Relevant and even prescient commentary on news, politics and the economy.

Greece, Greece, I Tell You!

It’s not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore‘s Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers’ views on religion made it into Monday’s decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

— Professor says Supreme Court drew flawed conclusion from book: University of Baltimore expert says Framers deliberately avoided sectarian language, John Fritze, The Baltimore Sun, May 10

No, the title of this post doesn’t refer to the bond-vigilantes/austerity/confidence-fairy crowd, but instead to (yet again) the Supreme Court’s 5-4 decision issued last week in Town of Greece v. Galloway–and to what will be the rallying cry of the pro-Christian-prayer-at-government-meetings crowd, going forward.

Before I swear off posting on AB about that Supreme Court opinion, I want to make one more point, this one about the perniciousness of the Court’s conservative majority’s pretense that in order to understand the original Constitution and the Bill of Rights, or the Reconstruction-era amendments, or anything else about the Constitution, you presume that the framers intended to freeze things the way they were before the Constitution, the Bill of Rights, the Reconstruction-era amendments, were drafted and ratified.

Which raises this question: Why engage in a laborious process of gathering a large number of people to draft a Constitution and shortly afterward draft and ratify amendments, or fight a Civil War and, after you win, draft and ratify amendments reflecting the outcome of the war, if your purpose is to solidify the pre-Constitution, pre-Bill of Rights, pre-Civil War, pre-Reconstruction-era status quo?

The answer is that you don’t, and you don’t pretend that others did.  Unless you’re a 1980s-era Conservative Legal Movement lawyer, judge or justice.*

But it also highlights what is becoming a hallmark of the Roberts Court’s conservative majority: misrepresentations of the very meaning of words, phrases, legal doctrines, and (now, apparently) academics’ writings.

I wrote here recently that we’re “witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.”

The title of Meyereson’s book is Endowed by Our Creator: The Birth of Religious Freedom in America.  As I said here yesterday, town governments are people, my friend.

I do think the Supreme Court has crossed a threshold now.  This crowd observes no recognizable bounds of propriety in achieving the Conservative Movement’s policy goals via the Court’s transparent machinations of history, language, false analogy. Nothing–nothing–is sacred any longer. Except, of course, Christianity.


[Next up, later this week: Why I believe that Ruth Bader Ginsburg will announce her retirement at the end the Supreme Court term in late June, pending confirmation of her replacement. And the UnElena Kagan who I expect will replace her–and why it would be a very good development, for once.]


*This paragraph and the one above were edited for clarity and inclusion of an inadvertently-missing clause after posting, 5/14 at 6:28 p.m.

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Town Governments Are People, My Friend.

For citizens against the prayers, the decision sets dangerous church-state precedent. For the town of Greece, court’s ruling is a victory for religious freedom.

— Brett Harvey, senior counsel at Alliance ­Defending Freedom, which represented the town of Greece, in Town of Greece v. Galloway, at the U.S. Supreme Court, writing as a guest in the National Law Journal.

That’s right. States are people entitled to equal protection of federal law under the Constitution’s Fifth Amendment. Corporations are people entitled to freely practice their religion under the First Amendment’s free exercise clause, and to use the fund of their unwitting shareholders to exercise their CEO’s First Amendment right to free speech.

And town governments are people entitled to exercise their religious majority’s right to freely practice their religion under the First Amendment’s free exercise clause.

The Alliance has successfully defended freedom.  The decision “not only protects the ability of the government to accommodate the faith of the people, but it adds further protection for people to publicly pray and express their own faith,” Mr. Harvey writes.

Which is good, because of all those people–right here in America–who were being arrested for praying publicly and expressing their own faith. No longer will Americans have to worry about being able to make bail and retaining criminal counsel after praying outside.

And now they can even go Christmas caroling around their neighborhood each December while carrying two cell phones, and make it home unmolested by arrest.


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Michael Hiltzik: “‘If I had to guess, this case won’t go well for retirees,’ [U. Mich. law prof. Nicholas] Bagley writes.”

In an era in which corporations have been trying every possible stratagem to cut employee benefits (see our look at the Obamacare employer mandate earlier today), a new threat to retirement benefits has just arisen.

The source of the threat is the Supreme Court, which earlier this month agreed to rule on when or whether employers can unilaterally end retiree healthcare benefits, even when they’re negotiated as part of a union contract.

