“How Much ‘Free Speech’ Can You Buy?”: Citizens United Produced A Platinum Class Of Mega-Donors And Corporate Super PACs
In today’s so-called “democratic” election process, Big Money doesn’t talk, it roars — usually drowning out the people’s voice.
Bizarrely, the Supreme Court decreed in its 2010 Citizens United ruling that money is a form of “free speech.” Thus, declared the learned justices, people and corporations are henceforth allowed to spend unlimited sums of their money to “speak” in election campaigns. But wait — if political speech is measured by money then by definition speech is not free. It can be bought, thereby giving the most speech to the few with the most money. That’s plutocracy, not democracy.
Sure enough, in the first six months of this presidential election cycle, more than half of the record-setting $300 million given to the various candidates came from only 358 mega-rich families and the corporations they control. The top 158 of them totaled $176 million in political spending, meaning that, on average, each one of them bought more than a million dollars’ worth of “free” speech.
Nearly all of their money is backing Republican presidential hopefuls who promise: (1) to cut taxes on the rich; (2) cut regulations that protect us from corporate pollution and other abuses of the common good; and (3) to cut Social Security, food stamps and other safety-net programs that we un-rich people need. The great majority of Americans adamantly oppose all of those cuts — but none of us has a million bucks to buy an equivalent amount of political “free” speech.
It’s not just cuts to taxes, regulations and some good public programs that are endangered by the Court’s ridiculous ruling, but democracy itself. That’s why a new poll by Bloomberg Politics found that 78 percent of the American people — including 80 percent of Republicans — want to overturn Citizens United. But those 358 families, corporations and Big Money politicos will have none of it. In fact, America’s inane, Big Money politics have become so prevalent in this election cycle that — believe it or not — candidates have found a need for yet another campaign consultant.
Already, candidates are walled off from people, reality and any honesty about themselves by a battalion of highly specialized consultants controlling everything from stances to hairstyle. But now comes a whole new category of staff to add to the menagerie: “donor maintenance manager.”
The Supreme Court’s malevolent Citizens United decision has produced an insidious platinum class of mega-donors and corporate super PACs, each pumping $500,000, $5 million, $50 million — or even more — into campaigns. These elites are not silent donors, but boisterous, very special interests who are playing in the new, Court-created political money game for their own gain. Having paid to play, they feel entitled to tell candidates what to say and do, what to support and oppose. A Jeb Bush insider confirms that mega-donors have this attitude: “Donors consider a contribution like, ‘Well, wait, I just invested in you. Now I need to have my say; you need to answer to me.’”
Thus, campaigns are assigning donor maintenance managers to be personal concierges to meet every need and whim of these special ones. This subservience institutionalizes the plutocratic corruption of our democratic elections, allowing a handful of super-rich interests to buy positions of overbearing influence directly inside campaigns.
Donors at the million-dollar-and-up level are expecting much more than a tote bag for their “generous gifts” of “free speech.” Of course, candidates piously proclaim, “I’m not for sale.” But politicians are just the delivery service. The actual products being bought through the Supreme Court’s Money-O-Rama political bazaar are our government’s policies, tax breaks and other goodies — as well as the integrity of America’s democratic process. To help fight the injustice of the Supreme Court’s Citizens United ruling and get Big Money out of our political system, go to www.FreeSpeechForPeople.org.
By: Jim Hightower, The National Memo, October 28, 2015
“A Right That Is Fundamental To Our Democracy”: Two States, Two Competing Futures For Voting Rights In America
“The Voting Rights Act has been an effective tool in protecting a right that is fundamental to our democracy,” declared a rising congressional leader in 2006, “and renewing this landmark law will ensure that each and every citizen can continue to exercise their right to vote without the threat of intimidation or harassment.”
Incredibly, that statement of unequivocal support for voting rights came not from a Democrat, but from then-House Majority Leader John Boehner (R-Ohio). Of course, while it’s easy to forget now, Boehner was hardly taking a courageous stand; despite a long history of right-wing opposition to the Voting Rights Act, Boehner was merely endorsing a bipartisan reauthorization bill that passed 390 to 33 in the House and unanimously in the Senate. Upon signing it, President George W. Bush said, “My administration will vigorously enforce the provisions of this law, and we will defend it in court.” Nearly a decade later, the political landscape for voting rights has changed dramatically. We are now witnessing a clash between two radically opposing visions of American democracy.
One vision is on display in Alabama, where, half a century after civil rights activists marched on Selma, state officials are systematically undermining the right to vote. Following the implementation of a strict voter ID law, Alabama recently announced the shuttering of 31 driver’s-license offices across the state. The closures will make it more difficult to obtain the identification required to vote and will disproportionately affect the state’s black population. Indeed, as the Birmingham News’s John Archibald wrote , “Every single county in which blacks make up more than 75 percent of registered voters will see their driver license office closed.”
