2016 Election, Campaign Finance, Health Care, Supreme Court

Historic

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!

 

2012 Election, 2016 Election, Campaign Finance, Minnick, Poetry, Supreme Court

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
so.”

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.”

 

2012 Election, Al Gore, Campaign Finance, Minnick, Poetry, Theodore Roosevelt

It’s the Money, Stupid

A Hundred Years of History

On the presidential campaign trail in 2008, Arizona Sen. John McCain regularly invoked Theodore Roosevelt as his role model. “I count myself as a conservative Republican, yet I view it to a large degree in the Theodore Roosevelt mold,” McCain told the New York Times in 2008.

Channeling T.R. certainly has appeal for both Republicans and Democrats. Who other than perhaps a small-government Libertarian wouldn’t want to associate with the memory of one of the four presidents on Mt. Rushmore, a man arguably one of the greatest of the great presidents?

But by invoking Roosevelt as a model, McCain, in very many ways an exemplary individual and once upon a time a true maverick, is guilty of historical malpractice. The politics of our nation’s capitol today, and the distinguished senator from Arizona is part of it all, are as removed from the democracy Teddy Roosevelt embraced as Phoenix is removed from an ice flow. One need only look at this week’s news to understand the difference.

JPMorgan Chase CEO Jamie Dimon waltzed into and out of a Senate Banking Committee hearing Wednesday suffering hardly a PR scratch despite the $2 billion plus his bank lost recently in risky financial bets. Washington’s favorite big banker did comment that some of his current and former underlings at the nation’s biggest (or maybe second biggest) financial institution might have to return some of their compensation and Dimon smoothly quoted Harry Truman on where the buck stops. (No commitment from the buck stops here guy as to whether any of his paycheck might be in jeopardy.)

In the big picture, as Congressional hearings go, Jamie Dimon before the Senate Banking Committee was a Beltway cake walk.  South Carolina Sen. Jim DeMint helped set the tone when he said to the banker, “The intent here is really not to sit in judgment.” Got it.

It is substantially easier, I guess, for members of Congress to ask tough questions of former baseball players who might have used certain banned substances than to ask a really tough question of the biggest banker on Wall Street in the wake of the biggest financial crisis in 75 years. I wonder if Rafael Palmeiro, the steroid-abusing, once-a sure-thing Hall of Fame baseball player, who testified under oath before Congress about his transgressions was glued to C-Span for Dimon’s questioning? Palmerio a small-time drug abuser got the wire brush treatment. Jamie Dimon a big-time player who has opposed many regulations of the banking industry got an air kiss.

The other big money news this week was that Las Vegas casino mogul Sheldon Adelson has decided to further exercise his free speech rights and start spending millions on the Super PAC backing Mitt Romney. The numbers are stunning. So far, Adelson has written checks for $35 million and his minions tell Forbes he may be in the campaign for “unlimited” amounts.

There seems to be little doubt now that the 2012 election will involve billions – billions with a B – of dollars in unregulated, often unreported money from literally a handful of high rollers who, because of their personal financial balance sheets, are able to lavish dollars on the candidates and causes they support – or oppose.

In terms of the presidential election the United States has become, or is dangerously close to becoming, a Banana Republic where the biggest checkbook wins the day. Oligarchs spend money, control the media and determine the course of Russian politics. Can we seriously be that far away? Even the campaigns that benefit from all this lavish spending must be wondering if they can control the essential messages of their own campaigns when some kazillionaire has decided to fund a political action committee and own a few television stations.

All of this has happened thanks to the U.S. Supreme Court’s ruling in the now infamous Citizens United case and that bring us full circle back to Teddy Roosevelt. The Supreme Court, by a 5-4 margin, opened the floodgates to all the unregulated, independent and corporate spending by overturning a century of established law, a law dating back to – that’s right – the Old Rough Rider.

Roosevelt, of course, famously spoke of the threat imposed upon a democratic society by what he called “malefactors of great wealth,” but he also said, “The death-knell of the republic had rung as soon as the active power became lodged in the hands of those who sought, not to do justice to all citizens, rich and poor alike, but to stand for one special class and for its interests as opposed to the interests of others.”