– The Supreme Court saddles up for an attack on retiree benefits, Michael Hiltzik, LA Times, May 12

The article, which explains the situation and includes the quote in the title of this post, links to Bagley’s post about the Supreme Court case at issue on his Bagley’s blog.  The blog is called The Incidental Economist, and is devoted to discussion of healthcare reform.

The case has already been decided, of course, 5-4, at the Court.  All that remains are the formalities: the briefing, argument, and the opinion written by Samuel Alito.

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Check your privilege again, Mr. Fortgang, and prove that you really did get into Princeton as a merit admittee. [Format-corrected repost.]

It is a familiar phrase on college campuses, often meant to serve as conversational kryptonite, the final word in an argument to which there is no response.

“Check your privilege.”

But Tal Fortgang, a Princeton freshman from Westchester County, had a response.

At Princeton, Privilege Is: (a) Commonplace, (b) Misunderstood or (c) Frowned Upon, Marc Santora and Gabriel Fishermay, New York Times, May 2

Indeed he did.

I’m betting that most AB readers haven’t heard of the “Check your privilege” controversy currently raging at Princeton and other prestigious American institutions of higher learning.  Or, for that matter, the phrase “Check your privilege” itself, although I could be wrong about that.  I myself learned of the controversy on Thursday, when I read Alexandra Petri’s satire piece on it in the Washington Post. (I had not read the article in the New York Times, which was in the NY/Region section.)  The Times article explains:

After class recently, he was explaining to a classmate his views on welfare and his concern about the national debt, when he was told — not for the first time, he said — to check his privilege.

He thought about the phrase, what it meant and last month penned a pointed essay in a conservative campus publication, The Tory.

“The phrase, handed down by my moral superiors, descends recklessly, like an Obama-sanctioned drone, and aims laserlike at my pinkish-peach complexion, my maleness, and the nerve I displayed in offering an opinion rooted in a personal Weltanschauung,” he wrote.

His essay touched a nerve.

Indeed it did. As you can imagine. The Times article expounds:

He was hailed on the right, his piece used as evidence that America’s universities are hopelessly liberal. Conservative bloggers and national publications picked up his cause.

He appeared on Fox News this week, in a segment labeled “Student Takes Down Liberals Over ‘White Privilege’ Debate.”

The reaction on the left was equally strident, with other students challenging his position and saying his own words were evidence that he had failed to understand the phrase.

Josh Moskovits, also a freshman at Princeton, said the phrase was not commonly used and argued that Mr. Fortgang did not even understand what privilege meant.

“In my opinion, it’s sort of a manufactured right-wing idea that people are running around left wing colleges saying ‘Check your privilege,’ ” he said. “He would have to say, in my opinion, something incredibly outrageous to get someone to say ‘Check your privilege.’ ”

The essay in The Tory–The Tory? Seriously? And that name is not meant as satire?–you’ll be interested to know, is called “Checking My Privilege: Character as the Basis of Privilege.”  The title probably was the work of an editor, not of Fortgang, but it captures, exactly, Fortgang’s claim, as well as exactly what’s wrong with Fortgang’s position. And exactly why the essay itself effectively illustrates that Princeton is accepting the children of the wealthy upon the basis of something other than intellect. This guy just isn’t very smart.

The character he claims for himself is, in fact, the character of his ancestors and relatives, some who were murdered by the Nazis during WWII, some (including his grandparents) who survived unspeakable horrors and then made their way to America and started a wicker-basket-making business that supported this father’s nuclear family of six.  He co-opts as his own not only the horrors, perseverance and character of his relatives who were Holocaust victims or survivors; he does the same with his grandparents’ nurturing of their kids, his father’s studiousness at City College, CUNY, doing well enough “to earn a spot at a top graduate school.”

Was that graduate school Princeton, maybe?  I don’t know. I do know that his father, Stanley–who is quoted in the Times article, and who in his brief comments comes off as gracious; not the least bit entitled, obnoxious, silly or confused–is:

the founder and managing partner of Etzion Consulting Group, L.L.C., where [in 20011 he specialized] in consulting on fixed income markets, including the market for distressed loan trading. Mr. Fortgang previously worked at Jefferies & Co., Morgan Stanley and Goldman Sachs, among other investment banking institutions ….

