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Two Yale law professors think they know what, exactly, the APPEARANCE of quid pro quo corruption looks like. They don’t. But I do.

If the president is to be taken seriously, it’s time for him to make campaign finance a centerpiece of the upcoming campaign. Despite appearances, serious reform remains possible within the new limits set out by the Roberts court. Obama should take full advantage of the chief justice’s explicit recognition that the “appearance of corruption” serves as a compelling rationale for controlling contributions. This provides a meaningful roadmap for concrete reforms that will call a halt to the rise of plutocracy in American politics.

Consider, for example, the pathologies surrounding Wall Street’s defense of the loophole allowing big money to pay only 15 percent tax on investments as “carried interest.” To defend their right to pay lower rates than the average worker, hedge funds have doubled their political contributions from $20 million in 2008 to $40 million in 2012; yet more recently, private equity firms have entered the contribution business in a big way for the first time.

All Eyes on Obama: Obama needs to put his money where his mouth is on campaign finance reform, Bruce Ackerman and Ian Ayres, Slate, yesterday

In this post of mine here on Thursday, I mentioned that Roberts said in McCutcheon that Congress could still “regulate campaign contributions to protect against corruption or the appearance of corruption,”  but then limited “corruption” to an actual quid pro quo. Which I think there’s no question that he did. I then said this raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  “Y’know, as opposed to the real thing,” I said.

Ackerman and Ayres, both of them Yale law professors, want Obama to try to push Congress to hold Roberts to the “appearance of corruption” thing. Which, as reflected in that quote above, would require an express statutory bar to large campaign contributions–to candidates and also, presumably, political parties–by anyone who made the contribution in order to obtain or prevent an end to favorable tax, subsidy or regulatory legislation, if that candidate wins (or that party wins control) and then does the bidding of the contributor.

That conduct is comfortably within most Americans’ definition of actual (if legal) corruption, I think, but it is expressly precluded from Roberts’ definition of “corruption” and also from his definition of the appearance of corruption. Still, the professors go on to say:

The impact of this rapid expansion in large gifts was recently on display when Republican Dave Camp, chairman of the House Ways and Means Committee, proposed a sweeping tax reform that would have eliminated this, and many other, loopholes that allow the top 1 percent to pay taxes at lower rates than those imposed on the average working family. Within days, threats of campaign retribution had generated widespread opposition in congressional ranks, leading a despairing Camp to announce that, despite his powerful position, he would not seek another term in office.

This stunning defeat of a reigning congressional baron, together with the escalating sums of big money, is more than enough to establish the “appearance of corruption.” Under present law, for example, federal contractors are not allowed to “make any contribution of money or other things of value” to “any political party, committee, or candidate.” After reviewing relevant case-law, a federal district judge upheld the ban because it “guards against ‘pay-to-play’ arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business.”

The same rationale should lead President Obama to propose a ban on contributions from taxpayers benefiting from the “carried interest” loophole. Going further, he should cap donations on any person who pays a lower tax rate than the rate of the average worker.

I assume that Ackerman and Ayres are sarcastically making the point that I tried to make: that McCutcheon actually limits campaign-finance laws to prohibiting what already violates criminal law: bribery.

But this illustrates an even more important point.  A key modus operandi of that crowd is to effectively amend the Constitution by redefining common English-language words and phrases, to the extent needed to achieve their goal.

“Corruption” means only smoking-gun quid pro quo. The “appearance of corruption” means only smoking-gun quid pro quo.

“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

“People” means “states,” except that it really doesn’t, usually; it only does when the Voting Rights Act is being challenged as an unconstitutional infringement of the Fourteenth Amendment’s guarantee of due process and equal protection of the law. Heretofore (that is, since that Amendment’s ratification in 1868, until last year)  the Fourteenth Amendment was thought to guarantee those rights only to human beings, and its sole purpose was interpreted to protect only against states’ violations of those rights, since that is what it says; the Amendment does limit the guarantees to “people” and protects only against state–not the federal government’s–violations of those rights.

