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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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Mike Huckabee points the way to nullifying Citizens United and McCutcheon v. FEC: Enforcing the enabling-legislation requirement!

Unlike in Wisconsin, same-sex marriage prohibitions in South Carolina and Wyoming weren’t stricken directly, but rather as a consequence of circuit court rulings against bans in nearby states. And Republicans there are intent on dragging their heels. Rather than accepting defeat, South Carolina Governor Nikki Haley and Wyoming Governor Matt Mead both plan to enforce their state SSM bans to the bitter end. But whereas these governors are probably just playing footsie with nullification, and ultimately plan to issue same-sex marriage licenses when federal judges order them to, former Arkansas Governor Mike Huckabee is all in on the idea that Republican governors can continue to stand athwart same-sex marriage until gay people pry the veto pens from their cold dead hands.

“It is shocking that many elected officials, attorneys and judges think that a court ruling is the ‘final word,'” Huckabee said. “It most certainly is not. The courts are one branch of government, and equal to the other two, but not superior to either and certainly not to both. Even if the other two branches agree with the ruling, the people’s representatives have to pass enabling legislation to authorize same sex marriage, and the President (or Governor in the case of the state) has to sign it. Otherwise, it remains the court’s opinion. It is NOT the ‘law of the land’ as is often heralded.”

— The Scariest Reaction to SCOTUS’s Gay-Marriage Bombshell Wasn’t From Ted Cruz, Brian Beutler, The New Republic, yesterday

And to think that for more than four years now we’ve all been treating Citizens United as the final word on those money-is-speech and corporations-are-people things, even though there’s been no enabling legislation enacted by any of the people’s representatives. Silly us.

I totally disagree with Beutler.  This isn’t scary at all!

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Ted Olson Wants Congress to Bar the Koch Brothers’ Contributions to Incumbents. I Say: Good Idea!

Post updated below.

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Forty-six Senate Democrats have concluded that the First Amendment is an impediment to re-election that a little tinkering can cure. They are proposing a constitutional amendment that would give Congress and state legislatures the authority to regulate the degree to which citizens can devote their resources to advocating the election or defeat of candidates. Voters, whatever their political views, should rise up against politicians who want to dilute the Bill of Rights to perpetuate their tenure in office.

Led by Majority Leader Harry Reid, these Senate Democrats claim that they are merely interested in good government to “restore democracy to the American people” by reducing the amount of money in politics. Do not believe it. When politicians seek to restrict political speech, it is invariably to protect their own incumbency and avoid having to defend their policies in the marketplace of ideas.

—  Harry Reid Rewrites the First Amendment. When politicians seek to restrict speech, they are invariably trying to pr otect their own incumbency.  By Theodore B. Olson, Wall Street Journal, today

Hmmm.  The McCain-Feingold campaign-finance statute, which the Supreme Court largely eviscerated in Citizens United v. FEC in early 2010 and all but completed the job earlier this year in McCutcheon v. FEC, was enacted in 2002.  In 2006, the Democrats unexpectedly gained control of both the Senate and the House, largely by defeating, y’know, Republican incumbents, and substantially increased their majority in both houses in 2008, mainly by defeating, um, Republican incumbents.  Citizens United certainly helped the Republicans gain control of the House in 2010, but failed that year and again in 2012 to recapture the Senate.  Harry Reid won reelection in 2010, despite the Kochs’ and Karl Rove’s very best efforts.

Led by Minority Leader Mitch McConnell, Senate Republicans, as Koch puppets, claim that by defeating the proposed constitutional amendment to nullify Citizens United and McCutcheon, they are merely interested in good government to “return democracy to the American people” by continuing to allow unlimited amounts of money in politics. Do not believe it. When politicians seek to have Congress and state legislatures controlled by plutocratic puppeteers who actually draft legislation secretly and then deliver the finished draft to their legislator puppets, it is invariably to protect their own incumbency and try to gain or retain a stranglehold on mechanisms of government and avoid having to defend their policies in the marketplace of ideas.