Apparently, he’s now back at Jeffries & Co., as its managing director.

What could have been a beautiful essay, published somewhere else, about his gratitude to his forebears for their hard work and perseverance, their nurturing and their focus on their kids’ education, is instead a weird conflation of what he and The Tory’s headline writer view as the “character” of parent and child–his family members, and others (i.e., blacks, rural whites, Hispanics).  It also pretends that his ancestors, who came to America with no money and no English, were left completely to their own devices in post-War America, a pretense that surely is false. Perhaps his parents and grandparents forgot to mention to him the structure in place among Jews, dating back to the early part of the last century and escalating tremendously after the War, to assist Jewish immigrants, many of whom already had family in America and Canada.

But I doubt that the oversight was theirs. I suspect that, instead, the obliviousness is not a facet of his parents’ and grandparents’ character but of his own. Precisely, he write:

Perhaps my privilege is that those two resilient individuals came to America with no money and no English, obtained citizenship, learned the language and met each other; that my grandfather started a humble wicker basket business with nothing but long hours, an idea, and an iron will—to paraphrase the man I never met: “I escaped Hitler. Some business troubles are going to ruin me?” Maybe my privilege is that they worked hard enough to raise four children, and to send them to Jewish day school and eventually City College.

Ah, yes. So not only did he not have to compete for financial aid for college; his father didn’t have to take out a student loan.  Perhaps because back then CUNY’s tuition was negligible because progressive local, state and federal taxes actually funded most of the costs at public colleges and universities?  Fortgang (the son) doesn’t mention how his father paid his tuition and living expenses at that top graduate school.  Might it be that he took out a federal-government-backed student loan at a low rate, to pay tuition that was steep for its day but pocket change now relative to what it is there now?  More from the essay:

Perhaps it was my privilege that my own father worked hard enough in City College to earn a spot at a top graduate school, got a good job, and for 25 years got up well before the crack of dawn, sacrificing precious time he wanted to spend with those he valued most—his wife and kids—to earn that living. I can say with certainty there was no legacy involved in any of his accomplishments. The wicker business just isn’t that influential.Now would you say that we’ve been really privileged? That our success has been gift-wrapped?

Our success has not been giftwrapped? Our success? Did anyone tell his father or his grandparents to check their privilege?  As opposed to telling him to check his?

Only folks who made it into the high echelons of wealth get up well before the crack of dawn, sacrificing precious time they want to spend with those he valued most—their spouse, or kids, or both—to earn that living?  So their kids’ failure to get into Princeton, perhaps through a legacy admission, perhaps through large financial donations to the university, but in any event surely through tutoring, SAT prep, aggressive outreach by a high school counselor who has contacts at the Ivy League admissions offices, and oodles of expensive extra-curriculars that actual have no legitimate business factoring into college admissions practices at all–is because of the kids’ lack of character, as well as a lack of the parents’ poor character?

Anyone who grew up with every imaginable advantage and thinks his own success has not been gift-wrapped because his father’s success and his grandparents’ successes weren’t isn’t just socioeconomically blind; he’s also just not very smart.

And, most revealing on that last point, is his claim and apparent belief that what was meant by “his privilege” was his race and gender rather than that he did indeed have the huge benefit of having grown up with access to excellent schools and so much more that money buys such a large percentage of students at this country’s most prestigious colleges and universities. Including, and in his case probably most relevantly, that he would not need financial assistance from the university’s endowment, to which his father may wll have already contributed before his admission and could be counted on to contribute to during the son’s time there.

This is, in one (but only one) important respect, reminiscent of a mini-controversy last year about David Brooks’s decision to us one of his NYT columns to publish, with permission, an essay written for a class assignment by a student of his in a Yale course he was teaching as a guest lecturer.  The essay, which Brooks thought was brilliant and had awarded an “A” grade, was pro forma–pretty banal, and (most glaring to me) included a statement that was nonsensical.  Its subject was generic millennial perspectives on the political process, but it was written, obviously, from the perspective of someone who was not, suffice it to say, attending Yale on a financial-needs scholarship.