As to the big banks, Roosevelt – he was the Trust Buster after all – would not have stopped at bemoaning their enormous influence over our economy and public policy. JPMorgan and the other top four biggest banks essentially control 56% of the entire U.S. economy. Roosevelt would have acted, he would have broken up the biggest banks in the interest of a capitalist system that resists giving so much control of the economy to so few people.

But that approach is not an option in these times, even given the continuing danger to the U.S. and world economy presented by JPMorgan-like risk taking. Mention breaking up the big banks or re-regulating them as T.R.’s distant relative did in the 1930s and you won’t be invited back to a Georgetown cocktail party.

In his justly famous New Nationalism speech in 1910 – President Obama tried and mostly failed to capture some of the same Rooseveltian quality in his own recent economic speech – the 26th president said:

“At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth. That is nothing new.”

It is nothing new. Just over a hundred years ago, the United States had a political leader summoning the country to a higher standard of accountability and behavior. T.R. was a trust buster and an advocate for reducing the enormous reach of money in our politics. There is no one sounding his clarion call today, or if they are their voices are lost in background noise that only money can buy.

Ask yourself, “What would T.R. do?” The great president’s record from 100 years ago tells us and the answer has almost nothing to do with what is happening in our politics in 2012.

 

 

2012 Election, 2016 Election, American Presidents, Campaign Finance, Health Care, Minnick, Obama, Supreme Court

Supreme Power

Courts, Controversy and Conservatives

There is an old and respected approach to judicial review of controversial and essentially political issues that holds that judges should do almost everything possible to avoid wading into the dense thicket of politics.

If Chief Justice John Roberts and his fellow conservatives on the U.S. Supreme Court were really conservative they would rule on the controversial Affordable Care Act (Obamacare) on the narrowest possible grounds. They might even seriously considered not ruling on the merits of the law under the old and accepted principle that the case is simply “not ripe” for adjudication since no one – at least not yet – has been “harmed” in the legal sense by the health insurance mandate and other aspects of the still new law.

Hardly anyone thinks either of those approaches is likely from the Roberts Court, particularly after last week’s marathon hearings. You will get even money today that Roberts will lead his thin 5-4 conservative majority in the direction of at least ruling the mandate unconstitutional. The odds are a bit longer that the Court will throw out the entire law. As they say, time will tell.

What interests me today is what President Obama, the former constitutional law professor, will do if the high court strikes down all or part of his signature accomplishment? A little history may be instructive; history I suspect Professor Obama knows well.

The most striking parallel to the current situation happened in 1935. The then conservative dominated Supreme Court declared unconstitutional the signature domestic piece of President Franklin D. Roosevelt’s legislation to battle the Great Depression. Chief Justice Charles Evans Hughes, every bit as much if not more a politician than Roberts, assembled a unanimous Court – including three real liberals – to deep six key features of FDR’s National Industrial Recovery Act.

Roosevelt was brought low by a famously modest case –Schechter Poultry Company v. United States – a decision that prompted the great liberal Justice Louis Brandeis to remark to an FDR associate that the case marked the end of “this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Given that sentiment, Brandeis, were he on the Court today, might just be a vote against Obamacare.

Roosevelt’s reaction was, of course, to blast the Court as living in “a horse and buggy” era with regard to the Commerce Clause of the Constitution and after his re-election FDR attempted, with disastrous consequences, to enlarge the Supreme Court. Roosevelt’s ideas about “judicial reform” were so outrageous that no president since has dare even suggest action to limit the scope or change the make-up of the Supreme Court. Instead we now fight epic battles over every new justice who is appointed and partisan political considerations, never far removed from judicial nominations, is now guaranteed to be front and center.

Obama will not, I predict, pull a Roosevelt. He knows, as the wise Jon Meacham wrote recently, “Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.”

Obama could, in theory, dust off some really old ideas and suggest a Constitutional amendment, as the great Wisconsin Sen. Robert La Follette did in the 1920’s, that would allow Congress to overturn Court decisions or, under certain circumstances, put Supreme Court decisions up to a popular vote. Of course, President Obama won’t do anything of the sort.

Obama is then really only left with the power of persuasion. He might suggest, as one wag did, that when the opportunity for insurance coverage for millions disappears they take their complaints to Antonin Scalia. Better yet, Obama could begin a real national conversation – including involing United States Senators who approve Supreme Court nominees – about the kind of Supreme Court the nation needs in the 21st Century.