Just so you know, the section of the Fourteenth Amendment that Roberts, Kennedy, et al. said they were relying on to strike a key section of the Voting Rights Act last year, upon their stated conclusion that that section guarantees states the right to equal protection of federal laws, reads:

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, of course, “people” means for-profit corporations, for purposes of First Amendment freedoms.

This is a seriously dangerous tactic, being employed now, regularly, by a bare majority of our country’s Supreme Court.  They de facto amend the Constitution to change its very nature, and of course not incidentally the very nature of the electoral process, simply by giving unconventional meanings to common words.

I do disagree, strongly, though, with Ackerman’s and Ayres’ proposition that Obama himself constitutes the end-all-and-be-all of making McCutcheon a significant campaign issue this year (or not). A huge problem for the Democrats, throughout the Obama administration, has been the failure of members of Congress and candidates for Congress to pick up Obama’s bizarre slack–on the ACA, on Keynesian economics, and on other critically important policy issues. Obama’s not going to change.  So what? This year’s Dem candidates can get these messages across on their own.

If they want to.  And they should want to.


*Post edited substantially and expanded. 4-6

** Now cross-posted at my own newly minted blog, called … The Law of the Jungle.

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No, Mr. Kleiner, John Roberts showed that he knows perfectly well how money works in politics.

An article by Sam Kleiner posted yesterday on the New Republic’s website is titled “John Roberts shows he has no idea how money works in politics.”

Mr. Kleiner must not understand the real purpose of the Conservative Movement’s decades-long crusade against campaign-finance laws.  In fact, Roberts showed in McCutcheon v. FEC (yet again) that he knows perfectly well how money works in politics.

If you get my drift.

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The REAL news from the McCutcheon v. FEC opinion

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.


UPDATE: Reader Alex Bollinger wrote this morning in a comment to this post:

Remember when the Republican SC justices (no, I will not pretend they’re apolitical) wrote an opinion in Bush v. Gore that there’s no right to vote? And that Scalia said, several times in oral arguments on that case, that no where in the plain text of the Constitution does it say that there’s a right to vote? This finding was fundamental to their argument – if there’s no right to vote, then they could discuss and bend state election law as they’d like without respect for voters’ participation in democracy.

I’m glad these folks finally found that right! Too bad rights magically disappear and reappear based on whether they further Republican Party goals.

To which I responded:

Alex, thank you so much for reminding me that Scalia said in Bush v. Gore (and elsewhere) that the Constitution provides no right to vote!  No, no, they didn’t recognize a constitutional right to vote, in McCutcheon. They just said the obvious: that there is no right more basic in our democracy than the right to participate in electing our political leaders, because “participate in electing our political leaders” means only campaign contributions.

Democracy is a synonym for capitalism, Alex.  It says so in the First Amendment.

And “hypocrisy”–bald, jaw-dropping hypocrisy–is a synonym for the Conservative Legal Movement.

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OK, so what exactly does the APPEARANCE of quid pro quo corruption look like? Y’know, as opposed to the real thing.

John Roberts wrote in yesterday’s opinion in McCutcheon v. FEC that Congress may still “regulate campaign contributions to protect against corruption or the appearance of corruption.”  He then limited “corruption” to an actual quid pro quo.

Which raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  Y’know, as opposed to the real thing.

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Obamacare Enrollment Hits 7 Million, Putting Downward Pressure on 2015 Premiums; Word-of-Mouth Spreads the Truth

Maggie Mahar at The Health Beat Blog has been keeping track of the progress made by people in enrolling in the PPACA. Cross posted from The Health Beat Blog.

As the “train wreck” called Obamacare pulls into the station it’s becoming clear that some 7 million Americans are signing up to purchase insurance in the Exchanges. Ten days ago I went out on a limb and predicted that we would hit 7 million, if not by March 31, by early summer. Now it appears that we’ll break through that target by midnight.

Seven million was the Congressional Budget Office’s (CBO’s) initial estimate, but when the roll-out proved rocky, the administration lowered its expectations to 6 million. Reform’s opponents groused that this still was too optimistic, and before long the consensus estimate fell to 4 to 5 million. (Conservatives, who had helped lower the consensus, then accused Democrats of moving the goal-post to make it easier to claim success.)

