Archive for the ‘Supreme Court’ Category

John Roberts: History is Calling

The U.S. Supreme Court this week confronts partisan politics and history in a way that will profoundly impact the court as an institution and largely determine the fate of the controversial Affordable Care Act (ACA) – Obamacare.

Supreme CourtIn the curious way that American political history has of not exactly repeating itself, but of regularly returning to the same themes, it is fascinating to consider how the Supreme Court handled a similarly contentious issue 78 years ago. The issue then was different – state minimum wage laws in 1937 versus health insurance today – but the impact on the court as an institution and on American politics is still instructive. Some of the parallels are striking.

If Chief Justice John Roberts hasn’t done so he might want to read up on the back story in the case of West Coast Hotels Co. v. Parrish. The leadership exercised by one of his illustrious predecessors, Charles Evans Hughes, just might be useful for Roberts this week, since how the Chief handles the Obamacare case – King v. Burwell – may determine not only his own legacy but also the court’s standing among American voters.

The Supreme Court became the most controversial issue in American politics in 1937. Re-elected in a landslide in 1936, early the next year Franklin Roosevelt took dead aim at the Supreme Court that had dismantled key fdr.gi.topparts of his New Deal economic recovery program. In one of the most audacious proposals ever suggested by an American president, Roosevelt sent legislation to Congress – a Congress overwhelmingly populated with his fellow Democrats – that would have added six new justices to the Supreme Court. In one sweeping legislative action Roosevelt proposed to both liberalize the Court and at the same time neuter a co-equal branch of the federal government.

Through the long, hot and politically disagreeable spring and summer of 1937, Democrats fought with each, with their president and with Republicans over whether to give FDR what he dearly wanted – a very conservative Supreme Court remade overnight into a liberal supporter of his program. The American Bar Association, the nation’s major newspapers, organized labor and farm groups chose up sides and by the time the fight finally ended Roosevelt had suffered the biggest political defeat of his presidency. The Democratic Party that should have been at the zenith of its power was ripped apart and Roosevelt would never again command a working majority in Congress for his domestic agenda, but the Supreme Court as an institution remained unchanged.

The West Coast Hotels case was part of the reason. The Parrish in the case was Elsie Parrish, a elsiechambermaid at the Cascadian Hotel in Wenatchee, Washington, a hotel owned by the West Coast Hotels Company. Elsie, joined by her husband, filed suit contending that she received sub-minimum wage compensation for the work she performed and she sought to recover the difference between what she was paid and the minimum wage established under Washington state law.

The question presented to the court when the case was heard late in 1936 was whether Washington’s state minimum wage law “violated the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment.” In 1923, in a similar case, the Supreme Court had overturned a District of Columbia minimum wage statute on grounds that it violated the Fifth Amendment’s due process clause. Early in 1936, the Court struck down a New York minimum wage law in a case that was almost exactly on point with the issues in the West Coast Hotels litigation. The New York decision was widely seen as a blow to New Deal-era reforms – FDR was incensed by the Court’s ruling  – and the case seemed to offer further proof that the Supreme Court was hostile to nearly any type of regulation of business.

When the Washington State case came before the Court in December 1936 it wouldn’t have taken a clairvoyant to predict the outcome. But in the interval between the two nearly identical 1936 cases, something changed. What changed had been entirely political. Roosevelt was overwhelmingly re-elected by American voters who were clearly showing their support for his policies. In simple political language the conservative majority on the Supreme Court suddenly found itself dramatically at odds with widespread public sentiment.

A Switch in Time…

When the West Coast Hotels case came before the court in December 1936 – remember this was after FDR’s big re-election win – Chief Justice Hughes, who had been in the minority in the New York case,245px-Owen_J._Roberts_cph.3b11988 prevailed upon Associate Justice Owen Roberts – no relation to the current Chief, but like him a Republican appointee to the Court – to change his mind and wipe out the precedent that the Court had re-affirmed just ten months earlier. With the Chief Justice writing the majority opinion, the court upheld the Washington state law – the vote was 5-4 – and Elsie Parrish, the Wenatchee chambermaid, found that the state minimum wage law really did apply to her.

Next comes one of the best examples I know of how timing impacts politics. While the West Coast Hotels case was heard just before Christmas 1936, and Justice Roberts indicated in a conference with fellow justices two days later that he would change his mind, the decision in the case wasn’t made public until the following March, weeks after Roosevelt proposed his sweeping and controversial plan to reshape the Supreme Court.

To the public and press it looked like the Court was knuckling under to political pressure from a hugely popular president, when in fact the Court, under Hughes’ skillful leadership, had already made up its mind to directly reverse its earlier precedent in minimum wage cases. Still it was widely said that Robert’s switch helped save the Supreme Court with one wag saying, “a switch in time saved nine.” The great historian William Leuchtenburg called it the “greatest constitutional somersault in history.”

ihughec001p1In reality, Hughes was a shrewd student of politics and had correctly read the election returns as a strong indication that public opinion was moving in the direction of a more activist role for the government in regulating the economy and American business. Hughes, very much a Republican and conservative, even admitted that the Court could no longer serve as “a fortress” against public opinion. In order to head-off the kind of sweeping political change that Roosevelt and others had in mind for the Court, Hughes knew his beloved Court had to change and lobbying Justice Roberts gave him his fifth vote. Hughes put his considerable muscle as a great Chief Justice behind his belief that the Court had to change in order to sustain its integrity and independence. Subsequent decisions by the Court in 1937 to uphold the Social Security Act and the National Labor Relations Act further helped doom Roosevelt’s court packing plan and at the same time helped maintain public confidence that the Court was able to respond to national problems during the greatest economic crisis the country has ever faced.

