Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:
[Interviewer:] 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?
[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.
The Huffington Post notes:
Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.
Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.
Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)
When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.
Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.
Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.
David Savage of the Los Angeles Timesand Adam Liptak of the New York Times both examined this week how president Obama’s two Supreme Court picks are changing the dynamic of the high court. “Sonia Sotomayor and Elena Kagan,” writes Savage, “have joined the fray and reenergized the liberal wing.”
Gone are the mismatches where the Scalia wing overshadowed reserved and soft-spoken liberals like now-retired Justices David H. Souter and John Paul Stevens. Instead, the liberals often take the lead and press attorneys defending the states or corporations.
"They're clearly on a roll," said Washington attorney Lisa S. Blatt, who has argued regularly before the high court. "They are engaged and really active. It just feels like a different place."
That dynamic was on display this fall, when a court that leans conservative on cases of crime and punishment heard California's appeal in a case where a panel of three federal judges had ordered the release of about 40,000 prisoners. The state's lawyer stepped to the lectern with reason to expect a friendly reception.
The order is "extraordinary and unprecedented," Carter G. Phillips began, and "extraordinarily premature" because the state was not given enough time to solve its prison problems.
But Sotomayor soon cut him off.
"Slow down from the rhetoric," she said, launching into a withering discussion of the state's 20-year history of severe prison overcrowding and "the needless deaths" from poor medical care.
Kagan picked up the theme, contending that the state had spent years fighting with the judges but not solving the problem. It's too late now for "us to re-find the facts," Kagan said. The California judges had delved into the details for 20 years, and it was time now to decide whether the remedy was right, she said.
While Kagan, due to her recent role as the administration’s Solicitor General, has had to sit out many of the most contentious cases since she took her seat on the court, Sotomayor has clearly shown herself “alert to the humanity of the people whose cases make their way to the Supreme Court,” writes Liptak. He looks at the three opinions Sotomayor has written commenting on the court’s decision not to hear particular cases:
Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.
The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.
The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.
Justice Sotomayor saw things differently.
“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”
In the courtroom, she was no less outraged at the argument in a case concerning prison conditions in California, peppering a lawyer for the state with heated questions.
“When are you going to avoid the needless deaths that were reported in this record?” she asked. “When are you going to avoid or get around people sitting in their feces for days in a dazed state?”
In her confirmation hearings before the Senate Judiciary Committee, Kagan praised her former employer and mentor Justice Thurgood Marshall, saying his “whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.” Obama’s appointment of two justices who follow vocally in his path may be one of the most profound and lasting results of the 2008 elections.
Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.
Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:
As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.
It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.
And, for the record, the ACLU had this to say about Sessions’ rant:
"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."
"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."
"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.
This morning, the Supreme Court agreed to hear a case affecting whether and how corporate polluters can be held accountable for the planetary climate damage they are causing. Several states have sued power producers on the basis that they are creating a public nuisance. This is federal common law, not tied to any specific federal statutes or regulations. The Second Circuit ruled that the lawsuit could proceed on this theory, and the power companies appealed.
The global warming case will decide whether judges and courts can put limits on carbon emissions on the theory that this pollution is a public nuisance. Eight states, including New York, California and Connecticut, joined with environmentalists and launched a lawsuit against the power producers in the Midwest, arguing that their coal-fired plants were contributing to climate change.
Environmentalists said they took the issue to court because Congress was not likely to take up the climate change issue and set limits on greenhouse gasses. They won a significant preliminary victory when the U.S. appeals court in New York cleared the suit to proceed.
But the power industry, the U.S. Chamber of Commerce and the Obama administration joined in urging the high court to stop the lawsuit. They argue that the global warming issue and limits on carbon emissions should be decided by Congress and the White House, not by judges acting on lawsuits.
Justice Sotomayor has recused herself, since at the time she was nominated to the Supreme Court, she was a member of the Second Circuit panel considering this case.
The Ninth Circuit Court of Appeals has just begun hearing an appeal of the decision that struck down California’s gay marriage ban. The court will be considering the legal arguments laid out by Judge Vaughn Walker in his decision to strike down Prop 8 in August. As it does so, the Court will rely on the substantial factualrecord that Judge Walker gathered in the original trial—much of which demolishes the “facts” presented by anti-gay activists.
Whatever the Ninth Circuit decides, the case is likely to end up before the Supreme Court. Back in August, People For’s Michael Keegan wrote about the stakes involved for the Right:
For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?
Of course, basic human rights should never be decided by majority vote--they are guaranteed by the Constitution. But, on the issue of gay rights, the Right Wing now finds itself up against both the Constitution and the will of a steadily increasing majority.
The first major decision any newly-elected member of Congress makes is who will serve as his or her chief of staff. The personnel choice says a lot about the member’s personality and priorities. Off-the-charts extremist Congressman-Elect Allen West, for instance, chose off-the-charts extremist radio host Joyce Kauffman (before the “liberal left” raised some concerns about her role inciting a school shooting plot). It should come as no surprise, then, that Wisconsin Senator-Elect Ron Johnson, whose pro-corporate policies earned him plenty of corporate cash on the campaign trail, has picked a corporate lobbyist to lead his team in Washington.
