Posts © 2011-2012 by Gerald G. Day







Tuesday, July 15, 2014

July 15, 2014
The Supreme Court continued its run of controversial decisions with Hobby Lobby,[1] which involved religious objections to the requirement, of regulations under the Affordable Care Act, that health insurance policies include all of the methods of contraception which have been approved by the FDA. The plaintiffs, corporations and their owners, claim that four specified methods of contraception involve destruction of a fertilized egg which is, in their view, equivalent to abortion, which they reject on religious grounds. They "have no objection to the other 16 FDA-approved methods of birth control."
  The majority opinion, by Justice Alito, is superficially less ideological than others in the recent series. It is based on a statute concerning the exercise of religion which arguably applies and, rather than merely declaring that corporations are legal persons, which has led to so much criticism, it cites another statute which so states. However, it still manages to get everything wrong. There are two issues, religion and corporate law, and other considerations.
 A. Religion
 The Religious Freedom Restoration Act (RFRA) was adopted by Congress in 1993. It was a reaction to a decision of the Supreme Court, Employment Division v. Smith,[2] which upheld a refusal by the State of Oregon to award unemployment benefits to two men discharged by their employer for ingesting peyote. That act took place in a ceremony of the Native American Church, which used peyote as part of its ritual. State law prohibited use of drugs, with no exception for religious use. The Court upheld the Oregon law, and the denial of benefits, on the ground that a law of general application, which makes no attempt to single out religion, is valid and does not violate the First Amendment guarantee of religious freedom, even though it has a collateral effect on religious practices.
RFRA was designed specifically to overturn Smith, and to mandate that such cases be measured against an earlier standard, which subjected any impact on religion to strict scrutiny. The operative section of RFRA reads as follows:  
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.[3]
Legal recourse is afforded for violation of RFRA: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."[4]

