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What I Want Bernie Sanders to Know Before Tuesday’s Debate

A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional.  Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.”  He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”

That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore.  No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution.  At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment.  It provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise.  What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights.  That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states.  The Supreme Court said it did.

And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land.  And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.

The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments.  No checks, though; only balances.  Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.

Trickle-down freedom, in other words.  Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals.  Even though the Fourteenth Amendment begs to differ.

If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government.  And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment.  Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals.  It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.

It never concerns the right to be treated humanely when in the custody of the state.  Or the right to survive a traffic stop.  Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex.  Or to be brutalized while in jail awaiting trial.

Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights.  Federalism, in other words, defined by the Constitution’s design.

Dred Scott forever!

Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief.  Me?  I said to myself, “Well, he’s in good company.  Or at least extremely powerful company.”

He is.

Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution.  The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda.  Uh-uh. No way, no how.  See?

John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees.  Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops.  Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.

This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights.  But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner.  Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.

Cool!

So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans.  Who knew?  (Not Cornyn.)

The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.

Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered.  Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone.  Even profoundly unconstitutional actions.

These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute.  And this one.

Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional.  This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not.  The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters.  Completely.  Ever.

This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism.  Freedom and Fascism are converging these days.

States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights.  State legislative and executive branches don’t have that right.  The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy.  Affinity fraud, albeit on the public rather than on those with the affinity.  Masquerading as the Constitution’s design.  The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution.  These provisions are not in Amendments; they are in the original Articles.  In contrast to the Bill of Rights.  And to the Reconstruction Amendments.

The most important of which, for purposes of this post, is the Fourteenth.  Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

and:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village.  They actually protect almost no one against even the most arbitrary and absurd,  and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.

Constitution-as-fraud.  How American.  Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this,  and this, and Supreme Court-created federalism. And Freedom, of course.

She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps?  Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies.  But they think the policy is a wise one.  So, no matter that under the Constitution’s design, they have no authority to simply invent a policy.  In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases.  Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights.  They’re northern-climate countries, though, so she’ll have to wait until next summer.  Especially since she has no clothes.

As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons.  I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government.  And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments.  But, happily, I was wrong.  The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”  It will not get Marco Rubio’s vote.

The email goes on to say:

The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.

The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.

It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.

I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.

The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal.  Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution.  Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count.  See Dred Scott v. Sandford, 60 U.S. 393 (1857).*

In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards.  That is what I want Bernie Sanders to know before Tuesday’s debate.   I will recommend some in a (much shorter) follow-up post tomorrow.  It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society.  Civilized societies don’t conduct themselves in this manner.  Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.

I also will insert several web links into this post tonight or tomorrow.**  Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human.  Or an amendment that says that Mike Huckabee is fully human.  There seems to be a lot of support for the first of these, if not for the latter one.

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*Paragraph edited for typo correction and clarity.  Post edited slightly elsewhere, also.  10/11 at 11:10 p.m.

**I’ve added several links. 10/12 at 1:47 p.m.

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Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

— In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine.  I’m glad. Even despite the immediate repercussions for EPA authority., Me, Jun. 25

Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday.  As expected, both were 5-4 opinions with Kennedy as the swing vote.

Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act.  This is a big, big win for power plants and the Koch brothers.

But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case.  Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom.  The full provision in the Constitution’s Article I, Section 4, Clause 1, states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.

What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all.  And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”.  I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.

But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t.  I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.

Well, we’ll have to see what the experts say about that.  Sit tight.  But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal.  I think.

Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.

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UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at electionlawblog.org), just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring.  Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.  Cool.

Added 6/29 at 3:42 p.m.

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SECOND UPDATE:  Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”

The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.

Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles.   This is just a  big win for coal-powered power plants, not a big, big win for them.  The Koch brothers are still pretty happy tonight, though.

Added 6/29 at 9:40 p.m.

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In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine. I’m glad. Even despite the immediate repercussions for EPA authority.

[T]oday’s victory may have been even more decisive than it looks at first glance.

It isn’t just that the Court ruled six-to-three in favor of the government’s position, with John Roberts and Anthony Kennedy joining the Court’s liberals in support of a single, non-splintered decision, though that’s important.

It’s also that Roberts’ opinion may have precluded any future efforts by a Republican president to use executive discretion to cancel the subsidies for the millions of people on the federal exchange. [Italics in original.] This option might have been left open if the ruling had been written differently.

A decisive win for Obamacare, Greg Sargent, Washington Post, today

Indeed.

The Court issued opinions in two of its seven remaining cases this morning, in this one, King v. Burwell, is in my opinion the lesser-significant of the two.  Texas Department of Housing and Community Affairs v. Inclusive Communities Project, in which the Court, ruling 5-4, upheld as both intended by the Fair Housing Act and within permissible constitutional bounds the right to invoke that Act to challenge government agency and private business actions that, while not overtly racially discriminatory, plainly have a discriminatory effect.  It is a tremendously important opinion, even beyond the housing issue.  And no slouch in the significance department is another 5-4 opinion issued this week, Kingsley v. Hendrickson, that began, finally, the process of limiting what has been the tacitly unfettered authority of prison guards to brutalize both pretrial detainees and post-conviction inmates—although the dissents in that opinion deserve their own post, and soon will get one.

But the far-reaching importance of the King opinion today, authored by Roberts, is in its choice to interpret the statute directly as providing for the subsidies irrespective of whether a state had designed and runs its own insurance exchange or instead defaults to the option by which the federal government created and runs the state’s exchange.  The government had argued both that that was the clear intent of the statute in providing for the default (the backup) option, and, alternatively, that under a Court-created doctrine known as “Chevron deference,” courts are required to give deference to the statutorily designated federal agency—here, HHS—in the agency’s reasonable interpretation of an ambiguous provision in the statute.

The Chevron-deference option would have enabled a later White House administration’s HHS to interpret the statutory language at issue—“an Exchange established by the State”—as the King plaintiffs claimed: Tax credits are available only in states in which the Exchange was set up and is run by the state, not an Exchange set up and run for the state by the federal government.

