The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.


Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.


Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
 

You can read the full report here.

PFAW

Don't Ask Don't Tell: So Long, Farewell

Don’t Ask Don’t Tell, the discriminatory law that banned gays and lesbians from openly serving in our nation’s armed forces, has been officially been relegated to the history books after a devastating 18-year existence that snatched away the careers of more than 14,000 capable and dedicated servicemembers. With repeal celebrations happening across the country, President Obama released a statement, which said in part,

Today’s achievement is a tribute to all the patriots who fought and marched for change; to members of Congress, from both parties, who voted for repeal; to our civilian and military leaders who ensured a smooth transition; and to the professionalism of our men and women in uniform.

Don’t Ask Don’t Tell repeal is a major achievement in itself, but it is also indicative of where we are as a country regarding LGBT equality. While the Right Wing has issued statements condemning this historic occasion, Republican members of Congress have largely remained silent. Opponents of gay rights realize that their discriminatory views are quickly becoming outdated, and that younger voters overwhelmingly support LGBT equality.

Celebrations have been occurring across the country. One moving video in particular has gone viral on Youtube. In it, a gay soldier from Alabama, currently stationed in Germany, calls his father right after Don’t Ask Don’t Tell repeal is finalized to come out. The soldier is greeted with acceptance and loving support. After the long fight waged by People For the American Way, other progressive groups and brave men and women in uniform who often risked their careers to fight for what they believe in, it’s heartening to see how America has become a little more just, equal and fair today than it was before.

 

 

PFAW

New York Couple Denied Marriage Rights; PFAW Foundation Helps them Fight Back

When Katie Carmichael and Deirdre DiBiaggio went to their town clerk in Ledyard, New York recently to obtain a marriage license, they were met with an unwelcome surprise. The town clerk, Rose Marie Belforti, refused to grant them a license because she objected to New York’s new law legalizing same-sex marriages. She told Carmichael and DiBiaggio to come back on another day to obtain a license from a subordinate officer.

Marriage equality loses some of its “equality” when same-sex couples are forced to jump through hoops that weren’t there before in order to obtain a marriage license. Carmichael and DiBiaggio contacted People For the American Way Foundation to help them fight back against this clear instance of discrimination. PFAW Foundation recruited the law firm Proskauer Rose, LLP to provide pro bono counsel to the couple, and the firm sent a letter to town officials urging the town clerk to follow the laws of the state or resign her position.

In a town meeting on Monday night, the issue of the clerk’s refusal to do her job was not addressed. In response, PFAW Foundation launched a petition demanding that Belforti to perform her job duties, follow the laws of New York and grant same-sex marriage licenses or resign her post.

You can sign the petition here.
 

PFAW

Rick Perry Confused About the ‘American Way’

Is it the American Way to make the children of undocumented immigrants live as second-class citizens?

The question came up in last night’s GOP presidential debate, when Texas Gov. Rick Perry was asked about the policy in his state allowing some undocumented immigrants to pay in-state tuition at state universities. “It doesn’t make any difference what the sound of your last name is, that is the American way,” Perry said. “No matter how you got in to that state, from the standpoint of your parents brought you there or what have you, and that’s what we’ve done in the state of Texas, and I’m proud that we are having those individuals being contributing members of our society, rather than telling them ‘you’re gonna be on the government dole.’”

Perry was met with boos from the crowd.

Rep. Michele Bachmann equated the Texas law to the federal DREAM Act (which is much broader and which Perry also opposes), saying, “I think that the American way is not to give taxpayer-subsidized benefits to people who have broken our laws who are here in the United States illegally. That is not the American way.”

Perry is right that it’s not the American Way to punish children for the actions of their parents, which is why it’s odd that he’s against the federal DREAM Act, which would pave a path to citizenship for children who came into the country illegally who go to college or join the military. Perry seems to be trying to score “moderate” points for sticking up for his sensible policy in Texas, while having exactly the same view as Bachmann on a federal policy to achieve some of the same goals.

Watch the exchange:
 

PFAW

Kathleen Turner Praises the YEO Network

The actress Kathleen Turner, who has been a People For the American Way Foundation board member for more than 20 years, stopped by WGN in Chicago last Thursday to discuss her career and her work with People For. Turner, who was in town for the first of PFAW Foundation’s 30th anniversary celebrations, had special praise for the Young Elected Officials Network.

