ObamaCare’s opponents in Congress should give them a third option: a viable alternative to the Affordable Care Act.
The first step is to introduce legislation that would allow any state to opt out of all of ObamaCare’s mandates, regulations, taxes and requirements, and instead opt into a far simpler and more flexible alternative system. In that system, state residents not offered health coverage by their employers could receive a federally funded, age-based credit for the purchase of any state-approved health-insurance product—including those bought outside of any exchange and regardless of whether they meet ObamaCare’s coverage requirements.
Anyone who remains continuously insured in this system would be shielded from higher premiums or exclusions from coverage based on an existing condition. This would give consumers a strong incentive to buy coverage without a mandate to do so. All other insurance regulation, however, would happen at the state level.
States that opt for this approach would also be permitted to transform their Medicaid programs into premium-support systems for lower-income households. These would function as add-ons to the credit and allow eligible residents to buy the same kind of coverage everyone else can purchase.
The credit could be large enough to allow anyone to purchase at least catastrophic coverage—enabling the uninsured to be covered and everyone to be protected from the most extreme health expenses. Alternatively, it could be used to supplement the purchase of more comprehensive coverage. In essence, the credit would extend to everyone else the same benefit that many people have long received in the employer system. It would do so without disrupting the employer system, the coverage most Americans have.
What they are describing is pretty much the Burr-Coburn-Hatch “PCARE” proposal offered early this year as a suggested Obamacare “replacement,” with some transitional rules that would let Obamacare subsidies stay in place through the end of 2015. And they think Obama would be forced to accept something like this “solution” since otherwise he, not Republicans, will look like the one standing in the way of restored insurance for the people afflicted by the Court.
It’s all pretty clever, but a comment from Ponnuru shows its central flaw:
My only quibble is with the headline, “Time to Start Prepping ObamaCare Reforms.” What they’re talking about is better described as preparing an exit ramp from Obamacare.
Reforms, “exit ramp,” whatever. Such terms are meant to obscure the fact that such plans would keep Obamacare in place until such time as a new system could be implemented–again, before “the base” can make it all moot by forcing GOP policymakers to celebrate the carnage instead of repairing it. And if I know that and you know that, so too would the president, and I think it’s very predictable that well before congressional Republicans could be united behind such a proposal Obama would let them know the only non-disruptive course of action is to restore the intended subsidy system and then talk about what’s next. Pretending they’ve come to the rescue of people in danger of losing their health insurance by eliminating all the provisions that make it good coverage at an affordable price isn’t likely to work. But nice try.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, December 19, 2014
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