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

What the Supreme Court’s refusal today to agree to decide whether to strike down the federal statute that bars corporations from making contributions directly to candidates and political parties might suggest about the outcome of Hobby Lobby

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

– John Roberts, McCutcheon v. FEC, Apr. 2, 2014

My reaction when I read that last: OMG! You mean it’s finally occurred to Roberts and Kennedy that CEOs of publicly-held corporations don’t actually necessarily share the same political views as all those other members of these “associations of citizens” from whom the CEO, er, the corporation, derives its First Amendment speech rights?  (And religious rights, too, although that’s another case, isn’t it?)

Actually, that was a comment I posted to a Slate article last week about McCutcheon that included the above quote from that opinion.  The religious-rights cases I had in mind were, of course, the Hobby Lobby Stores v. Sebelius and Conestoga Wood Specialties v. Sebelius, the for-profit-corporation ACA-contraceptive-mandate cases, which were argued at the court on Mar. 25.

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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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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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The Supreme Court and Politics–Especially the current conservative majority’s appropriation of the First Amendment in the service of Republican Party electoral victories

Dan Crawford emailed me this morning with a link to Linda Greenhouse’s op-ed in today’s New York Times, titled “Law and Politics,” and asked me to post about it.  A more apt title for the op-ed, which a headline writer rather than Greenhouse (whose bailiwick is the Supreme Court) titled, would be “The Supreme Court and Politics,” as that is its sole subject.

The piece discusses work by eminent political scientist Robert A. Dahl, who died earlier this month at the age of 98, establishing a particular  theory about the Supreme Court: that, although there is some inevitable lag time, the Supreme Court normally fairly quickly recalibrates to follow sea changes in public opinion.

Here’s how I responded to Dan’s email:

Hi, Dan.  I’m a big fan of Linda Greenhouse, but I disagree with some of what she wrote. I think Dahl’s 1957 article is more out-of-date than she says.  I agree more with Jack Balkin, whom she mentions, and who writes a popular law blog called Balkinization.  I think that the current Court majority will remain deeply steeped in the specifics of the Reagan-era conservative legal movement, which involves some really weird doctrines that they claim as constitutional ones, some of which the public is clueless about and that therefore these justices pay no price in public opinion for.  I’ve alluded to this on AB from time to time, but have wanted for a while to write in more depth about it.

There’s one really big “sleeper” case, especially, that was argued at the Court recently and that I mentioned, but that I want to write in more depth about.  I do think that if the majority rules the way they clearly want to in that case, there will be more publicity about it than they expect, and more backlash.  Not as much as with Citizens United or even as much as with the Voting Rights Act case last year, but they expect almost none and I think they’ll be surprised that they’re wrong about that.

But the bottom line is that I don’t think this crowd cares that much about public opinion.  They’d prefer, of course, that no one notice what they’re doing, but I doubt that fear of public backlash will stop what amounts to a Reagan-era legislative agenda that these people clearly are hell-bent on forcing into law, much of it inoculated against reversal by Congress (a la the Ledbetter case, which Greenhouse mentions) by claiming some constitutional ground for the ruling. Ledbetter and many of their other pro-business and pro-state-and-local-government procedural/jurisdictional-rules Supreme Court opinions–interpretations-cum-rewritings of procedural or substantive statutes, some overtly fabricated by the Court in pretty clear violation of the Constitution’s Articles I and II (separation of powers)–can eventually be reversed by a Congress not in thrall to the Koch brothers. (Congress reversed Ledbetter before Citizens United.)  But when the Court couches its rulings as constitutional dictate, Congress can’t reverse them.

But there are some aspects that are peculiar to this particular majority, and that has received very little attention.  Always in the past (at least to my knowledge), the Court limited itself in major, sweeping rulings to issues raised by the parties.  This was true, certainly, in the New Deal rulings first striking down New Deal legislation and then reversing itself and upholding most of the legislation.  It also was true in every aspect of the Warren Court era–racial issues, First Amendment issues, criminal defendants’ rights, etc.–and then in the Burger Court era (e.g., Roe v. Wade).  And those cases always were brought not by some manufactured-issue ideologues, as occurs regularly now, but instead by normal-circumstance “cases and controversies,” as the constitutional phrase goes.