You have to hand it to Republicans, they have been running against the Court for years. What prominent GOP lawmaker doesn’t have the talking points down regarding “activist, liberal judges” who legislate from the bench? That line of political positioning has been enormously successful in positioning a very conservative majority on the current Supreme Court to get away with precisely what conservatives have been critical of for years – legislating from the bench.

Set aside for a moment the merits of the Affordable Care Act and merely consider what some of the justices from the left and right said last week. As columnist E.J. Dionne noted, Justice Samuel Alito sounded like a House subcommittee chairman quoting Congressional Budget Office figures and wondered whether the government could mandate that we all have burial insurance, while Scalia went off with a weird analogy about the government mandating broccoli. The liberals didn’t comport themselves much better with some commentators noting that they tried to come to the rhetorical aide of the Obama Administration’s Solicitor General who had trouble at times articulating the best arguments in favor of the law.

But judges aren’t supposed to be super legislators, they shouldn’t care about policy or vote counting (beyond counting to five) and they have no business trying to bail out a lawyer who is fumbling his case. Such behavior paints the entire Court with an activist brush. What is needed with the current case, and I would suggest with the money in politics case Citizens United and the who will be president case Bush v. Gore is real, reasoned judicial restraint.

The Court has a legitimate role in the health care case in defining – or refining – the scope of the Commerce Clause, but the justice could also acknowledge the obvious. We’ll have an election in a few months where Obamacare will be one of the fundamental issues. All the Republican candidates say they want to repeal the law. Democrats will fight to keep it. That is the kind of messy and important debate we have elections to resolve. Real judicial restraint would find the Supreme Court – conservatives and liberals – searching for a super majority way to rule narrowly and leave the politics to those who are elected to vote on policy questions.

If the Court overturns the health care legislation, the president will undoubtedly take issue with the decision, but he ought also to use the moment to educate more broadly about how judges should approach their jobs, the Court’s sacred status notwithstanding.

 

2012 Election, 2016 Election, Al Gore, American Presidents, Campaign Finance, Gingrich, Minnick, Obama, Pete Seeger, Poetry, Politics, Romney, Supreme Court, Theodore Roosevelt

A New Gilded Age

A System Awash in Money

If Mitt Romney wins the Florida primary Tuesday, as now seems likely, the media scrum following his every move will no doubt credit his win to his new-found aggressiveness in taking on Newt Gingrich, including his clearly superior debate performances during the week leading up to the vote. But that explanation will only be part of the story.

Additional credit for Romney’s rebound from what looked like near disaster in South Carolina must go to the faceless, if not altogether nameless, pro-Romney Super PAC – Restore Our Future. The Super PAC has lavished millions on the Sunshine State to help restore the future of Mitt’s campaign. Of course, Romney is not alone in enjoying the largess of a well-heeled Super PAC. Gingrich has come to depend for television exposure in the dispersed and expensive Florida market on the Super PAC that supports him – Winning Our Future. Other less well financed Supers are supporting Rick Santorum and Ron Paul and a Super PAC supporting Barack Obama is waiting patiently in the wings.

There are so many sleazy angles to the Super PAC story it is difficult to create a priority list of all the real and potential outrages. We are now into the second year of this new 21st Century reality of unlimited, corporate, and often secret money perverting what were our already money drunk campaigns.

Still in fact what seems like a new reality is really an old American tradition; a tradition of unlimited corporate money in campaigns that dates back more than 100 years to what came to be called the Gilded Age. So, remembering the old admonition that those who cannot remember the past are doomed to repeat it, we have effectively arrived at a new Gilded Age in the year 2012. It’s not necessary to be a good government, goody two shoes to worry that the very nature of our democracy is changing in ways that are profound and deeply troubling in this new age.

As the American Enterprise Institutes’ Norm Ornstein wrote recently in The Hill, the 2010 U.S. Supreme Court decision in the Citizens United case – that’s the now infamous ruling were the Court’s majority overturned a century of settled campaign finance law, allowed unlimited corporate and labor union money to flow to Super PAC’s and equated money with free speech – has put our politics more and more into the hands of the 21st Century captains of the new Gilded Age.