King v. Burwell…

The case at question before the Supreme Court this week – King v. Burwell – turns on just four words buried deep in the controversial 955 page legislation passed by Congress in 2010. The challenge to the ACA centers not on questions of constitutionality or the application of Congressional or Executive authority, but whether every qualified American is entitled to an insurance subsidy whether they enrolled for health insurance through a state or a federal insurance exchange seems certain to thrust the court into the middle of the most contentious political issue in recent history.

In taking this case the court has decided it must rule on what Congress meant when it wrote those four words – “established by the state” – into the law.

As David Cole wrote recently in The New York Review of Books: “The challengers’ statutory argument is deceptively simple. A subclause of the tax code setting forth a formula for calculating federal income tax credits provides that the amount of the credit depends on the number of months the taxpayer has been enrolled in a health insurance plan purchased on an insurance exchange ‘established by the State.’ Since an exchange established by the federal HHS is not an exchange ‘established by the State,’ they maintain, the law precludes subsidies for all residents of the thirty-four states that have exchanges created by HHS. The government counters that exchanges ‘established by the State’ is a legal term of art, and when read in conjunction with other parts of the ACA, it encompasses both exchanges that states themselves established, as well as exchanges that the states chose to have HHS create for them in their respective states.”

As a practical matter the health insurance exchanges in 34 states operate on the platform established by the federal government. If the court decides those exchanges are not subject to the subsidies – boom. Consider it the nuclear option. An estimated 7.5 million people in those 34 states will lose their subsidies, not be able to afford insurance and the great Obamacare experiment will tip over like Humpty Dumpty falling off that famous wall.

The committed opponents of the health insurance law will, of course, celebrate the death of the act they have tried to destroy once before in front of the Roberts’ court and more than 50 times on the floor of the U.S. House of Representatives. Should those challenging the law prevail it will be seen correctly as a huge victory for conservatives who hate Obamacare and a crushing defeat for President Obama’s signature legislative accomplishment. The impacts on the Supreme Court could be even more earth shaking.

RobertsRoberts is the man in the hot seat, just as Charles Evans Hughes was in 1937 and we already know he did some personal legal jujitsu to accommodate his own very conservative views to the political will behind the ACA when he cast the deciding vote to uphold the Act when it first came before his Court. In fact, there is one school of thought that Roberts has already found a way to uphold Obamacare from the latest challenge by invoking a very conservative legal principle – standing. It may well be that the plaintiffs in the King case don’t have the legal standing to even bring the case. We’ll see.

Hughes’ task in the New Deal-era was to save the Court from the kind of political interference Franklin Roosevelt had in mind. Roberts’ task today is to keep the Supreme Court, with its conservative majority, from using an extraordinarily narrow issue to kick the increasingly popular health care law in the ditch. Such a ruling would certainly please the legion of Obamacare haters, but at the cost of denying health insurance to several million Americans who now have coverage.

Conservatives who hope the Court will kick things in the ditch decry what they call “executive lawmaking” that “poses a severe threat to the separation-of-powers principles enumerated in the Constitution.” And they contend the president “has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.”

But in the King case the dangerous behavior – you might read judicial activism – would be for a Supreme Court to impose its own notion of how an IRS rule ought to be applied; replacing its judgement for that of the branch of government changed with actually carrying out the terms of the law.

Long-time Supreme Court watcher and New York Times columnist Linda Greenhouse argues that nothing less than “the honor of the Supreme Court” is at stake in the King v. Burwell decision. “To reject the government’s defense of the law,” Greenhouse wrote recently, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”

At pivotal moments in American history various Chief Justices have guided the Supreme Court through some very hard cases. Hughes did it in the 1930’s. Earl Warren did it in the 1950’s with the Brown v. Board of Education ruling that separate but equal simply could not be Constitutional. Warren Berger did it in the 1970’s when he lead a unanimous Court that required Richard Nixon to turn over his White House tape recordings. In each case the integrity of the Court, as well as its ability to transcend, while at the same time respond to politics, was at stake. It’s also worth noting that in these historic cases a Republican chief justice appointed by a Republican president moved the Court in a new and important direction, while also keeping the Court out of the intense crossfire of partisan politics.

The same issues are at stake this week. Ironically, in reading the old West Coast Hotels decision, I noticed that one of the attorneys of record was named – John Roberts. For the Chief Justice history really is calling.

 

Supremely Political

016I’ve been reading Gallup public opinion polls from 1935, knowing full well that admitting to having musty old opinion polls on my reading list could brand me instantly as eccentric, a geek or, at the very least, a political junkie. Guilty on all counts. Eccentric, geeky, political junkie.

In 1972, the Gallup organization published three massive volumes of “top line” results from all the polls that Gallup conducted since it began polling in 1935. It really is fascinating reading – at least I found it to be.

One big conclusion: Let’s just say that every president since Franklin Roosevelt would kill for his approval ratings. FDR was clearly the last president who consistently enjoyed stratospheric approval ratings.

Even at the height of the enormous controversy over Roosevelt’s plan to enlarge the Supreme Court in 1937, a proposal that never enjoyed majority support from the public according to Gallup, FDR’s personal approval numbers remained very robust. The cartoon from that period shows the Court out of step with the rest of the country and that sentiment was clearly widespread in 1937, but it never translated into public or political support for Roosevelt’s radical plan to remake the Court in his own image by appointing as many as six new liberal, New Deal-friendly justices.