That said, if Ted Olson’s real concern is that a return to pre-Citizens United, McCain-Feingold-like campaign finance laws would just serve to strengthen incumbency, the obvious answer is to demand that Mitch McConnell, an incumbent currently running for reelection, step up to the plate, return his Koch contributions, and propose legislation that would restrict contributions to incumbents in order to give challengers a stronger voice.  That’s something that McConnell and his challenger, Alison Lundergan Grimes, might agree on.

It’s all about the First Amendment, see.

What a moronic op-ed.

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UPDATE: I posted the following comment in the Comments thread in response to some comments there indicating that some readers missed the specific intended point of this post:

The intended point of my post is that Olson’s claim is clearly false that removing restrictions on contributions by the very wealthy and corporations hurts incumbents. This is a canard that the right is using to try to tamp down anger about Citizens United and McCutcheon and the unlimited amounts of money that are now purchasing elections, candidates and elected officials—and to undermine attempts to nullify those opinions.

Clearly, the Kochs and other very, very wealthy people are individually paying huge amounts of money to finance McConnell’s campaign. McConnell is an incumbent. So are the current Republican House members whose reelection campaigns these people are funding. McConnell’s opponent isn’t an incumbent; she’s a challenger. So are the Democrats trying to unseat House Republican incumbents. This is a sleight-of-hand that Olson and the others think no one will notice. I noticed. It’s a false statement of fact.

9/9 at 12:09 p.m.

 

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Libertarian? Or Fascist-Light?

The shooting death by police of Ferguson, MO teenager Michael Brown, and what has happened in the aftermath, has been blanketing the news for the past few days. It’s a story about race, but it’s also become a story about the power of the state and how it’s wielded, and against whom.

So my question is this: Where are the libertarians?

Why aren’t libertarians talking about Ferguson?, Paul Waldman, Plum Line, Washington Post, yesterday

The answer to the question that the title to that post asks is: they are. Libertarians are talking about Ferguson.Waldman’s question addresses a linguistics problem, a misappropriation of a particular ideological term, “libertarian,” by those who ascribe to a narrowly prescriptive ideology that adopts extreme economic libertarianism and certain aspects of fascism.

It is a curious brand of fascism that is peculiarly American, in that it artificially distinguishes between federal powers and state and local ones. A veritable foundation of this ideology formally or tacitly authorizes the use of state and local government police powers—by police, prosecutors, judges, prison guards–to engage in wholesale violations of American constitutional and international human rights. Federal prosecutors and federal judges engage in abuses, including on presumably-rare occasions of actual illegality, but now, finally, at least there’s the possibility of actual scrutiny of federal prosecutorial excess. There remains no working mechanism by which federal or state judges will be investigated for actual illegality in relation to their judicial office, unless the conduct involves an overt monetary bribe or express monetary extortion; judges themselves operate within a statutory system whose very essence is cover-up by their colleagues, and every attempt, including by members of Congress, Republican and Democrat, to change this statutory sham vis-a-vis federal judges is batted down with cries from several Supreme Court justices, including the two Clinton appointees, about judicial independence. (Freedom! Liberty! Judicial Independence!)  As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct and, well, everything else.  And wouldn’t be forced to do that.

About a month ago, Simon Lazarus of the Constitutional Accountability Center wrote an article in The New Republic titled “John Roberts’ Supreme Court is the Most Meddlesome in History” and subtitled “How radical libertarianism is reshaping the bench.” I remember thinking when I saw that article that the primary title is correct but the subtitle is not. Certainly there are some radical libertarians—those who want to eliminate virtually all taxes, federal and state, an virtually all government regulations and civil and criminal prohibitions, federal and state, and who also are, as Waldman puts it, talking about Ferguson. And who want to dismantle the prison-industrial complex. But best as I can tell, they’re not Republicans, and they’re certainly not federal judges, much less federal Supreme Court justices. Accepting their pose as libertarians, without the modifying adjective “economic,” is buying their marketing campaign.

