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.

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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)

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.



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/

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

February 26, 2014

Several of the local Starbucks shops have removed comfortable seating and substituted tables and hard chairs. Perhaps this is meant to cater to the business-meeting or laptop clientele, or maybe some people lingered too long. Whatever the reason, it has limited my options, as I’m an easy-chair type. My usual choice these days is a shop next to a Safeway, which leads to the following observations during a visit in December. For some reason I didn’t inflict them on the web at the time but, though stale, they still are relevant, if not especially important or original.

Perhaps because I tend to be a pessimist — although I prefer to attribute my attitude to being unusually perceptive — I harbor thoughts about cultural decline. (Actually, I find it puzzling that anyone over the age of forty could not be aware of that development, but never mind). There are so many significant indicia of that trend that the following examples will seem trivial, but here they are anyway:

The story begins at the gym (sorry: fitness center) I use twice weekly. It provides towels (small) for mopping the brow and semi-large — large by the standards of the underfunded organization — for showers. The drill is to toss them, when used, into bins provided for the purpose. Instead, a growing number of those frequenting the men’s locker room drop them on the floor, leave them on benches or in showers or stuff them into lockers, anything to avoid the ordeal of carrying them twenty feet (on the way out) to the bin near the door.

After my workout, I stopped at Starbucks. When I left there, I found several carts from the adjacent Safeway abandoned on the sidewalk, some distance away from the grocery store, which is in the opposite direction, and nowhere near any of the return areas. Proceeding toward my car, I spotted a parking slot covered with trash: cups, napkins and other bits of paper; someone had cleaned out his (messy) car and left the debris for someone else to clean up.

Back to the gym: while riding the stationary bike, I glanced at one of the tv monitors which, as usual, displayed Fox "News." Actually, it was Fox Business "News," but no matter. There was no sound, but a display at the bottom of the screen asked whether the wealth gap really is a problem. Those who can ask, and more so those who deny it, are of the same class as those who litter and abandon carts. The smug and comfortable and their admirers may not dump trash on the ground, but they are soul mates to those who do: both are of the I’m-more-important-than-my-fellow-man, let-the-little-people-cope sort.

February 23, 2014

Some reports show that viewership of television news is declining. If NBC Nightly News is typical, that’s not surprising. Hard news makes up little of any broadcast, and commentary or context rarely appear, even when the story screams for it, as with climate change. 

NBC has taken another step down. It is broadcasting the evening news from Sochi, for no apparent reason other than to promote the network’s exclusive coverage of the Olympic Games. Also, the program devoted sections of two broadcasts last week to the advent of Jimmy Fallon as host of the Tonight Show, also an NBC program: news as corporate advertisement.

A clip from a Conan O’Brien show is circulating on the web which demonstrates the vapid, insubstantial, derivative nature of local television news. It shows twenty-four news "anchors" delivering the same "report’ about shopping for oneself at Christmas: "It’s OK, you can admit it, if you bought an item or two, or ten, for yourself."[18]¹ The origin of the script isn’t revealed, but it is identical, a few fluffs and variations aside, on each broadcast. It’s amusing to watch the newsreaders emote in an attempt to convert a handout into something original, but it’s another indication of how badly we are served by news media.

Are voters uninformed? Considering that the alternative to right-wing propaganda on Fox is self-promotion or inanity on other channels, it is not surprising.
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 18. http://www.youtube.com/watch?v=TM8L7bdwVaA

February 16, 2014

I haven’t written anything for a while. It is not a limitation of material that poses the challenge. It is that one can say that the world is going to hell in only so many ways, and that saying so repeatedly, even with variations, even with new instances, convinces the reader that the writer is obsessive and therefore unreliable, to say nothing of boring. However, . . .

Last month I ran out of anything to read — actually, there were several books waiting to be read, but nothing I was in a mood for (shouldn’t end a phrase with a preposition) — so, for no specific reason, I took from the shelf The Collapse of the Third Republic, William L. Shirer’s account of the fall of France in the Second World War. It is in part a history of the defeat in 1940 but also of the weaknesses of French politics and society — back to 1871 — which led to that result. When I read it the first time, years ago, I probably thought that the French were a hopeless lot with an exceptionally dysfunctional culture and government. Now some of their problems seem uncomfortably like ours. Reading The Collapse led me to reread part of Tony Judt’s The Burden of Responsibility, which discusses three French thinkers, notably Léon Blum, Premier of France in the Thirties. It reenforced the impression that we are on a road traveled before.