Johnson’s pick, reports Express Milwaukee, is Don Kent, who after a gig at the Department of Homeland Security in the Bush Administration, “became a lobbyist at Navigators Global, where he ‘heads up the Homeland Security practice.’”:
Navigator Global’s clients include AgustaWestland North America, the world’s largest helicopter manufacturer; the Coalition of California Growers, which was fighting a bill that would make it easier for workers to organize; the Computer and Communications Industry Association, which was fighting an effort that would allow some taxpayers to file their state tax returns for free; the Council of Insurance Agents and Brokers, when then-New York Attorney General Eliot Spitzer was investigating the industry; Pfizer; and the Pharmaceutical Research and Manufacturers of America, which wanted to block the reimportation of Canadian drugs to bring down costs for consumers.
Plenty of people—including members of Congress—go in and out of the revolving door between Capitol Hill and K Street. But Johnson’s choice makes a clear statement about the difference between him and his predecessor, Russ Feingold. Feingold has been one of the Senate’s strongest champions of clean elections and transparent government, and wrote the campaign finance law that was largely gutted by the Supreme Court’s decision in Citizens United. In the first election after Citizens United, Johnson benefitted from a flood of outside money, some from pro-corporate groups, to unseat Feingold.
It’s one of the first signs that the corporate interests that funded Tea Party candidates across the country are going to get what they paid for.
Earlier this month, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, where the cell phone company is asking the Supreme Court to demolish class-action suits and cripple state consumer protection laws. This case threatens to be one of many where the Roberts Court bends the law in order to give even more power to already-powerful corporations.
In the Huffington Post, David Arkush of Public Citizen has an interesting observation about the arguments AT&T is making to sway the Roberts Court: They are nakedly aimed at the conservative Justices' political ideology, not any conception of the law. After noting how eager the Roberts Court has been to overrule decades of once-settled law, Arkush writes:
[W]hen the court is so willing to remake the law in a broad range of areas, individual political appeals become much more important. A devastating piece of evidence on this point came [when] AT&T's lawyers made this argument:
"Accordingly, California's professed belief that class actions are necessary for deterrence boils down to the proposition that deterrence is served by imposing on all businesses -- without regard to culpability -- the massive costs of discovery that typically precede a class certification motion and the inevitable multimillion dollar fee award extracted by the class action attorneys as the price of peace. In other words, because class actions always cost vast amounts to defend and eventually settle with a large transfer of wealth from the defendant to the class action lawyers no matter how guiltless the defendant may be, all businesses will be deterred from engaging in misconduct by the very existence of this externality producing procedure."
Note that this is a pure policy argument, not a legal argument. More important, it's politically charged hyperbole. ...
AT&T's lawyers are not hacks. They are some of the nation's best Supreme Court litigators. It is a devastating indictment of the Roberts court that these lawyers think repeating myths about greedy trial lawyers is an effective way to argue. They must think the court is brazenly activist and political.
The Republican Party’s virulently anti-immigrant rhetoric and policies are far from mere political tactics, as GOP members of Congress usher in a radical agenda to rollback the rights of immigrants and their families. Iowa Rep. Steve King, who has appeared with violent vigilante groups and has referred to undocumented immigration as both a “slow-motion Holocaust” and a “slow-motion terrorist attack,” is set to chair the House Judiciary Committee’s subcommittee on immigration. Members of the House Republican Freshman Class, including Pennsylvania’s Tom Marino and Florida’s Allen West, frequently used immigrant-bashing in their campaigns, and Louisiana Senator David Vitter made demonizing immigrants the cornerstone of his reelection campaign.
Two new reports today demonstrate how extreme the Republican Party is moving to not only oppose immigration reform but also to undermine one of the most important protections guaranteed by the US Constitution:
GOP Rep. Steve King of Iowa, the incoming chairman of the subcommittee that oversees immigration, is expected to push a bill that would deny "birthright citizenship" to such children.
The measure, assailed by critics as unconstitutional, is an indication of how the new majority intends to flex its muscles on the volatile issue of illegal immigration.
The idea has a growing list of supporters, including Republican Reps. Tom McClintock of Elk Grove and Dan Lungren of Gold River, but it has aroused intense opposition, as well.
"I don't like it," said Chad Silva, statewide policy analyst for the Latino Coalition for a Healthy California. "It's been something that's been a part of America for a very long time. … For us, it sort of flies in the face of what America is about."
Republicans are also gearing up to defeat the DREAM Act, which would allow students and military servicemembers who came into the country illegally as children and have a clean criminal record to gain a pathway to citizenship. Even though the DREAM Act has historically garnered bipartisan support, Politicoreports that Republicans on the Hill are trying to deceptively tar the bill as amnesty for criminals:
Already, GOP staffers have begun circulating to senators and conservative groups a white paper outlining what they see as the social and financial costs of passing the Development, Relief and Education for Alien Minors Act.
“In addition to immediately putting an estimated 2.1 million illegal immigrants (including certain criminal aliens) on a path to citizenship, the DREAM Act would give them access to in-state tuition rates at public universities, federal student loans and federal work-study programs,” said the research paper, being distributed by Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee.
The bill’s backers, though, say it outlines a “rigorous and lengthy process” for legalization, hardly the amnesty plan that opponents have depicted.
Eligible immigrants must have entered the U.S. before age 16, have been in the country for at least five consecutive years before the bill’s enactment and been at least under age 35 at the time of enactment; been admitted to a college or earned a high-school diploma or GED certificate; and have no serious criminal record.
