In this morning's news comes word that the US Supreme Court, in a 5-4 decision, has ruled that the Trump administration can transfer $2.5 billion from the Defense Department budget to use to build a portion of the border wall they have been pushing. This comes despite Congress's specific and intentional refusal to appropriate funds for this project, despite strong Administration efforts to ram it through, including the longest government shutdown in American history.
Article One, Section One of the US Constitution states:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article One, Section Nine of the US Constitution states:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...
So, all legislative (lawmaking) powers belong to congress. And no money can be spent without a law authorizing it. Yet in this instance the Executive Branch is being allowed to do just that, to spend money without a congressional appropriation. How are we not a dictatorship if the president is allowed to, of his own individual will, usurp a power of congress and spend money for purposes not appropriated by congress? This decision, reached solely on the strength of the Republican-appointed majority on the court, and overturning lower federal court decisions, is an incredible dereliction by the Supreme Court. What need is there of a congress at all if the executive can create laws on his own and assume jurisdiction over its constitutionally designated powers? We still have the trappings of a representative, constitutional republic, but with this decision and precedent, how are we different from a dictatorship?
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Saturday, July 27, 2019
Tuesday, January 22, 2019
Equality Not the Law of the Land for All Americans
On the day after we celebrated a national holiday commemorating a man who lived and died for the dream of equality, the current Supreme Court today let stand the Administration policy of discriminating against transgender people in the military. I wonder whether the five conservative justices paused to reflect on the irony of this juxtaposition.
Wednesday, February 17, 2016
Replacing Scalia
I confess it was with no great sadness that I heard of the passing of Supreme Court Justice Antonin Scalia this past weekend. Known as the intellectual linchpin of the tribunal's conservative wing, Justice Scalia took great pains to protect the rights of corporations as if they were people but paid scant attention to protecting the rights of actual people. President Obama has announced he will fulfill his constitutional duty under Article II to nominate a successor. Now we will find out whether the Republican majority in the Senate will go through with its threats to refuse to exercise its constitutional mandate to vote to confirm or deny the president's choice. If so, their political flackery will have reached unprecedented heights, even for them. Such a course would likely hurt them in this November's election.
Scalia voted with the 5-4 majority to stop the 2000 Florida recount, awarding the presidency to George W. Bush without the inconvenience of an accurate vote tabulation. He was the similarly deciding vote in cases that overturned forty years of precedents and gave corporations the same rights as human beings, the Citizens United and McCutcheon rulings. He voted to gut the enforcement provisions of the Voting Rights Act, another 5-4 ruling that has been used, through GOP gerrymandering, to once again disenfranchise black voting strength across the South. In his opinion the Fourteenth Amendment ("No state shall...deny to any person within its jurisdiction the equal protection of the laws.") does not guarantee equal rights for women and LGBT Americans. He stated "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry to tell you that." (Source of Scalia quote.) It does not sadden me that such a jurist is no longer on the bench of the nation's highest court.
Within hours of news of Scalia's death, Senate Majority Leader Mitch McConnell announced that no vote would be taken on any successor until after the November election, that a new president should make the selection. McConnell's gambit would deny President Obama the opportunity to name a progressive jurist, hoping for a Republican victory to allow conservatives to maintain their majority on the tribunal. Obama, however, in his own statement, promised to exercise his constitutional responsibility to fill the vacancy, and called on the Senate to follow theirs, to vet the nominee and have a vote. Here are the political considerations. If the Republicans dig in their heels and refuse action they will succeed in ginning up their own base. Committed conservatives would be more motivated to come out and vote for President to prevent a liberal Supreme Court majority. But the converse is also true. Democrats would make this a major issue, firing up their own base to show up and ensure a new Court more friendly to consumers and minorities than corporations and bigots. The deciding factor would be with independents. I feel the maneuver would push most independents in the Democrats' direction. If Obama were to nominate someone who has been already unanimously confirmed by the whole Senate for a lower Court position, independents would see the Republican tactic for the partisan political power play it is, hurting them with the undecideds and helping Democrats in close congressional elections and in battleground states if the presidential election is close. That's why we are already starting to see some GOP senators back away from the scorched earth approach. Look for the next three weeks to tell the story. By then the President will make his nomination and the ball will be in McConnell's "court," so to speak.
Scalia voted with the 5-4 majority to stop the 2000 Florida recount, awarding the presidency to George W. Bush without the inconvenience of an accurate vote tabulation. He was the similarly deciding vote in cases that overturned forty years of precedents and gave corporations the same rights as human beings, the Citizens United and McCutcheon rulings. He voted to gut the enforcement provisions of the Voting Rights Act, another 5-4 ruling that has been used, through GOP gerrymandering, to once again disenfranchise black voting strength across the South. In his opinion the Fourteenth Amendment ("No state shall...deny to any person within its jurisdiction the equal protection of the laws.") does not guarantee equal rights for women and LGBT Americans. He stated "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry to tell you that." (Source of Scalia quote.) It does not sadden me that such a jurist is no longer on the bench of the nation's highest court.
