Home » 2012 » June


Roberts: The Chief Makes History

There will be days and days of analysis – some of it even important – of today’s historic Supreme Court decision on the Affordable Care Act, or as those who hate the law say – Obamacare. We’ll hear every possible interpretation and then some.

Here is my initial take on one sliver of the story; the fact that Chief Justice John Roberts authored the majority opinion upholding the law, went against four other conservatives on the Court with whom he often finds compatibility and maybe – just maybe – wrote himself firmly into the history books.

I think most Court watchers would say that a Chief Justice – any Chief Justice – always wants to be in the majority. Roberts worked hard to get there even while taking pains to throw a rhetorical political bone to those who will see him as an updated version of former Justice David Souter, an appointee of the first George Bush who served to infuriate many conservatives.

As Roberts famously said during his confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire… I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Today he made good on his umpire statement and admittedly, while it is way too early to make definitive judgments, Roberts has likely also influenced his place in history. In the same way that Chief Justices Charles Evans Hughes in the 1930’s and Earl Warren in the 1950’s ultimately led their Court’s in a series of landmark rulings; rulings that generally supported a more expansive view of federal power, Roberts has parted company with the right wing of the Court and perhaps charted a new course for himself.

Roberts has clearly antagonized conservatives and permitted, at least in one very important case, a more expansive role for the government in health care. He also did it without affirming a more expansive interpretation of the Commerce Clause, which really would have wounded the right.

It’s fun, but ultimately futile, to speculate about the inner dynamics of a Court of such sharp divides and strong personalities, but I can speculate that it would have been interesting to overhear the conference where the Chief told Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy that he would write the majority opinion siding with the Court’s four liberals.

The health care story, with all of its political and policy dimensions, is far from a finished story. There is much more to come. But speculating again, when the history of this decision is ultimately written it may well describe John Roberts as the guy who cast a deciding vote on a law that, with all its faults, was aiming to provide health insurance coverage for every American, a goal of many Americans since at least Teddy Roosevelt. Fifty years from now Roberts’ opinion may well be seen as putting him on the right side of history.

Roberts is obviously a serious man and no one reaches the pinnacle of judicial power in the United States who does not appreciate the unique role in our system played by the Chief Justice of our Supreme Court. Roberts has surely read the history and knows we can count the truly great Chiefs on three fingers – Marshall, Hughes and Warren.

History treats that trio well because each led the Court in new ways during tumultuous times and with a determination to break new ground. Each was a highly political judge and passionately independent. Each evolved over time on the bench and ultimately each rejected the notion that the Constitution is a purely static document that can be applied in 2012 the same way it was in 1787.

If nothing else, Chief Justice Roberts may find – he’s a young and energetic 57 with many years left to lead a Court – that his historic decision in NFIB v. Sebelius is a liberating moment for him. Roberts may now have the liberty to find his own path to history, separate from either the four liberals or four conservatives on his Court, and that journey may have begun today.

P.S. – I predicted in passing earlier this week that the Court would strike down the Affordable Care Act. Like Winston Churchill said, I have often had to eat my words and always find it a wholesome diet!


Guest Post

My Call from No. 15

A guest post today from my Gallatin colleague Randy Simon.

At this point in my life I like and appreciate my morning office routine. I turn on the computer, fix a cup of coffee and check the daily headlines before tackling the day’s tasks. Call me a creature of habit, but I typically don’t like early morning surprises unless of course they involve getting a phone call from Green Bay Packer legend Bart Starr.

Which is exactly what happened today.

Halfway through my coffee and the phone rings showing a 205 area code. Like most people I’m hesitant to answer an unfamiliar number, but this time I’m glad I did.

“This is Randy”

“Hi Randy, its Maggie from Bart Starr’s office. Bart would like to speak with you.”

“Um, err, yeah, I mean yes, that would be great.”

“Hi Randy its Bart Starr, how are you?”

At this point I wanted to say, “Are you kidding me? Bart Starr? The guy who was the MVP of the first two Super Bowls and arguably the most recognizable quarterback in the history of the NFL. I’m great! In fact I’m awesome now that I’m talking to you,” but I managed instead to squeak out, “I’m well Mr. Starr, how are you?”

“Call me Bart. Mr. Starr is too formal.”