Take, for example, the attitude toward business, wealth and taxes. In early Twentieth Century France, Shirer tells us, "the entrepreneurs convinced themselves to an extent that today seems highly amusing that they were operating a free market open equally to all and that they owed their success and their profits to the virtues of the ‘free-enterprise’ system, which rewarded those with imagination, initiative, and ‘know-how’ who were brave enough to take risks."[1]  That may have been amusing in 1969, when The Collapse was published, and when we seemingly had learned better, but now it simply describes us equally well.

In the Twenties, French governments, facing fiscal disaster, "declined to do anything at all, even to face their problems." France had just emerged from World War I. The parallel to the wars in Iraq and Afghanistan hardly is perfect, but there are similarities in attitude and policy: "Instead of raising taxes the government raised loans, a habit it had acquired during the war, when taxes. . . were scarcely augmented despite the dire necessity." We went further, and cut taxes while waging war. "It seemed obvious that taxes would have to be raised and some financial sacrifices made by those best able to afford them. But this did not seem obvious to Parliament,"[2] nor has it to Congress.

Parliament, like Congress, did not operate in a vacuum; the attitude of the wealthy controlled. "The selfishness of the moneyed class in avoiding any financial sacrifice to help put the country back on its feet later struck many French historians as shocking. The possessors and the manipulators of most of the country's wealth simply contrived to escape shouldering a fair share of the burden of paying for the war and the reconstruction."[3]  Capital was stashed abroad. Rebuilding after the devastation of WWI was a greater challenge than our recession and our crumbling infrastructure, but attitudes are strikingly similar. Again, the surprise of historians was felt years ago.

We hear cries from many on the right that taxation is theft, that it’s their money, not the government’s, that they can use it so much more productively. That, too, is an echo. A member of the Chamber of Deputies pointed out a truism of taxation, "you have to take the money from where it is," to no avail. "The answer of the business and financial interests was given in the Chamber by one of their spokesmen . . . : ‘We are told you have to take the money from where it is. I maintain that first you have to leave it where it is.' And that is where it was left."[4]

In addition to the self-interest of the wealthy, a lack of understanding or acceptance of economic truths hampered efforts. "Ignorance of economics on both the Right and the Left played a role in compounding the mess. On the Right, bankers and businessmen were trying to apply classic nineteenth-century capitalist doctrines to the twentieth century, whose problems, were much more complex. On the Left most of the politicians . . . had little comprehension of the problems of financing a state . . . ."[5]  Our ignorance, or refusal, is the more reprehensible because the self-defeating theories we cling to have been disproved by experience.

The refusal to learn is more general, sometimes amounting a disdain for modernity, a rejection of science, of facts. Judt described France’s "nostalgic denial," the "propensity for preserving the past in the face of a threatening present."[6] Republican presidential candidates must proclaim that they disbelieve in evolution, and the right denounces climate change as a hoax.

There is a parallel also in the attitude of many toward the head of government. Léon Blum was the leader of the Socialist party, and Premier for a year during the critical Thirties. He was vilified, partly for his policies, but primarily because has was a Jew. "How, his enemies howled, could such a man represent French interests?" He was not a real Frenchman. The prospect of Blum’s actually becoming prime minister was too much. "Your arrival, Mr. Prime Minister, is without question a historic date," he was told in the Chamber of Deputies. "For the first time this ancient Gallo-Roman land is to be ruled by a Jew. . . ."[7]   We have copied this ploy: destroy a political enemy by making him the Other. Jews and blacks certainly have been the classic Others, and now Muslims have been added to the list, so Obama also is a Muslim. Blum was denounced for putting Jews in the Cabinet; Obama is "an avowed racist" for expressing sympathy for Trayvon Martin.