Freedom! Liberty! Libertarianism! The new and improved variety, marketed as the late 18th century strain. Back from the future. I guess.

What most of this crowd actually is is sort of classic-fascist-light, not libertarian. By which I don’t mean that they’re Nazis; Nazism was (and is) only one brand of fascism. I mean fascism more along the lines of the Benito Mussolini or Francisco Franco variety—a pairing of a muscular state police force left to its own (and the dictator’s) devices, and moneyed interests whose support the dictator an his party needed. Modern U.S. neo-federalism, a.k.a. “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights—is libertarianism only in a George-Orwell-comes-to-Madison-Avenue sense, but it underpins much of Tea Party/Supreme Court libertarianism, if only ostensibly.

One of the most stunning sentences I’ve ever read in a Supreme Court opinion, a sentence that has not received nearly the amount of attention in the general news media or by Democrats that it deserves, is John Roberts’ express statement in the majority opinion in McCutcheon v. FEC, this year’s Citizens United sequel, that extremely wealthy campaign donors become “constituents”–constituents, in the literal election-law, voter-ID sense–of members of Congress not by living in the senator’s state or in the representative’s district but instead by buying access and the right to author proposed legislation. Ordinary folk are constituents only of the elected officials in whose voting jurisdiction they have their primary (for most people, their only) residence, but the Koch brothers are the constituents not just of Kansas’s senators and Wichita’s congressional representative but also of any other senators and congressional representatives that they choose to co-opt as their legislative proxy, for a fee. This, Roberts said, is at the heart of our democracy.

Which indeed it now is, formally and officially, as per the Supreme Court. It’s at the very heart and soul of our democracy these days–our democracy, alone among democracies, since ours is the only democracy in which this flavor of freedom!, liberty!, is packaged as libertarianism. It’s a specialty flavor that would be recognized by 1930s Europeans for the albeit-milder iteration of the political ideology that it really is. And that is recognized, I’d bet, by most close observers of the Supreme Court’s state-courts’-and-state-prosecutors’-and-local-police-officers’-and-state-and-local-prison-guards’-rights-to-violate-individuals’-constitutional-rights-because-the-Constitution’s-structure-requires-it jurisprudence.

This ideology is libertarian only as some characters in Lewis Carroll’s novels, or the Koch brothers, would define that word.  Or as five current Supreme Court justices do, as suits their focused interest of the moment.  Or of the Conservative Legal Movement era, which has in fact been very focused for more than three decades now.  So any moment will do.

Pick your moment.  Any moment.  They sure do.  Just call what you’re doing anything but what it actually is.

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Shaken, Not Stirred: The Supreme neo-Framers (likely) will continue their perversion of the First Amendment speech clause tomorrow.

In an email this morning, Bill H asked me whether I know much about a case called Harris v. Quinn, in which the Supreme Court will announce the likely 5-4 majority’s ruling tomorrow.  I responded:

I know LOADS about it, Bill, and wrote about it–and about a bizarre comment by Alito during the argument on the case–right after the argument back in Jan. and have mentioned it two or three times since then.  It is really striking that the Supreme Court agreed to hear the case in order to consider the claim: that requiring public employees to pay a fee (not the full union dues, but instead some small percentage of the membership dues as compensation for the union’s legal obligations by which employees who opt out of membership nonetheless gain the benefits of the union contract (pay, benefits, job protections), violates the employee’s First Amendment speech rights.

But what’s downright stunning is that at the argument, Alito said he believed that the very existence of public-employee unions violates the First Amendment because–seriously; he said this–the non-member union-contract beneficiary might want small government.  This, from someone whose first official act as a justice was to join Kennedy (the opinion’s author), Scalia, Thomas and Roberts in ruling that a district attorney did not violate an assistant district attorney’s First Amendment speech rights by retaliating against him for writing an internal memo saying that he believed that a cop had falsified some evidence in obtaining a search warrant.  That opinion, in a case called Garcetti v. Ceballos, was and remains extremely controversial–it was shocking, really–and played a key role in a case, called Lane v. Franks, that the Court decided two weeks ago.

