ALEC and Koch-Funded SPN in the Spotlight

Last week The Guardian began to shine some light on the shadowy right-wing group ALEC (American Legislative Exchange Council), exposing how the organization connecting corporations with conservative legislators to move a legislative agenda supporting special interests is declining in popularity. In the wake of tragedies like Trayvon Martin’s shooting, many former members are attempting to distance themselves from ALEC’s extreme agenda.

Close on the heels of that revelation, we now see that a Koch-funded network of state policy groups with ties to ALEC, the State Policy Network (SPN), plans to launch a coordinated assault on many of the issues and services most important to everyday working Americans. Newly-exposed funding proposal documents obtained by The Guardian outline what they call a “blueprint for the conservative agenda in 2014.”

And what an agenda it is. According to the documents, the proposals take aim at public education, health services, worker’s compensation, environmental protections, and more. A new website ( launched by allies ProgressNow and the Center for Media and Democracy helps to further expose the agenda behind these state policy groups and draw attention to some of SPN’s major funders.

SPN, a member of ALEC, should take heed of ALEC’s declining public image. The American people are tired of the coordinated attack on the services, rights, and protections vital to a thriving middle class.


McConnell to Participate in Recess Appointments Case

This morning, the Supreme Court made some interesting procedural decisions in the Noel Canning recess appointments case, all relating the oral arguments scheduled for January 13.

First, the Justices extended the argument time to 90 minutes, rather than the usual 60. The Obama Administration will get an extra 15 minutes to make its arguments. Perhaps more surprisingly, the other extra 15 minutes are to let Senate Republican leader Mitch McConnell participate in oral arguments. McConnell and every Republican in the Senate submitted an amicus brief arguing that President Obama's 2012 recess appointments to the National Labor Relations Board were unconstitutional.

This is the second time this Term that the Court has allowed McConnell to participate as an amicus in oral arguments. The other was the McCutcheon money-in-politics case (which has yet to be decided).

McConnell and his fellow Republicans were not the only amicus filers who had asked to participate in oral arguments. Professor Victor Williams sought to participate to argue that this is a classic "political question" that federal courts should stay out of, a position that none of the parties is arguing. Alternatively, if the Court chooses to address the merits of the case, the professor urges the Justices to not only uphold the recess appointments but to declare confirmation holds and filibusters unconstitutional. However, the Court denied his request.

It is always important to remember why this case exists at all: Because Senate Republicans abused Senate rules and blocked confirmation votes on qualified NLRB nominees, in order to prevent the NLRB from having a quorum and being able to fully carry out its functions. In other words, it was an effort to nullify federal laws and regulations protecting American workers, part of the party's greater effort at nullification of laws – and the results of elections – they don't like.


ALEC Experiences ‘Donor Exodus’ Following Trayvon Martin Tragedy

Apparently not all press is good press, after all.

American Legislative Exchange Council (ALEC) documents recently obtained by The Guardian show the popularity of ALEC, an organization that connects corporate lobbyists with state legislators to push special interest legislation, to be in sharp decline.  In the wake of the national outcry surrounding Trayvon Martin’s death, ALEC saw both its corporate and state legislative membership drop in numbers – experiencing what The Guardian describes as a “donor exodus.”   

That’s because among the many damaging pieces of legislation ALEC has pushed over the years are “Stand Your Ground” laws, which became a cornerstone of the national conversation about the Trayvon Martin tragedy. Drafted in part by the National Rifle Association, ALEC promoted these types of laws as “model legislation.”  But some legislators and corporations – including Kraft, Coca-Cola, Amazon, and more – decided they didn’t want any part of it.

Ed Pilkington and Suzanne Goldenberg report:

The Guardian has learned that by Alec's own reckoning the network has lost almost 400 state legislators from its membership over the past two years, as well as more than 60 corporations that form the core of its funding. In the first six months of this year it suffered a hole in its budget of more than a third of its projected income.

For forty years, ALEC has helped advance bills that hurt everyday Americans, and PFAW works with allies like the Center for Media and Democracy to expose their extreme agenda. 