The Chevron-deference doctrine was created in a 1984 Supreme Court opinion, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., mainly for the purpose of allowing Reagan’s regulatory agency chiefs to orchestrate the industry capture of the respective regulatory agency charged with regulating the capturing industry.  Federal laws that create regulatory agencies provide that the agency itself will design regulations addressing specifics, in order to give effect to the broad design and mandates of the Act that establishes the agency.  The EPA was the original target of the Chevron doctrine, and is still the most common, I believe, but obviously the doctrine comes in handy in undermining regulations regulating the financial industry, the pharmaceutical industry, employee safety, and, well … you get the idea.

The doctrine’s stated premise is a clearly sensible one: that the very purpose of creating a regulatory agency is to have a permanent body of experts in the relevant fields employ their expertise to study the science, the technology, the methodology, and promulgate regulatory mandates and parameters that give effect to Congress’s purpose in enacting the statute and creating the regulatory agency.  But the extreme deference that the Chevron doctrine has appeared to accord to the agencies has, rather than served to effectuate congressional regulatory purposes in enacting the statutes that come within the regulatory jurisdiction of the relevant agency—the Clean Air Act vis-à-vis the EPA, for example—turned control of these agencies into political footballs.

Which was fine with the conservative justices, as long as the White House was in Republican hands.  But nearly seven years into the Obama administration, they’ve had enough, and have begun to make noises indicating a change of heart on Chevron.  They want to rein it in.  Two of them, joined by the four Democratic justices, took the first step toward that today, in King. And tomorrow, it is widely expected, in a case called Michigan v. Environmental Protection Agency, the five Republican justices will take a second, broader, and direct step, in an opinion that will strike down as beyond its authority under the Clean Air Act the current EPA’s interpretation of that statute as permitting it to regulate the release of mercury into the air by power plants.

And as a longstanding critic of the Chevron-deference doctrine, I’m thrilled with the Chevron implications of King.  As someone who’s not fond of the effects of mercury on the health of anyone or anything who breathes, though, I won’t welcome the substantive result in tomorrow’s opinion. But I hope, and think, that the issue of statutory regulation of power plants will become a somewhat potent issue in next year’s national elections.

What won’t be a national issue in next year’s elections, federal and state, are tax credits for subsidies for healthcare premiums under the ACA.  Which is precisely why Roberts and Kennedy decided that King must be decided as it was decided today.  Last March, after the argument in the case, I predicted exactly correctly what would happen, and why—and have never looked back, instead rolling my eyes at all the continued handwringing of liberal pundits so worried about the case’s outcome.

I pointed out back then that Roberts, for all his desire to fully, thoroughly, complete the circa 1980s Conservative Legal Movement’s takeover of American law, point by point by point, wants first and foremost, always—always—to provide every possible assist to Republican candidates for federal and state elective office.  Once it became clear, as it already had by the time King was argued at the Court, that a victory for the plaintiffs would spell electoral disaster for Republicans for federal and state office next year, Roberts’ vote, and the outcome of the case, was clear as well.

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

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Freedom. [Addendum added.]

Liberty.  States’ rights.  Freedom.

Just ask Justice Kennedy about how the removal of federal constitutional checks on state and local courts, prosecutors and prisons has ensured our freedom.  Well, his, anyway.

He’ll tell you.  It’s our constitutional design (his word), see.

I keep wondering why international human rights organizations don’t aggressively spread information about this country’s states’-rights agenda and it’s huge, appalling consequences, and make clear that this is, virulently advanced by the current Supreme Court.  Because, really, only when this gains broad international attention will it begin to end.

And, yes, this is what the Court calls, explicitly, freedom.  The rest of the civilized world, though, I trust, would call it barbarism.  If they knew about it.

And really, it’s long past time that they did.

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ADDENDUM: To clarify, the premise of Kennedy’s states’-rights=freedom shtick is that separation-of-powers=freedom; ergo, Germans, Scandinavians and the Dutch, for example, are prisoners. The selling point is supposed to be checks and balances, but under Kennedy’s brand of separation-of-powers=freedom, there is a separate of powers but there are no constitutional checks on state and local government police and judicial powers. Freedom is defined not by what happens to you but instead by which government, and what part of that government, is doing it.

Added 6/9 at 11:34 a.m.

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Obviously, the New York Times Editorial Page is Lying*

I know for a fact that the alleged facts stated in this New York Times editorial today are false.  Or at least that, contrary to the editorial’s claim, those facts, if true, no longer have any impact on black Americans’ financial status and educational opportunities.  None whatsoever.

I know this because I read John Roberts’ and Anthony Kennedy’s opinions in cases that touch on such matters.

Okay, so maybe the writer of that editorial isn’t actually a liar.  Maybe he or she actually believes that the claims in the editorial are true.  Which would indicate that that writer does not read John Roberts’ and Anthony Kennedy’s opinions, at least not the ones that concern such things.

In any event, that editorial should be retracted.  Immediately.  With a concession that it misstates fact.

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*Okay, I know from experience that someone will post an angry comment here indicating that he or she thinks the title of the post, and the post itself, aren’t, y’know, facetious.  The title of the post, and the post itself, are facetious. The Times editorial, by the way, is titled “How Racism Doomed Baltimore.”

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The Campaign-Finance Transparency Canard … In All Its Orwellian Splendor

For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

Citizens United v. Federal Election Commission, Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito, Jan. 21, 2010

I should have foreseen it on Monday.  That was the day that the Washington Post published a high-profile article by Matea Gold, one of the Post’s national political reporters, headlined “Big money in politics emerges as a rising issue in 2016 campaign.”  Five of the Post’s other national political reporters contributed to the piece, two of them reporting from New Hampshire.

By “it”—that is, the thing I should have seen coming—I mean the Orwellian attempt by Republicans to blame campaign-finance laws for the billionaire co-optation of politicians instead of on, say, the Supreme Court’s dismantling of those laws.

The thrust of Gold’s article is this: Historically, the general public laments the influence of large campaign-finance donors—those who contribute directly to campaigns or parties, and those who run or contribute to ostensibly independent PACs and, now, SuperPACs—most people cite specific substantive policy concerns such as the state of the economy, rather than the influence of large donors, as their main political concerns, because, well, most people don’t connect government policy to who’s paying for the policymakers’ elections.  But now, because of the clear, well-known effect of Citizens United (and McCutcheon v. FEC, whose name and specifics most of the public does not know, but whose effect the public does know, albeit under the rubric of Citizens United), large swaths of the public are, finally, connecting the dots between government policy and campaign-finance practices, whatever the guise.