If merely categorizing by race or religion is not enough, add the claim that the Other is a foreigner. In one story, Blum was accused of being a Bulgarian, but that was too mild: "The prime minister, coming from a wandering race, dumped in the Ile-de-France by a chance that might as easily have deposited him in New York, Cairo, or Vilna, [is] the leader of a people foreign to his flesh."[8] Obama, of course, is a Kenyan. "How [Blum] hates us! He resents us for everything: for our blue sky and our soft air, for our peasants who walk in clogs across French soil and whose ancestors were not camel dealers, wandering in the Syrian desert with his Palestinian friends. . . ."[9]   Obama "has no idea how the American system functions, and we shouldn’t be surprised about that, because he spent his early years in Hawaii smoking something, spent the next set of years in Indonesia . . . ."[10]  In contrast to the Republican "course for the country," Obama’s "course is extraordinarily foreign."[11]

Nor only foreign, but sinister. "Between France and this cursed man, we must choose. He is the very incarnation of everything that sickens our flesh and our blood. He is evil. He is death."[12]  As with Blum so with Obama. According to a 2013 poll "20 percent of Republicans said they believed Obama is the Antichrist, while only [!] 6 percent of Democrats agree."[13]  On quieter days, he is merely (and simultaneously) a communist and a fascist.

Reactions become violent. A right-wing publisher declared of Blum, "Here is "a man to shoot down, but in the back . . . human detritus who should be treated as such."[14]  Obama is a "communist raised communist educated communist nurtured subhuman mongrel" and "gangster" and should be punished for treason.[15]  Or shot: a Christian American Patriots Militia leader announced in 2013, "We now have authority to shoot Obama, i.e., to kill him. His willful violations and alienation of our Constitution, . . . and corruption of all the three branches of government . . . reveal the dictator that he is."[16]  At a town hall meeting in February of this year, a Republican Congressman carried on a chat with a woman in the audience who had announced that Obama "should be executed as an enemy combatant." The Congressman either agreed with her or saw nothing unusual in her rant.[17]

The Third Republic had come into being more or less by accident in 1871, and those on the right — monarchists, the military, business and the clergy — never accepted it, and wanted to bring it down. That sentiment persisted until World War II, exacerbated by right-wing admiration for fascism. Nothing on that scale has developed here, but we see manifestations of a similarly destructive attitude. Republicans in Congress shut down the government and threaten to destroy its creditworthiness, partly to gain specific ends, partly because they dislike it and its president. The tone was set in January, 2009 by party leader Limbaugh — "I hope he fails" — and Republican have reflexively opposed nearly everything Obama has supported, even a conservative health care plan. Nullifiers and other states-righters want to weaken the federal government, allowing the states to be (more) reactionary. Many see tyranny in every attempt to improve life; some dream of replacing the government with a regime of their own. Gun nuts want to turn the country into an armed society, every nut his own posse. When something awful happens, such as 9-11, or the Boston Marathon bombing, or the Newtown shooting, conspiracy theorists claim it’s a "false flag" operation, something perpetrated by the government. These are not healthy trends.

Any parallel to France is, of course, ironic, as the American right is so disdainful of that land; how embarrassing to be like it.

________________________

1. The Collapse of the Third Republic, p. 78.2. All quotes in this paragraph Id., at 153

3. Id., at 154
4. Ibid

5. Id., at 160

6. The Burden of Responsibility, p. 8

7. Id., at 75-76

8. Id., at 76

9. Id., at 77

10. According to Romney campaign co-chairman John Sununu. http://thinkprogress.org/politics/2012/07/17/531231/romney-campaign-obama-cant-create-jobs-because-he-spent-his-early-years-in-hawaii-smoking-something/

11. According to Mitt Romney. http://thinkprogress.org/politics/2012/07/17/537131/how-romney-spent-all-day-calling-obama-a-foreigner/ 12. The Burden of Responsibility, p. 77
13. http://www.huffingtonpost.com/2013/04/03/americans-believe-obama-anti-christ-global-warming-hoax_n_3008558.html
14. The Burden of Responsibility, p. 76

15. So saith Ted Nugent (lack of punctuation in the original report). http://mediamatters.org/blog/2014/01/21/outdoor-channels-ted-nugent-says-subhuman-mongr/197669

16. The article cites other threats. http://www.rawstory.com/rs/2013/11/25/christian-american-patriots-militia-leader-we-now-have-authority-to-shoot-obama/
17. http://talkingpointsmemo.com//livewire/congressman-cordial-chat-execute-obama