In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.
The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.
The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.
It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.
NPR reports today on President Obama’s unprecedented efforts to bring diversity to the federal bench:
The White House says almost half of the 97 candidates who have won confirmation during Obama's presidency are women; about a quarter are black. And Obama has nominated four openly gay people, more than any other president. He's also doubled the number of Asian-American judges on the bench.
Obama continued that pattern earlier this week when he nominated Adalberto Jose Jordan to serve on the U.S. Court of Appeals for the 11th Circuit and Miranda Du, an Asian American who lived in a refugee camp in Malaysia for almost a year as a child before coming to the U.S., for the district court in Nevada.
But that strategy may have a cost, says Caroline Fredrickson, who leads the American Constitution Society and has been following the judge nominees closely.
"Obama is nominating many more diverse nominees than his predecessors ... strikingly so," Fredrickson says. "But the nominees are not getting confirmed with the same kind of success."
Some of the longest waiting nominees, Louis Butler of Wisconsin, Charles Bernard Day of Maryland and Edward Dumont of Washington happen to be black or openly gay.
"For women and minorities, it's just been a bigger hill to climb before they actually get a vote," Fredrickson says. "And so for whatever the reasons, the facts speak for themselves."
Yes, the facts do speak for themselves. PFAW, in a memo released Tuesday, calculated that so far, the president’s women and minority nominees have waited on average 22 percent longer for a Senate confirmation vote than white men.
But the Senate’s slow pace confirming women and minority nominees has fed into a larger, equal opportunity obstruction agenda. As of Tuesday, there were 89 open seats on the federal judiciary, 37 of which had been designated as “judicial emergencies.” Pending on the Senate floor were 24 nominees who the Senate could easily have voted on, 21 of whom had no recorded opposition whatsoever in committee. Yet Republicans allowed a vote on only four of them. Twenty are still waiting for votes allowing them to take their posts.
Last year, we released a report on the myriad ways that the Tea Party movement – supposedly obsessed with the Constitution – twists the United States’ founding documents beyond recognition.
This month, in the debate over the normally routine process of raising the nation’s debt ceiling to prevent a default and the resulting massive setback to the recovering economy, we get another example.
Republicans in the House have introduced a plan that would, among other demands, require the passage of a constitutional “balanced budget” amendment before they will consider taking a simple step to avert economic disaster. In Slate on Friday, Dahlia Lithwick and Doug Kendall explained why a balanced budget amendment -- championed by Utah senator and Tea Party favorite Mike Lee -- would not just be bad policy…it would be a big departure from the original text and intent of the Constitution:
It's fairly certain that George Washington and the other Founders gathered in Philadelphia in 1787 would be appalled by the Lee amendment. It is not an accident that the first two enumerated powers the Constitution vests in Congress are the power "to lay and collect Taxes … to pay the Debts and provide for the common Defense and general Welfare of the United States" and "to borrow money on the credit of the United States." The Constitution's broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress's power to borrow and tax. These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans. Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.
Finally, in a Constitution filled with broad principles of governance, the amendment's arbitrary spending limit of 18 percent of GDP—an awkward and unworkable figure—would stick out like a sore thumb. Contrary to Chief Justice John Marshall's warning in the landmark decision of McCulloch v. Maryland (1819), Lee's arbitrary spending limit "partake[s] of the prolixity of a legal code," and would be out of place in a document that is designed to "to endure for ages to come … to be adapted to the various crises of human affairs."
We face a high duty when amending the Constitution: to match the Framers' maturity and foresight. By every measure that would have mattered to the Founders, Lee's proposed amendment easily flunks this test. Sen. Lee fancies himself a friend to the Constitution and an originalist. So why is he pushing for the ratification of an amendment that would take us back to the days before the Constitution was even ratified? The framers trusted in the wisdom of future legislators. The Balanced Budget Amendment represents a betrayal not only of our future but of our past as well.
Of course, the most pressing issue here is that House Republicans are playing chicken with the world economy in order to uphold massive tax breaks for the rich. But that they’re using such a misguided constitutional amendment as a bargaining chip speaks volumes about the Tea Party’s priorities.
On Election Day last year, while the polls were still open, Maryland Democrats received telephone calls late in the day telling them that Democratic Governor Martin O'Malley had won reelection, so they could "relax" (i.e., not vote). It was soon discovered that the calls were generated by an operative working for the campaign of O'Malley's Republican opponent, former Governor Bob Ehrlich. Yesterday, criminal indictments were handed down against a close Ehrlich aide and a political operative for their efforts to suppress the African American vote. According to the Washington Post:
One of former Maryland governor Robert L. Ehrlich Jr.'s most trusted aides and a campaign consultant were accused Thursday of orchestrating tens of thousands of anonymous election-night robo-calls last year that prosecutors said were part of a larger attempt to suppress the black vote.