If you’re in the DC area, you can join us this Thursday for a “DC Stands Up to ALEC” rally to make clear that it’s not only legislators and corporations who have had enough of ALEC – it’s the American people.


Coming Out, Wherever You Are

The following is a guest post by South Dakota State Senator Angie Buhl O’Donnell, a member of People For the American Way Foundation’s Young Elected Officials Network.

Harvey Milk’s words inspired audiences throughout his life, but his most enduring words may have been the simple push to “come out, come out wherever you are.”

To me, that’s the most important legacy of the political leader we lost 35 years ago this week – his insistence on the far-reaching impact of the very personal act of coming out. Despite the potential downsides, despite the fact that it can feel easier not to come out, Harvey Milk knew that our community must be visible in order to make legal and social equality a reality.

While Milk spent much of his life in urban centers, I believe the urgency to make ourselves visible is even greater in places like South Dakota, where I live.  It’s 2013, but some people still think LGBT people only exist in New York or San Francisco. As researcher Mary Gray has written, popular representations of rural LGBT people paint us as “out of place” in states like South Dakota – as people who need to “seek out belonging in an urban elsewhere to find happiness.” But LGBT people are in every part of our country, and we are increasingly visible in the political landscape.

Milk’s legacy has been a personal inspiration for me, as an openly bisexual elected official. Earlier this year, I became a Harvey Milk Champion of Change. While I was honored to be recognized by the White House with an award bearing his name, I actually had some hesitation about accepting. As a bisexual woman married to a man, I was worried about people thinking I didn’t really “deserve” it. But I realized that line of reasoning was not what Harvey Milk would have embraced. His legacy is about sharing your own identity, your own truth in whatever form that might take.  Besides, there’s a “B” in “LGBT” for a reason. 

PFAW Foundation

Karl Rove’s IRS Problem

Thanks to some tax-return digging, ProPublica found this week that the Karl Rove-connected Crossroads GPS actually spent at least $11 million more on political activities last year than they told the IRS. ProPublica’s Kim Barker reported:

New tax documents, made public last Tuesday, indicate that at least $11.2 million of the grant money given to the group Americans for Tax Reform was spent on political activities expressly advocating for or against candidates. This means Crossroads spent at least $85.7 million on political activities in 2012, not the $74.5 million reported to the Internal Revenue Service.

But what’s an extra $11 million spent on political activities, right?  Wrong. Tax-exempt 501(c)(4) social welfare groups are limited in the amount of political spending they can do while maintaining their exempt status. And these developments about Crossroads GPS only underscore the need for more robust government oversight of political spending. 

Unfortunately, this is an effort that has been made much more difficult in the wake of recent Supreme Court rulings. As Michael Keegan noted in May, the 2010 Citizens United v. FEC decision opened the door to an explosion of spending by c(4) groups like Crossroads GPS because it allowed  them to run political ads as long as they weren’t using the majority of their money for electoral work.

Moreover, dark money groups sometimes attempt to underreport the political spending that they do undertake, which has not been helped by the IRS’s past reluctance to issue “bright lines” around what must be counted as political spending.

But that may change soon. The Treasury Department and the IRS are expected to issue guidance today specifying what “candidate-related political activity” entails and how much of it 501(c)(4) social welfare groups are allowed to do.


Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

With Warren’s Endorsement, 100% of MA delegation Supports Amending the Constitution to Overturn Citizens United

On Wednesday, Senator Elizabeth Warren co-sponsored Senator Udall’s amendment proposal, SJRES 19, adding a key progressive voice to the amendment movement. With Warren’s endorsement, the entire Massachusetts’s congressional delegation is now in support of amending the Constitution to overturn Citizens United and related cases.

In a speech two months ago, Senator Warren decried the overwhelming influence of money in politics and noted that “Congress needs power to address all of the ways in which corruption threatens the health of our political system.”  That notion – that Congress and the states should have the constitutional authority to protect the integrity of the legislative and electoral processes – is at the heart of what the Udall proposal does. 