The exercise of religion is defined[5] oddly, vaguely and circularly: "the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc–5 of this title", which states that the "term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief."[6] That fails to tell us what the exercise of religion is but, by decoupling it from a system of religious belief, makes it open-ended; virtually any assertion could be religious under that definition.
 Faced with a statute so sloppily drafted, a court might refuse to apply it, for the reason that there is no way to know what is covered. This Court especially might be so inclined, having little respect for the ability of Congress to draft statutes clearly. (McCutcheon v. Federal Election Commission provides an example of that attitude; see my note of May 13, item 11). However, this Court is nothing if not flexible; here the statute is a flawless statement of principle.
  Vague as the language is, it does include an implicit limit, by omission: it does not prohibit burdening religious belief, and does not provide judicial relief for such a burden. Those provisions are limited to religious exercise, or the exercise of religion. There is a savings clause which refers to belief: "Nothing in this chapter shall be construed to authorize any government to burden any religious belief."[7] However, the government isn’t attempting to use RFRA to burden belief, so that is irrelevant. Even ignoring that, the clause provides no affirmative relief, so cannot be the basis of this action. As we shall see, that did not bother Justice Alito.
 At no point does the opinion question whether the objection by the plaintiffs to providing the four types of contraception is an exercise of religion. It simply assumes that the statute controls. Here is Alito’s summary of the holding:
Since RFRA applies in these cases, we must decide whether the challenged HHS [Health and Human Services] regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.
Buried in that conclusion is this formula: an objection, based on religious belief, to providing insurance which covers the use of a certain type of contraceptive is "an exercise of religion" which, by definition, is "a religious exercise," which in turn is "any exercise of religion." That is so inane that only a court focused on a result could avoid subjecting the claim and the statute to critical analysis. (Note that the reference here is to the owners; only later are the corporations brought into the picture).
 Alito, perhaps aware of the implications of his conclusion, rewrote the statute to avoid the religious exercise problem:
HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue. This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). [emphasis added]
This misreading of RFRA is not a momentary slip; at several points he either states the issue in terms of belief or runs together the concepts of belief and the exercise of religion.
 He also is mistaken in asserting that reasonableness is not a factor to be considered; it is the only protection against ridiculous, contrived "religious" claims and the only way to rescue the statute from absurdity.
 The Court did not make any determination as to whether the plaintiffs’ understanding of the effects of the four methods is factually sound. (Here again the statute helps the majority, for it too ignores the question of factual validity. However, that is just another reason to treat the statute with care, if not disdain: any assertion garbed in religious terms could be the basis for a claim, even if divorced from reality). The following is the information provided in the opinion as to whether the four methods amount to abortion; it simply describes a disagreement:
Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.
[footnote to the above] The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, . . . do not so classify them.
The argument seems to come down to this: the plaintiffs’ exercise of religion is burdened because, if Hobby Lobby provides compliant insurance, some of its female employees probably will make use of the contraceptive coverage; some smaller number of those may use one of the four disapproved methods; those methods may in some cases prevent development of a fertilized egg, and that, according to plaintiffs’ belief, is the equivalent of abortion and therefore immoral. This is too tenuous a connection to take seriously. In addition, it assumes that the practice of religion includes controlling the behavior of others.
  The other half of the test is that the burden to the plaintiffs’ exercise must be "substantial." Justice Alito found that the penalties which HHS could impose for failure to have a conforming policy are very large and therefore a substantial burden. Assuming that the opinion is accurate in describing them, the possible penalties are onerous indeed. However (leaving aside the postponement of the enforcement of employer penalties) we can pass that, because Alito has fastened onto the wrong consequence of the plaintiffs’ action. Even assuming belief to equate to the exercise of religion, the burden imposed by the law is the plaintiffs’ unwilling, innocent, indirect, hypothetical complicity in what they believe to be immoral behavior. That is no more substantial a burden than one we all face: living in an imperfect society in which choices are made that we oppose or deplore.
  The potential monetary penalties would be the consequence of flouting the law, not of religious exercise so, apart from their being speculative at this point, they are not relevant.
   B. Corporations
 The Citizens United opinion stirred much comment about corporate personhood, including assertions that the Court had invented the concept. Alito attempted to silence that by citing a statute which provides as follows: "In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. . . .[8] He wasn’t altogether successful. For example, an e-mail from "The Pen" claims that "Alito says ‘corporation’ MEANS a natural ‘person,’ . . ." Alito didn’t say that, but the confusion is perhaps understandable. His attempt to find that corporations can have religious beliefs in effect merges, or confuses, the corporate entity and its human owners.
  As noted above, Alito’s summary refers to the religious exercise of "owners of the businesses." However, the desired result required finding that the corporations also were protected. This would require finding that corporations "exercise religion." However, Alito didn’t establish that.
 He began his analysis badly, by referring to legal personhood as a "fiction," not exactly the best way to defuse an argument. More accurately it is, as shown by the cited statute, a definition, which is in turn a matter of convenience in drafting. The effect is to include corporations in the rights granted to "persons," unless the context requires otherwise. The issue of whether a corporation can exercise religion certainly is one where the context should raise some doubt.
 Possibly because of that, Alito fudged:
But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.
That isn’t altogether accurate, but it furthers his attempt to blur the line between people and corporations, and leads to this conclusion: "protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies." That assumes that corporations exercise religion, the very point he supposedly is establishing. In other words, corporations must have these rights so that owners may be protected.
 However, that won’t work because, in some closely held corporations there may be religious disagreement between owners. Then the corporation’s alleged exercise of religion, presumably an extension of the majority owners’ views, may offend the other owners. So much for the pass-through, protect-the-owners theory. This shows that the supposed special case of the closely-held corporation is just so much rhetoric: if the minority owners in a closely held corporation may be ignored, so may shareholders in widely-held corporations; perhaps they too can engage in the exercise of religion.
 The statutes offer no assistance on this point, and could be interpreted as covering all corporations, of whatever size and makeup. Justice Alito limited his analysis to "closely held" corporations, but how much of a limitation is that? We don’t know, as no definition was offered. In the case at hand, each corporation was owned by members of a single family, but that isn’t offered as a test. Depending on the definition (there are several), the number of closely held corporations, and the number of employees, could be huge.
 C. The government’s position
 The decision was made easier, if no more convincing, by positions taken by the government. The most disadvantageous to its argument is the exemption for contraception coverage given to religious organizations, which are defined as follows:
For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in . . . the Internal Revenue Code . . . .[9]
The government argued that there is a legitimate distinction between a non-profit organization devoted to religious work and a profit-making corporation owned by religious people. The distinction is plausible and should have been upheld, but Mr. Obama made HHS’ task more onerous by granting that exemption, as Alito argued that it should apply to these plaintiffs.
  The other problem is the penalty schedule for non-compliance. It should not have been the measure of the burden, but the penalties are potentially so drastic as to make HHS look like a tyrant.
D. Scope of the decision
 Alito’s opinion is in part an exercise in duplicity. After referring repeatedly the four challenged methods of contraception, and noting that the plaintiffs had no objection to the others, he summarized the holding as follows: "Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. The contraceptive mandate, as applied to closely held corporations, violates RFRA." That could be read as abandoning the narrow focus of the opinion and calling all contraception into question, which is exactly what happened. The day following its decision, the Court issued orders in several cases in which all forms of contraception were challenged. Where the government had prevailed, the case was sent back with instructions to reconsider in accordance with Hobby Lobby; where the government had lost, its appeal was denied.[10]
  The obvious moral to the story is that we need an inclusive government health care program, such as Medicare for all. The employer-based system was past due for retirement even before this controversy.
____________________
1. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al.
2. 494 U. S. 872 (1990)
3. 42 U.S. Code § 2000bb-1 (a), (b)
4. 42 U.S. Code §2000bb-2 (4)
5. 42 U.S. Code § 2000cc–5 (7)(A)
6. 42 U.S. Code §2000bb-1 ( c)
7. 42 U.S. Code § 2000bb–3. The operative sections refer to religious exercise or exercise of religion eleven times, belief zero.
8. 1 U.S. Code §1
9. 1 U.S. Code §1
10. http://www.scotusblog.com/2014/07/wider-impact-of-hobby-lobby-ruling/