Paul E. Schurick, 54, Ehrlich's de facto campaign manager, and Julius Henson, 62, a paid consultant, were indicted on multiple counts of election law violations stemming from an automated call that was placed to more than 110,000 Democrats in Baltimore and Prince George's County, according to prosecutors.
The indictments might be the first in the country involving Election Day attempts to suppress voting using robo-calls, experts said. The case also appears to be a rarity nationwide, one in which prosecutors might have the physical evidence necessary to prove intent to commit voter suppression, experts said.
"There is a long history in urban areas of people passing out fliers that say Republicans vote on Tuesday and Democrats vote on Wednesday, and specifically in Maryland of ploys telling people if you owe tickets or back child support that you can't vote," [Gilda Daniels, an elections law expert at the University of Baltimore Law School] said. "But this isn't someone printing off fliers that can't be easily tracked. These are phone calls, and there are records of them."
The Baltimore Sun provides some more details:
The indictment describes a document titled "The Schurick Doctrine" and says that it was "designed to promote confusion, emotionalism, and frustration among African-American Democrats."
The indictment quotes from the document: "The first and foremost desired outcome [of the Schurick Doctrine strategy] is voter suppression."
While the criminal case progresses, Maryland Attorney General Doug Gansler is pursuing a civil suit in federal court:
Gansler alleges that the robocalls were made with the intent to suppress and intimidate voters in predominately African-American Democratic neighborhoods. The attorney general says 112,000 such calls were made on election night, and if found to be violations, each carries a $500 fine.
“Protecting the poor should not be a partisan issue,” said Rep. Elijah Cummings (D) of Maryland Wednesday at a congressional hearing on “Duplication, Overlap & Inefficiencies in Federal Welfare Programs.” It shouldn’t, but House Republicans at the hearing seemed more concerned with cutting tiny fractions of federal spending than with the men, women, and children who suffer when the services they rely on lose funding.
The Oversight and Government Reform hearing was supposedly aimed at “duplication” in welfare programs, but witnesses and Republican members of Congress used the occasion to lob many of their favorite attacks on welfare programs as a whole.
Robert Rector, Senior Research Fellow at the Heritage Foundation, criticized welfare programs, claiming that they reward people for not working and not marrying. “What welfare assistance has done is to supplant a male in the household. That may be a little crude, but yes, welfare has served as a substitute for the male breadwinner in the home. These low-income mothers would not be able to raise these kids without those welfare checks."
Crude? Try sexist.
When Patricia Dalton, COO of the Government Accountability Office, lamented that some federally funded programs provided similar services to similar populations, Lisa Hamler-Fugitt, Executive Director of the Ohio Association of Second Harvest Food Banks, explained that program overlap doesn’t always mean duplication. Because different programs have different criteria for qualification, many families may be struggling, but not count as being “poor enough” to qualify for all the services they need.
Over and over again in this hearing, Republicans discussed “streamlining duplicative programs,” a euphemism for cutting spending on the services that struggling Americans need the most.
As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.
These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:
The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.
Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.
In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.
So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.
As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.
Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?
They have not.
Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.
Whatever it is, it certainly is not a principled fidelity to religious liberty.
We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.
Advocates of equality were disappointed Friday when Maryland's pending marriage bill failed to pass the House of Delegates. It had already passed the Senate, in part because the vitriol of equality opponents had prompted one legislator to switch from opposing to supporting the bill. Unfortunately, advocates were unable to garner a majority of the House.
However, the bill was not defeated in a floor vote, but instead was "recommitted to committee." This is a critical distinction, one that allows advocates to introduce the bill again next year with a greater chance of success. Equality Maryland board member David Lublin explains the strategy on Maryland Politics Watch:
The House of Delegates agreed on a unanimous voice vote to recommit the bill to the House Judiciary Committee. This decision effectively kills the bill for the year. Many people naturally wonder why no vote was taken after all of the hard work that was done to advance the bill by so many people inside and outside of the legislature. Proponents agreed to this because they fell a few votes short of those needed to pass the bill on the floor of the House.
The argument for a vote is clear. People have a right to know where their legislators stand on such an important issue. Regardless of the outcome, it would have been the democratic process in action with delegates reflecting the will of their constituents and acting as our representatives.
On the other hand, proponents would have lost by a greater number than the closeness of the unofficial count because some "yes" votes would have become "no" votes. Legislators in marginal districts who might have been willing to stick their necks out to pass a meaningful piece of legislation would not do so if the legislation was going to fail.
Additionally, going forward, it is a lot harder to convert the votes of people who have cast a vote on the floor against marriage than it is to gain the votes of the undecided or who have said they oppose it but have yet to cast an actual vote on the topic. The thought behind not holding a vote is that it makes it easier to bring it up again next year and also does not demoralize opponents in other states. That was the thinking behind the decision to recommit.