A recent Rasmussen poll found that a majority of Americans believe that “children brought to the U.S. illegally should get a chance at citizenship if they complete two years of college or participate in the military,” and military leaders have called on Congress to pass the DREAM Act as a way to strengthen the country’s armed forces. A study by UCLA’s North American Integration and Development Center states that the DREAM Act both “offers a moral solution to the trap of being a young, motivated, undocumented immigrant in the U.S.” and is “an economically sensible piece of legislation that advances the interests of U.S. society as a whole.”
However, the extreme anti-immigrant sentiment that is pervasive within the GOP stands in the way of reasonable efforts at reform, and even leads to radical legislation that challenges the 14th Amendment of the US Constitution.
We were all pretty shocked by this story out of California today:
A Stanislaus County school is forcing a student to take an American flag off of his bike.
Thirteen-year-old Cody Alicea put the flag there as a show of support for the veterans in his family.
But officials at Denair Middle School told him he couldn't fly it. He said he was told some students had complained.
But the superintendent said he's trying to avoid tension on campus.
"(The) First Amendment is important," Superintendent Edward Parraz said. "We want the kids to respect it, understand it, and with that comes a responsiblity."
Parraz said the campus has recently experienced some racial tension. He said some students got out of hand on Cinco de Mayo.
"Our Hispanic, you know, kids will, you know, bring their Mexican flags and they'll display it, and then of course the kids would do the American flag situation, and it does cause kind of a racial tension which we don't really want," Parraz said. "We want them to appreciate the cultures."
School officials later explained that they felt Cody’s safety was at risk from children who were bullying him, and that they were addressing the bullies and have now allowed Cody to continue displaying the flag.
But whatever the reasoning (or lack thereof) behind the decision to make Cody put away the flag, the superintendant’s remarks are still startling. As we saw repeatedly in the vapid debate over the so-called “Ground Zero Mosque,” it’s a skewed view of the First Amendment that sees displaying one’s values or culture as some sort of un-American provocation. There is, as the superintendent said, “a responsibility” that comes with freedom of speech. But that responsibility does not include suppressing your patriotism, or any other deeply held beliefs, at the risk of offending others.
The right of a kid to display an American flag on Veterans Day should be the clearest example of the freedoms that should never be taken away.
The Supreme Court today declined to reverse a Ninth Circuit Court of Appeals ruling that let the military continue to discriminate against gay and lesbian servicemembers while the legal battle against Don’t Ask Don’t Tell continues. The ban on openly gay Americans serving in the military was stopped temporarily after a federal judge in California ruled the policy unconstitutional. The Ninth Circuit demanded that enforcement continue while the case makes its way through the court system.
The high court’s decision makes it even more urgent for Congress to repeal Don’t Ask, Don’t Tell during this years's lame duck session. With a strong Republican majority in the House next year—including many new members who are not at all open to LGBT equality—there will be little hope for legislative repeal.
In the meantime, the vast majority of Americans, across party lines, continue to oppose Don’t Ask Don’t Tell. One of these Americans is Cindy McCain, whose husband John McCain is the leading the Senate effort to keep the discriminatory policy in place. Watch the video Cindy McCain made for the anti-bullying group NO H8, in which she slams Dont Ask Dont Tell: "Our government treats the LGBT community like second class citizens, why shouldn't [bullies]?"
You can imagine our delight here at People For when we finally made it on to Glenn Beck’s infamous conspiracy theory-promoting blackboard last night. You can watch the clip here:
Note that, contrary to Beck’s assertions, People For the American Way is not a 501c(3) group…and, moreover, 501(c)3 groups like People For the American Way Foundation are not allowed to participate in partisan political activity at all.
Beck is gradually expanding the reach of his broad conspiracy involving progressive groups to include as many as possible, it seems. But we’d like to think that our inclusion has something to do with the petition campaign People For and Media Matters have launched urging Fox News advertisers to drop their support of the network—because they are indirectly subsidizing Beck.
Beck, of course, has every right to criticize progressive groups on the air. But his rhetoric frequently verges on violent, and has led, on more thanone occasion, to actual or attempted violence against those involved in the progressive movement.
Sign People For and Media Matters' Drop Fox petition here.
And read the full letter Tides Foundation CEO Drummond Pike sent to Fox advertisers last month after he was the victim of a Beck-inspired assassination attempt:
Dear Fox Advertiser,
I am writing to ask your company to take a simple step that may well save lives in the future. And it is not unimportant that taking this action will remove your company and its products from any connection to what could very likely be an unpleasant tragedy, should things remain as they are today. On behalf of my organization, and many others like it, I ask that you cease advertising on the Fox News Channel.
This is neither a hollow request, nor one rhetorically made. There is an urgency to it born of our own direct experience as the target of a would-be assassin inspired by Fox's Glenn Beck Show.
On July 19th of this year, I arrived at our San Francisco office to learn that a misguided person carrying numerous guns and body armor had been on his way to start a "revolution" by murdering my colleagues and me. The Oakland Police Department called to tell us that, following a 12 minute shootout with the California Highway Patrol, law enforcement officials arrested an assailant who had targeted the Tides Foundation, an organization which I founded and currently serve as CEO, and the ACLU for violence. To say we were "shocked" does not adequately describe our reaction. Imagine, for a moment, that you were us and, had it not been for a sharp eyed highway patrolman, a heavily armed man in full body armor would have made it to your office with the intent to kill you and your colleagues. His motive? Apparently, it was because the charitable, nonpartisan programs we run are deemed part of a conspiracy to undermine America and the capitalist system, which is hogwash.