I suggested in my posts about Harris and about that comment by Alito’s during the argument that the non-union beneficiary of a public-employee union contract had the option of quitting his job or refusing the negotiated benefits in order to reduce the size of government.

I had predicted from the outset that the opinion in Harris would be issued on the same as the opinion in Hobby Lobby, so that news coverage of Hobby Lobby would overwhelm coverage of Harris, and I was right. Because of the way in which the Court divvies up majority-opinion-writing among the justices, it is clear that Alito was assigned to write the opinion in Harris.

There is a (very) outside chance that one justice changed his mind since the week of the argument (when the vote was taken and the majority-opinion-writing was assigned), and that someone other than Alito therefore is writing a 5-4 opinion rejecting the outrageous First Amendment claim.  Something sort of like that happened in a case called Bond v. US, argued last Oct. and decided [on Jun. 2], a case that they planned to use to advance their states’-rights juggernaut but instead ended up making an important statement about abuse of prosecutorial discretion–a ground on which they never, ever, would have even considered agreeing to hear the case (okay, maybe they would have, but only because the prosecutor was a federal one, not a state one; but even so, probably not).  In that case the actual outcome didn’t change, nor did the author of the opinion (Roberts), but the basis for the ruling, and the statement of law, changed significantly.

I call Bond the Stirred, Not Shaken opinion.  I have a theory about the reason for Roberts’ late change of heart, and I’ve been intending to post in-depth about it but haven’t yet.

I do expect an outrageous 5-4 opinion by Alito in Harris, though.

Yes, the undermining of public-employee unions–like state-courts’ rights to baldly violate individuals’ non-gun-ownership, non-religious, non-real-estate-regulation-er-takings constitutional rights, and to supersede Congress’s Fourteenth and Fifteenth Amendment powers to buttress, say, individuals’ voting rights–is definitely on the List of Circa 1983 Movement Conservative Legislation-via-Supreme-Court-Pronouncement THINGS TO GET DONE.

And done, these things will get. Now that the chief justice has expressly conceded that their end game has been all along a Court-mandated plutocracy in which legislators’ constituents are those who pay to become one, irrespective of any connection between the location of the constituent/benefactor’s voting residence and the legislator/beneficiary’s legislative district–now that these five justices have used the First Amendment speech clause to formally institute a poll tax, and redefined the term “constituent,” and therefore “democracy,” beyond former recognition*–it’s time for them to get back to other uses of the newly reconstructed First Amendment speech clause.  In the name of the Framers.

The original ones, of course!

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*In his Apr. 2 opinion in McCutcheon v. FEC, Roberts redefined “constituent” as an American who, irrespective of place of residence, donates to a political campaigns in sufficient amounts to buy the candidate or incumbent’s proxy vote on legislation, and “democracy” as plutocracy.  The specific statement is:

[C]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon­sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.

Ergo–voila! It’s official; we have a plutocracy.

Just in case you were wondering.

[Clarification added 6/29 at 5:08 p.m.]

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The Secretive Democracy Alliance’s Secret Is Out: Some of its members are elitist, racist and self-serving.

Clarification appended below.

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[David] Brock, a former “right-wing hit-man”-turned-top-big-money-Democratic-operative, is part of a behind-the-scenes campaign to convince donors it’s OK to attack the Koch brothers for spending millions of dollars while doing the exact same thing for the left.

“You’re not in this room today trying to figure out how to rig the game so you can be free to make money poisoning little kids, and neither am I,” Brock told donors this month at a conference in Santa Fe, New Mexico, according to someone who attended the conference, but who declined to be identified because it was closed to the press.

“Subscribing to a false moral equivalence is giving the Kochs exactly what they want: keeping us quiet about what they’re doing to destroy the very fabric of our nation,” added Brock, whose deep-pocketed nonprofit groups are leading the charge to make the conservative megadonors Charles and David Koch an issue in the 2014 midterms. …

But Brock’s pitch … isn’t sitting well with some major liberal donors and operatives, who worry the anti-Koch strategy could backfire big time. It has not yet been proven effective at motivating key Democratic voting blocs like unmarried women and minorities, and liberal critics also worry it risks undercutting more important issues, smacks of class warfare and opens themselves up to hypocrisy charges.