What is happening now is an orchestrated dance between rightwing conservative-movement lawyers and groups, and the Reagan, Bush I and Bush II justices, in which some really bizarre constitutional and statutory-interpretation arguments are made, and then adopted by the Court, dramatically but very often quietly rewriting parts of the Constitution (e.g., the Supremacy Clause, flipping it upside-down when applied to state judicial branches but flipping it back to serve conservative-movement dogma in other contexts) and procedural and substantive statutes. In fact, a hallmark of this crowd is the casual flipping back-and-forth as convenient–a hallmark especially of Scalia and Alito.

Beverly

The “sleeper” case I referenced is Harris v. Quinn, which was argued to the Court on Jan. 21.  At first blush a labor-law matter under the National Labor Relations Act (a.k.a., “Taft-Hartley”), but apparently a majority of the Court plans to turn it into a First Amendment case. At oral argument, Samuel Alito claimed that public-employee unions, by their very existence, violate the First Amendment speech and assembly rights of workers who don’t belong to the union, and Anthony Kennedy suggested that the longtime labor-law rule known as a “fair share” provision in public-employee union contracts, allowed by Taft-Hartley and previous Supreme Court opinions, violates the First Amendment’s “petition” clause (right to petition the government for a redress of grievances).  Something about some anti-union public employees who are concerned about “the size of government” and who therefore want to be fired or have their wages and pensions reduced.

Seriously.

An op-ed in the Washington Post by labor and employment lawyer Moshe Marvit, published the day before the argument in the case, summarizes the background:

On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,”in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.

NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)

But that was then.  Then, being before the oral argument.  Now, it’s a First Amendment case concerning forced speech about the role of government, and the right of public employees to petition their government employer for a redress of the grievance of big government.  Public employees who are concerned about the size of government should be entitled to resign, or forego a pay or pension increase and demand a larger employee contribution for healthcare insurance.

Or at least they should be allowed to accept those benefits without contributing to the union’s expenses to obtain them for the workers.

This is as opposed to, say, shareholders–some of them via their pension funds, some of them through mutual funds, and almost all of them entirely unwittingly–who care every bit as much about the size of government as do those anti-union public employees.  And who the Supreme Court has said must be forced to support the political views of the CEOs who use corporate funds to secretly contribute to Republican PACs.  Especially views about the size of government.  Each corporation is a person–specifically, the person who is its CEO.  At least if the CEO is a Republican.

States, too, it now turns out, also are people, entitled to Fourteenth Amendment equal protection of the law, a constitutional provision heretofore accorded to individuals as against a state’s denial of equal protection of the law.  Who knew?  Well, whatever.

No, Harris was not about the First Amendment until the Republican justices decided (apparently) that it will be.  As the articles about this case that I’ve linked to above show, this is in contrast to a case called Garcetti v. Ceballos in early 2006.  Wikipedia explains:

Garcetti v. Ceballos, 547 U.S. 410 (2006), is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

The case was by no means incidentally Samuel Alito’s, um, very first case as a Supreme Court justice.  He insisted.  Again, Wikipedia explains:

The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The case had been reargued following the retirement of Justice Sandra Day O’Connor, as the decision was tied without her; her successor, Justice Samuel Alito, then broke the tie.

The four dissenting justices, in three dissents written by Justices John Paul Stevens, David Souter, and Stephen Breyer, took issue with the majority’s firm line against the First Amendment ever applying to speech made within the scope of public employment, arguing instead that the government’s stronger interest in this context could be accommodated by the ordinary balancing test.

Actually, what happened is that the original 5-4 opinion was issued just before the Senate voted to confirm Alito as O’connor’s replace.  Technically, the opinion had not yet become final when Altio was sworn in, because the short time allotted the losing party to file a petition for reconsideration had not expired.  The Court had not granted a petition for reconsideration in the preceding four decades or so.  But Alito supplied the fifth vote to rehear the case in order to reverse the result.

Kennedy wrote the opinion for the new majority.  Wikipedia summarizes it:

The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.

Unless, of course, the job responsibility at issue is compliance with a labor agreement negotiated between a union and the employer.  Or if the statement at issue concerns something as unimportant as the legitimacy of a warrant rather than the all-important matter of the size of government.