Although not a political organization, the Tides Foundation has been a frequent target of misinformation, propaganda, and outright lies by Fox News' Glenn Beck. Since his arrival at Fox in early 2009, Beck has repeatedly vilified Tides, suggesting we are intent on "creat[ing] a mass organization to seize power." He accuses the foundation of indoctrination and says we are "involved in some of the nastiest of the nasty." Beck tells viewers that Tides has "funneled" money to "some of the most extreme groups on the left" and that our mission is to "warp your children's brains and make sure they know how evil capitalism is." In total, prior to the attempted rampage, Beck had attacked the Tides Foundation 29 times. On September 28th, more than a month after the shooting, Beck reiterated his focus on the Tides Foundation, warning, "I'm coming for you." In jailhouse interviews, the gunman confessed he views Beck as a "schoolteacher" who "blew my mind." My would-be killer admitted that Beck "give[s] you every ounce of evidence you could possibly need" to commit violence.
Beck is a self-described "Progressive Hunter" who relies on violent rhetoric. Do you really think that the millions of Americans who describe themselves as "progressive" need to be "hunted down"? If so, to what end?
For hours every day on radio and television, Beck pits American against American, telling his audience that our country is under attack by a demonic Nazi-like regime seeking to destroy all that is great about America while insisting it's up to his viewers to resist and revolt. He warned his audience that "these are the most dangerous two years of our republic. Because in the end, in revolutions, the real dangerous killers show up." Beck even compared our government to vampires while instructing his viewers to "drive a stake through the heart of the bloodsuckers" and pretended to poison Speaker Pelosi on television. A few months later, Gregory Giusti was arrested for repeatedly threatening House Speaker Nancy Pelosi -- including threatening to destroy her home -- because he was upset over health care reform. The man's mother told a local news station he listens to those with "really radical ideas," adding, "I'd say Fox News or all of those that are really radical."
When I started the Tides organizations 35 years ago, I did so in the very American belief that ordinary citizens had a role to play in our democratic process. It was, I thought, the responsibility of everyone to become engaged in our civic life, and for years we've worked with thousands of Americans to do just that. And, while we support progressive values and goals, we respect the rights and voices of those with whom we disagree on issues. Never in our history have we tolerated employees or grantees that support those who would do harm to others. By supporting Fox News Channel, you and your company are risking your reputation and good standing because they are doing just this.
As you may know, a coordinated advertiser boycott by Media Matters and Color of Change, an online civil rights group, has caused Glenn Beck's Fox News show to lose over 100 sponsors. Despite the campaign's success, Fox insists it has had no impact on the channel's profitability because the overall demand for advertisements on Fox has remained stable. Companies are still paying to advertise on Fox News, but their ads are simply moved to a different time of day. Thus, businesses that pay to broadcast commercials on Fox News are subsidizing Glenn Beck's television show by continuing to pump money into the network. It has become clear that the only way to stop supporting Beck is to stop supporting Fox News.
I respectfully request that you bring this matter of your company's sponsorship of hate speech leading to violence to the attention of your fellow directors as soon as possible. I believe no responsible company should advertise on Fox News due to its recent and on-going deplorable conduct.
While we may agree to disagree about the role our citizens and our government should play in promoting social justice and the common good, there should be no disagreement about what constitutes integrity and professionalism and responsibility in discourse – even when allowing for and encouraging contending diverse opinions intelligently argued. This is not a partisan issue. It's an American issue. No one, left, right or center, wants to see another Oklahoma City.
The next "assassin" may succeed, and if so, there will be blood on many hands. The choice is yours. Please join my call to do the right thing in this regard and put Fox News at arm's length from your company by halting your advertising with them.
Corporate interests already exercise an inordinate level of control over Americans' daily lives. This morning, in AT&T Mobility v. Concepcion, the Supreme Court heard oral arguments in a case that threatens to give yet another advantage to powerful corporations over individual Americans. AT&T is essentially asking the Court to take a wrecking ball to state consumer protection laws.
At issue is whether states have the right to protect consumers from contracts that are so unfair as to be unconscionable - where one party has so much bargaining power over the other that the weaker one has little choice but to agree to highly disadvantageous terms.
This case started when AT&T offered phone purchasers a "free" second phone, then charged the consumers for the taxes on the undiscounted price of the "free" phone. AT&T allegedly pulled this scam on thousands of its customers. One of its victims, the Concepcions, brought a class action suit against AT&T. However, AT&T had a service contract where consumers had to agree to resolve any future claims against the cell phone company through arbitration, rather than the courts. In addition, customers had to agree not to participate in any class action against AT&T. So AT&T asked the court to enforce the agreement it had imposed upon the Concepcions by throwing out the class action suit and forcing them into arbitration, one lone family against AT&T without the protections of courts of law or neutral judges.