Watch the video at WGN.

The YEO Network, which includes hundreds of elected officials around the country, earlier this summer met with President Obama and White House officials.
 

PFAW

Anonymous Attacks Against LA Progressives

This summer, an organization called Los Angeles Alliance for a New Economy (LAANE) finds itself the target of dozens of baseless public records requests instigated by an anonymous right wing entity apparently seeking to intimidate and harass the organization.

LAANE has long fought for policies to raise wages, protect the environment, and enhance community input on new box stores. In other words, they have gotten in the way when giant corporations have put profit maximization over the rights of workers, consumers, and communities. Perhaps that is why they now find themselves the subject of an extensive fishing expedition for public records that can be taken out of context and demagogued ad nauseam.

An opposition research company that has worked with conservative candidates and causes in California has sent dozens of letters to public officials across the state demanding all communications between LAANE and more than 70 public officials going back a number of years.

So who hired the opposition research firm? Who is it that is apparently hoping to use public disclosure laws to do a hatchet job on LAANE?

Good question, since they refuse to identify themselves.

At least when conservatives in Wisconsin and Michigan used baseless public records requests to intimidate and harass academics at public universities, we knew which far right pro-corporate entities were doing it (ALEC and the Mackinac Center for Public Policy).

In light of the numerous deceptive actions designed to destroy Planned Parenthood, ACORN, NPR, and Shirley Sherrod, it is more important than ever to fight right wing efforts to smear people and organizations who they see as standing in the way of their agenda.

People For the American Way stands with LAANE in demanding an end to the anonymous attack, and you can, too, by signing this petition calling on those who are behind the attack on LAANE to reveal their identities. Democracy is strengthened by the free and robust exchange of ideas and arguments, not by anonymous efforts to intimidate and discredit those who disagree with you.

PFAW

The Play Rick Perry Didn’t Want Performed

The Austin Chronicle has set up a new Twitter account devoted exclusively to digging up old stories on the shenanigans of Texas Gov. Rick Perry. They’ve pulled up some good stuff, including this story from last year on the governor’s involvement in shutting a planned student production of a controversial play at Texas’ Tarleton State University.

The play in question was Terrence McNally’s Corpus Christi, which provoked a furor from Religious Right groups when it was first released in 1998 because of its depiction of a gay Christ. The production was canceled after the playwright and theater staff received death threats, but it was later reinstated – with metal detectors at the door. People For the American Way Foundation was among the groups defending the right of the play to be put on in peace at the time, staging "A Quiet Walk for the First Amendment" in front of the theater on opening night.

How times have not changed. When a student at Tarleton State started working on a production of Corpus Christi last year, he ran up against opposition from none other than Texas’ Lieutenant Governor, David Dewhurst. Dewhurst issued a press release attacking the student production as a “lewd display” and “morally reprehensible to the vast majority of Americans.” The backlash unleashed by Dewhurst’s statement was so strong that the professor in charge of the show ultimately decided to cancel it and three other student productions because of “safety and security concerns for the students.”


While Perry’s deputy was the public face of the opposition to the show, the Chronicle dug up a tidbit from the Texas GOP website that made it clear that the governor himself was not only aware of but also involved in the censorship effort:


In a "thank you" note on the Texas GOP Vote website, Conservative Republicans of Texas President Steve Hotze gives credit (a-hem) to Dewhurst for his moment of censoriousness, but then adds this interesting little factoid:


We also owe a debt of gratitude to Governor Perry for his behind the scenes work to stop the play at Tarleton State. Ray Sullivan, the Governor’s Chief of Staff, was notified of the play on Thursday and after discussing it with the Governor, the necessary steps were taken to ensure that its performance was canceled.


This all brings to mind the GOP’s latest successful censorship attempt, targeting a recent exhibition about gays and lesbians in American Art at the National Portrait Gallery. Like the criticism of Corpus Christi, the criticism of the exhibit centered on both its acknowledgement of gay people and on a depiction of Christ that some on the Religious Right found objectionable. The groups targeting the exhibit were led by the far-right Catholic League, which also, not coincidently, was a leader in the fight against the original production of Corpus Christi.