Younger Americans Join the Pool

Who are these last-minute shoppers? According to the Wall Street Journal,carriers are beginning to report that many are under 40. Today, more insurers confirmed the trend. This should come as no surprise.

We always knew that people in their 50s and 60s would join the Exchanges first. Healthy 20-somethings and 30-somethings who rarely see a doctor would be in no rush to sign up. Why begin paying premiums before you have to?

Momentum Builds

Now, younger Americans are  jumping into the pool, and, most importantly, the pace of enrollments is building. Friday, March 28, Charles Gaba, the “numbers Geek” who has correctly predicted earlier enrollment milestones, wrote: “We’re in uncharted territory. . . Things are moving VERY quickly now, and events are quickly overtaking my ability to keep up.”  Yesterday (Saturday, March 29), Gaba hiked his March 31 estimate to 6.7 million, up from 6.22 million earlier in the week.

Keep in mind that, in most states, anyone who gets on line before the March 31 deadline, begins an application, and experiences technological difficulties, can complete that application in April.  By the time those late entries are tallied,enrollments will top 7 million. How high will they go? All bets are off.

Some in the Media Downplay the News

Inevitably, enterprising journalists are trying to distinguish themselves from their colleagues by finding a new angle on the story: “National Enrollment Looks OK, But States Matter More,” NPR’s Julie Rovner declared.

Newsweek’s Zach Schonfeld was downright snarky::Obamacare Reaches Its Target. Can We Stop Pretending That Number Matters Now?” According to Schonfeld, whether 6 million or 7 million people sign up, this is a “minor victory for the president.”

What Schonfeld fails to understand is that what matters is not the number of people who have enrolled in a particular state, but the momentum. The sudden surge suggests that as the number of people who have bought insurance reaches a critical tipping point, the public’s view of Obamacare is changing.

Indeed, a recent Kaiser Foundation study reveals that the public is warming to reform. Over the past two months the share of respondents who supported the ACA rose from 34% to 38%. Tellingly, since February, opposition among the uninsured has dropped 11%, while support had increased by 15%.

A significant majority oppose repealing Obamacare. Fifty-nine percent of those surveyed said they wanted Congress to either “keep the law in place and work to improve it,” or simply “leave the law as is.”

What is happening?  Over the past two months, as more Americans bought coverage, they began talking to friends and relatives who, until now, didn’t know who or what to believe about the Affordable Care Act (ACA). Now those friends are learning about premiums and generous government subsidies from people they know and trust. At last, the fog of disinformation is lifting, and the reality of Obamacare is sinking in.

By early summer, we’ll see the effect even in states where enrollments have lagged. Just in the past two days, sign-ups in Red States have surged. Who knows? Maybe the mainstream media will replace anecdotes about “Obamcare’s victims,”  with the facts that people need to know..

Today Kaiser’s polling shows that about one-third of the uninsured are not aware that the law includes subsidies that could help them buy insurance. Forty percent to 50% don’t know about the most popular provisions of the law: the guarantee that people cannot be denied coverage–or charged more– because of pre-existing conditions; the expansion of Medicaid ;and  the rule eliminating out-of-pocket costs for preventive care.

Perhaps our newspapers and networks will begin tospread the word that, thanks to government subsidies,  millions of people who will be able to buy a “zero-premium policy.”

Who Knew That Insurance Could Be Free?

That’s right. What most people don’t know—and what Fox News hasn’t been telling them–is that that roughly 6.5 million Americans will be able to purchase insurance without paying a penny.  The insurance will cost them nothing because the tax credit that they receive from the government will cover the entire cost of a bronze plan.

Who will qualify? In the fall Credit Suisse published a table revealing that, in many states:

  • an individual earning somewhere between $11,490 and $20,100;
  • a family of three with joint income under $34,170; 
  • and a family of four earning less than  $41,200

will be able to find a $0 premium bronze policy.