However, the court denied AT&T's motion, determining that the "no class action" contractual provision was unconscionable under California law and, therefore, not enforceable. Moreover, the court rejected AT&T's claim that the Federal Arbitration Act preempts state law in this case, making the contract fully enforceable against the Concepcions. (The Federal Arbitration Act generally encourages courts to compel arbitration in accordance with the terms of arbitration agreements.) The Ninth Circuit upheld the lower court decision. However, hoping to get a different result from the corporate-friendly Roberts Court, AT&T appealed.
As countless Americans can attest, it is not at all uncommon for a giant telecommunications service provider to provide extremely complex monthly bills that are nearly impossible for the average person to understand. It is certainly not unheard of for such bills to hide relatively small charges for services never ordered, or mysterious taxes or fees that the company should not be charging. Unfortunately, the vast majority of consumers who are cheated in these situations don't even realize it. Moreover, because the amounts at issue are relatively little, there is little incentive for consumers to undertake the significant expenses of recovering their loss. Even when the company pays out to the tiny percentage of defrauded customers who go to the trouble to engage in lone arbitration against the company, the overall scheme remains profitable.
Class actions are a tool that allows the entire universe of cheated consumers to recoup their losses, making possible a potentially significant financial loss to the company that sets out to defraud its customers. If the Supreme Court rules for AT&T, it will devastate state-level consumer protections and essentially grant a permission slip for rampant corporate fraud against consumers.
As the Alliance For Justice points out in its excellent analysis of this case, it is not only consumer protections that are at risk should AT&T win this case. Class action suits have often been the only way for employees experiencing illegal discrimination to contest it without spending vast amounts of money and risking retaliation. Depending on how the Roberts Court rules, it may enable employers to easily cut off this avenue of anti-discrimination enforcement by simply refusing to hire anyone who does not agree to resolve future conflicts through arbitration, with a ban on class action.
As described in People For the American Way Foundation’s Rise of the Corporate Court report, the Roberts Court has not been shy in twisting the law in order to rule in favor of corporations and against average Americans. AT&T Mobility v. Concepcion may turn out to be another gift of power to the already-powerful.
OpenSecrets.org reported yesterday that on the whole, millionaire and billionaire self-financed candidates pretty much flopped in Tuesday’s elections. Four out of every five of the 58 federal-level candidates who spent more than $500,000 of their own money on their campaigns ended up losing in the primary or general election. Among those who lost their expensive gambles were former World Wrestling Entertainment CEO Linda McMahon, who spent more than $46 million on her Senate campaign in Connecticut and Carly Fiorina, who spent more than $5.5 million of her own money in her California Senate race.
And OpenSecret’s data doesn’t even count the most prominent big-spending loss this year, California’s Meg Whitman, who spent a whopping $141 million on her gubernatorial bid.
Self-financed candidates generally have a fairly dismal track record of winning elections—partly because some lack the political experience to pull off a successful campaign, partly because voters reject the idea of a person buying themselves political office. (The Washington Post and the American Prospect both looked into the self-funding paradox earlier this year).
So, you might conclude from this, money can’t buy you electoral love. But the data from other kinds of campaign spending tells a very different story.
Public Citizen reported Wednesday that spending by outside groups—like those we profiled in our After Citizens United report—had a huge impact on the outcome of elections throughout the country. In 58 of the 74 races in which power changed hands yesterday, the candidate who benefitted from the most outside spending also won their election, Public Citizen’s analysis found. Of course, the cause and effect can go both ways—special interests often back shoe-in candidates just to be in their good graces once they’re in office—but it’s undeniable that spending by outside groups really did make a difference in many close races.
The Chamber of Commerce alone promised to spend $75 million to influence this year’s elections…more than 90% of which had, as of the last reporting deadline, gone to support Republican candidates. The Chamber, like many of the pro-GOP power players in this election, spent millions of dollars of money from undisclosed sources to buy ads that often had very little to do with its real goals.
Polling shows that the vast majority of Americans really don’t like the idea of corporations and interest groups pouring money into elections…and also really don’t like it that outside groups don’t have to reveal the major sources of their money.
But not liking the idea of wealthy people or corporations or powerful special interest groups trying to buy elections isn’t much help when you’re seeing a convincing ad on TV from a group with a name like the “Commission on Hope, Growth, and Opportunity”—and have no way of finding out what the money and motivations behind the ad are.
When a candidate is bankrolling her own campaign, voters know what’s going on, and can go into the polling place knowing full well who’s most invested in that candidate’s success. When a candidate is backed by millions of dollars from shadowy interest groups, the equation gets more difficult. The money’s there, but it’s impossible to tell what that money is meant to buy. As PFAW’s Michael Keegan wrote in the Huffington Post last week, that system works great for candidates who back the interests of corporate America and the wealthiest citizens…but isn’t so great for those who don’t have fat bank accounts ready to help them out.
Interestingly, one candidate who invested heavily in his own campaign did notably well on Tuesday—Ron Johnson of Wisconsin, who beat incumbent senator Russ Feingold. Johnson invested more than $8 million in his campaign (almost twice as much as he received from individual contributors). But Johnson was also propped up by over a million dollars worth of ads paid for by out-of-state pro-corporate groups.
Tomorrow at the Supreme Court, the Justices will hear arguments over whether the state can limit minors’ access to extreme depictions of violence.
California law bans the sale or rental of violent video games to minors. In adopting the law, the California legislature considered scientific evidence showing a correlation between playing violent video games and an increase in aggressive thoughts and behavior, antisocial behavior, and desensitization to violence in both minors and adults. The law was designed to give parents greater control over whether their children have access to the most violent video games.