Montana’s New Deal era power broker, Sen. Burton K. Wheeler, was a liberal Democrat, but he vehemently opposed Roosevelt’s “court packing” as a power grab by the executive branch. Wheeler reportedly told Roosevelt that the Supreme Court was “a religion” for many Americans and the president had prompted a fight over religion – never a good idea in politics.

In September 1937, when it had become clear that the president’s court plan was on political life support, Gallup asked in a survey if Roosevelt should continue his fight to enlarge the court. Fully 68 percent of those surveyed said “no.” The impact of the issue was enormous for FDR and for the Court.

Obviously, the integrity of the court had survived a full-frontal assault from a recently re-elected and immensely popular president. And the fallout did damage Roosevelt with a strongly Democratic Congress, while curiously not doing much harm to his overall public approval. In a way, the message from the bitter fight over the Supreme Court in 1937 – it was called at the time the “greatest Constitutional crisis since the Civil War” – was that “the Court is above politics,” or at least that the Court shouldn’t be subjected to attack on the basis of raw partisan politics.

Surveys Said…

Which brings us to three recent surveys on the current U.S. Supreme Court. One from the Pew Center shows, among other things, the Court’s overall approval rating nudging back above 50 percent. Public approval of the Court had dropped to 48 percent in the summer of 2013. At the same time there is both survey data, this time in a new Democracy Corps study,  as well as anecdotal evidence that the public more-and-more sees the Court as just an extension of politics by other means.

Here is a key takeaway from the Democracy Corps survey: “Two recent decisions on campaign finance have only served to intensify Americans’ dissatisfaction with the Court. The Citizens United ruling is deeply unpopular across every partisan and demographic group while Americans of nearly every stripe believe the recent McCutcheon ruling will make our political system more corrupt – again with broad consensus across Democrats, Independents, and Republicans.”

The Democracy Corps survey seems to contradict the Pew survey with its finding that “just 35 percent give the court a positive job performance rating and a strong majority believe that Justices are influenced more by their own personal beliefs and political leanings than by a strict legal analysis.” 

Another new study was prepared by several academics who reviewed free speech cases before the Supreme Court and this survey found – maybe this won’t surprise you – that more liberal judges tend to support the free speech claims of liberals and more conservative judges tend to support the claims of conservatives. “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

As the New York Times reported, “The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects ‘freedom for the thought that we hate.’ On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.”

“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” said Professor Lee Epstein, one of the authors of the study.

Adam Liptak covers the Supreme Court for the Times and wrote over the weekend that the recent 5-4 campaign finance decision – the McCutheon decision – broke along increasingly predictable partisan lines with the five justices appointed by Republican presidents voting for the Republican National Committee, which was a plaintiff. The four justices appointed by Democratic presidents dissented.

“That 5-to-4 split along partisan lines was by contemporary standards unremarkable,” Liptak wrote. “But by historical standards it was extraordinary. For the first time, the Supreme Court is closely divided along party lines.”

Even in Roosevelt’s day the Court’s makeup featured conservative Democrats and moderate to liberal Republicans. No such thing today. Other analysis shows that in the U.S. Senate, for example, the most conservative Democrat is now more liberal than the most liberal Republican. The Court increasingly reflects this huge partisan divide in the country.

“The partisan polarization on the Court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move,” Liptak notes and, almost all of the time these days, even the young men and women chosen as law clerks to the justices have a partisan background. Even the speaking engagements justices accept almost always line-up with the justice’s partisan backgrounds before they went to the bench. John Roberts and Clarence Thomas, for the most part, speak only to conservative groups, Elena Kagan and Ruth Bader Ginsburg, for the most part, only to liberal groups. You have to wonder how this kind of polarization can be good for the justices, the Court or the country.

“The very question of partisan voting hardly arose until 1937,” Liptak writes, “as dissents on the Supreme Court were infrequent. When the justices did divide, it was seldom along party lines.” This was clearly true for the Supreme Court Franklin Roosevelt tried to change. Some of the decisions FDR most disliked were supported by the “liberals” on the Court, but I would argue that in the main they were acting as judges and not as partisans, which is what we should be able to expect.

Supreme Politics…

At least three things need to happen to turn around the steady partisan drift of the Supreme Court; a drift that will inevitably further erode public confidence in the Court. Of course if you believe the research the erosion of confidence is already happening.

First, presidents need to nominate judges based primarily on the quality of their scholarship and thoughtfulness and not, as is most often done now, almost entirely on the basis of a partisan background. You could argue that the last largely “non-partisan” appointment to the Court was Justice David Souter in 1990. Souter, of course, disappointed many conservatives for being too moderate. But, in many ways, he had the experience and resume of an ideal candidate for high judicial office. Souter came to the Court with two overriding qualifications – a reputation for sound judicial scholarship and a career marked by independence. Every appointment by presidents of both parties since Souter has been highly political in nature.

At the same time, the politicians in the Senate who “advise and consent” on these appointments need to take more seriously that role. The nomination of a Supreme Court justice has become one of the most partisan exercises in our democracy and all the parties, for the good of the country and the Court, should pull back from the partisan edge. It is a long way down if they step much farther in that direction.

Second, the justices themselves need to recognize that putting on judicial robes does not provide cover for blatant partisanship. The demands of public accountability insist on great effort not only to display non-partisanship, but to practice it as well.

Finally, judges need to accept the fact, as the Democracy Corps survey suggests, that the public has a weak appetite for an institution that has extremely limited requirements for disclosure of conflicts and continues to resists every attempt to open up its incredibly important proceedings to modern media coverage. The secretive nature of the Court’s deliberations is obviously necessary to preserve the process of judging, but it no longer makes sense to deny coverage of the arguments that precede the decision making. It’s past time for broadcast coverage of the Supreme Court.