“By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy,” Ornstein wrote. “Candidates no longer can focus simply on raising money for their campaigns against other candidates. Because corporations have almost unlimited sums they can put in with no notice, candidates have to raise protection money in advance just in case such a campaign is waged against them.”

The website OpenSecrets.org reports that the Romney aligned Super PAC has spent more than $17 million so far, most of it to attack Gingrich. Here’s where the perversion begins. Big money donors give unlimited amounts to the Super PAC’s, often attempting to conceal the real source of the cash, but nonetheless maintaining the ability to curry favor with the candidate supported by the big PAC. One has to be awfully naive to believe that a $1 million donation doesn’t buy more than a thank you note.

One example: Utah news organizations have reported that two Provo, Utah companies listed as $1 million contributors to Restore Our Future don’t really seem to be companies at all.

“Companies called Eli Publishing and F8 LLC contributed $1 million each to Restore Our Future,” Utah television station KSTU reported last August. “The companies share an address in downtown Provo and the super-PAC received the money from both on the same day.” The address listed for the companies, according to the TV report, was an accounting firm where employees said they had no knowledge of the businesses.

Other Romney Super PAC donors aren’t so obscure. John Paulson a New York hedge fund manager is in for $1 million. Forbes magazine lists Paulson as the 17th wealthiest guy in the world, worth $15.5 billion, which begs the question: why only a million bucks?

J.W. and Richard Marriott, the hotel guys, are into the Romney PAC for a half million each. Until a year ago, Romney served on the Marriott board. The CEO of New Balance athletic shoes is a half million dollar contributor, as is the managing partner at Romney’s old Bain Capital firm. That fellow’s wife shelled out her own $500,000.

Clearly the Romney-aligned Super PAC hasn’t had to look under many rocks to turn up millions. These dollars aren’t falling far from the tree, which is one reason all this Super PAC business has the real potential to be so sinister. The candidates all regularly proclaim that they have no connection to the Super PAC’s who are raising and spending so freely on their behalf. Federal law prohibits coordination between the campaigns and the PAC’s they say, but the line that separates the campaigns from the big corporate money certainly isn’t a very bright line.

USA Today reported over the weekend about the remarkable “coincidence” of the message in Romney’s speeches on the stump matching up with the anti-Gingrich television ads Restore Our Future is putting on the air. Of course, the two organizations don’t need to really coordinate since the PAC’s are run, in every case, by former close aides and associates of the candidates. But the no coordination mandate helps maintain the fiction that all this is happening at arm’s length and that there is no quid pro quo involved for the millionaire and billionaire contributors.

Gingrich’s Super PAC is, of course, mostly funded by an extraordinarily wealthy Las Vegas casino owner Sheldon Adelson and his wife Marion. Adelson says his support for Gingrich is easy to explain. He is a long-time friend of Newts and values the former Speaker’s vocal support for Israel, a cause near and dear to the Adelsons. But, of course, nothing is that simple in politics. Adelson’s international casino empire has vast interests in public policy and since early last year Adelson’s company has been under investigation by the Securities and Exchange Commission, which is reportedly looking into violations of the Foreign Corrupt Practices Act.

So, you might ask: what does the fact that all these very rich, very well connected, very politically interested corporate leaders have to do with a new Gilded Age? Isn’t this just the way politics has always worked? Maybe the only thing different is the amount of money involved.

Maybe the only thing different is the amount of money involved and the fact that thanks to the Supreme Court’s ruling in Citizens United these vast amounts of corporate dollars can flow unregulated into the political process. We have gone back to the future, back to the first Gilded Age at the end of the 19th Century.

University of Texas historian H. W. Brands wrote his book Reckless Decade: America in the 1890’s in 1995. In an interview with C-SPAN’s Brian Lamb, Brands nailed the essence of why corporate money in politics has such a potentially corrosive effect.

“Any capitalist economy,” Brands said in the C-SPAN interview, ” is based on the notion of economic self-interest. And, you know, if you put it another way, you can — if you’re not being too complimentary, you can call it greed. And our economy runs as much on those lines as it did back then [the 1890’s] – maybe not quite as much. There’s a government safety net now to deal with those people who were falling out the bottom of the economy during the 1890s. But, certainly, I mean, the idea of profits, and I’m certainly not going to criticize profit. But, nonetheless, the idea of economic self-interest is definitely as much a motive.”