“The Democrats’ problem is off-year turnout, and I’m not clear how emphasizing the Koch brothers gets more black and brown folks to the polls,” said Steve Phillips, a member of the secretive Democracy Alliance club of major liberal donors. “My sense for voters of color is that the issues of income inequality, housing, education, immigration reform, health care and criminal justice reform would resonate more.

— “The existential crisis of the liberal millionaire,” Kenneth P. Vogel and Tarini Parti, Politico, today

And since voters of color are too stupid to recognize that the issues of income inequality, housing, education, immigration reform, health care and criminal justice reform would have, maybe, a little something to do with legislative and executive-branch policy on the issues of income inequality, housing, education, immigration reform, health care and criminal justice reform, it definitely would not resonate with them to point out that the Koch brothers are among a tiny group of billionaires and multi-millionaires who actually write legislation for their bought-and-paid-for elected officials to enact.

Black and brown folks are just fine with Citizens United and McCutcheon, if they’ve even heard of those Supreme Court rulings.  It’s only white people who know about the rulings and understand such complexities, like dot-connecting.  Well, white men and white married women do, anyway; white unmarried women don’t.

Got it!

I’m glad the Democracy Alliance is secretive.  Rather than, say, openly demeaningly elitist, racist and maybe even manipulatively self-serving.

Dan has asked me to clarify that this post is sarcastic. So: This post is SARCASTIC. REALLY. It’s SARCASTIC.

Yiiiikes. (And I’ve corrected the typo, too.)

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I wrote in the Comments thread, in response to reader Cindy K, who said she’s glad I clarified that this post is sarcasm:I actually thought the title alone indicated satire, sarcasm. Silly me, I guess. As I told Dan in an email last night, I guess I’ve been reading too many Alexandra Petri and Gail Collins columns.

Updated 6/25 at 2:21 p.m. 

 

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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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David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.

Uh-oh, hedge fund managers and Goldman Sachs partners.  Obviously, few of you are evangelical Christians.  So this guy, who wants good markets, has his sights set on you.  But, luckily not on that carried-interest tax-benefit thing y’all get to use, praise the Lord.

So maybe you hedge-fund types can skip church again this Sunday, after all.

— David Brat’s Golden Rule, me, Angry Bear, Jun. 13

I was wrong. The dust is all but settled now, six days after Brat’s highly unexpected defeat of Eric Cantor, and it looks like what defeated Cantor was not that he was too liberal for Tea Party tastes.  It was instead that he was too Establishment-Conservative for a spontaneous, makeshift coalition of Tea Partiers, liberal Democrats (it was an open primary; it was not limited to Republican voters), and others who reject the practice–and the now-formal claim by five Supreme Court justices–that it is necessary and desirable in our constitutional democracy that legislation and other government policy be dictated by those who can afford to buy it.

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 Houstonor 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.

Actually, even before I wrote my post last Friday I had read an article in the Washington Post by Jia Lynn Yang, titled “Why Cantor’s loss is especially bad news for big business,” detailing Brat’s campaign and challenging the presumption that he won mainly on a  standard-issue far-right anti-immigration, Cantor-is-too-liberal-for-the-Tea-Party platform.  But because his cliche-ridden Ayn Rand, anti-tax, anti-government-regulation positions and loopy justifications for them–which were the subject of most of my Friday post–are, let’s just say, hard to reconcile with such things as, y’know, regulation of banks and hedge funds and objections to the fact of legislation being written by the Koch brothers and the Chamber of Commerce, I figured that the initial analyses were right: Cantor was defeated because he voted to end the government-shutdown and to increase the debt ceiling and wasn’t quite hard-line enough on immigration, and therefore flunked the purity test.