Although the law was enacted several years ago, courts have kept it from going into effect on the basis that it violates the First Amendment.
The law parallels a New York law restricting the sale of non-obscene sexual material to minors that the Court upheld in the 1960s. Specifically, it covers those violent video games where:
a reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors;
it is patently offensive to prevailing standards in the community as to what is suitable for minors; and
it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
California argues that, for the purposes of the First Amendment, the Supreme Court should apply the same relaxed standard to violent material as it does to sexual material:
[I]t should make no constitutional difference whether the material depicts sex or violence. ... [T]he Act must be upheld so long as it was not irrational for the California legislature to determine that exposure to the material regulated by the statute is harmful to minors.
This would mark a significant change in First Amendment law.
Just the fact that the Court agreed to hear this case is interesting. The Court often takes a case where there is disagreement among circuit courts on how to interpret a particular law. But here, there is no such disagreement: Lower courts have uniformly struck down laws such as this as violating the First Amendment. The fact that the Supreme Court decided to hear the case anyway may signal that the Justices are ready to make the change that California is asking for.
After extremist Republican Joe Miller upset incumbent Senator Lisa Murkowski in the GOP primary, many Alaskans panicked over the prospect of having a Senator that wants to greatly diminish the federal government’s role in Alaska. After Senator Murkowski announced a write-in bid to take on Miller and the Democratic nominee, Sitka Mayor Scott McAdams, a new organization emerged to back the incumbent: Alaskans Standing Together.
Alaskans Standing Together is a “Super PAC” which can raise unlimited amounts of funds from individuals and corporations, and must disclose its donors to the FEC. The group is solely dedicated towards supporting Senator Murkowski’s reelection campaign and criticizing both of her opponents. So far, Alaskans Standing Together has reported having nine donors: Native American Corporationsthat have contributed over $800,000 to the group. But these Native American Corporations are also federal contractors, and many of them openly claim that they receive much of their federal money as a result of the legislative efforts of Lisa Murkowski. The corporations say that such money is needed since outside organizations like the California-based Tea Party Express are running hundreds of thousands of dollars worth of ads promoting Joe Miller.
But as the Miller and Murkowski squabble over the non-party groups backing their campaigns, only Scott McAdams directly pointed to an important reason for the massive downpour in campaign cash:
The Democrat in the race, Scott McAdams, took a different approach, blaming the U.S. Supreme Court for opening up politics to unlimited corporate donations. If he's elected, McAdams said, he'd move to pass a campaign finance law backed by Democratic leaders in the Senate and President Barack Obama. He also seized on a claim the White House has been hammering in recent weeks: that unlimited corporate money has the potential to give foreign-owned corporations a say in U.S. elections.
"As a small state, Alaska can't afford to allow its elections to be overtaken by corporate spending," McAdams said. "Unfortunately, Sen. Murkowski has voted to allow corporations, including foreign corporate money, to continue to influence elections."
Outside independent expenditure groups are playing a major role in the Alaska Senate race -- and those across the country. In previous elections, such contributions wouldn't have been legal, but the recent Citizens United Supreme Court decision allows corporate and union donors to inject unlimited amounts of money into politics.
With Election Day fast approaching, tens of millions of dollars from corporations flooding the airwaves each week and seemingly endless news stories about apathy in the Democratic base, right-wing candidates are getting more brazen -- advancing ever more extreme positions and spreading outright lies.
Sharron Angle, the Republican running to unseat Harry Reid in Nevada, told a crowd that Dearborn, Michigan and a town named Frankford, Texas are under Islamic Sharia Law. Utter nonsense. The statement earned her a strong rebuke from the Mayor of Dearborn and it turns out that Frankford, TX doesn't even exist!
Rand Paul, running for Senate in Kentucky, now supports ending the income tax in favor of a more regressive national sales tax that would hit the poor and middle class far more harshly than the income tax. After saying a few months back that he would have opposed the Civil Rights Act of 1964, and making controversial statements about mining and the BP oil spill, Paul's handlers have tried hard to keep his extremism under wraps. But for someone as "out there" as Rand Paul, that's hard to do for very long.
In a debate on Wednesday night, Tea Party favorite and Republican Senate candidate in Delaware, Christine O'Donnell, perpetuating an attack that has been thoroughly discredited, accused her Democratic opponent Chris Coons of being a Marxist, based on Coons' tongue-in-cheek comment in an article he wrote as a student. On a roll, O'Donnell launched into a rant that included attacks on Coons for things he never said and completely fabricated declarations about the "tenets" of Marxism.
These are just some of this week's salvos from the right-wing Rogue's Gallery of Senate candidates -- let's not forget some of the past gems from Tea Party candidates. Sen. Russ Feingold's opponent in Wisconsin, Ron Johnson, is such an extreme pro-corporate ideologue that he tries to push the notion that global warming is caused by sunspots in order to cover for corporate polluters... he also wants to drill for oil in the Great Lakes and even fought against protections for victims of child abuse on the grounds that it would be bad for business.
