PEOPLE FOR BLOG

Undermining Trust in Government: A Cynical, But Winning, Strategy

John Perr wrote what I consider a must-read post over at Crooks and Liars about how Republicans, when in power, fail miserably at governing and seem to do their best art destroying our country. The results of their policies -- economic or otherwise -- inevitably force them out of office, but last long enough that they are able to pin the woes on their democratic successors and make "Government" the scapegoat for all the nation's problems, with particular anger being directed at the then-incumbents: Democrats.

That Americans' trust in government has plummeted to near-record lows isn't a surprise. After all, as the Pew Research Center documented, distrust of Washington is an American tradition, one which tends to rise and fall inversely with the economy. But the spike in anger towards the federal government, a fury which doubled to 21% since 2000, points to a potential midterm bonanza for the GOP. All of which suggests that the Republican Party whose anti-government rhetoric and incompetence in office helped kill trust in government may now be rewarded for it.

By now, the Republican recipe for badmouthing government into power should be all too familiar. First is to endlessly insist that, as Ronald Reagan famously said, "Government is the problem." Second is the self-fulfilling prophecy of bad government under Republican leadership, as the Bush recessions of 1991 and 2007, the Hurricane Katrina response, the Iraq catastrophe and the transfer of federal oversight powers to the industries being regulated all showed. Third, when the backlash from the American people inevitably comes as it did in 1992 and 2008, attack the very legitimacy of the new Democratic president they elected. Fourth, turn to the filibuster and other obstructionist tactics to block the Democratic agenda, inaction for which the incumbent majoirty will be blamed. Last, target the institutions and programs (Social Security, Medicare, the IRS) which form the underpinnings of progressive government.

Then lather, rinse and repeat.

Read Perr's entire post (w/links) here >

And check out two recent PFAW reports which evidence quite clearly that the Right has no real interest in actually governing or doing what's best for the country:

PFAW

An economic historian debunks the originalist rhetoric of Citizens United

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.


 

PFAW

Senator Sessions Plays the “Judicial Activism” Card

At a Senate Judiciary Committee hearing today, Senator Jeff Sessions said that that Goodwin Liu’s writings represent “liberal judicial activism.” And he doesn’t like it!

But what Sessions apparently does like is conservative judicial activism. Overturn more than a century of settled campaign finance law? Limit women’s ability to recover for being discriminated against on their jobs? Hand billions of dollars to Exxon? Rewrite the Voting Rights Act? That’s a-ok! “Liberal judicial activism,” (by which I assume he means opposing those decisions)? Bad.

Senator Sessions’s ability to keep a straight face while delivering such patently farcical attack is impressive. His stale talking points aren’t.
 

PFAW

DC voting rights bill expected to move next week

DC has waited over 200 years to have a voting voice in Congress. Today the nation’s capital may be as close as it’s ever come to making that dream a reality.

On Wednesday afternoon came the breaking news that an agreement had been reached to move forward on the District of Columbia House Voting Rights Act, which would give DC a full Representative with the same voting power as other House members. Just this morning, I joined a room full of concerned citizens and activists for a briefing lead by DC Vote and DC Delegate Eleanor Holmes Norton. We then took to the halls of Congress in support of the Delegate’s tireless efforts on this issue.

Nobody is happy that this agreement comes at the price of right-wing interference in local affairs. But to go any longer without voting rights is an even higher price to pay. DC can’t keep fighting these intrusions without a meaningful way to say “aye” or “no” when those infamous bells ring calling members to the House floor. As Wade Henderson of the Leadership Conference on Civil and Human Rights put it:

The civil rights community recognizes that it must be prepared to accept some setbacks in the name of long-term progress. Virtually every major piece of civil rights legislation, from 1957 onwards, has involved difficult and often painful tradeoffs. In this case, given the fundamental importance of gaining a vote in Congress, we are prepared to move forward with the voting rights bill.

People For the American Way believes that the right-wing should stay away from this bill. But we also believe it’s a tragedy that our Democracy has allowed DC residents to live without voting representation for over 200 years. Any citizen who pays taxes, and is otherwise legally eligible to vote, should be able to vote. And certainly no member of the armed services should be robbed of the right to vote simply because of where they live.

The fight will not be over even when DC can cast a House vote. It is high time the nation’s capital be given both House and Senate representation, with voting power in both chambers.

