“Truth Be Told”: How John Roberts Started This Spending Madness
Related to Joe Ricketts and SuperPACs and all this is of course the Supreme Court decision that made it all possible, Citizens United. It’s worth remembering how we got here.
Jeff Toobin’s piece in this week’s New Yorker is a total revelation. The CU decision, it turns out, didn’t just happen. You know–a case goes through the appellate layers, the Supremes decide there’s an interesting question in it, they grant certiorari, and they hear the case. That’s our assumption, and it’s what usually happens.
Well, it’s not what happened here. It’s technically a bit complicated, but what happened is that the Court heard the case a first time, when the petitioner (Citizens United, represented by Ted Olson) was seeking only a very narrow decision saying that McCain-Feingold spending and disclosure limits should not apply to a political ad/movie that was being offered on a pay-per-view basis. They planned on showing an anti-Hillary ad on that basis, so that’s all they were interested in.
That’s what CU wanted. But through the course of the questioning and the opinion-writing, which Toobin explains in lucid detail (see especially page 5 of his article), it became clear to all involved that the conservative faction–led in this case by Anthony Kennedy–could use the case as a wedge to make a much more sweeping decision. And in stepped John Roberts.
To make a long story short, Roberts held back the decision and rescheduled the case for the next year, This enabled the conservative majority to expand dramatically the scope of the majority opinion. And he sped it up, put it on the calendar for September, not the usual first week of October, in order (Toobin suggests) that the decision would be more likely to have an impact on the 2010 elections.
The important thing to remember here: Roberts is the guy who said at his confirmation hearings that he’d go slow and be highly respectful of precedent. But here, he engineered the Court’s calendar and procedure specifically to turn a narrow case that few people would even have paid attention to into a sweeping decision that changes American politics and undoes a century of jurisprudence.
And that is how we got these SuperPACs. Really an amazing and important story.
By: Michael Tomasky, The Daily Beast, May 18, 2012
“Obeying The Supreme Court Is Optional”: Rand Paul Suggests Congress Can Simply Ignore Roe v. Wade
Earlier today, the National Review’s mailing list distributed an email (which can also be found here) signed by Sen. Rand Paul (R-KY), which called for Congress to pass a law effectively rendering a binding Supreme Court decision a nullity:
Working from what the Supreme Court ruled in Roe v. Wade, pro-life lawmakers can pass a Life at Conception Act and end abortion using the Constitution instead of amending it. . . . Signing the Life at Conception Act petition will help break through the opposition clinging to abortion-on-demand and get a vote on this life-saving bill to overturn Roe v. Wade.
A Life at Conception Act declares unborn children “persons” as defined by the 14th Amendment to the Constitution, entitled to legal protection.
It’s not entirely clear why Paul believes Congress has this power, and the email he signed does not provide a fully developed legal argument making the case for such an law. Instead, it appears to argue that Congress can simply grant full legal “personhood” status to fetuses under the 14th Amendment because Roe left open “the difficult question of when life begins.” This is not a correct reading of the Roe decision, however. The Roe opinion is unambiguous that “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.”
Whether one agrees with this opinion or not, Congress does not have the power to flout the Supreme Court’s constitutional decisions simply because it does not like them. As ThinkProgress explained when a similar proposal was floated last year by Princeton Professor Robert George, “[i]n City of Boerne v. Flores, the Court held that Congress is not allowed to simply declare that the 14th Amendment means whatever they want it to mean and then use that declaration to pass enforcement legislation — Congress can only pass laws enforcing existing 14th Amendment rights.”
Just as importantly, there is something very bizarre about a conservative stalwart like Rand Paul insisting that obeying the Supreme Court is optional at exactly the same time conservatives are trying to impose much of their policy agenda upon the nation by judicial decree. Presumably, Paul would be outraged if President Obama simply refused to obey a Supreme Court decision striking down part of the Affordable Care Act or if elections officials were to ban corporations from trying to buy elections despite the justices’ decision in Citizens United. Yet, if Roe v. Wade is as optional as Paul appears to think that it is, than there is no reason why Obama should feel obliged to obey conservatives’ pet decisions either.
By: Ian Millhiser, Think Progress, May 14, 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
“Patron Saint For The Far Right”: Robert Bork, Mitt Romney’s Secret Constitutional Weapon
Now that Mitt Romney has ground out a victory against the weakest GOP field in a generation and the most extreme in history, he’s now turning his attention to the general election. To use a particularly vivid metaphor, he’s shaking his Etch-a-Sketch as hard as he can, trying to erase his far-right pandering in the primaries. But despite his head fakes towards moderation, no one should doubt that a President Mitt Romney would enact a dangerously extreme agenda for our country, and nothing makes that clearer than the person he selected as his constitutional and judicial advisor: Robert Bork.
Yes, that Robert Bork.
In a primary dominated by sideshows appealing to the fringe element, important issues like the Supreme Court were rarely discussed in detail, but Romney’s announcement that Bork would be his judicial advisor is the clearest possible signal of how far to the right Romney has moved since his days as a “moderate” Republican in Massachusetts and of his willingness to embrace all the fringiest opinions of all his primary opponents.
Sure, Rick Santorum promised to attack legalized birth control, Ron Paul says the Civil Rights Act “destroyed” privacy, and Newt Gingrich thinks child labor laws are “truly stupid.” But none of them can hold a candle to the extremism of Robert Bork, the patron saint of far-right ideologues. And Bork’s choice in this infamous field? Mitt Romney.
When Bork was nominated to the Supreme Court in 1987, his nomination was rejected as too extreme by a bipartisan majority in a 58-42 vote. Since then he’s only moved further out of the mainstream.
Robert Bork insists that art and literature aren’t protected by the First Amendment. He defended the constitutionality of poll taxes and literacy tests for voters, and he called the Civil Rights Act “unsurpassed ugliness.” He’s defended state laws that made gay sex a criminal offense. As a judge he routinely ruled in favor of big business over individual Americans.
Perhaps most disturbing are Bork’s reactionary views on how the law treats women. Robert Bork doesn’t just think abortion should be criminalized, he thinks states should be free to outlaw birth control. He’s argued that the Equal Protection Clause doesn’t apply to women. And what seems almost too unbelievable to be real, he even ruled that a company is free to tell female employees to be sterilized or lose their jobs.
In any sane election, Robert Bork would be the hidden crazy uncle or at least denounced as a political liability, but then again this hasn’t been a sane election. Instead, Mitt Romney has bragged about nabbing the endorsement and held Bork up as a model for the judges he’d appoint to the bench, including the Supreme Court. He’s said he wishes Bork were on the court today. Any questions regarding the types of judges Romney would nominate?
With Election Day on the horizon, it’s all but inevitable that Mitt Romney will start reshaping his rhetoric for the general election. But regardless of his carefully calibrated statements or his poll-tested promises, no one should forget that by choosing Robert Bork as a key advisor, Mitt Romney has made crystal clear his frighteningly extreme agenda for America.
By: Michael B. Keegan, President, People For The American Way, The Huffington Post, April 23, 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
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