The other vision is on display in California, where Gov. Jerry Brown (D) recently signed automatic voter registration into law, making California the second state to approve such a measure, after Oregon did so earlier this year. Under the new law, eligible Californians will be automatically registered when they apply for a new driver’s license or renew an existing one unless they opt out. The hope is that automatic registration will raise low voter turnout, which fell to 42 percent in the 2014 election. The law could affect an estimated 6.6 million voting-age Californians who are not registered. “We do not have to opt-in to other rights, such as free speech or due process,” said California Secretary State Alex Padilla. “The right to vote should be no different.”
In short, while the Alabama vision seeks to restrict participation in our democracy, the California vision aims to maximize it. As my Nation colleague Ari Berman, author of “ Give Us the Ballot: The Modern Struggle for Voting Rights in America,” put it, “Unlike Alabama, California is using the power of the government to bring millions of new voters into the political process — treating the vote as a fundamental right, rather than a special privilege.”
The unfortunate reality, however, is that Alabama is not alone. Today, the Republican Party appears to view legitimate voting rights as a threat to its survival. In fact, limiting the number of people who decide our elections has become a central part of the Republican Party’s mission.
Just consider the record. Over the past five years, Republican state legislators have aggressively pushed voter ID bills and other policies that make it harder to vote, especially for Democratic-leaning minority groups, successfully passing laws in 21 states. In 2013, the Supreme Court gutted the Voting Rights Act, which Republican leaders vocally praised a decade ago, in a controversial 5-to-4 ruling split along party lines. And in Congress, a Democratic bill designed to restore the law has just one Republican supporter in either chamber.
The competing visions are also apparent in the 2016 presidential race. This month, Republican contender Jeb Bush explained that he does not support restoring the Voting Rights Act because “There’s been dramatic improvement in access to voting,” making it unnecessary to impose protections “as though we’re living in 1960.” In contrast, Hillary Clinton issued a bold call for automatic voter registration in June, and Sen. Bernie Sanders (I-Vt.) introduced an automatic voter registration bill in August. “Today Republicans are systematically and deliberately trying to stop millions of American citizens from voting,” Clinton declared. “What part of democracy are they afraid of?”
It’s no secret why Republicans would rather prevent some people from voting. While they run up big margins in midterm elections with low turnout, Republicans have won the national popular vote just once in the past six presidential elections. Moreover, instead of answering to the American public, Republican candidates are increasingly beholden to the privileged few who fund their campaigns. In the 2016 election cycle, nearly half of the contributions to presidential candidates so far have come from just 158 families. As the New York Times reports, “They are overwhelmingly white, rich, older and male.” They are also overwhelmingly backing Republicans, of course, thereby “serving as a kind of financial check on demographic forces that have been nudging the electorate toward support for the Democratic Party and its economic policies.” It’s a strategy of delay, of buying time, of staving off the inevitable.
But change is coming whether Republican politicians and their billionaire backers like it or not. They have disgraced our democracy with their voter suppression strategy, but they are not powerful enough to stop it. They will eventually have to reckon with a country that is more diverse, more compassionate and more progressive. The Alabama vision will not prevail.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, October 20, 2015
“Jeb Bush Balks At Voting Rights Push”: The More Salient Question Is Whether Voting Rights Have Improved Since 2008
In March, President Obama delivered a powerful speech in Selma, Alabama, where he, among other things, called for Congress to restore the Voting Rights Act. Former President George W. Bush was on hand for the event, and to his credit, the Republican president who last reauthorized the VRA stood and applauded Obama’s call.
If we’re looking for areas in which Jeb Bush disagrees with his brother, we appear to have a new addition to the short list.
The former Florida governor appeared yesterday in Iowa and was asked by an audience member about the Voting Rights Act. Jeb Bush responded:
“I think if that it’s to reauthorize it to continue to provide regulations on top of states, as though we were living in 1960, because those were basically when many of those rules were put in place, I don’t believe that we should do that. There’s been dramatic improvement in access to voting – I mean exponentially better improvement.
“And I don’t think there’s a role for the federal government to play in most places – could be some, but in most places – where they did have a constructive role in the ‘60s. So I don’t support reauthorizing it as is.”
It’s safe to say that’s not quite what voting-rights advocates hoped to hear from the Republican presidential hopeful.
Bush’s answer, at a certain level, was confusing, though it wasn’t entirely his fault. He was responding to a questioner who specifically asked about “reauthorizing” the VRA, though that’s not what’s on the table – George W. Bush already reauthorized the VRA through 2031. When Jeb said he doesn’t support “reauthorizing it as is,” that didn’t really make substantive sense.
What is on the table is a bipartisan bill to help restore some of the provisions of the Voting Rights Act that were gutted by conservative Supreme Court justices. We can’t say with certainty what Bush thinks about the legislation – that’s not what he was asked – though in context it was obvious that Jeb is comfortable with the high court’s ruling from two years ago.