particularly jarring hallmark of the current Supreme Court majority’s aggressive Movement Conservative restructuring of American law in the image of 1980s Republican Party platforms is these justices’ spontaneous, unsupported declarations of fact upon which they claim to base the rulings.  These are statements of fact for which there is no support in the case record. Facts such as what motivates elected public officeholders, and also facts about people’s opinions, perceptions, conclusions concerning matters such as the effect of huge campaign contributions on the politician-beneficiaries, that are, most people recognize, contrary to actual fact.  Most people who are not a Movement Conservative Supreme Court justice and who are not named the Mad Hatter consider the idea of large campaign contributions in exchange for legislation that they offer the very essence of political corruption in a Democratic system.

And some of those people live in Virginia’s 7th Congressional District and voted in the Republican primary there last week, for Brat, entirely or largely because he campaigned against Cantor as Evidence Exhibit A belying Kennedy’s and Roberts’ weirdly loose pronouncements of fact in Citizens United and McCutcheon.  The lobbyists and big-money donors that Cantor met with for breakfast on the first Tuesday of each month and that he dined with at steakhouses were indeed his true constituents, and Roberts’ pretense that they or their corporations reside in the Richmond, VA area is not even just a syllogism like so much else Roberts claims; it’s patently, tangibly false.

Sure, the pronouncements of fact in Citizens United and McCutcheon were just window dressing, sort of a nod to the idea that they were not really overturning Supreme Court precedent, just refining it–a John Roberts routine that has become an eye-roller.  But actual people do see through it.  As long as the Tea Party was united in going along with this, all was fine.  But now something has happened: the Tea Party itself is split.  There is a growing contingent, apparently now reaching a politically significant number, that is anti-plutocracy.

I’ve thought ever since McCutcheon was released in early April that the Democratic congressional candidates should simply read two or three sentences from that opinion at their rally and include the sentences in some of their ads.  Brat himself didn’t do that, exactly, but statements made throughout his campaign directly countered the factual claims of the Supreme Court bare-majority.

Ultimately, because that part of his message can’t be reconciled with the standard Tea Party dogma or with the part of the pro-corporate Republican message that he parrots, his political message is incoherent.  And in some respects, as in the quotes from an academic paper of his that were the main subject of my post last Friday, they’re weird and flaky. I don’t know how statements like those I quoted from his academic paper manage to pass as academic research; they were overt statements of his political and religious beliefs, not the result of economic or political science research, but they were in a purported academic paper and not (apparently) repeated in his campaign. The fact is that you can’t reconcile Ayn Rand’s philosophy of little or no regulation of corporations and Wall Street, no social safety net, and extremely low taxes with Brat’s campaign promise to represent ordinary people as against the policy dictates of oligarchy and plutocracy.  And it is a fact; you can’t.

Nor can you reconcile it with the mindless states’-rights cliches, whether issued by Anthony Kennedy and John Roberts or by David Brat.  Apart from the aggressive three-decades-long states’-rights-to-violate-fundamental-constitutional-rights-of-individuals-as-long-as-those-rights-aren’t-part-of-Movement-Conservative-dogma dogma–which is now, finally, being rejected by fairly broadly by younger libertarians (read: too young to believe that it’s still the Reagan era) even of the right–the fact is that ALEC writes swaths of legislation for Republican state legislators.

In a June 12 Politico article, this one titled “Dave Brat and the Rise of Right-Wing Populism,” the writer, Geoffrey Kabaservice, points out that Laura Ingraham, “appearing on Brat’s behalf at a campaign event on June 3, even rejoiced that ‘Some people on the left are gonna work with us! I’d rather work with some people on the left today than work with some people in the GOP establishment who scorn us.’” The article’s subtitle is “Cantor’s loss isn’t about immigration or personality. There’s a bigger story.”