Uh-oh.  Much of the public is now not only onto the Koch brothers, but recognizes that the Koch brothers and others who are nearly as wealthy are effectively the puppeteers to the candidates for national public office—and may soon become aware that that is as true of elections for state government.  All three branches of it.

Not to worry.  Republican pundits Ed Rogers and Kathleen Parker have the answer.  Which they’ve wasted no time in laying out in their respective forums in the Washington Post forums, Rogers in his blog there surprisingly honestly titled “The Insiders,” Parker in her syndicated column.

Rogers, a longtime high-profile Republican political consultant inside and outside Republican White House administrations, and now (to quote the bio line at the bottom of his blog posts) “the chairman of the lobbying and communications firm BGR Group, which he founded with former Mississippi Gov. Haley Barbour in 1991,” announces in both the title and the body of a blog post yesterday that he is “embarrassed by our campaign finance system.”  Yup.  The first paragraph of his post reads:

I’m embarrassed by our campaign finance system. And as a long-time participant in the system, for me to get here, it must be pretty bad. So-called “campaign finance reform laws” have created a surreal world where the official campaigns aren’t where the campaigning is being done. I can’t say it any better than the recent article “Trading Places” in the National Journal. Tim Alberta and Shane Goldmacher, who wrote this thoughtful piece about the impact and increasing necessity of super PACs, said, “[SuperPACs] pose an existential threat to the old order. The campaigns themselves may soon become subordinate; as Mitt Romney demonstrated in the 2012 primary, a candidate can win without an effective campaign but not without an effective super PAC.” How can the public interest be served in a world where an unaccountable super PAC is actually bigger than a candidate’s formal campaign?

It can’t, Rogers concludes.  But not because a few exceedingly wealthy people are dictating candidate campaign platforms—they hold their own private primaries these days—and, of course, actual government policy by those whom they sponsored as candidates.  Uh-uh.  No, Sir. No, Ma’am.  No how. No way.  It’s because of a lack of transparency regarding who is funding whose SuperPACs.

And whose fault is it that this system has developed and is having the effect that it’s having?  The drafters and supporters of the post-Watergate and 2001 McCain-Feingold campaign-finance statutes!  Without which we would have had no commandeering of candidates, elected officials and (consequently) of government policy!  Uh-uh.  No, Sir. No, Ma’am.  No how. No way.

If extremely wealthy individuals could donate unrestricted amounts of money directly to campaigns and parties, and have to identify themselves as doing that, the public would also be entitled to transcripts of these folks’ phone and in-person conversations, and email exchanges, with their candidate-proxies/elected-officials, see.

Problem solved!  Or it would be, if only we would just kill the remaining campaign-finance restrictions before the Supreme Court does, and require it all to be … transparent.

Rogers’ post reminds me of those old children’s black-and-white game book puzzles in which the object is to find the obscured animal in the thicket of the drawing’s foliage.  He’s now, finally, after many decades as a participant in the system, embarrassed by that system, because of how very bad it now is.  But it’s the campaign finance reform laws—the so-called ones, not the real ones—that have created a surreal world where the official campaigns aren’t where the campaigning is being done.

Yes, that’s right.  You probably thought that the Supreme Court’s literally spontaneous campaign finance “reform” law announced under the auspices of First Amendment jurisprudence in January 2010, and “enhanced in the name of freedom by the court’s majority last year in McCutcheon v. FEC, striking down most of the McCain-Feingold law, played some role in creating a surreal world where the official campaigns aren’t where the campaigning is being done.   But it didn’t.  Uh-uh.

We know that, because although Rogers admits that it is only now that he’s finally embarrassed about our campaign-finance system–13 years after McCain-Feingold was enacted but four years after the Supreme Court decimated that statute–he’s embarressed by the system propogated by McCain-Feingold, a system that is now a quaint memory.  The embarrassment is totally unrelated to the Supreme Court’s nullifiçation of most of the statute.  Which explains why he doesn’t mention Citizens United, much less McCutcheon. He doesn’t mention the Supreme Court and Citizens United, at all.

So there.

The animal figures in the drawing are really, really obscured.  But he assures us that they’re there.  The campaign-finance laws left standing for now, he complains, are quickly rendering the campaigns themselves subordinate.  As Mitt Romney demonstrated in the 2012 primary, a candidate can win without an effective campaign but not without an effective super PAC.  So, how can the public interest be served in a world where an unaccountable super PAC is actually bigger than a candidate’s formal campaign? he asks.

But by design, he’s asking the wrong question.  So I’ll ask the right one, which is: How can the public interest be served in a world where a handful of billionaires puppet campaigns of others for public office and have secret, direct access to the candidates and who direct campaign positions the goal of which is to ultimately dictate government policy?  It is not, and it cannot.  And that’s true whether unlimited money goes directly to a candidate or party, or both, or whether instead it goes to a SuperPAC.

The demand for transparency is largely a canard, a way to render false assurances that the problem is entirely or mainly secrecy of the identity of the benefactors.  We know who the Kochs are and whom, and what, they support, because they’ve been open about it.  Same with Sheldon Adelson and Tom Steyer.  So what?

Parker’s column today is worse than Rogers’ post, but because of its obvious Orwellian feel will just prompt shrugs, I’d guess.  She writes, in a piece titled “Mr. Hughes Goes to Washington”:

Setting aside for now the debate about security, let’s turn our attention to [gyrocopter pilot Doug Hughes’] proclaimed mission of shining a light on our corrupt campaign finance system and his urgent plea for reform.

We tried that, Mr. Hughes, and it created an even bigger mess. [Italics in original.]Today’s salient political adage goes like this: Behind every successful politician is a billionaire — or several.

We did indeed try that, Ms. Parker.  And for a decade or so it worked reasonably well.  But, see, that decade saw the Democrats take control of both houses of Congress from the Republicans as well as the election of Barack Obama.  So although the Supreme Court majority initially killed most of McCain-Feingold in order to allow corporate CEOs to use shareholder money to support Republican candidates directly and indirectly, what we have as a result is less the influence of corporate money than the purchasing of federal, state and local government policy by a billionaire.  Or several.