PFAW

Kyl disagrees with 69% of Americans on SCOTUS nominee

In his remarks on the retirement of Justice John Paul Stevens, President Obama alluded to his displeasure (which he hasn’t exactly been keeping secret) with the Supreme Court’s ruling in Citizens United v. FEC. Now the GOP is crying “litmus test”:

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.

And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.

Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
 

PFAW

Can the filibuster be fixed?

The threat of filibuster is holding up Senate business more than ever before, and Senators are at odds over whether to do away with or amend the rule that’s causing so much trouble.

People for Executive Vice President Marge Baker joined a panel yesterday at American University’s Washington College of Law to discuss what can be done to loosen up the gridlock in the deliberative body.

Baker, Washington Post columnist Ruth Marcus and Cato Institute scholar John Samples discussed several proposals that have been put forward to fix the filibuster problem, from limiting lawmakers to a “one bite” rule that would not permit filibusters of both motions to proceed to a bill as well as on the merits of the bill itself to reducing the number of votes needed to invoke cloture to scuttling the rule altogether. But they kept coming back to one point: what’s causing the gridlock isn’t the filibuster rule itself but its increasing use as an obstructionist tactic.

“The problem is not its existence; the problem is its overuse,” Marcus said.

People For the American Way has found that Republicans in the 111th Congress are holding up executive branch nominations at an unprecedented rate, and that they are more than ever invoking the cloture process to delay votes whose outcome they know they can’t change.

“It really is a problem. It really is causing government to break down,” Baker said, “The cloture vote is being used to an unprecedented degree, and the degree to which it’s being used primarily for obstruction, is really a serious problem.”

Here’s a look at the rate of cloture filings in the past 90 years:


And a look at filibuster threats to executive nominees from 1949 through March of 2010:

Senators Jeanne Shaheen and Tom Harkin have introduced a measure to phase out the filibuster in a series of steps, eventually ending in a Senate where votes can pass with a simple majority. Senator Tom Udall has proposed letting the Senate adopt new rules--and make a choice about the filibuster--at the start of every new Congress. But the solution may lie not in taking away the power of the minority to have some leverage in matters that are truly important (nobody likes that idea when they’re in the minority), but in limiting the situations where the filibuster can be used. Marcus suggested taking the option off the table for executive nominations, limiting its use in judicial nominations, and limiting the minority to one filibuster per law. Baker suggested changing the rule that provides for 30 hours of post-cloture debate before a matter can be voted on, which would save enormous time, particularly where the result is a foregone conclusion.

Though, whatever the form that filibuster rules take, I’m pretty sure we can count on the GOP to come up with creative ways to keep on stalling business.


Baker, Samples, Marcus, and moderator William Yeomans at American University's Washington College of Law

PFAW

Democrats Figure out GOP Strategy on Nominations

In an article in Politico today, titled “Dems: Ignore GOP in court choice,” some Senate Democrats show that they’ve got the GOP strategy on the upcoming Supreme Court nomination figured out already.

“I don’t think you can count on any Republican support — no matter who he nominates,” said Sen. John Rockefeller (D-W.Va.). “Even if he nominates a conservative, it wouldn’t be conservative enough.”

. . .

“I’m afraid we’re going to face that criticism whoever he suggests,” said Senate Majority Whip Dick Durbin (D-Ill.), a Judiciary Committee member.

Since the Senate GOP is willing to force cloture votes even on nominees with unanimous, bipartisan support, I think Rockefeller and Durbin are onto something here. They don’t call the GOP the “Party of No” for nothing.

PFAW

Legislative Achievements Will Live or Die in the Courts

President Obama was elected on a promise of change, but in order for any of his legislative accomplishments to remain in place, they will need to survive court challenges.

Health care reform has passed. Major financial regulatory reform could be on the horizon. But these reforms will live or die in the federal courts. We immediately saw litigation from right-wing state attorneys general challenging the constitutionality of the health care bill. Will the fate of that bill and others be decided by George W. Bush-appointed judges? That looks increasingly likely if many of the lower federal court vacancies are not filled in a timely manner. Republican obstruction and threats of filibuster cannot be allowed to deter or delay the confirmation of much-needed judicial nominees.