To date, 16 states, 500 cities/towns, and over 150 members of Congress have called for a constitutional amendment.  To learn more about the amendment movement, visit:

PFAW Foundation

Harvey Milk’s Legacy

The following is a guest post by Campbell, California Mayor Evan Low, a member of People For the American Way Foundation’s Young Elected Officials Network.

In 2009, I became the youngest openly gay mayor as well as the youngest Asian-American mayor in the country. Some journalists wrote about how I was making history, but I like to point out that I was preceded by a number of other courageous “firsts.”

I became mayor 35 years after Kathy Kozachenko was the first openly LGBT person elected to public office, and 32 years after Harvey Milk – affectionately known as “the mayor of Castro Street” – was elected to the San Francisco Board of Supervisors in the same state I serve today.

This week marks the anniversary of the tragic end of Milk’s short time in office, when he and Mayor George Moscone were shot and killed by Supervisor Dan White. But the legacy of Harvey Milk and other LGBT trailblazers is very much alive. Today there are more than 500 openly LGBT elected or appointed officials serving our country. Through their service and that of public officials representing other marginalized communities, it is clear that our democracy works best when our lawmakers reflect the nation’s diversity.

That’s not to say that things are always easy for LGBT elected officials. Like Milk, I have received my share of hate mail, with messages like: “We don’t want the homosexual agenda in our community.” As I have told reporters before, I don’t know what is on that so-called agenda, other than basic equality for all people.

One issue that’s certainly on my agenda is the end of the FDA’s ban on blood donations from gay and bisexual men. In a petition that now has more than 62,000 supporters, I wrote:

…recently, I hosted a blood drive on city property, but was banned from donating blood myself.

As the mayor of Campbell, providing for the welfare of the general public is a top priority. As a gay man, however, I am conflicted in my advocacy for blood drives. Under current U.S. Food and Drug Administration guidelines, a man who has sex with another man is deferred for life from donating blood.  The ban was imposed in 1983 when there were no reliable tests for screening blood for HIV/AIDS.  It was also made during a time of mass medical confusion and cultural homophobia associated with HIV/AIDS.  The current FDA ban is wildly outdated and perpetuates unfair labels against gay and bisexual men that live on through decades of discrimination.

These kinds of stereotypes are not unlike the ones Harvey Milk was fighting nearly four decades ago, and why he, like I do today, encouraged LGBT people to come out whenever possible – to dispel the harmful lies about our community with the truth.  Stuart Milk, nephew of Harvey Milk and founder of the Harvey Milk Foundation, continues his uncle's legacy, and we are so fortunate to have Stuart carry the torch. 

In a tape Milk recorded before his death, he said, “I have never considered myself a candidate. I have always considered myself part of a movement.” I think he would be proud of the movement that lives on in his spirit today.

PFAW Foundation

Senators Use PFAW Chart to Show Unprecedented Nature of GOP Obstruction

In their press conference following yesterday’s vote to change the Senate rules on filibusters, Democratic senators used a chart provided by PFAW to outline the extremity and unprecedented nature of the GOP’s obstruction of President Obama’s nominees.



Photos by J. Scott Applewhite/Associated Press via The Washington Post


Isabel Allende Fights Against Banning of Her Own Book

When the teaching of Isabel Allende’s internationally renowned novel The House of the Spirits was challenged in a North Carolina school district last month, advocates from all corners spoke out in its defense, including PFAW Foundation president Michael Keegan and North Carolina Poet Laureate Joseph Bathanti. Now, Isabel Allende herself has joined the conversation.

Yesterday the School Library Journal reported that Allende has mailed a letter, along with copies of her book, to the Watauga County school board, superintendent, and the principal of Watauga High School.

After acknowledging that being in the position of defending her own book is “unusual and awkward,” Allende points out in her letter that The House of the Spirits is “considered a classic of Latin American literature and it is taught in high schools, colleges, and universities in all Western countries, including the USA for more than two decades.” She expresses concern about the practice of book censorship in general:

Banning of books is a common practice in police states, like Cuba or North Korea, and by religious fundamentalist groups like the Taliban, but I did not expect it in our democracy.

Allende’s letter comes as the book undergoes a multi-step review process in the county. Last month an advisory committee comprised of teachers, students, and parents voted unanimously not to remove the book from the curriculum, but that decision has been appealed.