The success of Religious Right censorship campaigns depends, in a large part, on the willingness of elected officials to play along. In the 1980s and 1990s, Jesse Helms took on the role of censorship champion. In the most recent Smithsonian scandal, John Boehner and Eric Cantor were more than willing to echo the complaints of far-right groups like the Catholic League. And if Perry’s involvement in the Tarleton Corpus Christi incident is any indication, if he were president he would be happy to lend his hand to similar efforts.

PFAW

ACLU DNA, Lead Paint, and the Judges who Made it Through GOP Obstruction

As we like to remind anyone who will listen, the current GOP senate has been shameless in its enthusiasm for obstructing judicial nominees just for the sake of obstruction. For instance, a PFAW memo on August 2 reported that of 24 nominees then waiting for confirmation votes, 21 had been voted through the Senate Judiciary Committee with no recorded opposition. Instead of sending through at least the unopposed nominees in a voice vote and moving on with its business, the Senate decided to keep these potential jurists off the bench for as long as possible – despite the pressing problem of unfilled judicial seats leading to slowed down justice. Ultimately, 4 of those nominees were confirmed by the Senate before it left for its August recess, and 20 remain waiting. (The Washington Post this morning lamented that such “gamesmanship is not only frustrating but also destructive”)

This sort of thing is a clear example of obstruction for obstruction’s sake. But what about the nominees who do face some GOP opposition? Last week, The Atlantic’s Andrew Cohen took an in-depth look at some of President Obama’s nominees who were ultimately confirmed by the Senate, but who received more than 25 “no” votes. The reason? Most were opposed because of a record fighting for civil liberties or against big corporations. Here are a few of Cohen’s examples:

7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.


Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.


District of Colorado Judge William J. Martinez
(Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."


District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.


Northern District of California Judge Edward M. Chen
(Votes 56-42). Like Judge Martinez, Edward Chen evidently was touched with the "ACLU gene," which rendered him objectionable to Senate Republicans. Sen. Charles Grassley (R-Iowa), whose state's Asian population is nearly three times lower than the American average, voted against Chen because he thought the well-respected former magistrate judge employed the "empathy standard" of judging.


District of Oregon Judge Michael H. Simon
(Votes 64-35). Harvard educated? Check. Prior government experience with the Justice Department? Check. So why 35 "no" votes? Because Simon had worked for the ACLU. The seat he took on the federal bench, reported the Oregonian, had been vacant for 664 days, two months short of two years. How would you like to have been a litigant in Oregon during that time?


All of these nominees were ultimately confirmed – but not after plenty of stalling and debate over the value of “ACLU DNA” or of holding big corporations accountable for their actions. When we talk about the many nominees who are unopposed yet unaccountably stalled, it’s important to remember that the few nominees who do face GOP opposition don’t always face that opposition for the most convincing of reasons.
 

PFAW

Koch Brothers Sink to a New Low to Undermine Public Education

The Koch brothers have had a piece of the right-wing anti-public education franchise for some time, through their sponsorship of the American Legislative Exchange Council (ALEC). The corporate-funded think tank has churned out all sorts of model legislation for right-wing state legislators aimed at undermining and defunding public education.

Now, through the Koch-created and funded Americans for Prosperity (AFP), the Koch brothers have taken their attacks on public education to a new level: attempting to reinstitute school segregation.

A brand new video from our friends at Brave New Foundation -- a part of their "Koch Brothers Exposed" series -- details the disturbing rise of racial resegregation in one award-winning North Carolina school district. The story goes like this: AFP supported a slate of right-wing school board candidates who ran on a platform that echoed those of 1960's southern segregationists like George Wallace almost verbatim ... they won, and now they are using their power to hurt the public school system by not only erasing the district's commendable achievements of diversity, but hurting the quality of public education received by all the district's students.

People For the American Way and PFAW's African American Ministers in Action (AAMIA) program are both incredibly proud to cosponsor the release of this video, and we're hopeful that we can help shine a light on this latest right-wing attack on public education, racial equality and civil rights.

Watch the video, and help spread the word by sharing this post.

After you watch the video, please call David Koch at his Manhattan office at 212-319-1100 and tell him to "stop funding school resegregation now."