The question to ask of our democracy in this new Gilded Age is how any candidate, no matter how well-intentioned, no matter how honest, can escape the human impact of a well-heeled friend donating a few million to help get him elected?

And granting that the casino owners, the hotel operators, the unions and the guy running the non-business businesses in Utah may truly value the particular approach and policies of a particular candidate, we also can’t deny that each has a self-interest. We all have a self-interest, but not all of us can buy so much free speech or so much access.

Justice Anthony Kennedy rather unbelievably wrote in his opinion in the Citizens case,  “[The Court majority] now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

You wonder if Mr. Justice Kennedy has been following the campaign so far.

At a time when growing concerns about income distribution in America collide with a mounting distrust of most of our national institutions, including corporations, the Congress and the Presidency, the Supreme Court has, by opening the flood gates to unlimited corporate money in our elections, given us even more cause to doubt the fairness and sustainability of our democratic system.

As H.W. Brands noted in his history of the first reckless decade in the 1890’s, the greed and corruption that seemed to seep into every facet of America life in the first Gilded Age became so serious that only two political alternatives seemed possible – revolution or reform. Thankfully, the country took the path of reform and Theodore Roosevelt and Woodrow Wilson ushered in a Progressive Era in response to the Gilded Age.

One of T.R.’s Progressive Era reforms was to ban corporate money from political campaigns. That ban lasted for 100 years. That ban ended, and a new Gilded Age began, with a breathtakingly impactful Supreme Court decision two years ago.

As one of the beneficiaries of the excesses of the Gilded Age, Tammany political boss George Washington Plunkett, famously said, there is dishonest graft and honest graft. Plunkett went in for the honest variety. As he said, “I might sum up the whole thing by sayin: I seen my opportunities and I took ’em.”

 

2012 Election, Campaign Finance, Minnick, Poetry

Colbert Explains It

Super PAC’s: Crazy + Funny = Absurd

Comedy Central’s Stephen Colbert eased, sort of, into the South Carolina primary on his show last night, but not before first handing off his Colbert Super PACto his buddy and equal opportunity political funster Jon Stewart.

The exchange the two brilliant satirists had about Super PAC’s, how they can’t be coordinated with a candidate (har, har), but can be run by a business partner or even, as is the case with Mitt Romney and Barack Obama, former staff members, is a better – and more damning – indictment of the absurd state of American political campaign finance than you’ll find on any “real” news broadcast.

Colbert signed off his show last night, following a balloon drop, by throwing a kiss to Citizens United, the U.S. Supreme Court decision in 2010 that opened the flood gates for unregulated, mostly undisclosed spending in our political campaigns.

Laugh along with Colbert, but worry at the same time about the state of our politics where the loudest voice on television – defined by who can collect the most money and keep its source the greatest secret – is shaping our elections.

 

 

2012 Election, American Presidents, Baseball, Campaign Finance, Clinton, Minnick, Montana, Obama, Pete Seeger, Poetry, Politics, Romney

Following More Money

Are Corporations People, My Friend?

It is rare – very rare – that a state Supreme Court rises up on its hind legs and says to the United States Supreme Court we think you blew it.

Yet, that is pretty much what the seven member Montana Supreme Court said just before the New Year with a decision that seems sure to get the ultra-controversial Citizens United corporate campaign finance case back before John Roberts and Company very soon.

Citizens United is the case, you will recall, that President Obama denounced in his State of the Union speech. The U.S. Supreme Court’s January 2010 decision, decided 5-4, not only overturned a century of settled campaign finance law, but served to midwife the unprecedented level of unregulated and mostly undisclosed spendingof the so called Super PAC’s in the current Republican presidential primary process.

According to recent news reports, Newt Gingrich was on the blunt end of more than $4 million in such spending by a group with close ties to Mitt Romney that certainly contributed, if not caused, Gingrich’s dramatic shellacking in the Iowa caucuses. This political nuclear warfare has now moved on to South Carolinawhere Super PAC’s aligned with Gingrich, Rick Santorum and other candidates are going after Romney.