What ensued was an incredible 15 minute conversation with an NFL legend and Hall of Famer, who at 78, is still on top of his game.

For the past few months we’ve been working with Alicia Kramer to help her dad, Jerry Kramer, another Packer legend receive what is well over due – induction into the Pro Football Hall of Fame. Marc Johnson, who usually writes in this space, wrote a convincing piece recently about why Kramer is so deserving of Hall of Fame recognition.

As part of our effort to secure support for Jerry, I had recently sent Bart a letter asking for his endorsement. I never expected a phone call, but was happy to hear that Bart has been sending letters to the Hall of Fame voters for several years endorsing Kramer’s nomination. Like us, Bart still can’t believe Kramer has not been inducted – and he should know. Bart had the best seat in the house to watch Kramer leading the way on those famous “Packer Sweeps.”

Bart is still an icon and continues doing things the right way. To this day, if you donate any amount of money, no matter how small the amount to his charity Rawhide Boys Ranch, he will sign the memorabilia you send him and pay the postage to return it to you.

Now, he’s repaying Kramer and backing a teammate who had his back for so many years. It’s a conversation I will never forget.

I wish everyday started this way.

By the way, you can support the Kramer to the Hall effort by sending your own Bart Starr-like endorsement to:

Pro Football Hall of Fame 
Attn: Nominations 
2121 George Halas Drive N.W. 
Canton, OH 44708



Endless Money

Corporations Really Are People

While the nation holds its collective breath over the fate of Obamacare (hint, it’s going down) the conservative judicial activists on the U.S. Supreme Court have affirmed their original controversial decision that its just fine to have unlimited and often undisclosed corporate money flow into our political system.

At issue in the case summarily disposed of Monday was a Montana Supreme Court decision that attempted to uphold the Treasure State’s 100-year plus ban on corporate money in state elections.

The Court’s five man majority reversed the Montana court decision and reminded all of us of the essence of its earlier ruling in the now infamous Citizens United case.  “Political speech does not lose First Amendment protection simply because its source is a corporation,” the majority said in an unsigned, one-page ruling.

Turns out that Mitt Romney was right, corporations are people, at least when it comes to spending political money that the Court equates with free speech protections under the First Amendment.

The Montana Attorney General, among others, had argued that the state’s special, if not unique, history of corporate influence – and in the early 1900’s corporate control – over Montana politics required a special remedy, namely banning corporate money from state races. The law dates back to when Copper King William A. Clark literally bought himself a seat in the United States Senate using the vast wealth he accumulated from his mining interests in Montana. Fast forward a hundred years and Karl Rove and others are using the opening created by Citizens United to use their free, if not inexpensive, speech rights to try and buy a president, a United States Senate and a few governors for good measure.

Remarkable how history has a way of repeating itself.

More interesting than the one-pager from the “conservatives” on the Court who show such respect for precedent that they overturned 100 years of settled law in the Citizens case is the dissent from Justice Stephen Breyer, who apparently has been reading the newspapers.

Breyer wrote: “Montana’s experience, like considerable ex­perience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do

Justice Breyer’s concern about the corrupting influence of money, even if it is only the appearance of corruption, is at the cold heart of this issue and the evidence is everywhere to be seen.

Mitt Romney invited a few hundred of his biggest donors over the weekend to a closed-to-the-press gathering in Park City, Utah. The donors were treated to the kind of face-time with the candidate that Joe and Jill Six-Pack could never hope to get. Also in attendance was the head of the pro-Romney Super PAC Restore Our Future. Our Swiss cheese-like campaign finance laws say Charlie Spies, the Super PAC leader and a D.C. lawyer, can’t legal “coordinate” with the campaign even as the television spots he is paying for mirror the campaign’s messages. But, apparently it is alright for Mr. Spies to camp out in the lobby of the hotel were the Romney event was taking place to see and be seen by those coming and going.

It brings to mind the great line from the movie Casablanca. The Vichy French police official Captain Renault, played by Claud Rains, announces that he is “shocked, shocked” that gambling is going on in Rick’s Cafe just as a croupier hands him his winnings for the night. The Super PAC’s will be the real story of the 2012 election and no one should be shocked that the charade of separation of candidates from PAC’s is as much a fiction as the Easter Bunny.