Within hours of news of Scalia's death, Senate Majority Leader Mitch McConnell announced that no vote would be taken on any successor until after the November election, that a new president should make the selection. McConnell's gambit would deny President Obama the opportunity to name a progressive jurist, hoping for a Republican victory to allow conservatives to maintain their majority on the tribunal. Obama, however, in his own statement, promised to exercise his constitutional responsibility to fill the vacancy, and called on the Senate to follow theirs, to vet the nominee and have a vote. Here are the political considerations. If the Republicans dig in their heels and refuse action they will succeed in ginning up their own base. Committed conservatives would be more motivated to come out and vote for President to prevent a liberal Supreme Court majority. But the converse is also true. Democrats would make this a major issue, firing up their own base to show up and ensure a new Court more friendly to consumers and minorities than corporations and bigots. The deciding factor would be with independents. I feel the maneuver would push most independents in the Democrats' direction. If Obama were to nominate someone who has been already unanimously confirmed by the whole Senate for a lower Court position, independents would see the Republican tactic for the partisan political power play it is, hurting them with the undecideds and helping Democrats in close congressional elections and in battleground states if the presidential election is close. That's why we are already starting to see some GOP senators back away from the scorched earth approach. Look for the next three weeks to tell the story. By then the President will make his nomination and the ball will be in McConnell's "court," so to speak.
Tuesday, June 23, 2015
How Will Court Rule on Marriage Equality and Obamacare?
Business Insider ran a story on the two pressing Supreme Court cases still to be announced this session. The first case will rule whether states can refuse to marry same-sex couples. The second, King v. Burwell, will decide whether the U.S. government can continue to pay subsidies to people for Obamacare if they live in a state that has not set up its own health care exchange. If they so rule, it will largely wreck Obamacare in 36 states. You can see the article here.
In it, Carter Phillips, an attorney who has argued 80 cases before the high court, predicts the court will rule in favor of same-sex marriage. He says, "I think it could be more than 5-4 because I think the justices will figure out the way the winds of history are blowing and will not be keen on seeing their individual legacies tarnished by having hopelessly attempted to block the protection of rights."
In it, Carter Phillips, an attorney who has argued 80 cases before the high court, predicts the court will rule in favor of same-sex marriage. He says, "I think it could be more than 5-4 because I think the justices will figure out the way the winds of history are blowing and will not be keen on seeing their individual legacies tarnished by having hopelessly attempted to block the protection of rights."
He rates the Obamacare case a tossup, based on the questioning of the justices at the hearing. All four liberal justices seemed to strongly affirm an interpretation of the wording that permits the subsidies to continue, even if the exchange has not been "established by the state." In Phillips's view, the questions and comments from the bench of only three conservative justices indicate implacable opposition to the subsidies. Two others, Chief Justice John Roberts and Associate Justice Anthony Kennedy, appeared undecided and could go either way. "The
four liberals were very aggressive at the oral argument and only three
of the conservatives were," Phillips said. "So if Obama could pick off
either the Chief or Kennedy, he would win."
We should find out within a week.
Sunday, August 3, 2014
Ginsberg Explains Hobby Lobby Dissent
Joan
and I have been on vacation in the San Diego area, and that's the reason
it's been awhile since I last posted on Brave Gnu Whirled. I'm now
back in Visalia and getting ready for a new semester of History classes
at College of the Sequoias.
I have a special item for you today, an interview with Supreme Court Justice Ruth Bader Ginsberg. In it she discusses the recent and famous Hobby Lobby decision. That's the one in which the 5-4 conservative majority ruled that a "closely-held for-profit corporation" can have a religious view and can enforce that view with respect to their employees' access to birth control coverage.
Ginsberg's 35-page dissent against that opinion has been described as "scathing." It's actually legalistic and circumspect, arguing from constitutional and legal principles rather than simply mouthing religious or political opinion. Click on this link to read for yourself.
Just as interesting in summation is this interview with Katie Couric. I know, it can be hard to decide what to make of Couric. The onetime CBS News anchor later went back to doing celebrity fluff journalism. Lately hired by Yahoo, this piece certainly shows Couric at her best with respect to substance. She's serious and prepared.
As for Justice Ginsberg, she touches on her principal objection, that religious freedom does not convey the right to impose one's religious views on others, employees in this case. She also agrees that the men on the court have a "blind spot" when it comes to the concerns of women. Ginsberg and the other two women justices, not surprisingly, were all in dissent in this case. Readers of this blog will not be surprised to note that my views are in complete accord with Justice Ginsberg's.
And finally, Ginsberg is ultimately hopeful that her dissent will one day be adopted as the proper constitutional interpretation. She cites as an example Justice John Harlan's dissent against the Court's infamous 1896 Plessy v Ferguson ruling as a case in point. In that case the Court ruled in favor of the constitutionality of racial segregation under the doctrine of "separate but equal." A later Court reversed that decision, something she expects to happen again in the Hobby Lobby case, though the 80-year-old jurist says she may not be around to personally see it.