As Romney might say, “politics ain’t bean bags,” so what’s the problem here? The Montana Supreme Court tried to answer that question in its recent ruling involving similar, shadowy, state-level, secret groups intent on influencing election outcomes in a state that historically knows a thing or two about political corruption.

The Montana Court, in a 5-2 decision, upheld the constitutionality of the state’s 99 year old ban on corporate contributions in state races. In doing so, Chief Justice Mike McGrath delved deeply into the history of political corruption in Big Sky Country citing historical works by the great Montana historians K. Ross Toole and Mike Malone. The Judge referenced the notorious Montana “war of the cooper kings,” the extraordinary corporate influence that the Anaconda Mining Company once held over Montana, and the notorious case of William Andrews Clarkwho used his vast corporate wealth to bribe his way into the United States Senate. Here’s one section of McGrath’s opinion:

“W.A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the United States Senate. In 1899, in the wake of a large number of suddenly affluent members, the Montana Legislature elected Clark to the U.S. Senate. Clark admitted to spending $272,000 in the effort and the estimated expense was over $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an investigation by the U.S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him. The Senate committee ‘expressed horror at the amount of money which had been poured into politics in Montana elections…and expressed its concern with respect to the general aura of corruption in Montana.'”

Chief Justice McGrath then continued his fascinating history lesson, “In a demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to leave the state on a ruse and, with the assistance of the supportive Lt. Governor, won appointment to the very U.S. Senate seat that had just been denied him. When the Senate threatened to investigate and unseat Clark a second time, he resigned. Clark eventually won his Senate seat after spending enough on political campaigns to seat a Montana Legislature favorable to his candidacy.”

You have to wonder if John Roberts or Samuel Alito has ever read that little bit of American history. The Montana law upheld in the state court’s decision was passed in the wake of the Clark scandal and has been on the books for nearly a century, a detail with wicked similarity to the Teddy Roosevelt-era federal law banning corporate money that was overturned in Citizens United.

In his opinion in the Montana case, McGrath asks the obvious question that applies at both the state and federal levels. “The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?”

The group that sought to skirt the Montana corporate ban wasn’t very subtle about its aims. “As you know,” the group called American Traditions Partnership said in its appeal for money, “Montana has very strict limits on contributions to candidates, but there is no limit to how much you can give to this program. No politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”

American Traditions has said it will appeal the Montana decision.

Two Montana Supreme Court judges dissented and made the case, as indeed may be all too correct, that a state level court is bound to live with a U.S. Supreme Court decision, even as it tries to reason its way around why a state has a compelling interest in regulating its own elections with laws based on its own unique history.

But even in dissent, Montana Justice James C. Nelson expressed outrage at the U.S. Supreme Court’s 2010 decision. “Corporations are not persons,” Nelson wrote. “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people — human beings — to share fundamental, natural rights with soulless creatures of government.”

Incidentally, Nelson was born in Moscow, Idaho and graduated from the University of Idaho.

The faux talk show host Stephen Colbert has created his own Super PAC to poke serious fun at this supremely serious business. Even the name of Colbert’s PAC, – “Making a Better Tomorrow, Tomorrow” PAC – is an effort to show how the uplifting sounding names of these entities usually hide real motives. They might better be called “The Committee to Assault Mitt Romney” or “The Barack Obama Walks on Water PAC.”

The whole point here – re-enforced by the U.S. Supreme Court in Citizens United – is secrecy and unlimited money.

Colbert’s PAC, to make a point with absurdity, recently put up television ads supporting the owner’s side in their dispute with the N.B.A. players association. As the New York Times reported in a fascinating magazine cover story on Colbert last Sunday:

“These [ads] were also sponsored by Americans for a Better Tomorrow, Tomorrow, but they were “made possible,” according to the voice-over, by Colbert Super PAC SHH Institute. Super PAC SHH (as in “hush”) is Colbert’s 501(c)(4). He has one of those too — an organization that can accept unlimited amounts of money from corporations without disclosing their names and can then give that money to a regular PAC, which would otherwise be required to report corporate donations. ‘What’s the difference between that and money laundering?'” Colbert delightedly told the Times.