You could argue that the great partisan politicization of the Supreme Court dates to the failed nomination of Robert Bork in 1987 and the successful nomination of Clarence Thomas in 1991. The searing new documentary – Anita- Speaking Truth to Powerthat re-visits the circus that became the Thomas confirmation hearings, if seen by enough Americans, might actually serve as a catalyst for re-thinking the whole process of nominating and confirming justices. I’m going to guess that most Americans under 40 don’t have a memory of the testimony of law professor Anita Hill before the Senate Judiciary Committee in 1991. If they see this film they can’t help but pay closer attention to future appointments to the Court that shapes so much about our lives.

The new documentary makes the case powerfully that raw politics – Senate politics, as well as race and gender politics – prevailed when Thomas was confirmed in the face of considerable evidence that he had acted inappropriately – we’d call it sexual harassment today – toward a number of women who worked with him, ironically at the Equal Employment Opportunity Commission. It is also ironic now to remember that Thomas was approved by a Democratic Senate. The vote was 52-48.

Just for the record, among Northwest senators only Oregon Republican Bob Packwood, who would later have his own troubles with sexual harassment, voted “no” on the Thomas nomination.

The great cynic H.L. Mencken, who at one time or another disparaged most everything and everyone, reportedly said that judges “are law students who mark their own papers.” I think Mencken’s point was that judges, alone in our system, are largely unaccountable to anyone and therefore in need of a heightened degree of self control and reflection, as well as a passion for the non-partisanship.

Or, as the great English philosopher and jurist Francis Bacon wrote, “Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”

The Court may not be a “religion” as Sen. Wheeler said nearly 80 years ago, but it is the one branch of our complicated system that above all depends on public trust and confidence. Even a little erosion of that trust is a big problem.

Post-Racial

donaldsterlingSo much for a post-racial America.

Americans of color may have significantly more challenges to overcome with employment, education, health and housing than most white Americans, but it takes the racist rants of two old white guys to again bring into sharp relief the sobering fact that race is still the nation’s great unresolved issue. The optimists among us thought, for a moment at least, that the election more than five years ago of the first black president ushered in a “post-racial” new day. It didn’t.

If anything the nation’s struggles with race and class, not to mention gender and sexual orientation, remain as corrosive as ever. Fox News and a few pandering Republicans turned a deadbeat Nevada rancher into a “folk hero” before his own ignorant ravings about race showed every thinking person just what Cliven Bundy is really all about. While you can apparently get away with cheating the federal government out of a $1 million in lease payments by just waving around the Constitution, waxing nostalgic about slavery is, thankfully, still un-American enough to draw a belated rebuke from Rand Paul. Maybe Bundy should have read all of the Constitution, including the 13th, 14th and 15th Amendments.

The case of L.A. Clippers owner Donald Sterling is both more complicated and ultimately more troubling. Bundy is just the latest incarnation of the old John Birch Society/Posse Comitatius mind set that rises and falls periodically across the American West. The rise almost always occurs with a Democrat in the White House. With typical Bircher incoherence Bundy invokes the Constitution of a government he won’t recognize. He likes the 2nd Amendment just fine, but not those pesky provisions of the Constitution related to the power of federal courts. The Bundy mind set has found its perfect foil in the young, self-assured black man in the White House. Enough said, except perhaps that the Republicans who rushed to support this nut case still have plenty of explaining to do.

Sterling, the billionaire L.A. real estate developer, is a tougher case. He has apparently long been known for his racially tinged rants and has been in and out of court fighting discrimination cases that, among other things, alleged that he refused to provide repairs for his black tenants.

“It bothers me a lot that you want to broadcast that you’re associating with black people,” Sterling allegedly told his mixed race girlfriend in recording she apparently made. “Do you have to?”

Later, just to double down his racism with a gob of sexism, he added: “You can sleep with them, you can bring them in, you can do whatever you want. The little I ask you is not to promote it on that and not to bring them to my games.”

As the Washington Post reported:

“Sterling’s history paints a picture of a man who has let slip bigoted beliefs for years — and has, at least so far, sidestepped major repercussions. He was sued in 1996 for sexual harassment. In 2003 he testified in a separate court case that he occasionally paid women for sex. The same year, Sterling was sued by 19 tenants of a building he owned, along with the Housing Rights Center; they claimed Sterling’s employees refused repairs to black tenants and frequently threatened to evict them. Sterling settled the case for an undisclosed sum.

“In 2009, Sterling spent $2.73 million to settle another suit, this time brought by the Justice Department, which alleged Sterling refused to rent his apartments to non-Korean tenants, preferring that black and Hispanic prospective tenants look elsewhere. The lawsuit quoted Sterling as saying in sworn testimony that ‘Hispanics smoke, drink and just hang around the building,’ adding that ‘black tenants smell and attract vermin.'”

The National Basketball Association is investigating. Of course they are. It sounds like they might have done some looking around a long, long time ago. How the Sterling matter is handled by the NBA and its new commissioner will be vastly more important in the long run than any shooting-off-the-mouth of Sean Hannity’s new best friend.

Sterling is, after all, a long-time member of one of the world’s most exclusive clubs – the 30 owners of professional basketball teams. Sterling’s team, until last week a serious playoff contender, is coached by a black man. The team’s and the league’s fan base is to a substantial degree minority. The league’s big name stars, many of whom quickly condemned Sterling’s remarks, are African-American. The Clippers low key pre-game protest where white and black players wore their shirts inside out is just a preview of what’s to come from a professional league that owes its popularity, not to mention the money it generates for owners like Sterling, to the success of “black people” like LeBron James and Kevin Durant.