It turns out that it’s the “several” part that Parker, and probably Rogers, finds problematic.  Parker dedicates much of the remainder of her column to Hillary Clinton’s call last week for mandated transparency in campaign finance in its various forms, because, well, transparency has not been Clinton’s strong suit.  Clinton has a pretty broad base of large donors, apparently. Anyway, Parker writes:

This tells us two things: Transparency polled well in focus groups; Clinton is adept in the art of political jujitsu.

Campaign finance reform is indeed on many minds, if only in greater America. Beyond the Beltway, people like Doug Hughes choke and spit when talking about politics and politicians. The notion that a few rich people can determine who leads this essential nation is a sour, cynical-making joke that borders on the criminal.

As noted in the quote from Citizens United that opens this post, Justice Kennedy and four of his colleagues beg to differ.  But Parker and Kennedy agree on the elixir.  Parker continues:

There’s nothing free about paid-for elections — unless everybody knows where the money came from. [Italics in original.] Ever since the 2002 Bipartisan Campaign Reform Act, generally known as “McCain-Feingold,” our two-party system has been on life support. If in pre-reform America, too many wealthy people were donating large sums to candidates, at least we usually knew who they were. In post-reform America, too many are still giving large donations — but in the shadows.

As one philanthropist put it to me, “Money will always find a way.”

Funny, but I wasn’t aware that the two-party system was on life support between 2002 and 2010, although I guess it might have appeared that way to someone who liked the idea of a one-party system as long as the one party is the Republican one.  (I am not such a person.)  I’d argue instead that the two-party system’s demise, as Parker and Rogers seem to mean it, came not as a result of the enactment eight years earlier of McCain-Feingold but instead from the rise of the Tea Party and therefore as a result of that Supreme Court opinion that cannot be mentioned in polite company.  Or in Republican pundits’ commentary.

Nor am I aware that money always finds a way in the other democracies. The other democracies in the world–the actual ones, and there are a number of them–manage to ensure that it doesn’t.

Left unexplained by these folks, and by others, possibly including Hillary Clinton, is why they believe that the purchase of candidates’ platforms and, ultimately, of elected officials’ policy positions is pernicious only when done via SuperPAC; the purchase of candidates and entire parties is fine, because, see, we know that Republicans audition with the Kochs, and we know these brothers are billionaires many times over, but that would be unimportant if only the brothers could make direct payments to the campaigns and parties.

Hillary Clinton may be adept at political jujitsu, but suffice it to say that she has no monopoly on it.

I do accept Parker’s characterization (however unwitting but by her own terms accurate) of Kennedy & Friends’ actions as bordering on criminal, though. And that money does find a way in this democracy.  But only in this democracy.  By resounding democratic majorities of 5-4.

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Dear Greg Sargent: YOU may not know what Scalia and Alito were up to yesterday. But I do.*

The chief justice said almost nothing.

Supreme Court Appears Sharply Split in Case on Health Law, Adam Liptak, New York Times

Okay, so how well did my predictions from three days ago hold up at the argument yesterday* in King v. Burwell?

Well, I got the outcome right, but not the particulars of how it will occur.  By saying almost nothing, Roberts said everything you need to know: The ACA will remain undisturbed.  He will join with the four Dem justices in an opinion that simply invokes standard statutory-interpretation methods that the Court employs when, say, it’s the Tea Party whose interests that long-established mechanism serves. In, y’know, garbage statutes. There’s no way—seriously; there really is no way—that Roberts would sit through 80 minutes of argument, in this of all cases, almost completely silently, if he intended to vote to interpret the four-word phrase at issue as the statute’s challengers ask.

Roberts will leave Kennedy to his federalism obsession—his bizarre the-Civil-War-and-the-Reconstruction-amendments-are-figments-of-the-political-left’s-imagination claims. (Roberts shares this view, but only as a means to specific Conservative Legal Movement ends, such as nullifying the Voting Rights Acts.)  Sure, the majority opinion will invoke the fancy the-federal-government-can’t-coerce-the-states-not-even-by-subterfuge federalism ground tailored specially for Kennedy.  But it will do so only to undermine the challengers’ belated switch argument: that Congress intended that the subsidies be available only in states that had set up and run their own websites, and that the purpose of the provision in the ACA that provided that the federal government would set up and run websites for individual state healthcare markets in states that do not set up and run their own was to mislead the states about the effect of a failure by the state to set up and operate its own website. (Congress knows better than to try that kind of thing and think it could get away with it! Unless, of course, it knew it wouldn’t get away with it.)  Originally, the challengers had argued that the four-word phrase at issue was an inadvertent error.

Congress’s clever ruse was predictably effective, since, as Kagan, Sotomayor, Ginsburg and Breyer noted, the federally run websites would have no products available and no customers, so the state legislators who bought the head fake weren’t really all that gullible in not catching on.

Then again, as Dahlia Lithwick reported, Scalia commented to Solicitor General Donald Verrilli: “How can the federal government establish a state exchange. That is gobbledygook.”  Which surely it is, since although each state has its own separate insurance market under the ACA, available only to residents of the respective state, the ones set up and run by the federal government were intended to have no actual insurance policies available, or customers to buy policies even if one or two policies should happen to pop up on one of those non-state exchanges.  And Scalia—no fool, he—does now recognize that that could undermine the challenger’s Plan B argument that Congress gamed this all out and decided to lull the states into a false sense that they could default to the federal government the setup and operation of the exchanges, with no ill effects.  Pun intended.  So Scalia needed a Plan B to save Plan B as something he could assert in his dissent.

But Scalia’s pointing this out wasn’t really the main gist of what he was up to yesterday. What he really was up to was having his cake and eating it too. He apparently waited until it was becoming clear that Roberts and Kennedy would do the heavy lifting for him and Thomas and Alito, and then largely reverted to his November 2014 garbage-statutes position—that is, to his pre-January 21, pre-Fair Housing Act case argument comments about how the Court normally interprets complex, multi-section federal statutes that intend to establish a coherent policy.

Well, inadvertent garbage, or instead advertent garbage; whatever. Either scenario works in this silly save-us-from-ourselves-please-while-we-protest-too-much kabuki act.  Just as Sens. Orrin Hatch, Lamar Alexander, and John Barrasso indicated in a Washington Post op-ed published last Sunday that was unabashedly directed to Roberts, Kennedy and Scalia.