PFAW

After 2 big wins, what now? We keep fighting!

dont retreat recall

The political balance of power in Wisconsin was decided last night by just a few thousand votes. We were just two thousand votes from a political earthquake, but the fact remains that we gained ground, they lost it. Republicans held on to their majority -- barely -- by cashing in on their massive corporate support and the unlimited dollars which flowed from that support in the post-Citizens United era. But we changed the game and seized momentum heading into the next battles.

This David vs. Goliath fight, in which underdog progressives successfully took down two Goliaths and came incredibly close to defeating a third and taking back the State Senate, has inspired progressives across the country ... helped expose the corporate interests so intent on keeping right-wing officials in power ... and shown that if we can compete this closely in heavily Republican districts, we can definitely win statewide.

Thank you so much for your incredible energy, support and activism, all of which fueled our campaign and will be indispensible in the next part of the effort.

People For the American Way's Recall the Right the campaign, due to the overwhelming support and generosity of members like you:

  • Distributed more than 89,000 direct mail pieces, 4,300 TV spots and 170,000 calls to persuadable voters,
     
  • Engaged thousands of activists, and
     
  • Aired final-week ads against right-wing Sen. Alberta Darling which undoubtedly contributed to the unexpected closeness of her race against Democrat Sandy Pasch.

The two progressive wins last night -- the successful recalls of Sens. Dan Kapanke and Randy Hopper -- were in two districts where PFAW was very active, with our final-week ad-buys in the Hopper race arguably making the difference that put Democratic Senator Elect Jessica King over the top. PFAW enthusiastically endorsed both Jessica King and Senator Elect Jennifer Schilling -- two strong progressive women who will be strong advocates for working families in the Wisconsin Senate.

I won't sugar coat it. It was extremely painful to come SO close to the "Grand Prize" of three wins, which would have flipped control of the Senate, and to fall slightly short.

But being demoralized and focusing on where we fell short gets us nowhere, while remaining energized and focusing on what we achieved will propel us into the next round of -- even more impressive -- victories.

  • We have cause for optimism that the dynamic in the State Senate will be completely different and while Democrats won't have the majority, they will be able to stop much of the far-right agenda.
     
  • We know that we are in better position than ever to recall Gov. Walker at the beginning of next year -- if we made this much of an impact in "red," Republican districts, our statewide campaign to recall Walker, in which we'll be able to turn out masses of voters in the most progressive-leaning cities and counties in Wisconsin, should have Republicans very nervous.
     
  • Most urgent, this coming Tuesday, August 16, we need to defend our victories from last night by defending the two remaining Democratic incumbents who have been targeted by the Right Wing with their own recall efforts.

Two members of the heroic "Wisconsin 14" have been targeted by the Republicans and their corporate backers for recall, this Tuesday. These are the Democratic senators who pulled out all the stops, courageously left their state and made tremendous sacrifices trying to stop Gov. Walker's infamous union-busting plan. They fought hard for Wisconsin's working families and we have to fight hard for them. If right-wing Republicans are able to unseat even one of the two Democratic incumbents on Tuesday, they will have gone a long way in taking last night's victories away from us.

Protecting those Democratic incumbents is so important that PFAW will be sending staff to Wisconsin to help with the field campaign.

Right-wing pols, pundits and Fox News hosts are already trying to spin and distort the results as a victory for the Tea Party, Gov. Walker and the GOP on the whole, but that is utter nonsense. Progressives gained two senate seats and Republicans lost two, significantly weakening Walker's majority. Gov. Walker caught a glimpse of how vulnerable he will be to recall next year. And we must stay mindful that the "victory" the Right Wing is gloating about in the first place is one against working people -- teachers, firefighters, cops, nurses, snowplow drivers and the rest of the middle-class Wisconsinites who went head to head with America's greediest corporate interests in these recall elections.

Last night we won two historic victories by removing from office two right-wing Republican state senators who had been considered entrenched, safe in their seats, before they joined Gov. Scott Walker's assault on workers' rights and the middle class. That's what democracy looks like. And that's what accountability looks like.

Thanks again for everything you've done and continue to do in the Recall the Right campaign. It's not over until the polls close next Tuesday. We hope you'll help us seal up these important wins!

 

PFAW