It’s not as though the NBA didn’t know about this guy. “Donald Sterling,” Paul Westphal, an NBA coach and great NBA player before that, told columnist Mike Lupica, “was always the worst-kept secret in the NBA.” Now, it’s get serious time – a teaching moment – for new NBA Commissioner Adam Silver. Silver’s response and the response of the other 29 members of Sterling’s exclusive club will tell us a lot about a high profile big business in post-racial America.

The U.S. Supreme Court tells us a lot, as well. The Court’s 2013 ruling throwing out a major part of the Voting Rights Act and more recently upholding a Michigan law that bans race conscious admissions at the state’s colleges and universities are based either on wishful thinking that racial issues in the age of Obama still don’t bedevil our culture or that the courts simply have an extremely limited role in ensuring that all Americans are not merely created equal, but are treated that way, as well. Either explanation ignores today’s front page.

It seems self evident that Barack Obama’s election in 2008 not only failed to herald the arrival of a post-racial America, but rather stoked the long simmering fires of racism that were, we need to remember, originally written into the nation’s founding creed. An ignorant Nevada cowboy and the boob billionaire owner of a professional sports franchise certainly don’t represent the vast sweep of good and decent Americans of all races, creeds, colors and political persuasions, but they still represent too many.

“When ignorant folks want to advertise their ignorance, you don’t really have to do anything,” Obama said of Donald Sterling. “You just let them talk. That’s what happened here.”

Oh, if only it were that easy.

 

Politics of the Oligarchs

Campaign FinanceimageFor most of the 20th Century, indeed for much of the history of our Republic, there was a consensus that money – particularly vast sums of money – had an inherently corrupting influence on American politics.

The intersection of money and politics, both at the fringes and at the center of our democracy, has often led to full-blown scandal. William Andrews Clark used his copper fortune to buy a U.S. Senate seat in Montana in 1899 by bribing state legislators. By today’s standards Clark’s “acquired” Senate seat was a real bargain. He reportedly spent only $300,000.

In the 1920’s money was at the core of the Teapot Dome scandal that sent a cabinet member to jail and forever defined Warren Harding’s administration as among the most corrupt in the nation’s history. In 1935 the nation’s electric industry, threatened by Franklin D. Roosevelt’s desire to break-up the great utility holding companies, mounted what was at the time the greatest (and costliest) lobbying campaign ever. The effort consisted of phoney “grassroots” lobbying of Congress financed by the then unheard of sum of $5 million. We know about this because a then little known Alabama Senator by the name of Hugo Black used a Congressional investigation to expose how the big money was gathered, laundered and spent to protect the utility monopoly.

Watergate, Abscam (the money and political scandal that serves as the basis for the Oscar-winning film American Hustle), Al Gore’s fundraising at a Buddhist temple, well, you get the point and we could go on-and-on.

With its latest ruling on political money, the United States Supreme Court (or more correctly five justices) further shredded the one-time consensus that too much money mixed up with politics is fundamentally bad for American democracy. The Court’s McCutcheon ruling now joins the historic case Citizens United, both written by Chief Justice John Roberts, in systematically eliminating constraints on money in politics. While Roberts’ McCutcheon ruling left in place individual limits on contributions to candidates and political action committees, one only has to read the opinion to see that those limits will eventually topple, too.

Justice Clarence Thomas voted with the Roberts’ majority in the McCutcheon case, but argued in a separate opinion that, amazingly, the Court hadn’t gone far enough. Thomas called the ruling “another missed opportunity,” and as Politico reported, said he would strike down all limits on campaign donations and that the state of the law will be unsatisfying incomplete until the court squares up to that issue. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design,” Thomas declared. In other words, stay tuned.

The Sheldon Primary

Amid the general and persistent fog of American politics, the daily battle for the dominate soundbite, the buzz of the latest opinion poll, jobs report or health care enrollment number it is easy to miss what is happening right in plan sight. But, like the revelation Dorothy must have felt when she pulled back the curtain on the less-than-meets-the-eye Wizard of Oz, the direction of our politics – if you want to see it – was on display in stark relief a few days ago at the expensively tacky Venetian Hotel in Las Vegas.

It is a rich irony that the conservative majority on the Supreme Court knocked another brick out of the wall of campaign finance law just days after four of the likely Republican candidates for president next year were cooing and scraping in front of the $93 million dollar man – casino billionaire Sheldon Adelson.

In my distant memory there was a time when it was considered unseemly for a politician to audition, at least publicly, for the favor of a business mogul whose vested interests are so obvious. As Jonathan Alter points out in his New Yorker blog there is no secret as to what “the Sheldon primary” that recently featured the governors of New Jersey, Wisconsin, Ohio and the former governor of Florida was all about.

Adelson, who makes most of his money at a casino in Macau (which, if your geography is rusty is “a special administrative region” of the People’s Republic of China) wants no expansion of Internet gaming that might threaten his gambling halls and he wants two federal investigations of his operations to go away. He’d also like to name the next Secretary of State and dictate U.S. policy toward Israel and the Mideast. Give the guy credit for candor.

“I’m against very wealthy ­people attempting to or influencing elections,” Adelson told Forbes in 2012. “But as long as it’s doable, I’m going to do it.”