Specifically, this trio opened its message with:

Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

Oh, okay. Republicans have a plan to protect Americans harmed by the administration’s actions that for the last year are providing them with healthcare, by enabling them to continue to have the healthcare insurance that is harming them.  In other words: Please, Supreme Court, save our party’s election chances in 2016, just as we quietly asked you a couple of months back, Antonin Scalia, to do.  But since it takes only one of you to do this for us, the rest of you don’t have to participate.  One sacrificial lamb is all that’s necessary.  The rest of you, write a dissent along the lines of … well, I’ll let Greg Sargent explain:

At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.

This had more significance than it first appeared.

Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”

That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.

Whereupon this happened:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –

[Laughter.]

That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.

Sargent goes on to say:

I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.

Okay, well, unlike Sargent, I do pretend to know for certain what motivated the conservative justices to say this stuff.  Or at least what motivated Scalia.  He just enjoys cake.  It’s his favorite dessert.  Despite all those calories.  Especially when he has the cake and eats it too.

Kennedy will join the majority’s ruling only in its bottom line: the ACA survives in its current interpretation.  He’ll write a concurring opinion explaining that this is a necessary outcome, in order to avoid so offending the sovereign dignity of 36 states that, in self-defense, they would enter into a military treaty with Russia and attack Washington using an allied force comprised of the Armed Forces of the Russian Federation and the states’ national guard units.  Which itself would violate the Constitution’s design because it obviously would have the effect of coercing the states into increasing their own military budgets significantly.

But Kennedy’s concurrence will be a sideshow.

Laughter.  Applause.  Curtain.

—-

*Typo-corrected to reflect the day that the post was posted (Thursday), rather than the day when I began writing it, which was Wednesday, the day of the argument. The post also has been edited slightly (and typo-corrected elsewhere) for clarity.

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The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.

____

UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

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The Confidence Fairy v. John Roberts (circa Apr. 2, 2014)

UPDATE: Wow. That tree limb I walked far out onto in my post below turned out to be sturdy after all.  A postscript is added below.

Update posted 10/9 at 10:45 p.m.

____

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo424 U. S. 1, 26-27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24-25).

McCutcheon v. FEC, Chief Justice John Roberts, Apr. 2, 2014

Thus did the Supreme Court hold, finally and unequivocally, that the right to vote is a fundamental one guaranteed to American citizens who have attained the age of 18, as prescribed in the Twenty-sixth Amendment.

Which is nice, because although the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth amendments to the Constitution refer to “the right” of citizens “to vote,” and appear to presume that that right is one conferred by the Constitution rather than by, say, your county’s elections commission or even your state’s legislature, Justice Scalia began claiming well more than a decade ago that no such constitutional right exists, because, he says, “we” (meaning a majority of justices in a single case) have never pronounced the franchise a constitutional right.  Scalia first asserted this publicly in late 2002, during argument in Bush v. Gore, and has reiterated it occasionally through the years in speeches and interviews.  His effort bore fresh fruit in June 2013, in a case called Shelby County, Ala. v. Holder, when he and four of his colleagues formally adopted that pronouncement as a prerequisite to their voiding a key section of the Voting Rights Act in that opinion.  See, longstanding Supreme Court jurisprudence holds that under the Fourteenth and Fifteenth amendments, states can’t infringe upon the constitutional rights of individuals—at least if the Supreme Court has pronounced the constitutional right at issue a “fundamental” one—unless the infringement passes a rigorous test known as “strict scrutiny.”

The beauties of “strict scrutiny” scrutiny are that the infringement must serve a compelling governmental interest and must be as narrowly tailored so as to infringe no further than necessary to accomplish that purpose.  And the government bears the burden of identifying a particularized harm and a compelling governmental interest in addressing it, and in establishing that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest. Normally—i.e., at least until now—that has required the state to provide, in response to a court challenge, some actual evidence of a particularized harm, as well as a compelling governmental interest in addressing that, and show that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest.

Not all constitutional rights are “fundamental.”  Cornell University’s Legal Information Institute explains:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment.  These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process.  Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional.  Examples of fundamental rights not specifically listed in the Constitution include the right to marry and the right to privacy, which includes a right to contraception and the right to interstate travel.

That’s a bit out-of-date, of course, because these days a fundamental right is one that Justice Kennedy says is one, and Kennedy has repeatedly made clear that he believes that states have a constitutional right to violate individuals’ constitutional rights, including Fourteenth Amendment equal protection rights, since states are people, my friend, although there are certain exceptions to that, such as, well, state-law restrictions on campaign financing.

Rights that the Supreme Court has not pronounced fundamental may be infringed if the government has a “legitimate governmental interest” in furthering; i.e., if there is a “rational basis” for the infringement.  And it is the statute’s or policy’s challenger who bears the burden of showing the absence of any rational basis.  Good luck.  That explains, somewhat, what happened in Crawford, which enunciated a sort of middle-between-rational-basis-and-strict-scrutiny standard, and presumptively kept the burden of proof on the challengers.  But Kennedy has now said, by signing onto the opinion in McCutcheon written by Roberts—who has changed his mind since he wrote that opinion in Shelby County in June 2013—that the franchise is, after all, a constitutional right accorded to human individuals.  It’s a basic right—one to which there is no right more basic.  It is, in other words, at least presumably, a fundamental right.  And infringements of that right are subject to strict scrutiny.

Which means that the states that have enacted voter ID laws that will disenfranchise citizens within that state, at least in the upcoming election because of the chaos created by (very) late court orders—say, court orders issued only a few weeks before the November election, lifting lower-court injunctions that had barred enforcement of the statute in that election—must, in light of McCutcheon, meet the burdens of strict-scrutiny analysis.

Or they would, if only the challengers—including the ones currently challenging Wisconsin’s voter ID law, in a case called Frank v. Walkerwould this point out: McCutcheon, as well as Citizens United v. FEC, the Kennedy-authored opinion which McCutcheon parleyed, both were issued after Crawford v. Marion County, Ind.