Tuesday, July 1, 2014

July 1, 2014
The eagerness by some conservatives to reenter the Iraq quagmire is yet another instance of rewriting history, of at least of convenient forgetting. What’s worse, the media seem as determined not to learn as the ideologues. On June 23, Brian Williams introduced a segment on ISIS with these words: "eleven years after this US invasion of Iraq which was meant to make that country safe for democracy. . . ." Perhaps he was indulging in irony, but it didn’t sound that way. In any case, the media hardly have distinguished themselves regarding Iraq, eleven years ago or now, when they turn to the same fools who led us into the mess, treating them as foreign-policy experts.
There is an opposing, if hardly mainstream, point of view: the architects of the invasion of Iraq are criminally liable. One expression of that point of view was offered by Katrina vanden Heuvel: "At best a fool=s errand, at worst a criminal act, this great blunder helped set the stage for Iraq=s chaos today."[37]  William Rivers Pitt was more emphatic: "Let me put it plainly: these people do not belong on my television. They belong in prison, for the crimes of theft, torture and murder."[38]  The second part of each formula is perhaps a bit much, but the first certainly is true. As Pitt said earlier in the same piece, "The worst part is that they're all on my television again, trying to blame President Obama for the circumstances created by their own . . . decisions."
Ms. vanden Heuvel also contributed the perfect put down, advising William Kristol that "[w]e don=t need armchair warriors, and if you feel so strongly, you should, with all due respect, enlist in the Iraqi army."[39]  I=d second that without respect; none is due.