Barry Friedman has an op-ed in today’s Politico that hammers home this point while providing some relevant examples:

Administrations frequently find their regulatory plans in judicial trouble. The Supreme Court gutted the Carter administration's plans to regulate toxic benzene in the workplace. When the Bush administration's Environmental Protection Agency refused to regulate greenhouse gases, claiming a lack of statutory authority, the justices disagreed. The Reagan administration suffered defeat on air bags, the Clinton administration on tobacco regulation.

Just last week, the D.C. Circuit Court ruled the Federal Communications Commission does not have the authority to require broadband providers to treat all customers equally regardless of the type of lawful content they're sending and receiving -- called "net neutrality."

Read Friedman's full piece here:
http://dyn.politico.com/printstory.cfm?uuid=F8683704-18FE-70B2-A857018EEDBEBF04
 

PFAW

Meet the Right’s Newest Judicial Codeword

Maybe the Right Wing is finally realizing that after Citizens United, “judicial activism” just doesn’t cut it for slamming judicial nominees who aren’t willing to overturn a century of settled campaign finance law. So they’re trotting out a brand new talking point to fill the void: “outcome based” judging.

CQ-Roll Call highlighted the up-and-coming new meme:

As part of that effort, Republicans beginning this week will look to use some of Obama’s previous lower court picks — particularly the nomination of Goodwin Liu to the U.S. Court of Appeals for the 9th Circuit — as adhering to a liberal, “outcomes-based” philosophy rather than a constitutionalist approach.

What’s it mean? Allow us to translate: “Liberal activist!! Legislate from the bench!! Empathy! Wise Latina!!!! OMG OMG OMG!!!!”

Yes, “outcome based” is just the latest in a long line of virtually meaningless epithets aimed at any judicial nominee who disagrees with the gospel according to Robert Bork.

Is there a debate to be had between different philosophies towards applying the Constitution? Sure. Justice Scalia and Justice Breyer have it all the time. But this isn’t it. In the upcoming confirmation process for Justice Stevens’s successor, the American people deserve a conversation about the Court and the role it plays in the lives of ordinary people. Unfortunately, it seems like the GOP is planning the same warmed-over sound bytes we’ve been getting for years.
 

PFAW

Corporate Spending in Judicial Elections Skyrocketing

For those still in doubt about the potential for corporate influence in national elections in the post-Citizens United world, it might be helpful to look at the growing sway of corporate money in state-level judicial elections.

Eliza Newlin Carney at the National Journal found some staggering statistics:

Predictions that the Citizens United v. Federal Election Commission ruling will unleash a torrent of corporate money are wildly overblown, free speech advocates insist. As evidence, they argue that corporate money has yet to flood elections in the 26 states that already impose no limit on corporate spending.

But a closer look at state-level elections suggests that independent political expenditures by corporations, unions and other special interests are substantial. This is particularly true in judicial elections, which have gotten dramatically costlier, nastier and more controversial over the past decade. The Citizens United ruling may impact judicial races even more drastically than federal elections, some experts argue.

Campaign spending in state Supreme Court elections for the 2008 cycle topped $45 million, continuing a trend that started in the early 1990s, according to Justice at Stake, a nonprofit promoting judicial impartiality. Judicial campaign fundraising totaled $206.4 million between 2000 and 2009, according to a forthcoming Justice at Stake report, more than double the $83.3 million raised between 1990 and 1999.

Corporate money dominated those expenditures, according to Justice at Stake spokesman Charles Hall, who said some 30 percent of the $206.4 million had "clear links" to the corporate sector. Other big judicial campaign money sources were lawyers and lobbyists, who accounted for about 28 percent of the $206 million-plus total.

The Supreme Court itself highlighted the dangers of this trend in last year’s decision banning a West Virginia Supreme Court justice from participating in a case involving a man who had spent $3 million helping him get elected. The funder in question was Massey Energy Company owner Don Blakenship—who has recently earned criticism as an example of what can happen when corporations have more regulatory influence than the citizens they employ.

PFAW

GOP Obstruction: The Saga Continues

The first day back from spring recess and Republican senators were at it right off the bat, continuing their unprecedented obstruction and trying to filibuster the extension of unemployment benefits for over a quarter of a million out of work Americans. To his credit, Senator Reid almost immediately called for a cloture vote and a united Democratic caucus along with a handful of Northeastern Republicans provided the needed 60 votes to proceed with debate on the bill (which will allow for the bill's passage).