But the worst of the bunch has to be Colorado's GOP Senate candidate Ken Buck. When he was a county D.A., he refused to prosecute a rape that the accused essentially admitted he had committed. Instead, Buck chose to blame the victim, calling her charges a case of "buyer's remorse." Perhaps most disturbingly, it appears his statement and inaction might have been retribution for what some claimed was an abortion the victim had a year before (despite the victim's claim that she had a miscarriage). Keep in mind this is a man who is against legal abortion even in the cases of rape and incest, and apparently agrees with Sharron Angle that rape victims who become pregnant as a result of their assault should make "lemonade" out of "what was really a lemon situation."
If this weren't enough, this week an interview from March reemerged in which the "get rid of government no matter what the cost" Buck actually came out in favor of privatizing the Centers for Disease Control and Prevention! Imagine the CDC privatized -- the profit motive being the sole determination for whether the Center might act to save millions of lives... or let millions suffer or even die.
This is what extremism looks like. These could be the new people making our laws.
But it's not too late. We can Stamp Out Extremism. Please, this election, dig deep, speak out and get involved.
The latest poll numbers have progressive Democrat Joe Sestak ahead of pro-corporate extremist Pat Toomey in the Pennsylvania Senate race for the first time... Colorado is a very tight race and our endorsed candidate Michael Bennet is in position to defeat Buck with enough of our help... the progressive Senate candidate in Kentucky, Jack Conway, is running very close and could actually beat Republican Rand Paul because of his extremism... and we are fighting tooth-and-nail to keep Russ Feingold in the Senate and stop the radically right-wing Ron Johnson. We are in the process right now of producing ads for all of these states and more, and finalizing our field plan to get out the vote.
Please stay tuned for more on those products and activities, and, in the meantime, help spread around our resources, like our "Rogues Gallery" report, which calls out the GOP's extremist Senate candidates, and our "After Citizens United" report, which exposes the corporate front groups that are trying to buy this election for the Republicans.
UPDATE:Jed Lewison at Kos highlights right-wing candidates attacks on the miminum wage:
As Joan McCarter (here, here, and here) and DemFromCT (here) have documented, in the past few weeks leading Republican candidates have come out against the minimum wage, either calling for it to be lowered or for eliminating it altogether because they think it's unconstitutional. And now West Virginia GOP Senate nominee Joe Raese is once again vowing to repeal the Fair Labor Standards Act which established the minimum wage.
The key thing about the GOP position is that it's not just the minimum wage that they want to get rid of. They want to nuke virtually every law and regulation that protects workers. And that includes another provision of the Fair Labor Standards Act: overtime pay.
UPDATE 2: Tea Party House candidate in California's 11th Congressional District, David Harmer, wants to abolish public schools. Sharron Angle and others want to do away with the Department of Education, but Harmer's position could be an even more extreme attack on public education. Harmer is leading progressive incumbent Rep. Jerry McNerney in the polls...
Is public education a sign that government is too big? That’s what a front-running GOP congressional candidate in California thinks. Nick Baumann at Mother Jones reports that David Harmer, who hopes to defeat Rep. Jerry McNerney in California’s 11th congressional district, has advocated for eliminating the public education system altogether:
[I]n 2000, he published a lengthy op-ed in the San Francisco Chronicle titled, "Abolish the Public Schools." In that Chronicle piece, Harmer argues that "government should exit the business of running and funding schools." He contends that would allow for "quantum leaps in educational quality and opportunity" and notes that he's simply pushing for a return to "the way things worked through the first century of American nationhood." Here's how he describes the wondrous world of early American education:
“[L]iteracy levels among all classes, at least outside the South, matched or exceeded those prevailing now, and... public discourse and even tabloid content was pitched at what today would be considered a college-level audience. Schooling then was typically funded by parents or other family members responsible for the student, who paid modest tuition. If they couldn't afford it, trade guilds, benevolent associations, fraternal organizations, churches and charities helped. In this quintessentially American approach, free people acting in a free market found a variety of ways to pay for a variety of schools serving a variety of students, all without central command or control.”
Yet historians say the early American education system was nothing like that. Back then, even high school was a luxury. "The high school at that point is a kind of elite form of education pretty much limited to the inner cities," says John Rury, an education historian at the University of Kansas. The rest of the system was far from comprehensive. What early schools taught, Rury says, were "very basic literacy and computational skills." Many schools only met four or five months a year, and their quality varied widely. "To get to a higher level of cognitive performance, you needed to have more teachers and longer school years, and that drove costs up," he explains. That led to modern taxpayer-supported schools. "Look around the world," says Rury. "Do we have an example of a modern, well-developed school system that operates on the model this person is advocating? We don't."
Granted, Harmer is the only one of this year’s batch of far-right candidates who has wanted to go so far as to eliminate public education (though pleas to get rid of the standards-enforcing Department of Education are common). But his argument does illuminate the Tea Party movement’s enthusiastic embrace of radically regressive policies. For instance, there’s Rand Paul’s plug for replacing the income tax with a flat national sales tax (ensuring that the poor are disproportionately hit by taxes and the rich are home free), there's Ken Buck's proposal to privatize the Centers for Disease Control's public health work, there’s Christine O’Donnell’s insistence that non-citizens with serious injuries should be turned away by hospitals (which, as Adam Serwer points out, flies in the face of both decency and a law signed by Ronald Reagan), and then there’s the gleefully righteous reaction on the Right to the absurdly symbolic incident of the pay-for-play fire department that stood by while a house burned down.
These aren’t instances of opposition to further expansion of government. They’re examples of a backwards-looking ideology taken to its logical, and disastrous, extremes.