_____________________



37. http://www.washingtonpost.com/opinions/katrina-vanden-heuvel-where-is-the-accountability- on-iraq/2014/06/16/eba0ff24-f597-11e3-a3a5-42be35962a52_story.html

38. http://www.truth-out.org/opinion/item/24490-william-rivers-pitt-they-belong-in-prison-not-on- tv; see also http://www.huffingtonpost.com/h-a-goodman/neocons-should-be-held-cr_b_ 5514337. html

39.http://www.thenation.com/blog/180459/vanden-heuvel-tells-kristol-if-he-wants-war-he-should- join-iraqi-army#
 

Saturday, June 21, 2014

June 19, 2014
On our way home from Paris earlier this month, our taxi was unable to stop at the end of the de Gaulle terminal nearest our airline’s counters. We eventually discovered that there was a lockdown due to an unattended bag. Police armed with automatic weapons were all over the place. No doubt it was a potentially serious situation, but the scope of response and the length of the lockdown seemed excessive.
Closer to home, there is a situation in which the danger is not at all speculative: people carrying guns onto planes, or at least attempting to do so. According to the Transportation Security Administration, the number of firearms found at security checkpoints is on the rise nationwide. Through the first week of June, TSA found 892 guns in passengers’ carry-on bags at security checkpoints. That’s a 19 percent increase from the comparable period of last year, which set an annual record, at 1,813. A one-day record was set on June 4, 18 guns at various airports. For the week, 36 guns were found on carry-ons, 33 of them loaded. (TSA reports that, on average, about 80 percent of all guns intercepted are loaded). One might think that the experience of 9-11 would have had a dampening effect, if only because every flier knows that his person and carryon will be screened. Not so: numbers have gone up every year since 2009.[36]
This is unquestionably the result of the growing gun culture; an editorial in Wednesday’s New York Times described the problem:
The steady rise in guns at airport security . . . is . . . a vivid indication of the normalization of casual gun-ownership. Airports in states with lax gun laws tend to have the highest incidence of firearms at checkpoints. . . . When legislatures send the message that guns are acceptable just about everywhere, people bring them just about everywhere.