Crawford is the 2008 Supreme Court opinion upon which these states—and exactly half the members of the Seventh Circuit Court of Appeals, the federal appellate court for Illinois, Indiana and Wisconsin—base their claim that voter ID statutes pass constitutional muster.  At issue in Frank is the constitutionality of the Wisconsin voter ID law that Gov. Scott Walker pushed through the state’s legislature roughly three minutes after he and the newly-elected Republican legislative majorities were sworn into office in January 2011.

Monday’s opinion in Frank was issued by the three judge appellate panel originally assigned to the case, and was the culmination of an unusual month-long procedural odyssey that included an oral argument to that panel on Sept. 12 and a three-paragraph emergency order issued by that panel late that day dissolving a stay of enforcement of the statute that was put in place several months earlier by a federal trial judge in Madison.  The order said that a full opinion would be forthcoming.  But before that opinion came forth, the statute’s challengers filed what’s known as an en banc petition—a petition asking that the panel’s order be dissolved and that that appellate court’s full membership of 10 judges hear the case.  That petition was denied on Sept. 30, on an even-split vote. Last Thursday, the statute’s challengers filed an emergency petition with the Supreme Court requesting a stay of the appellate court’s order lifting the stay.

The identified author of Monday’s opinion is a Reagan appointee and Federalist Society leading light who reportedly was recommended to Reagan White House Counsel Edwin Meese by Antonin Scalia. His two concurring panel colleagues areGeorge W. Bush appointees.  Walker’s in a very close reelection bid—a bid in which the polls following the final ruling by the full Seventh Circuit Court late last month began showing him pulling ahead.  The “likely voter” pool now is limited to people who already have a statutorily-approved photo ID or the documents necessary to obtain one.  No one born in a rural home in Mississippi during the Great Depression need apply for a ballot.  Especially if that person is, say, black and no longer drives or never did.

Nor travels to Canada.  Which not all Wisconsinites do–the state’s proximity to the border notwithstanding.  Although that surely is what the opinion’s author had in mind when he noted in the opinion that a special state-issued photo ID or a passport is needed, to travel to Canada and return to the United States. (He also might have had in mind the need to rush the opinion out in light of the challengers’ Supreme Court filing of that emergency petition for stay of the ruling last Thursday, although that’s just a guess.) But in case the reference in his opinion to the need for a state- or federal-government-issued-photo-ID-to-visit-Canada point doesn’t nail it for his side, that judge also said you need a state-issued photo ID to board an airplane.

Which you don’t, in this country, although many elderly people born in the rural South and now living in Wisconsin are known to vacation regularly in Israel, so maybe that’s what he has in mind.  He also wrote that you need a state-issued photo ID to pick up a pharmaceutical prescription at your neighborhood pharmacy, which also is not accurate, although you probably do need some form of ID in order to pick up a prescription for narcotic pain killers and certain psychotropic drugs.

I’ll refrain from jokes about which of the latter this judge uses, and whether he needs a change in medication, since mental illness is not funny.

To me, the opinion has the feel of desperation to justify its result, and although it seems throughout most of it to be leading inexorably toward one particular justification—the one that the credited author advanced at oral argument, if a Milwaukee Journal Sentinel reporter’s account is accurate (I haven not read the argument transcript)—it ultimately rests for its justification on another, somewhat contradictory one. In his report on the argument, published online shortly after the argument’s conclusion, Journal Sentinel reporter Patrick Marley quoted the Scalia-protégé judge as saying, “He took evidence and found the Supreme Court was wrong!”  The “He” is District Judge Lynn Adelman, a liberal Clinton appointee and the trial judge who had issued the injunction.  The exclamation mark is mine; I added it.  The problem is that Crawford did not find voter ID statutes constitutional irrespective of the evidence presented to a trial court showing a resulting disenfranchisement of citizens qualified to vote.  Three justices—Scalia, Thomas and Alito—in a concurring opinion written by Scalia, urged that result, but the remaining justices, including the majority opinion’s author, explicitly rejected it.

Okay, so this federal appellate judge of nearly three-decades’ duration, this a leading intellectual light of the Conservative Legal Movement, thinks a largely evidence-based Supreme Court ruling is a categorical law-based preclusion of later evidence-based trials invoking the same legal issues.  We’ll take his word for that.  (Actually, I do.)

But apparently sometime in the hours after the Sept. 12 oral argument, the Scalia protégé’s two Republican panel members pointed that out.  Late that day, the panel issued an emergency three-paragraph order lifting the stay and allowing the voter ID law to be implemented for the November election. But the order relied entirely upon a fact.  A new fact, in fact—one that occurred after Adelman had issued his stay: The Republican-controlled Wisconsin Supreme Court, in a ruling on July 31, 2014, in another case, Milwaukee Branch of NAACP v. Walker,* had effectively altered the statute to require that the state assist people, financially and logistically, to obtain the necessary documentation and the state ID. This could not be accomplished by November, but, in what appears to be in direct contravention of a 2004 U.S. Supreme Court opinion, Purcell v. Gonzalez, that prohibits major changes to voter registration and voting requirements and procedures shortly before an election, the federal appellate panel lifted the stay.

That order did not mention Purcell nor the issue of shortness of time.  Crawford must be rigidly interpreted rigidly, see, but Purcell need not be interpreted at all, or even mentioned.  But the full opinion issued Monday, of necessity, did.  The emergency order had been roundly pilloried for casually lifting the stay without addressing the issue of the proximity to the November election, and the challenger’s emergency petition to the Supreme Court of course dealt at length with this issue.  The panel’s answer: Forget that legal challenges to the statute have been ongoing almost since the statute was enacted in 2011.  And forget that the Wisconsin Supreme Court had effectively amended the statute in July, less than four months before the election, to require that the state take certain actions that could not even conceivably be completed before the election. The statute was enacted more than three years ago, for heaven’s sake!  That was plenty of time to “scrounge”—the Scalia protégé’s word; seriously—up out-of-state or foreign birth certificates (including the money to pay for them) and the ride over to the nearest DMV.

Sometimes, it takes much less time than three years to scrounge up something you really need, or really want.  A mere four weeks after floating that “He took evidence and found the Supreme Court was wrong!” trial balloon, and after seeming in paragraph after paragraph to revive it in the final opinion, this judge (apparently with assistance from his panel colleagues) was able to scrounge up a new excuse: what matters is voter confidence in the integrity of elections.  Or what my idol Paul Krugman would call … the Confidence Fairy.