So here was Ohio Gov. John Kasich shamelessly and publicly sucking up to Adelson, the guy who single-handedly spent $93 million in 2012 attacking Mitt Romney’s tenure at Bain Capital, a generous gesture that kept Newt Gingrich in the GOP presidential race long weeks past his expired by date. As Kasich’s home state Cleveland Plain Dealer wrote, “Kasich, more so than any of his peers, drops all pretense” in his effort to kiss Adelson’s ring, or something. “He laces his 30-minute speech with direct appeals and shout-outs to the host with the most. Starting with the fifth or sixth, one national reporter loudly guffaws with each utterance of ‘Sheldon.'”

In John Roberts’ world rich guys like Adelson writing huge checks to politicians and the committees who support them is, in the words of Garrett Epps of The Atlantic merely “free speech” for rich guys. Millions in financial support from the deepest of the deep pockets is just “like volunteering to lick stamps at the campaign office; reclusive Nevada billionaires are just constituents, like the widow seeking her pension benefits; the desires of business executives are just beliefs, advanced in the way the Founding Fathers wanted—by writing big checks. Under this rationale, it is hard to see why direct-contribution limits should be allowed, and we may assume that cases soon to be brought will give the majority the chance to eviscerate those limits.”

Roberts’ reasoning equates Sheldon Adelson’s $93 million in political spending to my bumper sticker. It’s all a matter of free speech, says the Chief Justice, but obviously not at all about equal access to the political process or disproportionate influence over the lawmakers.

NBC’s Chuck Todd has documented how this “free speech” campaign has been going: “Political spending from outside groups – either created or bankrolled by American billionaires – has skyrocketed from $193 million in 2004 and $338 million in 2008,” Todd wrote recently, “to a whopping $1 billion in 2012, according to the Center for Responsive Politics. To put this $1 billion in outside spending in perspective, it’s almost TWICE what John Kerry and George W. Bush spent COMBINED in the 2004 presidential race ($655 million). And it’s THREE TIMES the amount John McCain spent in the 2008 election ($333 million). Another way to look at all of this money: Overall political spending on races (presidential plus congressional) has DOUBLED from $3 billion in 2000 to $6.2 billion in 2012. And in presidential races alone, the combined amount that George W. Bush and Al Gore spent in 2000 (about $250 million) QUADRUPLED to the combined amount Barack Obama and Mitt Romney spent in 2012 ($1 billion-plus). And that doesn’t count the political-party spending.”

My bumper sticker is sounding less and less important as, in reality, we turn electoral politics, once dominated by candidates and parties, into a free spending game for Sheldon Adelson and other billionaire oligarchs who have the money and the vested interests to increasingly dominate our elections. As long as it’s doable, as Sheldon might say, why not.

Ironically it was Newt Gingrich, the guy who benefited from the Adelson financed attacks on Romney’s private equity past, who said during the last campaign, “You have to ask the question, ‘Is capitalism really about the ability of a handful of rich people to manipulate the lives of thousands of people and walk off with the money?'” The answer, more and more, seems to be – yup.

“Watching events in Russia and Ukraine,” columnist Gail Collins writes, “you can’t help noticing all the stupendously rich oligarchs with their fingers in every political development. It’s a useful word, connoting both awesome power and a group you don’t really want to have around.

“In the former Soviet Union, the money elite generally get their power from the politicians. Here, it seems to be the other way around. But the next time casino zillionaire Sheldon Adelson invites the Republican presidential hopefuls to go to Las Vegas and bow before his throne, feel free to say they were just off honoring an oligarch. Apparently, the founding fathers would have wanted it that way.”

Truth be told the Founders wouldn’t recognize American politics today. They were tough, aggressive partisans to be sure, but they couldn’t have imagined a political process where a handful of extraordinarily well-to-do rich guys have been able to bend the system merely by spending lavish amounts of cash. In poll after poll, Americans express exasperation and cynicism about our politics. Millions don’t participate feeling that their vote – not to mention their voice  – doesn’t count. Younger Americans, in particular, see a rigged system built and maintained by the really wealthy to perpetuate themselves and their point of view.

If you think the American electorate is cynical now, just wait until all the campaign spending limits come off as the Roberts’ court take it upon itself to ensuring that more money from fewer people is the overriding and perhaps only decisive factor in our politics. Americans may not like Congress much these days, but one suspects they’ll like a bunch of well-heeled oligarchs calling all the shots even less.

The question then: will we change this trajectory and blunt the politics of the oligarchs or will we, as Gail Collins says, decide that “what this country really needs is more power to the plutocrats?”

The End of Spending Limits

1381180830000-XXX-McCutcheon-hdb3864Shaun McCutcheon (that’s him in the photo) is a wealthy guy; an electrical contractor from Alabama who is also a conservative political activist. The Supreme Court appears ready to give Shaun what he says he wants  – the chance to spend a great deal more of his money on candidates for federal office.

The Court heard arguments yesterday in McCutcheon v. Federal Election Commission, a sort of sequel to the 2010 Citizens United case that I’ve lamented here in months past. If the Court goes the way the questioning seemed to indicate yesterday one more big prop will be kicked out from under the American jumble of campaign finance laws and once again American democracy will most closely resemble a political version of “The Price is Right.”

Right now, ol’ Shaun is prohibited from contributing more than $123,200 to federal candidates and political parties in a two-year cycle. You might think that would be more than enough political spending for most of us and, of course, it is. But guys with lots of money, from the right and the left, like to participate in the political process because, well you know why they like to participate in the political process. If the Court rules his way Mr. McCutcheon will soon get to start writing checks to federal candidates – just buying good government, I know – for millions and millions every year.