Tuesday, May 13, 2014

May 13, 2014
    
Consistency and predictability are virtues in the decisions of the Supreme Court. Precedent is an important part of that pattern: when courts follow the holdings of prior decisions, both predictability and consistency are served. However, the Court’s recent decisions often have been predictable primarily due to the majority’s ideology. They also have been marked by an odd and specious form of the use of prior decisions: instead of applying their holdings, which is the legitimate form of precedent, the Court lifts quotes from opinions and pretends that they are statements of law. Often the quotes are taken from concurring opinions, which are not the opinions of the Court or, worse, from dissenting opinions.[25]  Statements are taken from majority opinions which are not necessary to the holding, i.e., obiter dicta and therefore do not qualify as precedent. The Court also does something which is superficially legitimate: it relies on its prior, but recent and unsupportable decisions. In other words, it creates precedent by being wrong repeatedly. The decision in McCutcheon v. Federal Election Commission demonstrates this trend.
The issue in McCutcheon is summarized in the Court’s opinion by Chief Justice Roberts:
The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee . . . . The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees . . . .
The base limit is $5,200 for contributions to candidates; the aggregate limit is $48,600. Therefore a donor — I’ll call him John Doe later on — could give the maximum to only nine candidates (totaling 46,800, with $1,800 left over for others). Contributions to political committees have various base limits, depending on the type of committee, but there is an aggregate limit for all non-candidate committees of $74,600. One plaintiff in this case, Shaun McCutcheon, wanted to be able to contribute the individual maximum to a larger number of candidates, and contribute to several non-candidate committees, in each case exceeding the maximum limit.[26]  Another plaintiff, the Republican National Committee, wanted to receive larger contributions. They sued to overturn the aggregate limits.
In Buckley v. Valeo (1974),[27] the Court had upheld individual and aggregate limits. In effect, the plaintiffs asked the Court to overrule that part of the Buckley decision which approved the aggregate limit; instead it simply decided that Buckley’s holding needn’t be followed on that issue.
The opinion is diffuse and repetitious, so I’ve tried to sort out the principles or alleged principles which underlie the decision:
1. Political money falls within the First Amendment’s guarantee of free speech, which includes freedom of association. The Roberts Court’s view is borrowed from Buckley, which has been characterized as holding that money equals speech. That isn’t entirely accurate, although the results of later cases lean in that direction. Here is what Buckley said:
[T]he present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties . . . . A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. (emphasis added)
That, standing alone, didn’t quite bring money within the First Amendment, so Buckley engaged in some judicial slight of hand: "[T]his Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non speech element or to reduce the exacting scrutiny required by the First Amendment." Ergo, because the Court hadn’t previously denied First Amendment protection merely because money was involved, money must be considered as a part of communication; restrictions on political spending now must be tested by their effects on such communication.
Buckley didn’t hold that all restrictions on political spending violate the First Amendment. It applied a balancing test, weighing the impact on protected speech against the evil to be combated, and found that a contribution limit, whether base or aggregate, "entails only a marginal restriction upon the contributor's ability to engage in free communication." The Roberts Court does not agree:
2. Even though John Doe may speak or write or work in favor of candidates, he also must be allowed to contribute as much money as he wishes. As Roberts noted, "Buckley observed that a supporter could vindicate his associational interests by personally volunteering his time and energy on behalf of a candidate." However, to the present Court, "[s]uch personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes. Other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening." Might we note that contributing large amounts of money is reserved for a select few? That, it seems to me, is the overriding issue regarding money in politics.
3. "[T]he Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC."[28]  However, Sable doesn’t support that statement. It didn’t involve campaign spending or contributions, or money in any way; instead, it dealt with a statutory prohibition on obscene or indecent telephone messages. The passage cited states: "The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." (emphasis added) There is nothing in McCutcheon about regulating content.
4. "Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo . . . ." Buckley does so hold. Unfortunately, that is the most positive statement in the present opinion, which proceeds to reduce the Buckley rule to near-meaninglessness.
5. Although the preceding rule was expressed permissively, this Court made it exclusive: contributions may be regulated only if the intent is to prevent corruption or the appearance thereof, and even then only if not too restrictive.
6. Controlling influence or access to officials is not a legitimate basis for regulating contributions. "We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption’," citing Citizens United v. FEC, [29]  which offered no authority for that sweeping conclusion.
7. It’s improper to look to the interest of the rest of us in fair elections. Aggregate limits, the Court says, can’t be justified by limiting the financial advantage of those who contribute. Why is that? "No matter how desirable it may seem, it is not an acceptable governmental objective to "level the playing field," or to "level electoral opportunities," or to "equaliz[e] the financial resources of candidates." The Court cited Arizona Free Enterprise Club v. Bennett, and Davis v. FEC.[30]  Bennett does so hold, but it cites as authority Citizens and Davis; the latter cites Buckley, so we are back to the source. "As we framed the relevant principle in Buckley," this Court tells us, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." That part of Buckley dealt with limits on expenditures rather than limits on contributions, which it treated differently, so that comment is not precedent. Whether Buckley was correctly decided on the expenditure issue is another matter.
The Court nodded toward the public interest: "[W]e do not doubt the compelling nature of the ‘collective’ interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech . . . ." The phrase "we permit Congress" reveals arrogance and an inflated self-importance: it is the Court, not the First Amendment, which has been offended. Worse, it discloses a negative attitude toward democratic government: the Court is not interpreting the Constitution, it is deciding whether any given law, enacted by the people’s representatives, is inconsistent with the Court’s agenda, which has less regard for the rest of us than for those who can spend money on elections.