Unlike the Fortgang essay, this one was not written with any malice or purpose of denigration toward certain racial minorities or poor whites.  Much less any borrowed superiority of character. It was written instead as a phone-in by an already mentally-checked-out college senior in her final semester, to complete an assignment in a filler course taken to get that final three credits needed to graduate. The student, who probably wishes she had never heard of David Brooks, surely already had accepted a position on Wall Street or in some prestigious grad-school program.  But she had indeed “come from money”.  Unless, that is, she had attended National Cathedral School on a scholarship. And, probably, so did the other students in that class. And this was the best of the essays.

But unlike that Yale senior’s essay, Fortgang’s presents something fairly ugly, in my opinion, that has been skirted but should not be. I kept wondering as read through his piece what his Holocaust-victim relatives–those who survived but are now gone, and those who perished–would think of his invocation of their lives and (for some) deaths as justification for his claim to have himself earned his spot at Princeton. Yes, he documents, they earned it for him.  But he says it’s due him by virtue of their virtue.

I wonder, as a Jew myself, how proud his late relatives would be (and how proud his father really is) of their legatee.  I suspect that his late ancestors would explain to him the difference between being the beneficiary of your parents’ and grandparents’ intense efforts, resilience, and the welcome assistance to them by others–being the beneficiary of their hard-earned successes–and being the beneficiary of your own.  And that his great aunts and great uncles who died at the hands of the Nazis during WWII would be grateful to have their stories told, but not as justification for a great nephew’s admission to Princeton.  I suspect that they would consider this, as I do, unseemly.*

*Paragraph edited, and the last two sentences added, 5/11 at 1:12 p.m.

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Krugman: If you don’t like the mandate, why not support single payer?

Bill Gardner at The Incidental Economist offers a rather decorous, mild reply to the people making [the argument that guaranteed health insurance is an assault on America’s freedom]. I’d put it more forcefully: the pre-ACA system drastically restricted many people’s freedom, because given the extreme dysfunctionality of the individual insurance market, they didn’t dare leave jobs (or in some cases marriages) that came with health insurance. Now that affordable insurance is available even if you don’t have a good job at a big company, many Americans will feel liberated — and this hugely outweighs the minor infringement on freedom caused by the requirement that people buy insurance. (Also, if you don’t like the mandate, why not support single payer?)

— Paul Krugman, Insurance and Freedom,, today

I’ve said now here at AB too many times to count, but most recently five days ago, that the highlighting of Obamacare horror stories–real or fabricated–is really an argument for single payer. Every single horror-story problem–real, fabricated, or predicted down the road–would be cured by single payer.  But, to my knowledge, no one else was writing this in print for public consumption.  Now, Paul Krugman has done that.

But why aren’t the Dems pointing out that what the Repubs appear to actually be complaining about is the absence of a public option, or that the ACA didn’t establish single payer?  Maybe sometime before the election, they will–if others who have a wide readership make the point, as Krugman did there.

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“Sit In The Back of The Bus, I want this Seat”

I grew up in the city of Chicago in the fifties and sixties. When I was going into the military, I saw the west side of Chicago burning as I returned my then girl friend back to her home. It is still hard to believe this type of discrimination would happen today as it happened then . . . and it is. Yet it is even harder to believe a lone white man would demand a seat from a black woman and tell her to move to the back of the bus in New York City. The African Americans kept their cool even with an obviously crazy old white man making racists demands on them.

which begin after the man asked her to move:


WHITE PASSENGER: “Because the back of the bus is over there… I mean the black of the bus is over there.”

BLACK PASSENGER: “Excuse you?”

WHITE PASSENGER: “Yes, I want that seat.”

BLACK PASSENGER: “Why do I have to go to the back of the bus?”

WHITE PASSENGER: “I want that seat.”

BLACK PASENGER: “No, I’m not getting up cause you’re being… no… you’re being racist.”

His comment after everyone on the bus objects to his demands??? “This is why we need Donald Sterling.”

Many of us had witnessed what we thought to be the death of this type of overt and bold display of racism decades ago. You have to wonder whether recent societal views towards discrimination have created an environment for the reemergence of this type of public display. This person does not appear to be a skinhead or a KKK member and appears to be just an average male on a bus.

With a court that looks at discrimination as something which is in the past and laws are no longer needed; with a large segment of our political leaders and a greater portion of the population claiming they have the right to discriminate in day to day business or otherwise activities on race, sexual orientation, or gender; with an economy skewing productivity gains away from the majority of the population; We are heading to another point where there will be another city and economy burnt. We are squeezing the low income and minority population as never before and sneering at them with our Donald Sterling threats.