And, of course, Democrats do it, too. Republicans may just be better at attracting the kind of donors who will spend a few billion on a campaign. Both parties share the guilt for allowing this money in politics situation to spiral completely out of control.

Following the political money scandal that grew from the Watergate break-in just 40 years ago, the Congress, responding to popular outrage, made a stab at reforming campaign finance laws. (It’s worth remembering that Watergate, arguably the greatest political scandal in our history helped reveal the extent to which corporate money was being utilized by Richard Nixon to maintain his hold on the White House.)

The U.S. Supreme Court has sent a clear signal with its refusal to reconsider Citizens United that the sky is the limit when it comes to money in politics. Six billion is the estimate for this cycle and at the rate this trend is expanding it will be $12 billion in four more years.

Ironically, its not really the money that individuals give to candidates that is the major cause of worry in this case. But rather the unregulated, often unreported, no-limits funding of causes and candidates by those with the deepest pockets. That is what casts grave doubt, as Justice Breyer says, on the very essence of a democracy. Do the people chose the leaders or do the most well-to-do individuals and corporations chose?

Nothing succeeds like excess, they say, and by that standard the unregulated, uncontrolled campaign finance system in the United States is succeeding like never before.

As Captain Renault would say, “Round up the usual suspects.”


The Problem Post

Corruption at the Justice Department

When U.S. Attorney General Eric Holder, as now seems likely, is held in contempt of Congress in the next few days he will join a long list of the nation’s chief law enforcement officers who have run afoul of Congress and/or the law.

Whether the fast and furious controversy surrounding Holder is really sufficient to warrant finding him in contempt of Congress is a subject for another day. I will note that in most cases were an Attorney General has gotten seriously crosswise with Congress have been decidedly more bi-partisan affairs than Holder’s. History remembers when the AG offends both parties, not so much when the alleged offense seems more political than pernicious.

At that other extreme, consider the case of Attorney General Harry P. Daugherty. That’s him in the photo. Daugherty was an Ohio pol, campaign manager for Warren G. Harding and up until John Mitchell, Nixon’s AG who went to jail over Watergate, arguably the most corrupt head of the Justice Department in our history.

Harding, of course, is often at or near the bottom of those surveys of the country’s worst presidents. He can thank his friend Harry Daugherty for a good deal of that reputation.

Daugherty was forced to resign as Attorney General in 1923 after a bi-partisan Senate committee conducted a free-wheeling investigation into his leadership at the Justice Department.  Progressive Democratic Sen. Burton K. Wheeler of Montana led the Senate probe even though the Senate was controlled by Republicans. The nominal chair of the Senate Select Committee, a figure now lost to history, but worth remembering, was Iowa Sen. Smith Brookhart, a liberal Republican in the Teddy Roosevelt tradition. Brookhart and Wheeler knew each other, trusted each other and were pretty sure Daugherty was oily or worse. He was.

Wheeler’s investigation was sensational in the full tabloid meaning of the word, including testimony about gambling, girls and bootleg gin. The fact that the investigation of Attorney General Daugherty came in the wake of the equally sensational, and ultimately more important, Teapot Dome investigation, guaranteed that Wheeler and his motley cast of witnesses – a gumshoe, a call girl and various small-time confidence men – would get front page coverage. Daugherty resigned just ahead of an impeachment effort, but went out with his verbal guns blazing. The former Attorney General convinced himself Wheeler was a Communist agent – the foremost commie in the Senate, he said – and a seriously dangerous man. He wasn’t.

In the annuls of Senate history the Daugherty investigation helped establish an enduring principle that ironically allows California Rep. Darryl Issa to put Eric Holder through the wringer today. As part of the Senate investigation of Harding’s attorney general, Daugherty’s brother Malachi or Mal, a small-town, small-time corrupt Ohio banker, was called to testify before Wheeler’s committee. Mal Daugherty refused and was held in contempt. (He eventually went to jail for stealing from his own bank.)

Mal challenged the constitutionality of a Senate committee being able to compel his testimony, the case went all the way to the Supreme Court and the Court held in a unanimous ruling that the power of Congress to investigate and compel appearance by witness was an essential part of the legislative process. Thank a crook and a crooked Attorney General for the enduring principle of the Congressional investigation.