8. Corruption exists only if there is a direct exchange of money for favorable treatment. "Any regulation must . . . target what we have called ‘quid pro quo’ corruption or its appearance. . . . That Latin phrase captures the notion of a direct exchange of an official act for money." The authority cited for that is Citizens United. The question in that case was whether there could be different rules for corporations and individuals with respect to independent political expenditures. In holding that a corporation cannot be treated differently, the Court rejected a government argument that the distinction could be based on preventing corruption. Justice Kennedy, in the majority opinion, unnecessarily added this: "When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption." However, Buckley did not so hold. To be fair to Kennedy, the lead opinion in Buckley is not a model of clarity.[31]  It did mention quid pro quo corruption several times, but its holding on contributions makes no reference to that limitation:
In sum, the provisions of the Act that impose a . . . limitation on contributions to a single candidate . . . and a . . . limitation on total contributions by an individual during any calendar year . . . are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. . . . . (emphasis added)
Justice Kennedy also cited FEC v. National Conservative Political Action Committee[32] which, like Buckley, made several passing references to quid pro quo. He also cited his separate, non-majority, opinion in McConnell v. FEC,[33] which is equivalent to pointing out that he said the same thing once before.

9. Corruption occurs only in each specific case, not in the aggregate. "If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801. . . ." Total contributions by Mr. Doe can have no corrupting effect. He may have the entire Congress beholden to him, but no big deal. That leaves, according to the Court, only one excuse for an aggregate limit. "[I]f there is no risk that additional candidates will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits." Buckley upheld the aggregate limit on that basis:
The overall $25,000 ceiling . . . serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation . . .
The Roberts Court does not agree:

10. It acknowledged that Buckley upheld both limits "as serving the permissible objective of combating corruption," and that the government in this case argued that "the aggregate limits . . . serve that objective by preventing circumvention of the base limits," citing Buckley. "We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment."
What about the contrary holding in Buckley? Although that decision "provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here." Why not? "Buckley spent a total of three sentences analyzing that limit . . . ." Buckley is cited when convenient, but one of its holdings is dismissed because it is too succinct. But wait; there’s another reason: that "opinion pointed out that the constitutionality of the aggregate limit ‘ha[d] not been separately addressed at length by the parties.’" This is rich. Here the Roberts Court ignores a holding on an issue which was not "separately addressed at length by the parties," but it decided Citizens on a ground abandoned by the plaintiff and dismissed by agreement in District Court.[34]
Buckley, the Court tells us, had characterized the aggregate limit as a "quite modest restraint upon protected political activity." But Roberts "cannot agree with that characterization. An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all." Why is that? We aren’t told. Instead, he added this: "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse." Leaving aside the fact that newspapers are protected separately in the First Amendment, the analogy doesn’t work: the government isn’t telling John Doe how many candidates he can endorse — unless, of course, endorsement equals spending.
Despite its summary dismissal of the aggregate limit, the Court didn’t seem very confident that it had made the right decision. It argued that the methods of evasion of the base limit suggested by the government and by the dissent were implausible. It claimed that the aggregate rule is unnecessary because other laws prevent circumvention. However, it wasn’t too sure of any of that, so it suggested adding other laws or regulations.

11. Congress doesn’t know how to draft a bill. "[B]ecause the statute is poorly tailored to the Government’s interest in preventing circumvention of the base limits, it impermissibly restricts participation in the political process." Roberts was attempting to say that limitations on First Amendment rights are subject to close scrutiny because those rights are so important. However, that principle, and the Court’s general attitude toward Congress, lead it to demand that statutes be drawn in exactly the way it would. (There is a hint of this in Shelby County v. Holder, the voting rights decision). This mistakes the role of the Court and invades the province of Congress; it edges up to a violation of the separation of powers. The opinion dwells at length on the mechanics of contribution regulation, again a matter of legislative discretion.
12. The government’s legitimate interest in elections is limited; it must not tamper with political parties. "When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude." Might "gratitude" not be the equivalent of corruption? If that gratitude buys widespread acquiescence in the donor’s aims, could that not be massive corruption? No: "That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. . . . To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process." At that point, the Court aptly cited its decision in California Democratic Party v. Jones, [35] in which it essentially had ruled that the interests of political parties are more important than the interest of a state in fair elections.
13. The government may not favor some candidates over others. "For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others." The last phrase is ironic, as the true meaning of this decision is that is that moneyed interests are free to create such favoritism.
The entire series of decisions back through Buckley needs to be reconsidered, either by the Court, which is unlikely, or by Congress. The option of a Constitutional amendment is not appealing, but it may be necessary if we are to pry politics loose from the control of the wealthy.