MSNBC’s Zach Roth tried to flesh out the implications of Bush’s position.
[Bush argued] that he doesn’t see a role for the federal government on voting issues in most places. That seems to suggest that he opposes the parts of the VRA left in tact by the Supreme Court – most prominently, the provision that continues to bar racial discrimination in voting and applies nationwide. It would also mean that Bush opposes other important federal voting laws, like the National Voter Registration Act, also known as the “Motor Voter” law, which requires states to offer voter registration opportunities at the DMV and public assistance agencies.
That’s a position that some on the right hold. The platform of the Texas Republican Party, for instance, calls for repeal of the VRA and Motor Voter, and calls another important federal voting law, the Help America Vote Act of 2002, unconstitutional. But it would put Bush way out of the mainstream on the issue, even among most conservatives, who accept that there’s still a role for the federal government to play in protecting access to the ballot.
As for Jeb’s assertion that access to the polls has improved over the last 65 years, there’s no denying the accuracy of the claim. Perhaps the more salient question, however, isn’t whether or not conditions are better than they were in 1960, but rather, whether voting rights have improved since 2008.
By: Steve Benen, The Maddow Blog, October 9, 2015
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“Liberty Does Not Mean Taking Away Others’ Rights”: Kim Davis’ Beliefs Have Not Been Criminalized; Her Actions Have
Just after Kentucky county clerk Kim Davis was released from jail, she appeared at a raucous rally to thank a throng of cheering supporters.
Her stance on same-sex marriage has attracted the high-profile attention of other ultraconservative political figures, including GOP presidential candidates Ted Cruz, who attended the rally, and Mike Huckabee, who organized it.
They seem to believe that Davis has a constitutional right to discriminate against other citizens and to violate the laws of the land. Defending her on CNN, Huckabee said, “We have the first example of the criminalization of a Christian for believing the traditional definition of marriage. It is very, very shocking, to say the least.”
Though he mentioned such luminary historical figures as Jefferson and Lincoln, Huckabee has completely misunderstood the First Amendment and its protections. Davis’ beliefs have not been criminalized; her actions have been. She has every constitutional right to oppose same-sex marriage, to attend a church that denies those marriages, to organize opposition to marriage equality.
But she has no constitutional right to hold the office of Rowan County Clerk and deny marriage licenses to same-sex couples. Succeeding her mother, who held the office for 37 years, Davis was elected just last year. Still, she has a very easy solution at hand: If her religious views are so rigid, she can resign her office. (A handful of clerks have done that rather than give licenses to same-sex couples.) As a private citizen, she may freely practice her brand of Biblical fundamentalism.
It’s important to get that distinction right.
After the U.S. Supreme Court ruled in June that the government cannot deny marriage to homosexual couples, county clerks around the country were ordered to issue licenses to all couples who wanted the legal bonds of matrimony. A few refused initially, but most came to their senses.
Davis, however, chose to defy the specific order of U.S. District Court Judge David Bunning, and she was jailed for six days for contempt. She was released only after deputies in her office started to issue marriage licenses to “all legally eligible couples,” as the judge put it. He further ordered Davis not to interfere.
If she wants to continue as clerk, she should recognize the generous compromise that she’s been offered. She can continue her bluster and Biblical traditionalism on the speaking circuit if she chooses. But, as Rowan County Clerk, she represents the government. And the government may not discriminate. The First Amendment was adopted by the Founders to ensure that the government did not legitimize any particular set of religious beliefs over another.
Think of it this way: While marriage is often a religious ceremony, it is also a civil rite. Couples get married in city halls and before justices of the peace every day. Those ceremonies may not be offered to one group of citizens — heterosexuals — and withheld from another — homosexuals.
Churches, meanwhile, are free to follow their own theological traditions, which in this country are many and varied. There are churches that endorse, bless and perform same-sex marriages, while others are abhorred by the idea. That’s one example of the nation’s vibrant religious pluralism.
After the high court’s marriage ruling, conservative preachers around the country panicked, insisting that their beliefs were under attack, that they were being persecuted, that they would be ordered to perform marriage rites for homosexuals. Not gonna happen. For centuries, clerics have chosen to perform those ceremonies — baptisms, weddings, funerals — they believed appropriate. No law has ever challenged their decisions.
But the United States is a secular democracy, not a theocracy. We are committed to protecting religious liberty, but the nation cannot allow any group’s religious ideology to strip away another group’s human rights. Sometimes, those conflicting ideals require a delicate balance, as when Catholic hospitals are allowed to refuse to perform abortions — even when doing so jeopardizes a woman’s health.
But Davis’ intransigence requires no Solomonic decision making. She has no right to be Rowan County Clerk. If she won’t do the job, she needs to step aside.
By: Cynthia Tucker Haynes, Pulitzer Prize for Commentary in 2007; The National Memo, September 12, 2015
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