HT: FirebrandProgressive and Crooks and Liars

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Thom Tillis vs. Sam Walton and Ray Kroc

From an interview of North Carolina Republican Senate Candidate Thom Tillis by NBC’s Chuck Todd today:

Todd: Do you think [the minimum wage] should be raised in North Carolina?

Tillis: I think that’s a decision that the legislature needs to make with businesses.

Todd: Well, you’re the speaker. Would you make that decision?

Tillis: Right now what we’re trying to do is make the minimum wage – we’ve got a president and Kay Hagan that want to create a minimum wage economy. What I want to do is create jobs that make the minimum wage irrelevant.

Todd: Okay, so… you haven’t really said whether you’d be for raising it or not. Would you support raising it in North Carolina or not?

Tillis: … Instead of focusing on this sort of defeatist mentality where we’ve gotta up the minimum wage, why don’t we focus on creating better-paying jobs?

Okay, so now we know that (1) Tillis credits Barack Obama and Kay Hagan with founding Walmart and transforming McDonald’s–sorry, Sam Walton and Ray Kroc, you didn’t built that–and (2) he wants to force Walmart and McDonald’s to shut down for lack of ability to compete for labor with all those high-paying jobs he will help create once he’s a senator.

Obama and Hagan better start thinking about selling all their stock in these companies they built.

(Sorry; I couldn’t resist posting this. Tried hard, but couldn’t resist.)

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Statistics and schools

Diane Ravitch in the NYT comments on the politician use of statistics to promote an educational policy and  program.  Of course there are several private figures promoting charter schools and pilot programs as well, and a well funded lobby for such.  I usually start with assuming it is a pitch…but not all records are public or thorough…

…some politicians believe that the right combination of incentives and punishments will produce dramatic improvement. Anyone who objects to this utopian mandate, they maintain, is just making an excuse for low expectations and bad teachers.

To prove that poverty doesn’t matter, political leaders point to schools that have achieved stunning results in only a few years despite the poverty around them. But the accounts of miracle schools demand closer scrutiny. Usually, they are the result of statistical legerdemain.

In his State of the Union address in January, President Obama hailed the Bruce Randolph School in Denver, where the first senior class had a graduation rate of 97 percent. At a celebration in February for Teach for America’s 20th anniversary, Education Secretary Arne Duncan sang the praises of an all-male, largely black charter school in the Englewood neighborhood of Chicago, Urban Prep Academy, which replaced a high school deemed a failure. And in March, Mr. Obama and Mr. Duncan joined Jeb Bush, the former governor of Florida, to laud the transformation of Miami Central Senior High School.

But the only miracle at these schools was a triumph of public relations.

Stats are in the article and links. Reader Jack sends a new link here.

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The Hill – “GOP struggles to land punches at ObamaCare insurance hearing”

HT :Washinton Monthly, Ed Gilgore: “House GOPers Face to Face With Unfriendly Facts on Obamacare”

Democratic lawmakers were emboldened to defend the Affordable Care Act with renewed vigor and levity, creating a dynamic rarely seen in the debate over ObamaCare.

Adding to the irregularity, exits on the Republican side at a subcommittee hearing led by Rep. Tim Murphy (R-Pa.) allowed multiple Democrats to speak in a row and let heavy Democratic criticism of Republicans go unanswered, a contrast with the heated exchanges of last fall.

The discussion was not always favorable to the healthcare law, as it touched on health plan cancellations, the potential for premium increases in 2015 and problems that still plague the back end of

Witnesses from the insurance industry were also careful in their comments and promised to submit several answers to the committee at a later date.

But Republicans were visibly exasperated, as insurers failed to confirm certain claims about ObamaCare, such as the committee’s allegation that one-third of federal exchange enrollees have not paid their first premium.

Four out of five companies represented said more than 80 percent of their new customers had paid. The fifth, Cigna, did not offer an estimate.

That is absolutely terrible, the PPACA might be working and people are paying their premiums? What is this world coming to? All the critics said the PPACA would never work, people would not sign up, and if they did they would not pay their premiums . . .

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.


*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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