_____________________
25. Justice Stevens described the "precedent" for the decision in Citizens United v. Federal Election Commission: "the majority opinion is essentially an amalgamation of resuscitated dissents."
26. Given his actual contributions, the plan is somewhat difficult to take seriously.
27. 424 U.S. 1
28. 492 U. S. 115 (1989).
29. 558 U. S. 310 (2010)
30. Bennett: 564 U. S. ___ (2011); Davis: 554 U. S. 724 (2008).
31. Buckley was decided by a per curium opinion; apart from a jurisdictional issue, only three Justices concurred in all of its holdings.
32. 470 U. S. 480 (1985); the case involved independent expenditures, not contributions.
33. 540 U. S. 93 (2003)
34. See the dissent by Justice Stevens in Citizens.
35. 530 U. S. 567 (2000)

Thursday, April 24, 2014

April 24, 2014

On February 16, I noted that our right-wing politics bore some resemblance to certain developments in twentieth-century France. To alter the metaphor, we could look at nineteenth-century Prussia. Recently I read Iron Kingdom, a history of that country. Its policies regarding voting bear a resemblance to the situation developing here, following the Supreme Court’s gutting of the Voting Rights Act and of limits on political spending, and given the laws and practices of several states.
 
In Prussia, beginning in 1849, voters "were divided three 'classes' according to their taxable income."[24] Voters cast ballots for electors who in turn chose the deputies to the parliament. Each class selected one-third of the electors. "In 1849, the steep income differentials across the kingdom's population meant that the first class, representing the wealthiest 5 per cent of the electorate, voted for as many electors as the second (12.6 per cent) and the third (82.7 per cent)." We haven’t quite reached that point, but the "steep income differentials" are here, and treating money as protected speech goes a long way toward allowing the wealthy to control both elections and legislation.
 
In the late 1870s "the Bismarck administration began systematically manipulating the electoral process in favour of conservative candidates: . . . electoral boundaries were gerrymandered to safeguard conservative majorities; polling places were moved to conservative areas within swinging rural constituencies, so that voters from opposition strongholds had to trudge across kilometres of open country to place their votes." Some of our states are fully up with Prussia, even if the techniques of making voting difficult are slightly different.
 
In one way, though, Prussia is too progressive a model; it pioneered social programs.
The medical insurance law of 15 June 1883 created a network of local insurance providers who dispensed funds from income generated by a combination of worker and employer contributions. The accident insurance law of 1884 made arrangements for the administration of insurance in cases of illness and work-related injury. The last of the three foundational pillars of German social legislation came in 1889, with the age and invalidity insurance law.
The early programs "were quantitatively small by present-day standards, the payments involved extremely modest, and the scope of the new provisions far from comprehensive . . . ." But, unlike the American right, which aims to restrict benefits, the momentum in Prussia was forward. By the early twentieth century, "the Prussian state offered cutting-edge social services, including unemployment and accident insurance and medical protection schemes."
There is one more parallel. When Germany became a republic following World War I, the right refused to adapt to the new regime. "It is one of the salient features of Weimar politics in Prussia (as in Germany more generally) that the 'conservative interest', for lack of a better term, never accommodated itself to the political culture of the new republic." Contemporary American conservatives seem to regard the New Deal as a revolution of comparable scope; certainly they refuse to accommodate themselves to it. A "large, fragmented and radicalized right-wing opposition [emerged] that refused to accept the legitimacy of the new order." So here too.
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24. All quotes from Clark, Iron Kingdom, pp. 501, 560, 617 and 635.