I have a special item for you today, an interview with Supreme Court Justice Ruth Bader Ginsberg. In it she discusses the recent and famous Hobby Lobby decision. That's the one in which the 5-4 conservative majority ruled that a "closely-held for-profit corporation" can have a religious view and can enforce that view with respect to their employees' access to birth control coverage.
Ginsberg's 35-page dissent against that opinion has been described as "scathing." It's actually legalistic and circumspect, arguing from constitutional and legal principles rather than simply mouthing religious or political opinion. Click on this link to read for yourself.
Just as interesting in summation is this interview with Katie Couric. I know, it can be hard to decide what to make of Couric. The onetime CBS News anchor later went back to doing celebrity fluff journalism. Lately hired by Yahoo, this piece certainly shows Couric at her best with respect to substance. She's serious and prepared.
As for Justice Ginsberg, she touches on her principal objection, that religious freedom does not convey the right to impose one's religious views on others, employees in this case. She also agrees that the men on the court have a "blind spot" when it comes to the concerns of women. Ginsberg and the other two women justices, not surprisingly, were all in dissent in this case. Readers of this blog will not be surprised to note that my views are in complete accord with Justice Ginsberg's.
And finally, Ginsberg is ultimately hopeful that her dissent will one day be adopted as the proper constitutional interpretation. She cites as an example Justice John Harlan's dissent against the Court's infamous 1896 Plessy v Ferguson ruling as a case in point. In that case the Court ruled in favor of the constitutionality of racial segregation under the doctrine of "separate but equal." A later Court reversed that decision, something she expects to happen again in the Hobby Lobby case, though the 80-year-old jurist says she may not be around to personally see it.
Click on this link to watch the five-minute interview segment featuring Ginsberg's thought processes.
Wednesday, June 26, 2013
Two Momentous Wins for Equal Rights Today!
"I applaud the Supreme Court's decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal -- and the love we commit to one another must be equal as well.
Thursday, June 28, 2012
Historic Court Ruling on Health Care
Today's release of the U.S. Supreme Court ruling validating President Obama's signature health care overhaul marks a groundbreaking watershed in American history and the culmination of a process begun exactly 100 years ago by Theodore Roosevelt. The United States has now joined the civilized countries of the world in establishing access to medical care as a national policy priority and commitment. In simple terms, the principle at issue was whether when somebody is sick in this country they should be able to see a doctor, or not. That has now been decided in the affirmative.
As with other great progressive intiatives initially decried by conservatives such as Social Security and Medicare, if the Republicans are not able to win this year's election and overturn the law, it will likely attain immense popularity once its full provisions take effect. The winners will be the American people, particularly the 50 million currently without health insurance.
The ruling is sure to engender an even higher pitch of furious opposition than has existed up to now from the hard Republican base. But it will also give the President and his allies a second opportunity to win the public debate about the law and its real meaning for public health in the nation. He and they must clearly do a better job of promoting the plan than they did the first time around.
There is a good foundation to start from. The public remains supportive of many of the Affordable Care Act's provisions. Popular features include carrying dependents on parents' insurance until age 26, that no one may be denied insurance due to pre-existing conditions, the prohibition against dropping expensive patients and against imposing lifetime caps, and the requirement that insurance companies spend at least 85% of their revenues on actual health care for customers.
It will also be necessary to refute the many sensationalist and erroneous charges that have been brought against it. People who currently have employer-provided health plans, who pay for their own privately-purchased insurance, or who are on Medicare or Medicaid should not see any change at all. People will still be able to go to their regular doctor. There are no "death panels." People will have to purchase health insurance, but will receive subsidies to do so on a sliding scale based on their income. A basic value of the law is responsibility: everybody needs health care at some point, so it's only fair that everybody contributes to its provision. The Government Accountability Office calculated that many of the ACA's other provisions will act to reduce costs in the health care system as well. Already in the past two years we have seen a marked slowing in the rate of escalating health costs.
The High Court's decision removes the constitutional challenge to Obamacare, but not the political one. That makes it all the more crucial for proponents to work for Barack Obama's re-election. Only a Mitt Romney presidency and close to 60 Republican votes in the U.S. Senate (they currently have 47) are likely to reverse the health initiative now. So while today's announcement is highly historic it does not end the story quite yet. The last chapter will be settled on November 6--Election Day-- 2012.
As with other great progressive intiatives initially decried by conservatives such as Social Security and Medicare, if the Republicans are not able to win this year's election and overturn the law, it will likely attain immense popularity once its full provisions take effect. The winners will be the American people, particularly the 50 million currently without health insurance.
The ruling is sure to engender an even higher pitch of furious opposition than has existed up to now from the hard Republican base. But it will also give the President and his allies a second opportunity to win the public debate about the law and its real meaning for public health in the nation. He and they must clearly do a better job of promoting the plan than they did the first time around.