In the world of sports, corporate sponsorship has increasingly become associated with naming rights. That's why we now have the Allstate Sugar Bowl, the Discover Orange Bowl, and the Kentucky Derby presented by Yum! Brands.
But why limit this to the world of sports? Perhaps it's time for Americans to recognize the corporate sponsorship of Republicans in Congress and on the campaign trail by using corporate sponsorship names.
The only catch, of course, is that the megacorporations that are spending unprecedented amounts of campaign cash are hiding their identities in the shadows. Fortunately, though, we know the organizations who are laundering the money for them.
So if the elections go as the Republicans and their corporate sponsors hope, we may well soon be talking about Sen. Club For Growth Buck of Colorado and Sen. Club For Growth Johnson of Wisconsin.
For those who appreciate a little foreign influence in their elections – and on their elected officials – perhaps the people of Missouri, Indiana, and Illinois corporations will see their interests represented by a Sen. Chamber of Commerce Blunt, Sen. Chamber of Commerce Coates, and Sen. Chamber of Commerce Kirk.
Of course, we shouldn't forget the hard work that Karl Rove has been doing to hide the unprecedented deluge of corporate campaign cash from the American public. So we may soon be welcoming Sen. American Crossroads Fiorina of California, Sen. American Crossroads Paul of Kentucky, Sen. American Crossroads Portman of Ohio, and Sen. American Crossroads Ayotte of New Hampshire.
As any sports fan knows, the fights over naming rights can be quite expensive. So should Harry Reid lose his race for reelection, there may well be a bidding war over whether Nevada will be represented by Sen. American Crossroads Angle, Sen. Club For Growth Angle, or Sen. Americans For New Leadership & Liberty Angle.
Alternatively, Americans can show up to the polls to fulfill the words spoken by Abraham Lincoln at Gettysburg: that government of the people, by the people, and for the people, shall not perish from the earth.
A federal judge today ordered the government to stop enforcing the discriminatory Don’t Ask, Don’t Tell policy.
Judge Virginia Phillips of California found last month that the policy violates servicemembers’ First Amendment speech rights and Fifth Amendment right to due process. The injunction she issued today takes effect immediately. The Obama Administration can still choose to appeal her decision.
Christian Berle, the Deputy Director of the Log Cabin Republicans, reacted with this statement:
"These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution," Berle said. "It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."
Federal judges in two separate cases this year have found Don’t Ask Don’t Tell dismissals to be unconstitutional. I summed up some other voices of authority weighing in on the DADT debate in this post. The policy is a disgrace, and it’s far past time for it to be a piece of our history.
Update: The Advocate talked with White House Press Secretary Robert Gibbs about the possibility of appealing the ruling:
At a Tuesday briefing soon after Phillips's issued her judgment, White House press secretary Robert Gibbs told The Advocate he did not know whether the Administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. "Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case and the president will continue to work as hard he can to change the law that he believes is fundamentally unfair," Gibbs said.
In a recent speech in Mobile, Alabama, George W. Bush previewed his new book, “Decision Points,” and got all “aw, shucks” about the “elites” who have misunderestimated him:
“I have written a book. This will come as a shock to some of the elites. They didn’t think I could read a book, much less write one,” said Bush, the keynote speaker at a scholarship benefit for the University of Mobile. “It’s been an interesting experience. I’m not shilling for it -- aw, heck, you oughta buy a copy.”
Which got me thinking about the slippery right-wing definition of the word “elite.” Bush is the son of a former president. He grew up in privilege in Connecticut and Texas, with a summer home in Maine. He went to an exclusive east coast boarding school, and then to Yale. Before entering politics (with the help of plenty of family connections), he ran an energy company and owned a baseball team.
All of which, I assume, would lead a Tea Party stalwart like Delaware Senate candidate Christine O’Donnell to criticize him as terribly out of touch with average voters. Here’s what O'Donnell has to say about her opponent, Chris Coons, in a new TV ad:
"I didn't go to Yale, I didn't inherit millions like my opponent. I'm you. I know how tough it is to make and keep a dollar. When some tried to push me from this race they saw what I was made of. And so will the Senate if they try to increase our taxes one more dime. I'm Christine O'Donnell and I approve this message. I'm you."
This was after O’Donnell tweeted that Coons would bring “Yale values” to the Senate, while she would bring “liberty, limited government, fiscal sanity.”
Last week, Frank Rich pegged O’Donnell as the “perfect decoy” for parties (Republican and Tea) that are run largely by Bush-style billionaires, but try, like W, to put on a populist, “aw, heck” guise:
She gives populist cover to the billionaires and corporate interests that have been steadily annexing the Tea Party movement and busily plotting to cash in their chips if the G.O.P. prevails.
While O’Donnell’s résumé has proved largely fictional, one crucial biographical plotline is true: She has had trouble finding a job, holding on to a home and paying her taxes. In this, at least, she is like many Americans in the Great Recession, including the angry claque that found its voice in the Tea Party. For a G.O.P. that is even more in thrall to big money than the Democrats, she couldn’t be a more perfect decoy.
I’m not going to take a stand on the populist value or liability of an Ivy League education. But as a favor to O’Donnell, I looked into which of her fellow Tea Party Senate candidates might bring “Yale values” to the U.S. Senate: