“A Stinking Open Sewer”: Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’
On today’s anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures – the modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt – it is worth recalling the false promise made by the justice who wrote the majority opinion in that case.
Justice Anthony Kennedy masterminded the Supreme Court’s January 21, 2010 decision to undo a century of public-interest regulation of campaign expenditures in the name of “free speech.” He had every reason to know how damaging to democratic values and public integrity that decision would prove to be.
Once billed as a “moderate conservative,” Kennedy is a libertarian former corporate lobbyist from Sacramento, who toiled in his father’s scandal-ridden lobbying law firm, “influencing” California legislators, before he ascended to the bench with the help of his friend Ronald Reagan.
While guiding Citizens United through the court on behalf of the Republican Party’s billionaire overseers, it was Kennedy who came up with a decorative fig leaf of justification:
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
As Jane Mayer’s superb new book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right reveals in excruciating but fascinating detail, Kennedy’s assertion about the Internet insuring disclosure and accountability was nothing but a little heap of happy horse-shit. “Independent” expenditures from super-rich right-wing donors have overwhelmed the opponents of their chosen candidates, promoting a durable Republican takeover of Congress — often through the deployment of false advertising and false-flag organizations.
Late last year, Kennedy confessed that his vaunted “transparency” is “not working the way it should,” a feeble excuse since he had every reason to know from the beginning that his professed expectation of “prompt disclosure” of all political donations was absurdly unrealistic.
The Citizens United debacle led directly to the Republican takeover of the Senate as well as the House. Last week, the Brennan Center for Justice released a new study showing that “dark money” – that is, donations whose origin remains secret from news organizations and voters – has more than doubled in Senate races during the past six years, from $105 million to $226 million in 2014.
During the past three election cycles, outside groups spent about $1 billion total on Senate races, of which $485 million came from undisclosed sources. In the 11 most competitive Senate races in 2014, almost 60 percent of the spending by “independent” groups came from those murky places, and the winners of those races benefited from $171 million of such spending.
In elections gone by, when anonymous smear leaflets would appear in local races — funded by nobody knew whom — political operatives would shake their heads and mutter about “sewer money.”
Today we can thank Anthony Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer.
What a legacy.
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, January 21, 2016
“An Emotionally Abusive Relationship”: Tea Partyers Love The Constitution So Much — They Want To Blow It Up
Sometimes I think tea partyers are in an emotionally abusive relationship with the Constitution.
One day, they proclaim its inerrancy and say it must be loved, honored and obeyed in all its original perfection. The next day, they call for a constitutional convention, arguing that it’s broken, outdated and desperately in need of a facelift.
In other words: I love you, you’re perfect, now change.
This pure, pristine document is so fervently adored by people of the parchment that some carry it around with them at all times — sometimes in their breast pockets, close to their hearts, perhaps to protect them from a stray Second Amendment-protected bullet. They cite it as they might scripture (that is, often incorrectly, and for their own purposes).
They believe that anyone who questions the Constitution’s decrees must be verbally flogged or even impeached. The United States’ sacred scroll must be feared, fetishized and followed to the letter — down to the comma, even — in its original, strictly constructed form.
Indeed, above all other national concerns, this founding document must be preserved as is.
But now a line of thinking has emerged that the best way to preserve the Constitution is to revamp it completely.
Consider Texas Gov. Greg Abbott (R), a tea party darling, who wants to convene a constitutional convention to amend this precious political heirloom.
And not to push through just a single amendment, but nine.
These amendments include: allowing a two-thirds majority of the states to override a Supreme Court decision; prohibiting Congress from regulating activity that occurs wholly within one state; and requiring a seven-justice supermajority for Supreme Court decisions that invalidate a democratically enacted law. Abbott also demands a balanced-budget amendment, which almost certainly would have been opposed by Alexander Hamilton, the Founding Father who was the most prolific defender of the Constitution.
These are not minor copy edits.
In a 92-page document defending his proposals, Abbott laments widespread ignorance of the Constitution and argues that his plan is “not so much a vision to alter the Constitution as it is a call to restore the rule of our current one.”
“The Constitution itself is not broken,” Abbott writes in italics. “What is broken is our Nation’s willingness to obey the Constitution and to hold our leaders accountable to it.”
In other words, the Constitution says what Abbott thinks it says, not what it actually says, or what the Supreme Court decides it says — so now we just need to rewrite it so that the text fits what’s in his head.
Abbott is not the only right-wing Constitution-thumper to call for reframing the Founding Fathers’ allegedly perfect handiwork.
Marco Rubio, apparently trying to capture more of his party’s fringe, recently announced that on his “first day in office” as commander in chief, he would “put the prestige and power of the presidency behind a constitutional convention of the states.” Its agenda would be to impose term limits on federal legislators and judges, as well as a balanced-budget amendment.
Rubio assured Americans that delegates to such a convention “won’t be able to touch our important constitutional rights.”
Who determines which parts of the Constitution are important and therefore untouchable, and which are unimportant and touchable? Rubio, apparently.
Then there’s Donald Trump, who, along with others, wants to roll back the 14th Amendment to quash birthright citizenship . (In the meantime, he’ll settle for casting aspersions on his political enemies’ birthplaces.)
And Ben Carson — author of a book subtitled “What We the People Can Do to Reclaim Our Constitutional Liberties” — has argued that U.S. law is not subject to judicial review from the Supreme Court, contra Marbury v. Madison. (Carson has also expressed other funny ideas about what’s in the Constitution and who wrote it.) Like Rubio, Carson has supported the idea of a constitutional convention, along with fellow Republican presidential candidates Rand Paul, Mike Huckabee and John Kasich.
Then there’s Ted Cruz, who devotes a whole section on his campaign website to his pledge to “defend the Constitution” and “restore the Constitution as our standard.”
Cruz, too, has decided that the best way to “restore” the Constitution is by altering it. He supports amendments to require a balanced budget, let state legislatures define marriage and subject Supreme Court justices to periodic retention elections.
These and “many more” unspecified amendments are needed, he told reporters, “because the federal government and the courts have gotten so far away from the original text and the original understanding of our Constitution.”
Because, obviously, the best way to honor that cherished, perfect, original text is by getting rid of it.
By: Catherine Rample, Opinion Writer, The Washington Post, January 14, 2015
“Capital Punishment On Hold, For Now”: Supreme Court Strikes Down Florida’s Death Penalty System
The future of the death penalty in the United States is murky, and we know there are some justices who believe the Constitution’s prohibition on cruel and unusual punishment necessitates the policy’s end.
The resolution of that debate, however, remains on the horizon. Today’s decision on Florida’s death penalty isn’t entirely what it appears to be at first blush.
The U.S. Supreme Court on Tuesday declared Florida’s death penalty law unconstitutional because it requires the trial judge and not the jury to make the critical findings necessary to impose capital punishment.
That’s at odds with a string of Supreme Court cases which held that facts that add to a defendant’s punishment – known as aggravating circumstances – must be found by a jury.
It was an 8-1 ruling, the entirety of which is online, written by Justice Sonia Sotomayor. “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” she wrote for the majority. “A jury’s mere recommendation is not enough.”
The sole dissent in Hurst v. Florida was written by Justice Samuel Alito.
So now what happens? The defendant, Timothy Lee Hurst, will see his case go back to the lower courts, while lawyers scramble to review the convictions of other inmates on Florida’s death row.
For opponents of capital punishment, it’s certainly a victory, but it’s worth emphasizing that it may be short-lived.
In this case, Florida’s current law was struck down, but the ruling focused on criminal procedure in the courtroom. The question of whether the law is cruel or unusual is left for another day.
The Miami Herald reports that state lawmakers are already preparing to “fix” what the Supreme Court said is broken.
Florida lawmakers are prioritizing a fix to Florida’s death penalty sentencing procedures after the U.S. Supreme Court on Tuesday struck down a state law giving judges the final say on capital sentencing.
House Criminal Justice chairman Carlos Trujillo, R-Miami, said his committee will take on a bill to address the Supreme Court’s problems.
The article added that another member of the Republican-run legislature intends to use this opportunity to consider broader reforms to the system, including a proposal to “require jurors to unanimously find that there are aggravating circumstances in a case, which would warrant a death sentence. Right now, it only takes a simple majority – 7 of 12 jurors.”
Capital punishment in Florida is, for now, on hold. That may not last long.
By: Steve Benen, The Maddow Blog, January 12, 2015
“Marco Rubio’s Terrible New Idea”: Pandering To Voters’ Most Simplistic And Uninformed Impulses
Campaigning for president requires one to come up with policy proposals, a need that from time to time produces innovative and promising ideas. But it also produces some extraordinarily dumb ones, as Marco Rubio is now demonstrating. Here’s his latest plan to fix what’s wrong with Washington:
Shortly after 11 a.m. on the East Coast, Sen. Marco Rubio’s presidential campaign alerted the media to their candidate’s latest position, inspired by the Founding Fathers and by Congress’s seeming inability to pass conservative legislation.
“One of the things I’m going to do on my first day in office is I will put the prestige and power of the presidency behind a constitutional convention of the states,” Rubio said as he campaigned in Iowa. “You know why? Because that is the only way that we are ever going to get term limits on members of Congress or the judiciary and that is the only way we are ever going to get a balanced-budget amendment.”
With this, Rubio manages to combine a promise for something that will never happen with a spectacularly terrible idea.
We’ll start with the constitutional convention. There are two ways an amendment to the Constitution can be proposed: when two-thirds of both houses of Congress vote to do so, or when two-thirds of the states call for a convention to propose amendments. Rubio is saying that because you couldn’t get super-majorities in Congress to support his three ideas, he wants to push for the states to assemble a convention to offer these amendments.
The first thing to understand is that the president has nothing to do with this process. What Rubio is promising is that in between trying to pass his tax cuts and outlaw abortion and repeal Obamacare and wage war on the Islamic State, he’ll use the bully pulpit to advocate for a constitutional convention. So President Rubio will give a speech or two about it? Mention it in the State of the Union? That’s fine, but at best it might bring the chances of getting two-thirds of the states to sign on from approximately zero to ever slightly more than zero. Getting a constitutional convention might be a bit easier than assembling two-thirds majorities in Congress, but not by much.
So he can’t make these constitutional amendments happen. But what about the amendments themselves? Term limits for judges is the only one that might not be all that problematic, but it’s a little hard to tell what the problem is that Rubio is trying to solve. Lifetime tenure for judges is supposed to insulate them from momentary political concerns, but in practice it turns out that there’s plenty of politics on the bench. Presidents pick nominees they hope will reflect their own political values, and most of the time they’re right, with an occasional exception here and there. Some have suggested that the Supreme Court could use more turnover, so there should be a limit of some long but not endless stretch for justices (18 years is one common number). That might be fine, but it’s hard to see what kind of transformation in American justice would result from limiting all federal judges’ terms. If anything, the nominating and confirmation process would become even more political, since you’d need more judges.
But that’s the least bad of these ideas. The next is term limits for Congress, an idea that fell out of favor for a while and Rubio now wants to bring back. But what is it supposed to accomplish? Is Washington going to run more smoothly with more members who don’t know how to pass legislation? We’ve seen a huge influx of new members (mostly Republicans) in the last few congressional elections, and they haven’t exactly been committed to making government work. To the contrary, they’re the ones who care least about having a functioning government and are more likely to be nihilistic extremists who want to shut down the government, default on the national debt and govern by crisis.
Rubio is smart enough to know that the myth of the citizen legislator unsullied by contact with sinister lobbyists, who comes to Washington armed with nothing but common sense and a strong moral fiber and cleans up government, is just that — a myth. But he also knows that saying “Kick all the bums out!” is an easy way to pander to voters’ most simplistic and uninformed impulses.
I’ve saved the worst for last: a balanced-budget amendment. It has long been a popular item on the conservative wish list, but if you put it into practice, it would be an absolute disaster.
The childish way of thinking about it is that a requirement that the government spend no more than it takes in every year would impose fiscal discipline and make government live within its means. But in truth it would require radical cutbacks in everything government does — which means not only the programs Republicans don’t like anyway, but also the ones they do like. In the last half century, through Republican and Democratic presidencies and Republican and Democratic Congresses, we’ve had only five years when the government’s budget was balanced (four of which came during the boom of the Clinton years). Without the ability to issue bonds to cover each year’s shortfall, we’d be left without the ability to do what’s necessary to serve all of our many public needs.
Consider what would happen during an economic downturn if we had a balanced-budget amendment. What you want in that situation is for government to step in and help people — by providing things like food stamps and unemployment compensation to keep people from falling into truly desperate situations of hunger and homelessness, and also to do what it can to spur job creation and keep the recession from being worse than it would otherwise be.
But in a recession, tax revenue also falls, because people are losing jobs and incomes are plummeting; as an example, between 2008 and 2009, the federal government’s revenues declined by more than $400 billion. With a balanced-budget requirement in place, just at the moment when government’s help is needed most, not only would it be powerless to do anything to mitigate the toll of the recession, it also would be required to impose brutal budget cuts, pulling money out of the economy and making things even worse. If Rubio got his way, every recession the country experienced would be deeper, longer and more punishing.
Some conservatives say, “Nearly every state has a balanced-budget amendment, so why can’t the federal government have one too?” But that’s actually another reason why a federal balanced-budget amendment would be so dangerous. When a recession hits, states have no choice but to cut back, slashing needed services and firing workers just when their economies are suffering. At those times, the federal government can step in to limit the damage, boosting the hundreds of billions of dollars it already provides in aid to the states. As it happens, many of the states run by Republicans are the ones most dependent on federal government aid. In 2012, according to the Tax Foundation, the federal government picked up 31.5 percent of all state budgets, including 44 percent of Louisiana’s, 45 percent of Mississippi’s and 41 percent of Tennessee’s. So in places where Republicans are denouncing the federal government in the loudest terms, without the federal government’s help their state finances would utterly collapse.
The good news is that none of what Rubio is advocating for will ever happen. But advocating for constitutional amendments is what you do when you don’t have the stomach for actual governing. It’s certainly seductive — we’ll just change the Constitution, and that will sweep away all the messiness that comes with politics. But it’s a fantasy. Unfortunately, there are still plenty of presidential candidates who don’t respect the voters enough to tell them that passing laws and solving problems is difficult and complicated, and to get what you want to you have to slog your way through it. That’s not an inspiring campaign message, but it’s the truth.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, December 31, 2015
“Hey, Democrats; Relax Already”: Reports Of Liberalism’s Imminent Death Have Been Greatly Exaggerated
The meme of the past week or two in my circles is that the Democrats are screwed. Not necessarily in terms of the presidential election, which, one year out, their front-runner is reasonably well-positioned to win. But everywhere else, from Congress on down to dogcatcher.
Matt Yglesias kicked this off over at Vox on October 19, arguing that while the presidency obviously matters, “there are also thousands of critically important offices all the way down the ballot. And the vast majority — 70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state — are in Republican hands.” Democrats, he wrote, have no plan to do anything about this.
People panicked, and the Twitter cyclone hit. Then came Tuesday’s elections, which from Kentucky to Houston seemed to confirm the thesis. Then Lee Drutman followed up in Vox agreeing with Yglesias and citing research suggesting that all this was happening because—how to put this politely?—low-information voters toward the lower end of economic spectrum vote according to an ideology that doesn’t align with their economic status. He means white working-class people who vote Republican. And on the website of Democracy, the journal I edit, Nathan Pippinger responded to Drutman by writing that Democrats are in trouble not because of “false consciousness among working-class voters, but because conservatives’ state-level policies helped to undermine the paths through which those voters might become more involved in the political process.” He means mostly unions. But he basically buys the future of “liberal disappointment.”
Wow. Is it really as bad as all that? No, it’s not. And here are the two main reasons why.
First: The party that controls the presidency for eight years almost always gets killed at the state level over the course of those eight years. And it stands to reason—if people are unhappy with the way things are going, which they typically are about something or other, they’ll vote for the out-of-power party.
So political scientist Larry Sabato has studied this question going back to FDR’s time and found that every two-term presidency (he’s counting things like the Kennedy-Johnson period from 1960-68 as a single two-term presidency) except one has taken a huge beating at the congressional and state levels. You’ve perhaps read recently that during Barack Obama’s term, the Democrats have lost 913 state legislative seats. That’s a hell of a lot, but it’s not that crazily out of line with the average since FDR/Truman, which is 576. Only Ronald Reagan managed to avoid such losses—the GOP actually gained six state legislative seats during his years, which was the time when the Dixiecrats and some Northern white ethnics started becoming Republicans.
Sabato’s piece, which ran last December in Politico, is even headlined “Why Parties Should Hope They Lose the White House.” You win at 1600, you start losing everywhere else. Granted the Obama-era losses are unusual. I’d suppose they’re mostly explained by the lagging economy and stagnant wages. Race has to have something to do with it, too, and Tea Party rage, and of course the fact that Democrats don’t vote in off-year elections. Indeed this last factor may be the biggest one, because the Democratic Party has become more and more reliant in recent years on precisely the groups of voters who have long been known not to participate as much in off-year elections—minorities, young people, single women.
So sure, it blows to look at a map like the one embedded in Yglesias’s piece and see all that red indicating total Republican control in some state capitals where that shouldn’t really be the case: Wisconsin, Michigan, Ohio. And it blows harder for the people who live there, although obviously a majority of them don’t think so.
But I would make a couple quick arguments here. First, 2014 and especially 2010 were unique election years, with high unemployment in 2010 and high-octane right-wing fury in both. That flipped some state houses and executive mansions that will return to the blue column eventually, in more normal times.
Second, there are a lot of blue states that still elect Republican governors, whereas there aren’t many red states that will elect a Democrat. Three presidential-level red states have Democratic governors (Missouri, Montana, and West Virginia), and they’re about the only ones you could imagine doing so as you look down the list. Whereas nine blue states have Republican governors. Most of those governors are comparatively moderate, and it doesn’t really change the fundamental nature of Massachusetts that it elects a Republican governor some of the time.
But—the party affiliation of the man or woman in the White House does change the fundamental nature of the United States. And that brings us to my second reason why the Democrats aren’t yet finished. They have the presidency. What did Elvis Costello say—“don’t bury me cuz I’m not dead yet”? Well, you’re not doomed yet as long as you’re living in the White House.
Let me ask you this question. Assuming this Sabato correlation between White House control and losses at other levels holds up, how many of you Democrats reading this would take this deal: Democrats lose the White House next year and in 2020 in exchange for, say, 1) retaking control of the House of Representatives in 2022 and 2) picking up 576 state legislative seats over the next eight years?
I guess some Democrats would take that deal, but I think a small minority, and rightly so. Losing the White House means a 7-2 conservative Supreme Court majority for 30 more years. That could well mean, would likely mean, a decision in the next few years overturning same-sex marriage, and a dozen other horrors, from campaign finance to corporate power to religious issues to civil rights matters to a number of Fourteenth Amendment-related issues including Roe v. Wade. It means, combined with GOP majorities in both houses of Congress, God knows what legislatively; the end of the federal minimum wage? A flat tax, or at least a radically reduced top marginal rate? Entitlement “reform”? And don’t forget not just what they’d do, but what they’d undo. It means repeal of Obamacare, legislation that effectively rescinds Dodd-Frank, all of Obama’s work on immigration and carbon ripped to pieces, and on and on and on. And, you know, like, another war.
In the face of all that, I’m supposed to give a shit who the governor of Michigan is? Please.
The Democrats have only one problem in this realm. They have to get their people to vote in midterm elections. Period. That’s it. Now that isn’t easy to do; could take between 10 and 20 years. And it will cost a lot of money to do it right. But if it gets done and done right, then the red tide can be arrested, at least to the extent that Sabato’s numbers suggest. But anybody who’d rather give up the White House for control of eight more governors’ mansions and 11 more state legislatures needs his coconut examined. If bleeding at the state level is inevitable because of White House control, then let it bleed.
By: Michael Tomasky, The Daily Beast, November 7, 2015
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