There is a good foundation to start from. The public remains supportive of many of the Affordable Care Act's provisions. Popular features include carrying dependents on parents' insurance until age 26, that no one may be denied insurance due to pre-existing conditions, the prohibition against dropping expensive patients and against imposing lifetime caps, and the requirement that insurance companies spend at least 85% of their revenues on actual health care for customers.
It will also be necessary to refute the many sensationalist and erroneous charges that have been brought against it. People who currently have employer-provided health plans, who pay for their own privately-purchased insurance, or who are on Medicare or Medicaid should not see any change at all. People will still be able to go to their regular doctor. There are no "death panels." People will have to purchase health insurance, but will receive subsidies to do so on a sliding scale based on their income. A basic value of the law is responsibility: everybody needs health care at some point, so it's only fair that everybody contributes to its provision. The Government Accountability Office calculated that many of the ACA's other provisions will act to reduce costs in the health care system as well. Already in the past two years we have seen a marked slowing in the rate of escalating health costs.
The High Court's decision removes the constitutional challenge to Obamacare, but not the political one. That makes it all the more crucial for proponents to work for Barack Obama's re-election. Only a Mitt Romney presidency and close to 60 Republican votes in the U.S. Senate (they currently have 47) are likely to reverse the health initiative now. So while today's announcement is highly historic it does not end the story quite yet. The last chapter will be settled on November 6--Election Day-- 2012.
Sunday, March 25, 2012
High Court to Try Health Law This Week
The stakes will be high this week as the Supreme Court devotes three days of hearings to challenges to the Patient Protection and Affordable Care Act. Not since the civil rights cases of the 1960s has the high court set aside so much time for oral arguments on a single topic. The issues fall into three categories: jurisdiction, mandates and severability. These issues will be argued successively by attorneys attacking and defending the Health Law, and when the court rules it will both determine the future of the Act passed two years ago this month and enter the middle of the election battle being contested this year. Any decisions the justices reach will be rendered at the end of the court's session, probably in late June.
The first issue to be discussed concerns jurisdiction, or more precisely, timing. Since the parts of the law the plaintiffs object to haven't even taken effect yet, the court wants to hear why it is required to act now, since no one has yet been "injured" by the legislation. An 1867 law, the Anti-Injunction Act, prevents court action on new taxes until they have begun operating. Most court watchers do not expect this concern to derail the proceedings.
Next the justices will hear the meat of the oppenents' case, their objection to mandates. The Act says almost all individuals and larger employers will have to buy health insurance or suffer financial penalties. (Individuals already covered under employer-purchased plans will not need to make any changes.) Subsidies are to be made available for people with incomes below $80,000 on a sliding scale. There are also mandates on states; they will have to cover everyone under medicaid who makes 133% or less of the poverty level, or suffer cuts in federal aid. The Medicaid arguments will be heard Wednesday. The Administration will contend that the Act adheres to the Constitution's grant of congressional power to "regulate commerce among the several states" and to do what is "necessary and proper" to "promote the general welfare." For instance, the uninsured used $116 billion in health care in 2008, a cost that insurers pass on to the insured through higher premiums. They will say the new law rights this inequity and serves a clear public interest. Opponents will contend the mandate is a power not expressly granted by the Constitution and thus void. If the court goes against the Medicaid mandate it will be overturning a principle it established earlier, when it allowed the federal government to threaten to withhold highway funds from states if they had legal drinking ages under 21.
Finally, the severability issue will determine whether the whole law must survive or fall as an indivisible whole, i.e. whether certain issues can be "severed" from the law and separately thrown out while keeping the rest in force. If the court rules against the insurance mandate, what about the other requirements? Will that strike down the provisions requiring insurers to cover children on their parents' plan until their 26th birthday, the bans on excluding people from coverage due to pre-existing conditions and of dropping them from coverage if they get sick, or the percentages insurers must actually spend on health care? Those are the kinds of things that will be decided on the severability question.
All in all, the case and eventual ruling figures to be one of the most momentous in decades. Health care for 50 million people and the scope of congressional authority are clearly at stake. The principles allowed or curtailed will shape policy and people's lives for many years to come.
The first issue to be discussed concerns jurisdiction, or more precisely, timing. Since the parts of the law the plaintiffs object to haven't even taken effect yet, the court wants to hear why it is required to act now, since no one has yet been "injured" by the legislation. An 1867 law, the Anti-Injunction Act, prevents court action on new taxes until they have begun operating. Most court watchers do not expect this concern to derail the proceedings.
Next the justices will hear the meat of the oppenents' case, their objection to mandates. The Act says almost all individuals and larger employers will have to buy health insurance or suffer financial penalties. (Individuals already covered under employer-purchased plans will not need to make any changes.) Subsidies are to be made available for people with incomes below $80,000 on a sliding scale. There are also mandates on states; they will have to cover everyone under medicaid who makes 133% or less of the poverty level, or suffer cuts in federal aid. The Medicaid arguments will be heard Wednesday. The Administration will contend that the Act adheres to the Constitution's grant of congressional power to "regulate commerce among the several states" and to do what is "necessary and proper" to "promote the general welfare." For instance, the uninsured used $116 billion in health care in 2008, a cost that insurers pass on to the insured through higher premiums. They will say the new law rights this inequity and serves a clear public interest. Opponents will contend the mandate is a power not expressly granted by the Constitution and thus void. If the court goes against the Medicaid mandate it will be overturning a principle it established earlier, when it allowed the federal government to threaten to withhold highway funds from states if they had legal drinking ages under 21.
Finally, the severability issue will determine whether the whole law must survive or fall as an indivisible whole, i.e. whether certain issues can be "severed" from the law and separately thrown out while keeping the rest in force. If the court rules against the insurance mandate, what about the other requirements? Will that strike down the provisions requiring insurers to cover children on their parents' plan until their 26th birthday, the bans on excluding people from coverage due to pre-existing conditions and of dropping them from coverage if they get sick, or the percentages insurers must actually spend on health care? Those are the kinds of things that will be decided on the severability question.
All in all, the case and eventual ruling figures to be one of the most momentous in decades. Health care for 50 million people and the scope of congressional authority are clearly at stake. The principles allowed or curtailed will shape policy and people's lives for many years to come.
Sunday, December 4, 2011
Montanans Vote to Abolish Corporate Personhood
Missoula is the second largest city in Montana and home to the University of Montana. According to the 2010 census, the county seat of Missoula County is home to 66,788 people in the city limits, with a total of 109,299 if you count the "Missoula Metropolitan Area." (Click here to go to Missoula's official website.) Situated at 3,209 feet and located at the conjunction of five mountain ranges, Missoula is also called the "Hub of Five Valleys" and even the "Garden City" for its relatively mild climate. Founded in 1860 as a wagon trail trading post, Missoula shares an independent streak with most Big Sky state residents and indeed, with most Westerners in general. Thus, a recent ballot referendum there really caught my eye.
In the November 8, 2011 municipal election the good citizens there voted almost three to one to declare that a corporation does not have the same rights as a human being. According to the Office of Elections, the vote was 10,729 to 3,605, or 74.85% to 25.15%. City Councilwoman Cynthia Wolken placed the referendum before the council in August, reporting that her constituents had an "overwhelming sense of despair about government." As she was knocking on doors, people kept expressing their view that, "A lot of people feel that what they say doesn't matter, because somebody with more money will come along and drown out their voices." They were particularly resentful of the 2010 Citizens United Supreme Court ruling, which declared corporations have free speech rights and the ability to spend unlimited amounts of money without attribution for political purposes. Read the Missoulian newspaper article on it here.
The corporate personhood resolution builds its case with declarations of principle such as:
A group called the Move to Amend Coalition is attempting to spread this message and movement across the country. Click on this link to go to their site.
In the November 8, 2011 municipal election the good citizens there voted almost three to one to declare that a corporation does not have the same rights as a human being. According to the Office of Elections, the vote was 10,729 to 3,605, or 74.85% to 25.15%. City Councilwoman Cynthia Wolken placed the referendum before the council in August, reporting that her constituents had an "overwhelming sense of despair about government." As she was knocking on doors, people kept expressing their view that, "A lot of people feel that what they say doesn't matter, because somebody with more money will come along and drown out their voices." They were particularly resentful of the 2010 Citizens United Supreme Court ruling, which declared corporations have free speech rights and the ability to spend unlimited amounts of money without attribution for political purposes. Read the Missoulian newspaper article on it here.
The corporate personhood resolution builds its case with declarations of principle such as:
WHEREAS, corporations are not and have never been human beings, and therefore are rightfully subservient to human beings and governments as our legal creations, ...and:
WHEREAS, the recent Citizens United v. the Federal Election Commission Supreme Court decision that rolled back the legal limits on corporate spending in the electoral process creates an unequal playing field and allows unlimited corporate spending to influence elections, candidate selection, policy decisions and sway votes, and forces elected officials to divert their attention from The Peoples’ business, or even vote against the interest of their human constituents, in order to raise competitive campaign funds for their own re-election, ...It concludes with a call for action:
"The citizens of Missoula, Montana, hereby urge the Montana State Legislature and United States Congress to amend the United States Constitution to clearly state thatClick here to read the entire text of the Missoula corporate personhood resolution.
corporations are not human beings and do not have the same rights as citizens."
A group called the Move to Amend Coalition is attempting to spread this message and movement across the country. Click on this link to go to their site.
Thursday, June 10, 2010
Supreme Court Blocks Arizona Clean Money Campaign
It was bad enough when the U.S. Supreme Court recently ruled that corporate money could be spent on political speech without limits. But now it has really gone over the line in issuing an immediate stay against Arizona's 10-year-old campaign finance system.
Though I don't agree with the first ruling, I can understand it. If you grant that a corporation is a "person" entitled to First Amendment protection and that society has no interest in trying to maintain fairness in political campaigns (two very big ifs) then I can see where the conservative court majority is coming from. They say you can't restrict advertising from any quarter.
Yesterday's intervention in Arizona's clean money system is a different animal altogether. Before even hearing the case, they issued an emergency order to prevent the state from disbursing matching funds to candidates already entitled to it under existing law in the middle of a campaign. Somehow they seem to feel that "First Amendment free speech rights of wealthy or well-heeled candidates are violated when extra money flows to their opponents." The Arizona system results in a greater amount and more balanced speech, not less. And talk about "judicial activism." Governor Jan Brewer, who had $1.4 million in matching funding pulled from her by the ruling after her primary opponent Buz Mills had already spent over $2 million, lamented, "It is extremely unusual for the judicial branch to change the rules of an election while it is being held."
The current court is more and more brazenly favoring corporations and the wealthy over any and all attempts to level the playing field. This shows how crucial appointments to the high court truly are. Without a countervailing check soon, America is headed ever more inexorably toward an unabashed plutocracy.
I have two digressions to make here at the end. First, you might have noticed I have had to go to moderated comments recently. I started to get comments with links to pornographic sites and I want no part of that kind of stuff in my blog. So please go ahead and post, but just be aware that I'll have to take a look at it and approve it before it appears. Secondly, yes, I was elected to the Democratic County Central Committee in Tuesday's election. Many thanks to everyone who gave me your vote, your encouragement or recommended me to your friends. I will work to be worthy of your trust.
Though I don't agree with the first ruling, I can understand it. If you grant that a corporation is a "person" entitled to First Amendment protection and that society has no interest in trying to maintain fairness in political campaigns (two very big ifs) then I can see where the conservative court majority is coming from. They say you can't restrict advertising from any quarter.
Yesterday's intervention in Arizona's clean money system is a different animal altogether. Before even hearing the case, they issued an emergency order to prevent the state from disbursing matching funds to candidates already entitled to it under existing law in the middle of a campaign. Somehow they seem to feel that "First Amendment free speech rights of wealthy or well-heeled candidates are violated when extra money flows to their opponents." The Arizona system results in a greater amount and more balanced speech, not less. And talk about "judicial activism." Governor Jan Brewer, who had $1.4 million in matching funding pulled from her by the ruling after her primary opponent Buz Mills had already spent over $2 million, lamented, "It is extremely unusual for the judicial branch to change the rules of an election while it is being held."
The current court is more and more brazenly favoring corporations and the wealthy over any and all attempts to level the playing field. This shows how crucial appointments to the high court truly are. Without a countervailing check soon, America is headed ever more inexorably toward an unabashed plutocracy.
I have two digressions to make here at the end. First, you might have noticed I have had to go to moderated comments recently. I started to get comments with links to pornographic sites and I want no part of that kind of stuff in my blog. So please go ahead and post, but just be aware that I'll have to take a look at it and approve it before it appears. Secondly, yes, I was elected to the Democratic County Central Committee in Tuesday's election. Many thanks to everyone who gave me your vote, your encouragement or recommended me to your friends. I will work to be worthy of your trust.
Tuesday, January 26, 2010
Ominous Decision: What to Do
Good contributions by readers have moved me to revisit yesterday's topic. Webfoot pointed out the lack of outcry over "activist judges" overturning long precedent for an ideological purpose. Don voiced a principle that has been in my mind too for quite awhile: that if union members are allowed to refuse to pay dues that go to political purposes should not corporate shareholders and customers be given equal consideration concerning such matters as dividends and prices?
Miriam connects us with a good source and a way to start taking action. See American University Professor of Constitutional Law Jamin Raskin explain the principles at stake in Thursday's Supreme Court decision to allow corporations to intervene in the political process with unlimited funds--and what we can do about it. To see the four-minute presentation click here.
Monday, January 25, 2010
Ominous Decision
The recent Supreme Court ruling on corporations, political advertising and free speech is highly troubling. Overturning decades of precedent and the McCain-Feingold law, the court in Citizens United v. Federal Elections Commission decided that corporations can spend unlimited amounts of funds for speech in favor or opposition to political candidates and may do so at any time, overturning McCain-Feingold's previous 30-day before an election rule. The 5-4 decision split along familiar lines, with conservatives in the majority and liberals in dissent.
Many rulings in the past have affirmed the ability to restrict money as opposed to speech. This ruling appears to equate the two. Justice Anthony Kennedy's majority opinion also seems to consider corporations people, saying, "By taking the right to speech from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech..." The language thereby puts a corporate entity in the same legal class as a human person. Presumably this applies even if the corporation is primarily owned by foreign investors such as BP or even a foreign government, as with many Chinese companies. That's a cheery thought. Imagine Chinese Communist front corporations given unlimited power to run advertising for U.S. politicians who support their agendas and unlimited funds to slam those with whom they disagree.
The decision does uphold the principle of requiring the financial backers to identify themselves. But I wonder whether the ads will have to say, "Paid for by Exxon Corporation" or can run as many now do as sponsored by, "Citizens for a Better Tomorrow" or some other such innocuous-sounding group serving as cover for the real backers.
Of course the ruling will increase even further the power and influence of corporate interests over the political process. Corporate resources dwarf those of unions. But I would expect first the mud to come from activist groups like the Swift Boaters.
In a best case scenario there could be a backlash against too much corporate interference and manipulation, but recent history offers little encouragement to believe in that scenario. In a worst case scenario the actual public interest could become practically without advocacy in the major media. President Obama warns it could lead to a "stampede" of special interest government and is calling on Congress to pass some new restrictions. Of course he is right but it is hard to see that they can do much good other than to require the utmost transparency of commercial funding sources.
If not overturned in the future this further unleashing of corporate power could have far-reaching and extremely pernicious effects on the fabric of American democracy. Hopefully there will be a proliferation of media-monitoring groups like Accuracy in Media to at least try to keep the public informed about who is trying to influence them and why.
Many rulings in the past have affirmed the ability to restrict money as opposed to speech. This ruling appears to equate the two. Justice Anthony Kennedy's majority opinion also seems to consider corporations people, saying, "By taking the right to speech from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech..." The language thereby puts a corporate entity in the same legal class as a human person. Presumably this applies even if the corporation is primarily owned by foreign investors such as BP or even a foreign government, as with many Chinese companies. That's a cheery thought. Imagine Chinese Communist front corporations given unlimited power to run advertising for U.S. politicians who support their agendas and unlimited funds to slam those with whom they disagree.
The decision does uphold the principle of requiring the financial backers to identify themselves. But I wonder whether the ads will have to say, "Paid for by Exxon Corporation" or can run as many now do as sponsored by, "Citizens for a Better Tomorrow" or some other such innocuous-sounding group serving as cover for the real backers.
Of course the ruling will increase even further the power and influence of corporate interests over the political process. Corporate resources dwarf those of unions. But I would expect first the mud to come from activist groups like the Swift Boaters.
In a best case scenario there could be a backlash against too much corporate interference and manipulation, but recent history offers little encouragement to believe in that scenario. In a worst case scenario the actual public interest could become practically without advocacy in the major media. President Obama warns it could lead to a "stampede" of special interest government and is calling on Congress to pass some new restrictions. Of course he is right but it is hard to see that they can do much good other than to require the utmost transparency of commercial funding sources.
If not overturned in the future this further unleashing of corporate power could have far-reaching and extremely pernicious effects on the fabric of American democracy. Hopefully there will be a proliferation of media-monitoring groups like Accuracy in Media to at least try to keep the public informed about who is trying to influence them and why.
Thursday, July 24, 2008
Supreme Court Gun Ruling
I've been asked to comment on the recent U.S. Supreme Court ruling on the Second Amendment, the right to bear arms. For the first time, the high court definitively clarified its Constitutional understanding of the Amendment, albeit in a narrow 5-4 decision split right down the middle of its customary conservative-liberal ideological divide. The short synopsis of the ruling is that individuals have an inalienable right to possess firearms, though reasonable regulations can be imposed on that right. Washington D.C.'s ban on gun ownership was ruled unconstitutional.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The crux of interpreting these 27 words has always hinged on the militia reference. Gun control proponents have stressed "a well regulated militia" in their arguments, holding that the right is a collective one pertaining to a state militia. Gun ownership proponents have minimized the militia reference and concentrated on "the right of the people to keep and bear arms" as definitive in itself in establishing an individual right.
The majority opinion written by Justice Antonin Scalia last month comes down on the side of the latter, that individuals can own guns whether or not as part of a militia. Scalia wrote, "The Second Amendment protects an individual right to possess a firearm unconnected with a militia..." He qualified this some by continuing, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." There can still be bans on automatic weapons and sawed-off shotguns, and on carrying firearms into schools or government buildings. But his opinion did also overturn the D.C. requirements that guns at home must be disassembled and/or equipped with a trigger lock. (Some guns in the District were still legal, having been grandparented in when the ban was originally passed.)
Justice Stephen Breyer, in his dissent, said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." The two views are characteristic of the long-running debate. By 5-4, Scalia's view is now the law of the land.
Some research into the intentions of the founders reveals a difference of opinion about the motives for the Amendment between Eighteenth Century Republicans and Federalists. Those of a Republican bent agreed with Thomas Jefferson's "Democratic-Republicans" that national government power should be kept weak so as not to become a threat to the people's liberties. To this end, James Madison, Noah Webster and Patrick Henry wrote and spoke in favor of the Second Amendment as a means to keep state militias well-armed against the possible encroachments of a national army and potential federal government tyranny.