PFAW Foundation

"Stand Your Ground" Comes To Ohio

On the same day that George Zimmerman appeared in a Florida court for allegedly pointing a shotgun at his girlfriend during a reported domestic dispute, “stand your ground” laws are reaching new levels of absurdity in Ohio. A state House committee approved sweeping gun legislation which would eliminate the duty to retreat if they are safely able to do so before using deadly force in self-defense. Critics have warned this could lead to a “Wild West” situation, encouraging a “shoot first, ask questions later” approach to self-defense. Given that the law already says the use of deadly force in self-defense is acceptable in one’s own home or car and if a safe retreat is not possible, this law seems designed not to improve safety but instead to further an extreme pro-gun agenda that staunchly refuses to accept anylaw restricting the use of weapons. For these legislators, and groups like the NRA and ALEC that support these types of bills, a person’s right to shoot someone they deem a threat, without even attempting to make a safe retreat, seems to be worth more than a potential increase in homicides.

The bill also relaxes other gun control regulations, including a reduction in the number of training hours needed to obtain a concealed handgun license from twelve to four hours. This would make it eight times easier to carry a concealed deadly weapon than to drive a car, which requires a total of 32 hours of training in Ohio.  It also introduces “reciprocity” on concealed handgun licenses, requiring the state to recognize concealed handgun licenses from any state that recognizes those issued by Ohio. This is especially troubling given that the number of concealed carry licenses issued in Ohio is at a record high: in just the first nine months of 2013, more concealed carry permits were issued than during any calendar year since 2004, when authorities started issuing such permits. 


Albuquerque says no to dangerous local abortion ban

Last week PFAW invited its activists to join NARAL Pro-Choice America in beating back a dangerous local abortion ban in Albuquerque, New Mexico. These efforts proved successful yesterday, as the people of Albuquerque rejected the first-ever municipal attempt to ban abortion after 20 weeks by a margin of 55-45 percent. NARAL’s Ilyse Hogue welcomed the ballot measure’s defeat:

We hope today's resounding defeat of this abortion ban sends a clear message to the extreme forces around the country now trying to impose their agenda on cities around this country. When voters hear the real stories of real women and families facing these difficult decisions, they understand the danger and complexity of putting government between women and their doctors at these moments.

We stopped anti-choice activists in New Mexico this time, but the fight against growing threats to women’s healthcare access and autonomy continues across the country and in Washington. At a time when conservatives in Congress are trying to push through legislation that would restrict women’s access to reproductive care, yesterday’s victory is significant, but it is just the beginning. Women’s health and freedom are at risk, and we’ll keep fighting for legislation that protects them.


The DC Circuit Interview Chuck Grassley Didn't Have

Iowa senator Chuck Grassley went on CNN yesterday to disseminate GOP spin on his party's unprecedented filibusters of three DC Circuit Court nominees. Grassley and his fellow Republicans are blocking the nominees not because they object to the nominees themselves, but because they object to the idea that President Obama is making nominations to fill existing judicial vacancies at all. To defend this nullification strategy, Republicans claim that the DC Circuit's caseload is too low to warrant filling three of its eleven seats. Their caseload argument is both wrong and fundamentally illegitimate.

Here is a partial transcript of Grassley's interview with CNN's Jake Tapper. Well, it's really a transcript of the interview that should have happened. (Areas in bold are things that were not said, but should have been.)

GRASSLEY: [The DC Circuit] is the most underworked circuit of the 12 circuits we have in this country. Their caseload on average is only half what it is -- or their caseload is only half of what it is the average of the other 11 circuits in our country.

TAPPER: So you disagree with Circuit Judge Timothy Tymkovich, the chair of the Judicial Conference's Standing Committee on Judicial Resources, who testified before your committee that because of the DC Circuit's unique caseload, comparisons to the other circuits make no sense?

GRASSLEY: Um, I was hoping you wouldn't ask me that.

TAPPER: And that would be the same Judge Tymkovich who said that the DC Circuit's caseload in fact is not smaller than it was a decade ago, which is when you voted to fill the seats that you now say should be empty.