Sure, there’s no actual evidence of voter-impersonation fraud in Wisconsin.  But some Wisconsin citizens believe there is rampant voter-impersonation fraud in Wisconsin.  And that belief undermines their confidence in the integrity of the electoral process, and might dissuade them from voting.

But McCutcheon holds expressly that belief alone cannot justify upholding the statute that infringes upon political speech.  Which is what McCutcheon says voting is. McCutcheon pancakes what formerly had been two separate, and separately protected, concepts: actual corruption and the appearance of corruption, both of which the Court had held throughout the preceding 40 years or so justify statutory restrictions on campaign donations. McCutcheon holds that only actual corruption can create the appearance of it.  A Supreme Court ruling that nonetheless permits state voter ID laws to infringe upon the right to vote, absent a showing by the state that voter-impersonation fraud exists and objectively—i.e., actually—undermines the integrity of elections, would be beyond-the-pale partisan manipulation by a bare majority of the Court.  Which is not to say that that’s not a possibility. It is a possibility.  But I’ll come close to very edge of the tree limb I’m on and predict that the Court will stay the Wisconsin statute until after the November election.  Luckily, my healthcare insurance policy covers orthopedic surgery to repair broken bones.

Crawford’s six-justice majority noted that the State of Indiana had failed to produce evidence of voter-impersonation fraud, and no one (to my knowledge) has disputed the accuracy of the Court’s claim. That’s probably because apparently no evidence existed.  The outcome in Crawford relied instead upon a claim the unfounded belief among some voters that voter-impersonation fraud is rampant is itself the justification for upholding the voter ID statutes, because these people lose faith in the legitimacy of the voting process and consequently may decide not to vote.  The state has a legitimate interest in encouraging voting.  Ergo, the belief itself sufficed as justification for the Court to uphold the statute.  In 2008, the Supreme Court had not yet pronounced the right a fundamental constitutional right.

Now, six years after Crawford, there are, according to an apparently thorough recent research, exactly 31 documented instances of voter-impersonation fraud.  In other words, for Wisconsin, North Carolina, and other Tea Party-captured state governments, it’s the Confidence Fairy or bust.  And McCutcheon, at least taken at face value, indicates a bust.

McCutcheon does not clarify whether the right to vote is a basic constitutional right independent of the First Amendment’s speech clause or instead is a basic constitutional right emanating from the First Amendment’s speech clause.  But that doesn’t matter. Voting is speech.  Y’know, just like giving a huge donation to a party, candidate or Super PAC is speech.  The latter is speech of such importance in a democracy that, McCutcheon actually says, the speaker—the donor—must be considered a “constituent” of the officeholder once he or she wins the election, irrespective of how far from that new or reelected member of Congress’s state or district the donor lives.  (Seriously; McCutcheon actually says that.)  And if some people are less likely to vote if they lack confidence that in the integrity of the political process and the political system—that is, if they decide not to vote because they themselves can’t afford to buy the status of constituent from even their own senators or House representatives, much less from ones representing states and congressional districts where neither their main home nor their vacation home is located—so be it. Speech is speech.  And this is a democracy.

McCutcheon, it certainly seems to me, killed the Confidence Fairy. A war veteran, it deserves a decent burial at Arlington National Cemetery.

And Democrats, especially those of us who think of ourselves as constituents of our own members of Congress without first purchasing that status, and have been rapidly losing confidence in the integrity of elections, will attend the funeral. But first there must be a death certificate issued.

*Name of case, and specific date of decision, added. 10/11

____

POSTSCRIPT:  The order issued tonight by the Supreme Court reads in full:

The application to vacate the September 12, 2014 order of the United States Court of Appeals for the Seventh Circuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers); some internal quotation marks omitted). Under that test, the application in this case should be denied.

Yes, under that test, the application in this case should have been denied.  But there’s a new test now: This Court may vacate a stay entered by a court of appeals that stayed a stay entered by a lower court. Frank v. Walker, on application to vacate stay, No. 14A352 (Oct. 9, 2014).

What an asinine comparison.  The appellate-court stay in the Planned Parenthood case served the purpose of preserving the status quo in order to prevent irreparable injury from implementation of the statute.  In this case, Frank v. Walker, the appellate-court stay was of a trial-court stay whose purpose was to prevent irreparable injury from implementation of the statute.  The trivialization, by that trio of justices, of the right of the franchise, and of the outcome of the election itself, is disorientingly weird.

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Chris Cillizza Misses the Point. (The most important point, anyway.)

Anecdotal evidence, the basis of so much journalism prior to the rise of the data movement and still, to my mind, over-relied upon — is just that: anecdotal. Roughly 65,000 people voted in the Cantor-Brat primary; Brat won by more than 7,200 votes. Assuming that what a non-scientific sample  of 1, 10 or even 100 people in the district thought about Cantor (or Brat) in the run-up to the race — the shoe-leather reporting prized by Carr — was indicative of how 65,000 people were planning to vote seems to me to be somewhat misguided. (Now, if all 100 people a reporter talked to in the district loudly derided Cantor as an out of step liberal, then I take back my previous point. But, my guess is that wouldn’t have happened.)

Should I have seen Eric Cantor’s loss coming?, Chris Cillizza, Washington Post, today

I assume that Cillizza is, as he says, responding to New York Times writer David Carr’s column on Monday, “Eric Cantor’s Defeat Exposed a Beltway Journalism Blind Spot,” rather than also to, say, my AB post from Wednesday, in which I discuss Carr’s column and note that what the national news media missed, but what the local political reporters Carr mentions recognized, was not simply local antagonism toward Cantor but, to an apparently substantial extent, local antagonism toward Cantor because he is the very embodiment of the politician who shares John Roberts’ particular view, stated expressly in his opinion two months ago in McCutcheon v. FEC, of who or what a politician’s “constituent” is.