As Charles Fried, who served as Solicitor General in the Reagan Administration noted recently in the New York Times, “Ever since the 1976 Supreme Court case Buckley v. Valeo, in which the court upheld limits on individual federal campaign contributions, every Supreme Court decision on this issue has been based on the distinction between money given to candidates — contributions — and money that individuals or organizations use for their own independent campaign-related expenditures.

“The underlying idea is that while the First Amendment prohibits the government from limiting your political speech (and the more you speak, the more you may have to spend), a contribution is money spent to help someone else speak. The government may not limit your own expression (and since Citizens United that applies to corporations and unions, too), but for almost half a century Congress has limited contributions without being challenged by the Supreme Court.”

Until now.

The Court’s efforts to further destroy limits on money in politics, at least after Citizens United, seems inevitable. Once you decide that the sky is the limit for the Koch Brothers or Bob’s Muffler Shop to spend money on independent political efforts then how can you logically – at least in the logic of the Robert’s Court – limit what Shaun McCutcheon can lavish in the way of cash on his Congressman and yours?

Two things above all stand out in this confluence of money, politics and policy. One is the unbridled willingness of the “conservative” Robert’s Court to trample on precedent and long-established law. The Citizens United decision tossed out 100 years of established law – law made by one branch of government and endorsed by a second – and substituted the wisdom of five appointed justices none of whom has ever held elected office. The expected next move will toss all or most of a law on the books for more than 40 years.

David Cole, writing in the New York Review of Books, makes the case that the current session of the Supreme Court may well see a host of established laws, including the candidate funding restrictions, upended by Roberts and his four like-minded colleagues. “In all of these cases,” Cole writes, “the real question is not whether the conservatives will win, but how they will win. (It’s conceivable that the liberal side will prevail in one or more cases, but most court observers think the odds are against it.) Moreover, in most of the cases, Justice [Anthony] Kennedy, usually the swing vote, has already aligned himself with the strongly conservative view, so the outcome is likely to turn on Roberts. If the Chief Justice and his Court proves to be Conservative, the term could end with a radical revision of established precedent in a host of constitutional areas. If the Court is simply conservative, the status quo precedents will remain intact. We’ll know by June 2014.”

So much for the notion of judicial restraint.

The second takeaway relates to the fact that no member of the current Supreme Court has ever been elected to anything. This is important, I think, because the justices – at least the five most consistently conservative justices – completely dismiss the arguments that unregulated money can and will lead to what the Washington Post’s Dana Milbank quaintly calls “legalized corruption.” Election law expert and law professor Richard L. Hasen says it just as bluntly: “The closer the money comes to the hands of members of Congress, the greater the danger of corruption and undue influence of big donors” and he say what the Court appears ready to do “will greatly increase the chances of a corrupt Congress.”

When U.S. Solicitor General Donald Verrilli suggested yesterday that the Court may have gotten it wrong in Citizens when it  dismissed “the risks of corruption from independent expenditures” Justice Antonin Scalia simply said, “It is what it is.” Very thoughtful.

What the definition of “is” is can simply be reduced to money purchasing political influence. And the bigger the purchase the bigger the influence. With the expected decision in McCutcheon it is possible that as few as 500 very, very rich Americans can finance all the costs of running for federal office for everyone running. In such a system the small $250 contribution from the retired couple or the small business owner ceases to matter. Why waste your valuable fundraising time connecting with what Justice Ruth Bader Ginsberg called “the little people” when you can raise a few hundred thousand with a couple of calls to civic minded guys like Shaun McCutcheon?

“If Scalia got out of his ideological echo chamber,” Dana Milbank writes in the Post, “he would discover that, encouraged by the court, wealthy conservatives donate to groups such as the Club for Growth and Heritage Action, which threaten to fund primary challenges to Republican lawmakers who show any ideological impurity. Because most Republicans are in safe seats (in part because of Supreme Court-sanctioned gerrymandering), the only threat to their reelection is in a primary — and so they have no choice but to obey the conservative billionaires’ wishes. The problem on the left isn’t as acute, but it’s only a matter of time before liberal billionaires execute a similar purge.”

It’s probably just a coincidence, but Politico reports today that the Koch brothers have given $500,000 to one of the shadowy outside groups that has lobbied Republicans to shutdown the government and threatened GOP “moderates” if they don’t hold fast to the defund Obamacare strategy. That kind of money going directly to candidates can’t be far away.

Reflect on this: the laws restricting the power of money and the impact on our politics of the few with “real” money were passed in the wake of serious political money scandals. The Court has already overturned one law passed in the wake of revelations that rich millionaires, like the notorious Montana Sen. William Andrews Clark, had bribed their way into the United States Senate. The law on trial in the Supreme Court this week was passed in the wake of Watergate, a case of political corruption that had at its heart political money. As sure as dawn follows the night political corruption most odorous is marshaling for the next huge scandal.

Former Solicitor General Fried reminds us that “Justice Scalia once wrote in another context, this argument is not a wolf in sheep’s clothing: ‘this wolf comes as a wolf.’ The only reason the Supreme Court would be tempted to let this wolf in is if the Court wants to see the destruction of all limits on an individual’s donations to a political candidate.”

Thanks to the United States Supreme Court more than ever the political money wolf is at democracy’s door.

My Lunch with the Justice

51917203MW106_Homeland_SecuSandra Day O’Connor’s remarkable career is a testament to many things: dogged persistence, boundless ambition (of the best type), talent, good judgment, a sense of the power of history and, of course, some luck; luck of the being in the right place at the right time variety.