DownWithTyranny! has more >

You can take action against the GOP's unprecedented filibuster abuse here >

PFAW

Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

PFAW

Bob McDonnell vs. the Right to Vote

Mere days after rewriting the history of the Civil War - turning it into a war for independence with nothing to do with slavery - Virginia Governor Bob McDonnell has done it again. But this time, instead of denying people's humanity, he's "just" making it a lot harder for them to vote.

According to the Washington Post, McDonnell plans to place a significant new burden in front of non-violent felons seeking to have their voting rights restored:

McDonnell will require the offenders to submit an essay outlining their contributions to society since their release, turning a nearly automatic process into a subjective one that some say may prevent the poor and less-educated from being allowed to vote. ...

McDonnell's administration said the essay requirement is designed to put a human face on each applicant and to help staff members better understand each person's situation.

And if you can't read and write well? Or if you're intimidated by things like essays? Or if you just can't express yourself well in writing? You're out of luck.

Even worse, restoration of the right to vote will not be based on a set of objective criteria, but will instead be based on whether McDonnell or some designated official thinks the applicant is worthy of the right to vote:

In coming weeks, McDonnell will start requiring nonviolent offenders to write a letter to him explaining the circumstances of their arrest; their efforts to get a job, seek an education and participate in church and community activities; and why they believe their rights should be restored. Some applicants already have been notified that letters will be required.

In a democracy, the right to vote should never depend on whether the governor finds you worthy of that right. It is not the place of government to make sure that only the "right" type of people vote.

It seems that every day, Virginia is becoming a more and more frightening place to live.

PFAW

“A new breed of judicial activist” on the D.C. Circuit

With public attention now focused on the selection of a new Supreme Court Justice, it might be easy to forget the federal judicial appointments that get a lot less press, but which can also make a whole lot of difference in the lives of ordinary people.

Steven Pearlstein, a business columnist for the Washington Post, wrote a great column this morning—just before the news of Justice Stevens’ retirement broke—about how the U.S. Court of Appeals for the D.C. Circuit has been instrumental in slowing down or stopping altogether important regulations of drug companies, mutual funds, telecommunications providers, and other industries.

There's a lot of talk these days about how Washington has become dysfunctional. While most of the focus has been on Congress, the inability to perform even basic functions also extends to the agencies that are charged with protecting workers, consumers and investors. Unfortunately, it often takes a global financial crisis or a deadly coal mine explosion to remind us of the serious consequences of regulatory failure.

Much of the blame belongs with regulators who have been captured by the industries they are meant to oversee or have been swept up in the general political drift toward deregulation. But, as we were reminded by a case this week involving the Federal Communications Commission, another big culprit is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined and demoralized the regulatory apparatus.

Pearlstein singles out conservative judges whose regulatory reluctance has kept the Food and Drug Administration for ensuring the speedy availability of generic drugs, and the Federal Trade Commission from disciplining a tech company monopolist.

These cases, Pearlstein writes, “are the means by which a new breed of judicial activist is quietly undermining the reach and the effectiveness of government.”

The leaders of this new breed were, unsurprisingly, nominated by former Presidents George W. Bush and Ronald Reagan. Yet another reminder that judicial nominations at all levels make up one of any president’s most enduring legacies.
 

PFAW

Gingrich: Let’s Shut Down the Government Again

In a how-to talk to the Southern Republican Leadership Conference last night, titled “Becoming the Party of Yes,” Newt Gingrich advocated the proactive step of shutting down the federal government.

Talking Points Memo reports:

"Stage one of the end of Obamaism will be a new Republican Congress in January that simply refuses to fund any of the radical efforts," said Gingrich. "Now I say this because our friends in the news media said, you know it's realistic to talk about 'repeal and replace,' because after all he's gonna be president for the next three years and he'll veto a repeal bill. And I think they forgot that once upon a time, that I used to be Speaker of the House, and I actually understand the legislative process."

Gingrich continued: "And the truth is, the truth is under our Constitution we simply -- the Congress doesn't have to pass the money. If EPA gets no budget, it can't enforce cap-and-trade. If HHS gets no budget (applause)..."

Yes, we remember “once upon a time” when Gingrich was Speaker of the House and tried the exact same thing. How’d that work out?

 

PFAW