There certainly is.  And several similar articles make the same point, in detail. One, titled “Why Big Business Fears the Tea Party,” a June 15 Politico article by Michael Lund, says:

The primary election defeat of House majority leader Eric Cantor by the little-known Tea Party conservative David Brat has shocked business and financial elites as well as politicians and pundits. Conservative intellectuals such as Tim Carney have been arguing for a while that the right should adopt a new populism that targets “crony capitalism” and the collaboration of public and private elites at the expense of workers and small businesses. Brat is the first conservative candidate to have achieved a major electoral success by taking this line. He denounced Cantor for being too close to Wall Street and K Street, explained business support for immigration reform as a ploy for cheap labor and demonized the Chamber of Commerce and the Business Roundtable.

In his views about the minimum wage, Social Security and Medicare, Brat is a fairly conventional libertarian, but he became the first candidate to oust a sitting House majority leader since the post was created in 1899 not by speaking the libertarian argot of Ayn Rand and Friedrich von Hayek but by deploying the populist language of Thomas Jefferson, Andrew Jackson and William Jennings Bryan.

With that kind of talk, Brat and like-minded militants on the right are undermining the philosophy of market populism that has united the Main Street and Wall Street wings of the Republican party since the days of Barry Goldwater and Ronald Reagan. Market populism recycles the ideology of classic Jeffersonian populism—but expands the definition of the virtuous, self-reliant yeoman to include not only small business owners but also big business executives and capitalists.

“Sooner or later,” Lund continues, “the authentic Jeffersonians in the market populist coalition were bound to notice that the actual agenda of conservative politicians has less to do with the needs of small business owners and small farmers than with the desires of big companies and the financial industry.”  They’ve now noticed, he says, and want to swap business-friendly market populism for real populism, terrifying the business community.  And also terrifying Lund, who points out that conservative populists have the wrong answers, and that Jeffersonian populism is irrelevant in America and has been for a very long time.

Yes, for a very, very long time.  The theme that ties together the contradictory parts of Brat’s brand of populism is its inherent fallacy: the claim that what matters is not the goal or effect of the particular policy but instead whether it is the federal government that is promulgating the policy. Most people outside the rightwing bubble recognize this as ridiculous, at least when you are specific about the policy. Including so-called working-class whites under the age of about 36 (i.e., milliennials, few of whom listen to rightwing talk radio and what the national Fox News shows); a new, comprehensive poll confirms this. And also confirms that, increasingly, older Rust Belt blue-collar whites, too, recognize this.

Additional post-Cantor-defeat articles illustrate the point. In one, called “A Cantor Effect for Businesses and the G.O.P.,” published in the New York Times on June 14, the writers, Jeremy W. Peters and Shaila Dewan put together a list of similarities between what is increasingly referred to as the Elizabeth Warren wing of the Democratic Party and rightwing economic and civil-liberties populism, and a list of where the two groups diverge (very substantially) on economic issues.  The left’s economic populism isn’t libertarian.  The goals of economic populism–however much they state as their goal bringing economic power back to ordinary people–can’t be achieved through the anti-federal-government mantras of the right.

Which is a fundamental reason why we are heading, at a fast pace, into a progressive political era that is, in most respects, the very antithesis of the legislative agenda thinly disguised as constitutional law pushed so obsessively by five of the nine Supreme Court justices, for whom it will always, always, be 1988.

Only the federal government can regulate the financial industry–not only hedge funds and banks but also credit card companies, the latter two groups which were gouging small businesses as well as consumers to their heart’s content before legislation was enacted during the first two years of the Obama presidency, by a Democratic Congress, circumscribing those practices.

Only the federal government can regulate the student loan industry.  Only the federal government can provide the states with funding to support state university systems sufficiently to render those institutions once again financially accessible to the non-upscale.

Only the federal government can provide healthcare coverage to the elderly, and a secure, if small, pension benefit.

Only the federal government can provide the vast sums for extensive long-term medical and other scientific research. Or did.