The job of Attorney General is arguably the most controversial in the Cabinet. Harry Daugherty was a small-time pol, likely profoundly corrupt, who should never have had the job. John Mitchell, Nixon’s finance guy, was similar with no particularly distinguished legal career and seeing the job as more about politics than policy or justice. Robert Kennedy, one of the most famous and powerful AG’s, was his brother’s political enforcer and chief confidante. (Can you imagine a president being able to get away today with having his brother at the Justice Department?)

Franklin Roosevelt’s first AG, Homer Cummings, was a political operative first and a not very skillful administrator second. Woodrow Wilson had three AG’s, including the infamous A. Mitchell Palmer, architect of the Palmer Raids that rounded up, mostly under highly dubious circumstances, various alleged radicals in 1919 and 1920 and set off the Red Scare.

The list of truly great Attorneys General is a good deal smaller than those who failed to distinguish themselves in the job. Judge Griffin Bell in the Carter years comes to mind as well as Nicholas Katzenbach in the Johnson Administration and Edward Levi, who distinguished himself in the Ford Administration.

Eric Holder may or may not be the target of an unfair and purely partisan election year attack, laced with just enough gun background noise to really appeal to the GOP base, but if he has studied the history of the Justice Department he should know that being AG almost always entitled the holder of the job to be vilified and hauled before Congress to account for all sorts of misdeeds both real and imagined. Perhaps the current Attorney General can take some comfort in knowing he’s not the first.


Action This Day

The (Almost) Case for Unilateral Action

In September 1940, just in front of the election that would make Franklin Roosevelt the first and only third-term president, FDR engineered an audacious deal with British Prime Minister Winston Churchill.

In exchange for gifting 50 aging, World War I vintage U.S. destroyers to the besieged British, Churchill granted the American president 99 year leases on a number of military bases in the Western Hemisphere. The destroyers for bases deal was loudly condemned by FDR’s critics who called it a raw presidential power play. As critics correctly pointed out, Roosevelt acted on his own motion, going behind the back of Congress to cut his deal with Churchill. History has for the most part vindicated FDR’s power play and many historians think the U.S. actually got the better of the deal.

The 1940 action by Roosevelt may be one of the greatest examples of a president acting unilaterally, but our history is replete with similar examples of presidential action on a unilateral basis. One of Theodore Roosevelt’s gutsy unilateral moves as he was nearing the end of his term created millions of acres of forest preserves – today’s National Forests – and protected the Grand Canyon. Lincoln’s Emancipation Proclamation was an act of presidential leadership that is almost universally praised today, but at the time the Great Emancipator cut Congress out of the loop and acted alone.

Now come criticism of Barack Obama’s unilateral action to order the end of deportations for certain young people who might otherwise be sent packing for being in the country illegally even as they have gone on to get an education, or work in order to become contributing members of our society. Critics charge the president acted for the most transparent political reasons or that he acted unconstitutionally or that he has now made legislative action on immigration more difficult. That last charge seems a particularly hard sell given the inability of Congress to act at all regarding immigration, but the real beef with Obama is that he acted alone.

Jimmy Carter used presidential action to protect the environmental crown jewels of Alaska, an action that ultimately forced Congress to get off the dime on that issue. Harry Truman informed Congress, but did not seek its approval regarding his 1948 decision to desegregate the U.S. military.

Of course all presidents overreach, but most do so by acting unilaterally in the foreign policy field, and that a place were unilateral action is often decidedly more problematic, at least in my view. It may turn out that Obama’s immigration action will be successfully challenged in a court of law or the court of public opinion, but don’t bet on it. I’m struck by how often in our history when a president has taken a big, bold step on an issue were Congress can’t or won’t act that the bold step has been vindicated by history.

The American people have always tended to reward action over inaction. Ronald Reagan’s unilateral decision to fire striking air traffic controllers near the beginning of his presidency in 1981 is a good example. Now celebrated, by conservatives at least, as a sterling example of a president acting decisively in the public interest, the decision was enormously contentious at the time it was made. Now its mostly seen as an effective use of unilateral action by a strong president.

The early polling seems to show that Obama’s recent “dream act-like” action on immigration is widely accepted by the American public. The lesson for the current occupant of the Oval Office, a politician who has displayed little skill in getting Congress to act on many issues, might be that a little unilateral action on important issues is not only good politics, but good government.