On the other hand, Federalists, who favored a powerful national government and feared that democracy might degenerate into "mob rule," wanted a strong, well-armed militia handy to put down possible insurrections. Prominent Federalists such as Alexander Hamilton and John Adams wrote and spoke for the Amendment for these reasons. What we therefore see is a convergence of interests between two viewpoints that happened to favor the same remedy for essentially opposite purposes, both connected to the "militia" concept. In popular usage and understanding, however, the Second Amendment has generally meant the right to personal gun ownership for personal reasons to the majority of Americans, and it is this view the Court has ratified.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The crux of interpreting these 27 words has always hinged on the militia reference. Gun control proponents have stressed "a well regulated militia" in their arguments, holding that the right is a collective one pertaining to a state militia. Gun ownership proponents have minimized the militia reference and concentrated on "the right of the people to keep and bear arms" as definitive in itself in establishing an individual right.
The majority opinion written by Justice Antonin Scalia last month comes down on the side of the latter, that individuals can own guns whether or not as part of a militia. Scalia wrote, "The Second Amendment protects an individual right to possess a firearm unconnected with a militia..." He qualified this some by continuing, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." There can still be bans on automatic weapons and sawed-off shotguns, and on carrying firearms into schools or government buildings. But his opinion did also overturn the D.C. requirements that guns at home must be disassembled and/or equipped with a trigger lock. (Some guns in the District were still legal, having been grandparented in when the ban was originally passed.)
Justice Stephen Breyer, in his dissent, said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." The two views are characteristic of the long-running debate. By 5-4, Scalia's view is now the law of the land.
Some research into the intentions of the founders reveals a difference of opinion about the motives for the Amendment between Eighteenth Century Republicans and Federalists. Those of a Republican bent agreed with Thomas Jefferson's "Democratic-Republicans" that national government power should be kept weak so as not to become a threat to the people's liberties. To this end, James Madison, Noah Webster and Patrick Henry wrote and spoke in favor of the Second Amendment as a means to keep state militias well-armed against the possible encroachments of a national army and potential federal government tyranny.
On the other hand, Federalists, who favored a powerful national government and feared that democracy might degenerate into "mob rule," wanted a strong, well-armed militia handy to put down possible insurrections. Prominent Federalists such as Alexander Hamilton and John Adams wrote and spoke for the Amendment for these reasons. What we therefore see is a convergence of interests between two viewpoints that happened to favor the same remedy for essentially opposite purposes, both connected to the "militia" concept. In popular usage and understanding, however, the Second Amendment has generally meant the right to personal gun ownership for personal reasons to the majority of Americans, and it is this view the Court has ratified.
Friday, June 27, 2008
Plutocracy Gets Another Boost
A U.S. Supreme Court ruling on the 2002 McCain-Feingold campaign finance law gives yet another boost to plutocracy in America. The ruling makes it more difficult for congressional candidates of modest personal means to match money contributed by the wealthy to their own campaigns. This gutting of the "millionaire's amendment" will tilt elections even more heavily toward the wealthiest candidates.
The "millionaire's amendment" to McCain-Feingold says that the amount a candidate can raise from each individual contributor can be increased if an opposing candidate contributes more than $350,000 to his or her own campaign. Since there are no limits on self-funding, this amendment was passed in order to give less wealthy candidates a more realistic chance to match the war chest of a millionaire opponent.
The Roberts Court has instead ruled that while no limits can be set on self-funding, they can and indeed must be be imposed on those who have to solicit funding from others.
The ruling is yet another example that elections have consequences. George W. Bush's Supreme Court appointees, Sam Alito and John Roberts, have swung the court toward the conservative perspective of granting carte blanche to the richest corporations and persons and constricting the ways and means by which effective challenges can be mounted against them.
The Supreme Court decision in 2000 declaring Bush the winner in Florida and thus the nation has made an enormous difference in American life. As this latest Supreme Court ruling shows, a consistent bias in favor of plutocracy is but one of the results.
The "millionaire's amendment" to McCain-Feingold says that the amount a candidate can raise from each individual contributor can be increased if an opposing candidate contributes more than $350,000 to his or her own campaign. Since there are no limits on self-funding, this amendment was passed in order to give less wealthy candidates a more realistic chance to match the war chest of a millionaire opponent.
The Roberts Court has instead ruled that while no limits can be set on self-funding, they can and indeed must be be imposed on those who have to solicit funding from others.
The ruling is yet another example that elections have consequences. George W. Bush's Supreme Court appointees, Sam Alito and John Roberts, have swung the court toward the conservative perspective of granting carte blanche to the richest corporations and persons and constricting the ways and means by which effective challenges can be mounted against them.
The Supreme Court decision in 2000 declaring Bush the winner in Florida and thus the nation has made an enormous difference in American life. As this latest Supreme Court ruling shows, a consistent bias in favor of plutocracy is but one of the results.
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