In my post on Wednesday (picked up in full elsewhere, I’m glad to see), I noted that the in-depth analysis of it by political several political journalists now that the post-Canter-defeat dust has settled is that critical to Brat’s victory was an anti-plutocracy theme and that Cantor provided the perfect foil for it. Most of the articles discussing this say that the Chamber of Commerce–an explicit target of Brat’s during the campaign, and other major players among the Republican business constituency, who Roberts described in McCutcheon as constituents entitled to secretly help draft legislation by dint of their ability to purchase that right, concur and are springing into action.  As Gail Collins summarized it in her New York Times column yesterday:

The defeat of the House majority leader, Eric Cantor, terrified many of the party establishment’s supporters, particularly since Cantor’s opponent ran against Wall Street, big business and bank bailouts.

It’s a problem, if you’re a big-money donor, to be worried that your party is being taken over by crazy people who will alienate the voters in a national election by opposing immigration reform and contraception. It’s a catastrophe to be worried that it’s being taken over by economic populists.

Cillizza and, I suspect, a number of other professional political analysts remain wedded to what is quickly becoming an outdated model.  They’re missing some important handwriting on the wall, which is that huge swaths of the public are dismayed at the meaning of “constituency” and “democracy” as defined in the New Dictionary of Supreme Court English, edited by Roberts and Anthony Kennedy.  As I said in my Wednesday post:

Call McCutcheon v. FEC the new poll tax. I do.  After all, John Roberts, in a surprising bit of honesty, described it in his opinion for the majority as pretty much that in his opinion in that case earlier this year. “Ingratiation and access . . . are not corruption,” he wrote, quoting Anthony Kennedy’s the Court’s decision in Citizens United, and then explained:

“They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

But Cantor’s constituents–the ones that Roberts says should dictate Cantor’s policy positions and write legislation he proposes–couldn’t vote in Virginia’s 7th Congressional District last week. The district is too far away for them to commute to Wall Street, or to Wichita, KS, or downtown Houston, or Raleigh, NC.  And surprisingly, it turns out that Brat actually ran what was in large part a progressive economic-populist–an anti-plutocracy–campaign highlighting who exactly Cantor’s  constituents (to borrow Roberts’ term) are.  So, now that that is being widely reported and is sinking in, hedge-fund types and the Chamber of Commerce crowd apparently indeed are starting to pray.

Apart from the obvious reason for the definitional chasm between Roberts & Co. and most people embedded in that statement by Roberts–specifically, the definition of “democracy”–add to the rapidly growing list of Roberts’ casual redefinitions of common words this new definition of “constituent,” one disembodied from residency in the candidate or officeholder’s actual election jurisdiction.

Cantor was beaten, in substantial part, it certainly appears, by Citizens United and McCutcheon–by a backlash toward the political system that is now, bizarrely but expressly, institutionalized as a matter of constitutional jurisprudence.  Turnout was very heavy, far heavier than it was in the primary in that district two years ago, when apparently all the candidates were fine, thank you very much, with poll-tax democracy.

I titled that post “David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.”  And in the last two paragraphs, I elaborated upon the title, writing:

Brat, for his part, appears to be about to run a general-election campaign consisting mainly of slogans and non sequiturs.  No surprise, of course; slogans, cliches, non sequiturs are the very essence of the current Republican Party–both factions of the Tea Party/Republican Party. The Paul Ryan/Koch brothers/Chamber of Commerce faction and also, because of the mutual exclusivity of its premises, the (newly named) David Brat faction. That’s simply the nature of this beast.

But the divorce case originally known as Movement Conservatives v. Movement Conservatives, filed June 10, 2014 in the Richmond, Virginia Court of Public Opinion, is a class action.  I just checked the docket for the case, and it’s now called Movement Conservatives, et al. v. Movement Conservatives.  And already, there have been several amicus briefs filed on behalf of the petitioners.  And the Supreme Court may not decide the outcome of it after all.

That last sentence is true; the Supreme Court has lost control of the narrative on this.  It has tried, but unsuccessfully, to decree new non-legal definitions of “corruption,” “democracy,” “constituent,” “person,” and “speech.”  It is losing its case in the courts of public opinion in most jurisdictions around the country; that much already is clear.  But the Court will decide, very possibly–in other litigation; actual imminent litigation, in Wisconsin state court and very possibly in federal court–whether or not two key provisions of Wisconsin state, and of still-standing federal, campaign-finance statutes violate five Supreme Court justices’ view of the First Amendment within the peculiar prism of their definitions of those words.

Best as I can tell from news reports in the last 24 hours, the apparently forthcoming state prosecution of a few people involved on behalf of Gov. Scott Walker and Republican state legislators in the Wisconsin recall elections in 2011 and 2012, and perhaps of Walker himself, will necessarily involve challenges by the defendants to the constitutionality of Wisconsin’s (and possibly eventually to the federal government’s) statutory prohibitions against consort between election campaigns and PACs purporting to be “operated exclusively for the promotion of social welfare” and unaffiliated with a political party or candidate.

The PACs are not subject to donor-amount limits, and they also can qualify for non-profit tax status if they meet a low bar for what constitutes “exclusively for the promotion of social welfare”.

But whether operated exclusively for the promotion of social welfare, as “social welfare” is defined by most people, or instead as it will be defined in New Dictionary of Supreme Court English, these groups embody a central feature of democracy as defined in the April 2, 2014 edition of that Dictionary—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. And Scott Walker and the Republican legislators who were subject to possible recall adopted the very definition of “constituent” included in the current edition of the New Dictionary. Most of the people and groups with which they appear to have been coordinating were Walker’s and the legislators’ constituents only in the newly defined sense.  They were not residents of Wisconsin and therefore could not show a valid photo ID at a polling place in Wisconsin. (They would have to vote by absentee ballot.)

But Walker & Friends still remain a bit too precocious in one respect.  The Court’s majority has not yet redefined “democracy” to include as a central feature a First Amendment right of constituents (under either definition, traditional or new) to hide their identity when contributing directly to a political campaign.  And it well may not do so.  Kennedy indicated in his opinion in Citizens United that he does not believe that secret donations to campaigns embody a central feature of democracy.  Uh-oh.

Ultimately, though, what matters most is the outcome that civil litigation, Movement Conservatives, et al. v. Movement Conservatives, because not all five of the current editors of the New Dictionary are young and healthy–and because of the political facts illustrated by the surprisingly high turnout in the open primary in Virginia’s 7th Congressional District and the predominant campaign theme of the winner.  But I don’t expect Chris Cillizza to get that.

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