GRASSLEY: Um, can I phone a friend?


TAPPER: Chief Justice Roberts seems to disagree with you in terms of whether or not the appellate court here in DC should have these positions. Wouldn't he know best?

GRASSLEY: He doesn't know best from this standpoint, that we have letters from judges on that very court that said we don't need any more judges or there wouldn't be enough cases to go around.

TAPPER: Actually, the letter you cite doesn't say there shouldn't be new judges. It specifically says there shouldn't be new "judgeships" added to the court, which no one is proposing. So how is that at all relevant? Why do you repeatedly mischaracterize it? And while we're at it, it's an anonymous letter. Why have you consistently refused to enter that letter into the record so people can read it for themselves? Maybe there's more to that and other letters than the one or two sentences that you twist around to buttress your point.


GRASSLEY: Now I have a bill in to eliminate nine, ten and 11 and just eliminate one of them, but the other two, we will put in circuits where they're more needed by caseload and then president Obama can have the privilege of appointing judges there. So we are not denying him the right to appoint judges.

TAPPER: Actually, those two other circuits are ones that the Judicial Conference says don't need new judgeships. And the judges on those courts have not asked for new judgeships. And one of the cosponsors of the bill you mention has said that those circuits do not need and should not have new judgeships. So how can you say they need new judgeships?

GRASSLEY: Because the facts don't matter!

TAPPER: Even if you were right on the caseload argument, the law says there are 11 seats on the DC Circuit. Is it legitimate to have the Senate act as if there were only eight seats on the court, just because you say that's what you wish the law said?

GRASSLEY: Hey, we don't like the law, so we can do whatever we want to nullify it. That's what our party is all about, since we can't actually win elections.

Senator Grassley knows that this fight isn't about caseloads or efficiency. It's about nullification.


Why Are Arizona’s Senators Holding Up Hearings on Arizona Judges?

Arizona's federal district courts are currently operating with six of their thirteen judgeships not only vacant but also designated as judicial emergencies, so you'd think that the state's senators would want to expedite the process of confirming five nominees to fill those vacancies. But you'd be wrong.

It turns out that far from ensuring that Arizona's half-empty district courts are fully staffed, either Sen. John McCain or Sen. Jeff Flake or both are keeping all five of President Obama's nominees for Arizona's courts from even getting preliminary hearings before the Senate Judiciary Committee. And because of the secrecy of the so-called "blue-slip" process that is delaying these nominations, we don't know which senator is holding up the nominees or even why they are doing so.

Here's what we do know: The Judiciary Committee today announced its agenda for this week's hearing on federal judicial nominees, and conspicuously absent for the second consecutive week were the five Arizona nominees whom the president nominated two months ago. Yet nominees who were named after the Arizonans have been scheduled for hearings.

The committee usually takes up judicial nominations in the order they were made, so when nominees are skipped, it's generally because their home-state senators are using the "blue slip" process to gum up the works. Chairman Patrick Leahy's practice is to not allow a hearing on any judicial nomination until both home-state senators submit a "blue slip" signaling their approval for the process to start….a system that Republican senators have exploited to slow slow down and even torpedoed President Obama's judicial nominees.

So do Senators McCain and Flake have problems with President Obama's five nominees to fill district court vacancies in Arizona? Ordinarily, it would seem unlikely, since these nominations were the result of months of consultations between Sen. McCain and the White House.

President Obama nominated the first of the five Arizona nominees, Rosemary Márquez, way back in 2011, but then-Sen. Jon Kyl blocked her by refusing to submit his "blue slip." When Kyl was replaced by Jeff Flake, Sen. McCain took the lead on judicial nominations in the state, and he, too, blocked Márquez until he could make a deal with the White House to get additional nominees he supported onto the court. In fact, here is what Sen. McCain said in September when, at his suggestion, President Obama nominated Diane Humetewa, Steven Logan, Douglas Rayes, and John Tuchi to join Márquez:

The nominees to serve on the United States District Court for the District of Arizona have demonstrated devotion to public service and commitment to justice, and I believe they are uniquely qualified to address the legal issues facing our state. The recent judicial vacancies in Arizona have created an unsustainable situation for the Court and are a serious impediment to the administration of justice for the people of Arizona. The need to fill these vacancies is critical as the District of Arizona ranks as one of the top ten busiest district courts in the country. I urge the Senate Judiciary Committee to consider these five very capable nominees as soon as possible and allow the full Senate to swiftly confirm them as the district court judges for the District of Arizona.  [emphasis added]

What Sen. McCain said two months ago was right: Arizonans need these judgeships filled yesterday. Arizona has six vacant district court seats out of a total of 12 authorized judgeships (plus a 13th temporary judgeship). All six have been designated as judicial emergencies by the Administrative Office of U.S. Courts, meaning the caseload is so pressing that the work just isn't getting done in a timely manner: Individuals and businesses are in effect being denied their day in court. In fact, the situation is so bad that the Judicial Conference of the United States has asked Congress to create ten additional judgeships in the state: So even if the six current vacancies were filled today, Arizona still needs another ten judges to ensure that justice is done throughout the state. In the interests of Arizonans, the Senate Judiciary Committee should take up and consider these nominations as quickly as possible.

And yet it isn't happening. For the second week in a row, the Judiciary Committee will be hearing from nominees who were nominated after the five Arizonans – including Diane Humetewa, who would become the nation's only serving Native American federal judge.

It looks like McCain and Flake have withheld their blue slips. Have they found a problem with the nominees who McCain recommended and previously supported and who Sen. Flake has said nothing against? Or are they doing the bidding of someone else, perhaps Judiciary Committee senior Republican Chuck Grassley or Senate Minority Leader Mitch McConnell, both of whom have used every procedure in the book to slow down just about any judicial nomination coming out of the Obama White House?

With fewer times available for hearings this year, if the Arizona nominees don't get their hearings this week, they risk being put off until next year.

And for what? We don't know, because Senators McCain and Flake haven't said a thing.


More GOP Efforts to Distract from DC Circuit Nullification

The Heritage Foundation has come out with a new effort to distract Americans from the illegitimacy of the GOP's effort to unilaterally eliminate the president's ability to fill vacancies on the DC Circuit.

The right wing's previous arguments on this issue have fallen flat, sometimes hilariously so. Their bogus caseload arguments have been shown multiple times to be both wrong and irrelevant. Chuck Grassley's bill to strip three seats from the DC Circuit and give two seats to courts that (Republicans claim) need them turned into a Keystone Cops routine when one of the bill's cosponsors held those same two circuits out as examples of courts that don't need new judgeships at all. More and more, Americans are recognizing the GOP's actions as part of their greater effort to simply nullify laws and election results they don't like.

So with that as background, along comes the latest distraction: The Heritage Foundation has cherry-picked some stats in an effort to show that Republicans are generally treating President Obama's nominees better than President Bush's were treated (which perhaps is supposed to put the current DC Circuit obstruction in perspective). What they've done is compared the numbers of nominees confirmed between January 20 and November 20 of the fifth year of the president's term, ignoring the 4 years of each presidency up to that point. Well, if President Obama's nominees are getting treated so fairly, maybe we're not supposed to worry about a measly three who are getting filibustered.

But what happens if you don't ignore the "inconvenient" parts? You find that as of this point in their presidencies, Bush had 91% of his judicial nominees confirmed, while Obama has had only 76%. And at this point in their presidencies, the average wait time between committee approval and confirmation was 43 days for Bush nominees, but 107 days for Obama nominees. Although the vast majority of Obama's nominees are consensus choices, their nominations still languish for months. That is a picture of overall obstruction. And the DC Circuit is the latest example, magnified a thousandfold.

But, despite this latest right wing effort to distract, this is not and should not be a fight about numbers. It is a fight about right and wrong, about legitimate and illegitimate ways for elected officials to act. It is about whether one party can use the power of obstruction to nullify laws they don't like and nullify the American people's decisions as expressed in elections.

So the Heritage argument isn't just wrong, it's completely irrelevant. Let's talk not about numbers but about what Republicans are doing. And let us call it what is it: Nullification.