I did not realize until recently, while researching more deeply O’Connor’s history-making 1981 appointment as the first woman nominated to the United States Supreme Court, how determined Ronald Reagan was to put a woman on the Court. Reagan, of course, had made a campaign pledge in 1980 that he wanted to put a “qualified” woman on the Court. When he had the chance just a few months into his term he kept his promise, plucking from relative obscurity the 51-year-old Arizona Court of Appeals Judge and former state senator. So sure was Reagan that he announced O’Connor’s appointment before the FBI had completed its background check leaving then-Attorney General William French Smith to field questions from the White House press corps about whether that was a sound approach.

After a flurry of criticism and concern, most from the far right, O’Connor – imagine this – was confirmed unanimously by the United States Senate just three month after Reagan told her he wanted to put her on the Court.

“Called Judge O’Connor and told her she was my nominee for supreme court,” Reagan wrote in his diary on July 6, 1981. “Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”

[Idaho’s then-Sen. Steve Symms was one who voiced early skepticism about O’Connor, but eventually supported her appointment. Symms’ call to the White House expressing disapproval of O’Connor’s nomination is detailed in Jan Crawford Greenburg’s 2007 book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.]

O’Connor’s place in history is secure and not only as the first woman on the Court, but for her historic sense of moderation and pragmatism. She has become a remarkable role model and one hopes her careful, centrist, blocking and tackling approach to the law will one day soon serve as a model for a Supreme Court that seems determined to embrace the type of judicial activism that O’Connor so smartly rejected.

I would have liked to discuss any or all of this with what one lawyer friend called the “smart and tart” justice when I had the rare opportunity to sit next to her at lunch recently during an Andrus Center conference on women and leadership at Boise State University. But I left politics and the law aside after reading how reluctant she can be to offer up any comment, let alone criticism, of the judging of the current justices. [O’Connor did make news a while back with comments about the controversial Bush v. Gore decision, but even then her comments were very measured essentially saying the Court might have been well-advised to refuse to take the case that settled the 2000 presidential election but did little for the Court’s reputation.]

O’Connor’s latest book Out of Order, a history of sorts of the Supreme Court, has been rapped by some reviewers for not dishing  inside dope about the Court. The typically acerbic New York Times critic Michiko Kakutani, for example, said: “There are no big revelations in this volume about Bush v. Gore or the author’s thoughts on Roe v. Wade; nor are there momentous insights into the dynamics between Justice O’Connor and her colleagues on the bench, or how she felt about being the crucial swing justice, whom the legal writer Jeffrey Rosen once called ‘the most powerful woman in America.'”

While one would undoubtedly enjoy O’Connor’s unvarnished assessments of all those issues and more, I also admire her restraint, a very O’Connor-like characteristic.

Given the chance to talk with the once “most powerful woman in America” I asked her about her love of fly fishing. O’Connor is a dedicated fly caster. In fact, when then-President George W. Bush tried to reach retiring Justice O’Connor to tell her he had selected John Roberts, a judge as conservative and activist as O’Connor is moderate and careful, to replace her on the Court she was fly fishing in northern Idaho. O’Connor told me that she had little time to fish during her more than 25 years on the Court, but she is clearly making up for lost time. If you are a devotee of the fly rod then you know how easy it can be to form an immediate bond with a stranger – even a very famous stranger – when you share a passion for the pursuit of the wily cutthroat or the gorgeous rainbow.

After fishing in Idaho this month O’Connor was headed for southern Montana to float the Yellowstone with a guide she described as “on a first name basis with every trout in Montana.” To go along with the Andrus Center’s leadership award that former Gov. Cecil D. Andrus presented to the Justice in Boise on September 4, O’Connor also received an honorary doctorate from the University of Montana Law School. She indicated that she very much appreciated the awards, but the chance to fish for a few days was also a big attraction.

She said she has fished in east some, even on the Potomac, and even in Patagonia. While in Montana a couple of years ago hearing cases for the Ninth Circuit Court of Appeals, O’Connor was asked about her favorite Montana river. “Oh, this is a setup!” she replied. “Let’s start with the Big Horn.”

I take real comfort in knowing that the first woman on the Supreme Court knows about the Big Horn and the St. Joe. Who knows, perhaps knowing how to properly swing a fly helps inform the swing vote on the Supreme Court. O’Connor’s other great passions are the importance of civic education and the non-partisan selection of judges and again she is right about both.

As with her long ago critics, O’Connor still gets flack from the far right for warning that money, partisan-style judicial elections and good judging just don’t fit together. O’Connor warned in 2009 that too many state judicial elections – and Idaho has had its share – have become “tawdry and embarrassing” producing judges that are merely “politicians in robes.”

As for civic education, O’Connor quotes truly alarming statistics about American’s lack of knowledge about our history and government. “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” O’Connor said in Boise. Fewer than a third of Americans can name even one current Supreme Court Justice and “less than one-third of eighth-graders can identify the historical purpose of the Declaration of Independence, and it’s right there in the name,” she said.


Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy

Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy

I’ve been fortunate to interview one president – Gerald Ford – and one future president – Jimmy Carter. I had orange juice and coffee in the Roosevelt Room and stood in the Oval Office for a Bill Clinton Saturday radio speech. George W. Bush invited us to the White House for dinner and I was as surprised as he should have been. I’ve worked for one great governor and interviewed a dozen others and had dinner with big time reporters like Tom Wicker, Dave Broder and Tim Egan. Each and every one a very pleasant memory. Lucky me that I can add Justice O’Connor to the list.

The country has produced few more impressive leaders than the woman from Arizona who started out her legal career volunteering her talents because she couldn’t get a law firm to hire her. Her’s is a uniquely American story and one for the history books. Ronald Reagan was right. She did make a good justice.