Also in today’s New York Times, along with Greenhouse’s op-ed, is an article by Adam Liptak, the Times’ current Supreme Court correspondent, about a case to be argued at the Court on Monday that, as Liptak notes albeit obliquely, promises to illustrate one of the hallmarks of this Court.  A Court majority that itself routinely, casually rewrites procedural and substantive statutes and allows the lower federal courts to do the same, for decades, until ExxonMobil or Sprint petitions the Supreme Court about it, takes umbrage when it is the executive branch rather than the judicial branch that encroaches upon the Congress’s constitutional prerogatives. But only when the executive branch is headed by a Democrat.

A Court that has so brazenly and aggressively precluded access to federal court, and most certainly to itself, as a mechanism to petition the government for a redress of grievances–effectuating a key goal of the conservative movement from which these five justices all hail–is about to concern itself with the right of public employees to petition for small government by refusing to pay for their union representation.

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The Republicans’ Winning Rallying Cry: Bring back the G.W. Bush policies! Yeah, THAT’s the ticket to prosperity for all!

The ticket to the middle class is not higher taxes on the very businesses that must create the jobs… Economic growth will come when we lower taxes for everyone, especially people who own businesses and create jobs.

— Rand Paul, last night

Absolutely.  The G.W. Bush presidency was terrific for economic growth!  It wasn’t a lack of financial-industry regulation; mortgage-backed-securities derivatives and a consequent real estate bubble; almost no wage increases for anyone other than Fortune 500 CEOs, Silicon Valley tech people, and hedge-fund folks; and a mass collapse of manufacturing, that caused the 2008 financial collapse and Great Recession.  Uh-uh.  It was the Dodd-Frank Act. And the return of higher taxes on some of the very wealthy.  And the constant threat of an end to the carried-interest tax machination for hedge fund managers and private equity types.  And of course Obamacare.  Those were what caused wage/salary stagnation for almost everyone other than Fortune 500 CEOs, Silicon Valley tech people, and hedge-fund folks.  And what caused the mass collapse of manufacturing during the Bush presidency.  And caused the 2008 financial collapse and Great Recession.  All of it retroactively.

Emphasizing the importance of a small government approach, he said wryly, “It’s not that the government is inherently stupid — although that’s debatable — it’s that the government” is on a different page than individual citizens when it comes to money.

— Katie Glueck, Politico, summarizing another Paul point from the same interview

Definitely.  Most individual citizens who don’t offshore their income would prefer that those such as Mitt and Ann Romney, who do, be required to pay U.S. income taxes on the income they make in the U.S.  The House and Senate Republicans–who I believe are part of the government–on the other hand, have other priorities when it comes to that money.  Like allowing them to remain in offshore accounts as income from shell corporations, untaxed.

[Sen. Mike] Lee highlighted educational and economic inequality, but argued that government is a root cause of growing disparities.

–Glueck, in that Politico article

Yep.  Right, again.  See the above paragraphs.  These folks are on a roll.*

[Lee] also included issues like abortion, same-sex marriage and National Security Agency surveillance as examples of big-government policies that lead to “real inequality.”

— Glueck

Well, if the National Security Agency is collecting my cellphone and email info but not Mitt Romney’s, the Koch brothers’, Jamie Dimon’s, or Tom Perkins’s, then Lee sure has a point.  And since I’m assuming that he’s right about that, because Tea Partiers are notably meticulous about accuracy in the facts they cite, I’m now even angrier than I was about the NSA stuff.  Is there absolutely nothing that can’t be bought in this country if you’re a zillionaire?  Even exemption from NSA surveillance?

I’m just not quite sure, though, why Lee chose as another example of flagrant, concerted, government-precipitated inequality same-sex marriage rather than, say, access to Supreme Court review of an issue that glaringly needs Supreme Court attention but doesn’t receive it despite desperate requests, year after year after year after year, for decades, until it is, say, Sprint or ExxonMobil rather than ordinary-person-who-cannot-afford-to-retain-John-Roberts’-old-law-firm that is requesting the review.  I guess it’s that same-sex couples are notoriously privileged in our society.  Unlike the Koch brothers.  And really, it’s not fair.

Well, maybe not, after all, unlike the Koch brothers and others like them, who Lee, to his credit, does seem to recognize have insidious political influence.  Glueck writes:

“This inequality crisis presents itself in three principal forms,” Lee (R-Utah) said. “Immobility among the poor, who are being trapped in poverty by big-government programs; insecurity in the middle class, where families are struggling just to get ahead, and they can’t seem to get ahead; and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.”

And cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.  One of the three branches of the federal government is the judicial branch.  Which indeed has immense power and which at its highest level uses its immense power, aggressively and regularly these days, to favor political and economic insiders, in ways mostly not known to most of the public.  And in ways that are.

*Sentence originally said “Lee’s on a roll.”  Corrected 1/30

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Paul Krugman is wrong; Obama DOES need to discuss Keynesian economics in his State of the Union address. Here’s why.

Paul Krugman is my hero.  I credit him–him alone, really–with ending, finally, the Peterson Foundation’s capture of almost all of the mainstream news media as their PR outfit.  Just as I credit Occupy Wall Street, also alone, with finally ending the decades-long political prohibition of class warfare by any group but the hedge fund/CEO crowd. Krugman, unlike other liberal economists, thanks to his New York Times column and blog, is not relegated by the news and political worlds to tree-falling-in-a-forest status.  His writings penetrate the barriers–consciousness–that no other liberal economist can.  And he has, single-handledly, removed from the big-name propogandists the freedom to sell their snake oil, unrebutted in any broadly-read forum, as news and fact-based commentary. Krugman bats down this stuff, daily.

The economic/fiscal right is similar to the conservative-legal-movement right, best as I can tell, in its perversion– its Orwellian redefinition–of common language terms and its out-of-the-blue proclamations of false fact. In law, it is words, phrases and concepts such as freedom, liberty, viewpoint coercion, matters of public concern, First Amendment rights to free speech and free association and to petition the government for a redress of grievances, that are now regularly removed from their ordinary meaning to strip or fabricate constitutional rights, depending upon which outcome advances what is at bottom the Reagan-era-right’s legislative agenda.  There is, it is by now clear, no redefinition or fabrication of fact too shamelessly politically opportunistic, or too whiplash-inducing in light of their own recent aggressive rulings to the contrary, that four or five justices won’t adopt, and certainly no limit to the bald silliness that their legal-movement apparatus won’t offer with a straight face.

Freedom means imprisonment.  Or, more precisely, it means being denied access to the federal habeas corpus process after conviction of felonies and sentenced to a long prison term, however rampant the violations of federal constitutional rights, as long as the conviction was in state court, because states, or more accurately, state judicial branches are sovereigns whose dignity must not be offended by the shackles of having to comply with the Constitution’s dictates and prohibitions.  Yes, and work will make you free, as long as the work occurs inside a concentration camp, within a sovereign state.  Or at least it will if you’re a public-sector employee in a unionized job and you are ideologically opposed to big government but not so strongly against it that you will quit your job and ask that your position not be filled upon your departure.  Or if you’re a physician who accepts Medicare patients.  But not if you’re a prosecutor whose discovered bald misconduct on the part of the part of the police in a prosecution, and your own office looks the other way and you complain, since the phrase “big government” does not include within its meaning police misconduct and therefore is not a matter of public concern.

I wish there were a Krugman-equivalent for legal issues.  Without one, these folks dramatically rewrite the Constitution and federal statutes, with rare exceptions entirely off the public’s radar screen.  But there’s not.

But I digress.  I come not just to praise Paul Krugman but also to refute him.  Well, actually to refute his argument today that it’s okay if Obama doesn’t address Keynesian economics in his State of the Union address next week, as long as he addresses, at length, issues of dramatically unequal income and wealth distribution and access to the means of economic mobility.  Krugman recognizes, of course, the relationship between the two, but concludes, citing FDR’s inability to do so in 1937, that the former is almost impossible to accomplish while the latter is easy to do because the public is now very aware of the basic facts and, by large majorities, concerned about it.

Krugman’s purpose is largely to dispute the claim by some liberals that a focus on inequality distracts from an argument for a jobs-creation agenda–that is, an argument for a new economic-stimulus fiscal policy.  He’s right that that is wrong; issues of inequality of income and wealth are anything but a distraction from the sluggish economy.  And, separately, they’re of essential concern.

But a threshold to progress on either of these fronts is victory in this year’s congressional and state-government elections. And therefore, a refutation of the Republican “Obama economy” mantra.