Thursday, April 17, 2014

April 17, 2014
HLN, formerly CNN Headline News, apparently ran out of facts or sensible commentary about the disappearance of the Malaysian Airlines plane. On March 21, It turned to a psychic, one Lisa Williams, to help locating the missing aircraft. She offered a summary of her technique: "Naturally, I don’t actually have hard, concrete evidence," she acknowledged. "I think any psychic who has hard, concrete evidence can’t do their job correctly. . . . They’ll just work on what they know, so I tend to work off what I don’t know."[22] 
That could serve as the motto of the political right, for example in its attitude toward climate change.
A somewhat similar disdain for facts is present at the Supreme Court, whose decisions in campaign-finance cases are based on not knowing something which everyone else in the country knows: the injection of vast sums of money into politics has a corrupting influence. The Court’s see-no-evil mindset isn’t the only flaw in that line of decisions. Citizens United v. FEC and McCutcheon v. FEC reflect a flawed definition of corruption, an intrusion on separation of powers, and partisanship. More on that later.
A final — no, merely another — example of defiant ignorance was provided by an angry Nevada rancher who disputes federal control of land he uses for grazing cattle. His reasoning: "I don’t recognize [the] United States Government as even existing." That’s only a somewhat more extreme statement of personal or collective secession than those put forth by hyper-libertarians and nullifiers.[23]
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22. http://talkingpointsmemo.com/livewire/hln-psychic-malaysia-jet">http://talkingpointsmemo.com/livewire/hln-psychic-malaysia-jet

23. http://thinkprogress.org/justice/2014/04/14/3426222/militia-rancher-behind-bars/

Wednesday, March 26, 2014

March 26, 2014
Present-day conservatives behave as if they were determined to validate a number of familiar aphorisms, chief among them Santayana’s dictum: "Those who cannot remember the past are condemned to repeat it." Often they illustrate a variation on the theme: "We don't simply forget; we re-remember. Memory is a rewritable CD that is constantly being rewritten. And rewritten in a particular way: one that both makes sense of the story to us and makes it more comfortable for us."[19]  That observation was made in an entirely different context, but it aptly describes the way conservatives view history. They conjure up a past (and a present, for that matter) which supports their fixed ideas.
For example, they re-remember that New Deal economic policies didn’t work (and that austerity did), that Great Society poverty programs made poverty worse, that unregulated business operates in the public interest. A new history of the Reagan administration is created. Tony Judt offered this critique of that mindset: "Those who cheer the triumph of the market and the retreat of the state, who would have us celebrate the unregulated scope for economic initiative in today's ‘flat’ world, have forgotten what happened the last time we passed this way. They are in for a rude shock (though, if the past is a reliable guide, probably at someone else's expense)."[20] 
Obamacare is Marxist tyranny or, for a switch in historical malpractice, anything the administration does or liberals propose (such as taxing the rich) is an echo of Nazism. The conservative Supreme Court re-remembers what its prior decisions held. Nullifiers re-remember constitutional history.
Mental aberrations such as these seem to be immune to correction by facts. A recent study found that providing accurate facts which debunked a mistaken view only made conservatives more likely to believe the false information. For example, two groups of people were shown a quote from G. W. Bush stating that cutting taxes increases revenue. One group also was shown statistics that disproved his claim. That group was more likely to believe Bush’s claim than those not shown the correction.[21]   We’ve known for some time that conservatives are able to ignore or deny inconvenient facts, but when facts increase belief in misinformation, argument seems hopeless. That aberration is one of several pushing us toward the collapse of democracy: an uninformed or deluded electorate cannot govern itself wisely or protect itself from political predators.
We’ve operated on the Jeffersonian assumption that free exchange of information will lead to good decisions. Fox and its clones have made any such view obsolete, and they seem determined to aid the predators.
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19. Timothy Garton Ash, http://www.theguardian.com/books/ 2002/ nov/ 16/fiction.society
20. Reappraisals,
p. 143. He made the same observation as to attempts to resurrect Marxism.
21. http://www.motherjones.com/kevin-drum/2008/09/backfire-effect