On point after point–those, and many others–it is the liberal position, not the Koch position or the Brat position, that has support from vast majorities of the public.  Most people want clean drinking and bathing water and clean air, the dramatic slowing of climate change, safe consumer and food and pharmaceutical products, national parks, public walking trails, endangered species saved, public schools that are competitive with those in other advanced economies.  Most people want safe highways and bridges and modern, efficient infrastructure.  Most people believe that the federal government should play a role in enabling efficient export trade.

Most people don’t want generic clichesgibbergish banalities, and non sequiturs by public officials and candidates–a point made by Matt Bai in another post-Brat-victory analysis and, pre-election, by astute local reporters covering that campaign. So many people are so very tired of that.  But that is necessity in a political system whose real constituents are–as John Roberts said–those who play outsized roles in funding political campaigns.  Out of the mouths of Movement Conservative justices claiming to speak for the Republic’s founders.

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.

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Finally … a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes. [Expanded repost]

Correction appended below.

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Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”

— Amy Howe, SCOTUSblog, Friday Roundup, May 16 this morning

Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.

Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate.  During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues.  By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.

The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine.  There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term  (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.

If you doubt that, please read the dissent from the decision to hear that case.*  It will be educational, I trust.

The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.

That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit.  So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy.  The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.

Progress.

Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”

Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.”  That article is similar to one by law professor Eric Segall published at CNN.com earlier this week, except that Bruenig’s article details some specific amendment proposals.

These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.

Like this one.

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NOTE: This is an edited and expanded version of a post I posted yesterday and have now deleted.

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CORRECTION: I received the following email this morning from a law clerk to a federal magistrate judge:

Greetings,

I read your article, “Finally . . . a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes” this morning after linking to it from SCOTUSblog.  In it, you referenced Tolan v. Cotton from the current Supreme Court term saying, “The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it — a highly unlikely event.  If you doubt that, please read the dissent in that case.  It will be educational, I trust.”

Upon linking to Tolan v. Cotton, however, I found no dissent, only a concurrence by Justice Alito, joined by Justice Scalia. Did I misread your comment?

I responded:

I am sorry; you are right that the Alito opinion, joined by Scalia, is a concurrence in the judgment.  It was a dissent from the decision to grant cert., but a concurrence in the two substantive rulings–one concerning summary-judgment jurisprudence, the other concerning “qualified immunity” federal common law. Once the Court decided, 7-2, to grant the cert. petition, Alito and Scalia did agree that the Court of Appeals had ignored the mandate of Rule 56 and the Court’s own summary-judgment and qualified-immunity jurisprudence. But since petitioner Tolan was neither a state trying to have the Court overturn a federal habeas grant nor a mega-corporation asking the Court to rein in the rampant and breathtaking misuse by the lower federal courts of the Court-fabricated jurisdictional/quasi-jurisdictional “federalism” doctrines, Alito and Scalia objected to the majority’s decision to grant the petition.

The part of my post in which I (briefly) discussed Tolan addressed the issue of who has access to Supreme Court “error review”, and when, and why. So I used the word “dissent,” but should have explained that the opinion was only a dissent to the part of the opinion granting cert. and stating why, and not to the substantive outcome.

I’ll add a correction to my post.

Beverly Mann

Some of this is technical language, and sometime later today or tomorrow I’ll post separately about this, explaining it.  But I wanted to post this correction here as soon as possible.  The emailer said she serves as the death-penalty law clerk to the magistrate judge she works for. 5/21 at 1:21 p.m.

* Sentence corrected, 5/21 at 1:47 p.m.

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A Wisconsin federal judge today struck down as unconstitutional that state’s voter-ID law, ruling that the appearance of voter fraud, just like the appearance of political corruption, can’t justify impeding the First Amendment right to vote.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

“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.”

— Former Obama White House Counsel and eminent Washington election-law attorney Bob Bauer, on his blog moresoftmoneyhardlaw.com, Apr. 24

Bauer sums up:

While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”

Eminent and esteemed though they are, Bauer and Lederman are late to a party.  Specifically, my party. On Apr. 3, a day after McCutcheon was issued, I pointed out right here on this popular and acclaimed blog what “the REAL news from the McCutcheon opinion” is:

“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.

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