George W. Bush got this much right about the power of the presidency: the Chief Executive can be, when he wants to be, the decider on many things. The great Churchill frequently demanded “action this day” in his memos to subordinates. The great wartime leader knew that power not used isn’t worth much; but action properly applied is indeed real power.



Steroid Era

Not Guilty as Sin

So the Rocket walks and baseball’s long twilight struggle with performance enhancing drugs slips slowly, slowly away, while the real guilty parties are still very much at large.

As Mike Barnicle, one of the few people who will actually admit to liking Roger Clemens suggested this morning that the government failed to convict the big right-hander of lying to Congress because the line-up for those guilty of that offense is just too long.

Of course most everyone thinks Clemens did use the stuff, but 12 jurors obviously thought lying about it was the sports equivalent of “I didn’t have sexual relations with that woman.” And besides, why nail the Rocket when everyone else it seems was juiced, too? There is even a website devoted to the steroid era. You can look up your favorite abuser.

It’s time, in the view of this baseball fan, to call a halt to more federal government efforts to prosecute these cheaters. They deserve – Clemens, Bonds, McGuire, Palmeiro and all the rest – the judgment of history more than the judgment of courtroom and I say that as one who believes the cornerstone of our justice system is the simple act of telling the truth.

So now the discussion turns to whether Clemens, Bonds and others will get the hallowed pass to Cooperstown. I’m of two minds on the Hall of Fame question. On the one hand, these guys cheated and sullied their own and the reputation of the greatest game. On the other hand, if Roger Clemens was pitching with an unfair advantage then guys were hitting against him with the same unfair advantage and perhaps we should leave it at that. Call it the baseball law of all things even out.

And there is this: like most revered American institutions, baseball hasn’t exactly displayed a historic level of purity that would compare the locker room or the area between the lines to a convent. The game has been dirty in one way or another since African-Americans couldn’t play it at the ultimate level, since the Black Sox threw a World Series and before Curt Flood broke the no-free-agency strangle hold of the owners.

One reason we love this game is that baseball is a window into the larger American experience. Our history is full of scoundrels, cheats and nasty, greedy owners. Ty Cobb, just to name one scoundrel, is in the Hall and my mother wouldn’t have let him in the house. And maybe the steroid era is just the unavoidable late 20th Century response to the larger society’s fixation with the notion that a pill – or an injection – is available that will fix everything from your erectile dysfunction to your depression.

Want to hit a few more home runs? While there may be a few nasty side effects, the fences are reachable. You half expect to see the commercials during the network evening news. “I’m Roger Clemens and when I need a little something extra…”

Sport has imitated life.

The real villains of the steroid era, of course, really aren’t the Rocket or Bonds or McGuire, but the owners and traffic cops of baseball who looked the other way or elected to bury their heads. Remember the juice-stoked McGuire-Sosa home run competition in 1998? Most of us ate it up. So did Bud Selig.

“I think what Mark McGwire has accomplished is so remarkable, and he has handled it all so beautifully, we want to do everything we can to enjoy a great moment in baseball history,” said the Mr. Tough-on-Drugs Commissioner.

The fans – yours truly included – loved those big bashers. The fault, dear Brutus, is not in our stars, but in our lust for strikeouts and the long ball. We all share some responsibility for celebrating accomplishments that we can now so clearly see really were too good to be true.

I don’t vote for the Hall of Fame, but if I did I’d mark a ballot for Clemens and the arrogant Bonds, too. They were dirty, but so was so much of the game. Here’s hoping the owners and their lackey commissioner really have taken the steps necessary to clean the game. But as for wiping the slate clean in the steroid era, well that’s for the fans of baseball to reckon with.

Twenty-five or 50 years from now when we look at the record book we won’t need an asterisk to tell us that for a few juiced up years the game was played by players with skills enhanced beyond all reason and unfairly so. Such a realization is now a part of the game that we still love.

Baseball is bigger than Roger the Rocket or Barry the Jerk. Always has been. A bunch of pumped up, big ego players and greedy owners can’t kill it even though they have tried over and over again. Baseball is like the country. With all its faults, it carries on and on.