“In the case of Colbert’s N.B.A. ads, the secret sugar daddy might, or might not, have been Mark Cuban, the owner of the Dallas Mavericks, who has appeared on the show and whom the ads call a ‘hero.’ We’ll never know, and that of course is the point. Referring to the Supreme Court ruling that money is speech, and therefore corporations can contribute large sums to political campaigns, Colbert said, ‘Citizens United said that transparency would be the disinfectant, but (c)(4)’s are warm, wet, moist incubators. There is no disinfectant.'”

Exactly. Montana knows something about the need for political disinfectant. Stay tuned and, if you want to understand Citizens United in actual practice, read the reasoned, informed, context rich, real world opinions of the Montana justices on both sides of this fundamentally important issue.

 

2012 Election, American Presidents, Campaign Finance, Minnick, Obama, Paul, Pete Seeger, Poetry, Political Correctness, Romney

$$$$$

Following the Money

With two wins in a row in the hip pocket of his blue jeans, Republican presidential hopeful Mitt Romney heads to South Carolina today to try and wrap up the GOP contest. Gauging by the most recent information from the Federal Elections Commission (FEC), Romney already has won the Republican money race in the Pacific Northwest.

The Republican nominee-in-waiting far outpaces his GOP rivals when it comes to raising money in Idaho, Montana, Oregon and Washington.

Idaho is clearly Romney country. As of the end of September last year, Romney had raised more than $336,000 in Idaho with more than a third of that total coming from heavily Mormon eastern Idaho. Romney, who hails from a pioneer LDS family in Utah, has raised about $130,000 in the Idaho Falls and Pocatello media markets and nearly $60,000 more in south central Idaho’s Magic Valley.

[I’m not always sure what the FEC really does, but the Commission has created a spiffy website where you can track contributions by zip code and find the names of individual contributors. At the site, you can click on a map of any state, select the drop down menu for the candidate you want to check and see details of the candidate’s haul in that state.]

Romney is doing almost as well raising money in Idaho as he is in much more populous, but much more Democratic Washington State. Romney leads all the GOP candidates there with $346,000 raised through the end of September, even though the Washingtonians for Mitt Romney blog hasn’t been updated since 2007. Romney’s total in Oregon is $176,000, with a not terribly impressive $41,000 collected in Montana.

[The Romney website has a state-by-state list of endorsements – Gov. Butch Otter in Idaho and former Sen. Gordon Smith in Oregon, for example – but the Idaho section carries a strange reference to former Sen. Larry Craig, a 2008 endorser of Romney. The site says Craig “was caught in a sex scandal and forced to resign from office and the campaign.” That quote requires a  Rick Perry “oops” response. Craig, of course, initially said he would resign in the wake of his 2007 “scandal,” but then went on an served out his term in the Senate which ended in early 2009.]

Proof that the so called GOP establishment is lining up behind Romney can be found inside the FEC numbers. Former Oregon Sen. Bob Packwood is in for Romney to the max – $2,500 – as is Idaho’s premier funder of conservative causes Frank VanderSloot of Idaho Falls.

Barack Obama remains, of course, the fundraiser-in-chief. The president has raised $1.4 million in Washington, nearly $390,000 in Oregon, nearly $98,000 in Montana and $49,000 in Idaho. That last number – $49,000 in Idaho – means Obama has raised more in the reddest of the red states than any of the rest of the GOP field, including Ron Paul. Paul’s total in Idaho is just north of $40,000. The Texas Congressman has raised $174,000 in Washington, $84,000 in Oregon and $32,000 in Montana.

The New York Times today reports that Romney pulled in $24 million more in the fourth quarter of 2011. He’ll likey need to spend a good deal of that in South Carolina where Super PAC’s supporters of his now on life support opponents will spend big to try and keep the GOP race going.

 The FEC site contains other nuggets of political trivia that reveal a good deal. One Paul contributor Harmut A. Leuschner of Hayden, Idaho, who is listed in the reports as a mechanic at Alpine Motors, had written 13 checks totally $425 to Paul’s campaign through September 2011. The largest check was for $100. That, my friends, is a committed supporter.

 

2014 Election, 2016 Election, American Presidents, Andrus, Borah, Campaign Finance, FDR, Health Care, Obama, Supreme Court

2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

 

2016 Election, Campaign Finance, Health Care, Supreme Court

The Judges Decide

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.