Two weeks ago, in a post I titled “Yes, Speaker Boehner, But WHOSE Policies of the Present Are to Blame?”, I expressed my deep desire to see Obama use his State of the Union Address to point out the dramatic decline in government employment at every level of government–federal, state, local–throughout his presidency, and to show, using charts, how that differs from every economic downturn since the early 1930s.  This is different than a Keynesian argument for economic stimulus. This is easy to explain–both the facts and the economic effects.  If a teacher, firefighter or police officer is laid off, he or she and his or family is spending far less money in the community and the larger economy.  And the layoff may mean the loss of the family’s home.  Federal funds to states and localities has been dramatically reduced since the Tea Party gained control of Congress–a majority in the House, a veto-by-filibuster in the Senate. Compare that to, say, the recession in the early 2000s.

It’s their fiscal policy–and their economy.  And by no means just because of a failure to enact further stimulus programs.  The public needs to be told–and shown–this.  I think it’s important not to conflate stimulus with dramatic reductions in spending. And, with all the respect that Krugman is due notwithstanding, I think that’s what he’s doing.

As for FDR, it seems to me likely that he reversed fiscal course in 1937 not because of public opinion poll results but instead because he, like the public, bought into deficit fears.  But the experience of the 1930s’ double-dip depression, along with the current experience here and in Europe, is not that hard to explain to the public.  FDR’s problem was that Keynesian economics was pretty new territory then, and he wasn’t clairvoyant.  He made the same mistake that Obama made.  He bought the wrong sales pitch.  Understandable in 1937, but not so much these days.

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More On the Real Reason Healthcare Insurance Companies Are Now Encouraging Obamacare Enrollment

In light of some of the comments to my post yesterday arguing that that the real reason that healthcare insurance companies are now madly encouraging Obamacare enrollment is fear of a pro-public-option or pro-single-payer political juggernaut, I want to make clear that by single-payer I do not mean Medicare-for-all.   Single-payer would be, in essence, “the public option” extended to everyone rather than limited to the 5% of Americans who have private healthcare insurance through the non-group (i.e., non-employer-provided) market.  It is not tax-funded identical-for-all healthcare insurance, which is what Medicare is.  I do think that eventually this country will have Medicare-for-all-type healthcare insurance, but not in the near term.  If single-payer works well, then of course that would be the longterm solution, with no need for Medicare-for-all.

I also want to make a point about federalism as it relates to the ACA insurance-market exchanges and, especially, to Medicaid and, for that matter, to any other federal social-safety-network program.  I said in my post yesterday what I think is obvious: that federalism has been a disaster for Obamacare.  But I want to point out that the only reason that Medicaid works under current pre-Obamacare Medicaid is that that program came into being and was effectuated before the hard-right turn of the Republican Party.  Ditto for food stamps.  The really weird, but successful, argument by rightwing governors and state attorneys general to the Supreme Court in the ACA litigation on the Medicaid-expansion provision in the ACA is that, well, y’know, now that traditional Medicaid has been a part of each state’s law for decades, and is popular, it would be politically impossible for state legislators to end that program–the result under the ACA as the statute was written, if a state refused to agree to the ACA Medicaid expansion.  This, they argued–successfully!–meant that the ACA was effectively coercive of state  legislators and therefore infringed upon state sovereignty.  On that “ground,” the Supreme Court struck down that part of the Medicaid portion of the ACA.

That’s also known as the  conservatives-having-their-cake-and-eating-it-to theory of constitutional law.  The argument was so deeply hubristic that its actual success is stunning and outrageous.  But I have no idea why anyone would think that federalism must be a part of a national healthcare insurance law. It does not.

As for whether or not the public will catch on that the main problems with the Obamacare-exchanges-and-private-policies part of the Act is a failure of the healthcare insurance market and of the healthcare market itself–a question that several commenters raised–well, that was what my post was about.  Yes, the public will catch on, once the Dems have a smart, committed, knowledgeable and articulate spokesperson with a high enough national profile to educate them about it.  I expect that that will happen fairly soon.

Finally, although this should be the subject of a separate post, a hallmark of the current Supreme Court is how many really weird, outlandish rightwing arguments the current conservative-legal-movement five-member majority have made the law of the 50-state-soverign-lands.  As I said in an ignored post here last weekend, the Court’s neo-federalism-on-steroids jurisprudence has quietly but profoundly and thoroughly upended federal-in-relation-to-state constitutional law as it had existed since the post-Civil War era. This is a deeply dangerous juggernaut.

I wish more readers would read that post.  It does deal with really important stuff. Honestly.

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