McKinsey & Co, a leading global management consulting firm, agrees, and estimates that roughly half of those 6.5 million will be under 39.

Even if a family’s household income is somewhat higher, many will discover that, after applying the government subsidy, health insurance may well cost significantly less than their monthly cable bill.

Based on that analysis, back in September,  Credit Suisse’s Ralph Giacobbe predicted that “affordability may not be a roadblock” to achieving the CBO projection that 7 million people will buy insurance in the exchanges in 2014. “Simply put,” he wrote, “we don’t see any logical reason why anyone in this population wouldn’t take free healthcare coverage vs. remaining uninsured.”

But, Giacobbe added, much will depend on “education, outreach and logistics /IT.”

As we all know logistics/IT didn’t work out very well—though as time passes, that matters less and less. (Granted, even today, there were computer glitches, but they were fixed quickly) And it’s clear that his month’s outreach effort worked. Going  forward I believe that word-of-mouth will continue to drive “education.”

A “Tipping Point”

Many of us who had read the law knew that once people experienced Obamacare, they would like it. Now I think we have reached that threshold where “an idea, trend, or social behavior crosses a threshold, ‘tips’, and spreads like wildfire. Just enough people have signed up, and are happy with the policies that they have found, that others are learning the truth about the Affordable Care Act.

In the months ahead it will become harder and harder for reform’s opponents to confuse the public with half-truths and outright lies. People will say, “But that’s not what happened to my brother, or my neighbor next door.”

Desperate Deniers

Little wonder,  reform’s opponents are getting desperate. In a last-ditch effort to deny reality, they are claiming that we can’t count someone as enrolled unless they have paid their first month’s premium.

But as Gaba explains, “the percentage of enrollees who haven’t paid that initial premium “is a rolling average. People who enrolled between 2/16 and 3/15 don’t even start coverage until April 1st, while anyone who enrolls between 3/16 – 3/31 won’t start coverage until May 1st.

“In many cases, their first month’s premium won’t even be due until up to 6 weeks or more after they enroll. . . it’s silly to write these people off as deadbeats. The vast majority of these will eventually be paid up; it’s just that we won’t have confirmation of many of them until well into May.”

After all, how many people do you know who pay their bills before they get them? How many pay two or three weeks before they are due?

2015 Premiums

Finally, as enrollments soar, what will this mean for Exchange premiums in 2015? Will they really “sky-rocket” as so many for-profit insurers want us to believe?

No. Climbing enrollments will mean larger, more diverse pools which, in turn, will attract more carriers vying for market share. Because of the way the Exchanges are designed, they will have to compete on price.

But that’s my next post.

– See more at: Maggie Mahar, The Health Beat Blog

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Seattle University Symposium on Inequality, Nick Hanauer

The following video was posted in Ed’s Post by Marko.  I thought it deserved a wider audience.

The symposium included a discussion regarding raising the minimum wage to $15.  Mr. Hanauer, being an honest to goodness real billionaire talked about what that would mean for his situation.  I like the way he put it.  He earns 1000 times the median wage and yet he still only needs 1 pillow when he sleeps at night, not 1000.

You might also know of him from his TED talk that was originally  refused for posting.  He has been talking for a while about the wrongness and dangers of income inequality.

Now, if only he would team up with one or 2 more billionaires and start fighting against the Koch et al’s money in the political arena.  Then we just might see some balance.

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Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Argument recap: One hearing, two dramas, Lyle Denniston , SCOTUSblog, reporting on this morning’s Supreme court argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius

That paragraph was one of two in Denniston’s recap that dismayed me, albeit only momentarily. Unquestionably, a threshold issue in these cases is whether or not the proverbial corporate veil–a shorthand legal term that conveys that the very purpose of the state-created corporate structure is a severance of the rights and liabilities of corporations from those of its shareholders–can be “pierced” in order to allow the shareholders in these two closely-held corporations to confer to the corporation their personal legal right of religious exercise under the First Amendment or under a federal statute called the Religious Freedom Restoration Act, the latter which expressly uses the term “person” to identify its beneficiaries.  I addressed this in detail in this post here yesterday.

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