Had the bill been defeated in a floor vote, then it would have been hard to reintroduce it successfully until after the next legislative elections, which are not until November 2014. But with the bill recommitted, advocates are freer to introduce it next year. In the meantime, they can spend the intervening months reaching out to legislators and the general population.
There is something wearily predictable about Justice Scalia’s straitjacket reinterpretation of the National Childhood Vaccine Injury Act of 1986 (NCVIA) to eliminate the possibility of injured families suing manufacturers for design defects in vaccines. Justice Scalia brings his trademark sleight-of-hand to the task of explaining why the law does not provide for citizens what it obviously does provide and offers his well-developed rhetorical polish and high-minded sarcasm as a way to assure everyone that there is no reasonable alternative to his vigorous rewrite of the law in the interest of corporate immunity. Ah, another federal law, another judicial gloss for the corporations: business-as-usual on the Roberts Court.
What is startling and refreshing about this decision is that Justice Scalia has finally met his match in Justice Sonia Sotomayor, who comes out swinging hard in her powerful dissenting opinion against this aggressive pro-corporate judicial activism and impressionistic rewrite of the statute at hand. It seems that Justice Sotomayor is finding her voice defending popular legislation and democratic rights against the finger-painting and cut-and-paste rewrites of legislation that have become the specialty of free-wheeling conservative Justices.
Consider the numerous hard and effective punches Justice Sotomayor’s throws back at Justice Scalia here, quoting Webster’s Third New International Dictionary, the “plain text and structure” of the statute, and the essential canons of statutory construction, to show who the real “judicial activists” are:
She starts off by blowing the whistle on Justice Scalia’s substitution of his political views for those of Congress: “In holding that the . . . Act pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its bare policy preference over the considered judgment of Congress.”
After a masterful explanation of the Act and why it permits causes of action related to design defects, Justice Sotomayor writes: “In contrast to the interpretation . . . set forth above, the majority’s interpretation does considerable violence to the statutory text, misconstrues the legislative history, and draws the wrong conclusions from the structure of the Vaccine Act . . .”
And, to leave no doubt about what has just taken place to rob the Bruesewitz family--whose daughter suffered more than 100 seizures after being vaccinated with the DTP vaccine made by Lederle Laboratories--of its fair day in court, she concludes that “whatever the merits of the majority’s policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.”
It’s good to know that Justice Sotomayor at least has woken up to the fact that we are headed at a high speed right back into a Lochner-era jurisprudence where conservative Justices work overtime to undo progressive legislation and substitute their own authoritarian judgments for democratic decision-making. The combination of this judicial assault on popularly enacted statutes with the decision in the Citizens United case to arm private corporations with political campaign spending rights under the First Amendment makes for a pretty scary polity and economy. We need more judges and Justices like Justice Sotomayor to stand up for democracy and the rule of law.
Jamie Raskin is a Maryland state senator, constitutional law professor at American University's Washington College of Law, and Senior Fellow at People For the American Way.
Yesterday in Maryland, both equality advocates and far right groups testified before a state senate panel considering a marriage equality bill. Opponents of the bill offered their standard arguments against marriage equality. And those arguments did succeed in giving at least one legislator second thoughts.
But not in the way the far right hoped.
State Sen. James Brochin had earlier this week announced that he would vote against the bill. Yet he was so moved by the vitriol of the bill's opponents that he is now considering changing his position and voting in favor of marriage equality. As the Baltimore Sun's Maryland Politics blog reports:
Baltimore County Sen. James Brochin found the testimony Tuesday by opponents of gay marriage "troubling," and said this morning that he may support the bill. The Baltimore County Democrat had previously said he was against same-sex marriage.
"The demonization of gay families really bothered me," Brochin said. "Are these families going to continue to be treated by the law as second class citizens?"
The Washington Post adds:
Brochin said in [a] news release that he was moved by testimony at the hearing, particularly that of the bill's opponents, which he called "appalling."
"Witness after witness demonized homosexuals, vilified the gay community and described gays and lesbians as pedophiles," Brochin said.
The testimony of the far right – their own opinions in their own words – has pushed a legislator from the “no” column into the “maybe” column. It's too early to say for sure how Senator Brochin will vote on the issue, but his reaction to the ugliness of the arguments against equality speaks volumes.
As Americans remember the one year anniversary of the Supreme Court’s ruling in Citizens United with calls for action to limit corporate influence in politics and reverse the Court’s reckless decision, pro-corporate activists and their Republican allies in Congress seek to further erode corporate accountability and transparency. As American University Constitutional law professor, Maryland State Senator, and People For Senior Fellow Jamie Raskin writes, Citizens United not only ushered an avalanche of corporate and secret money in elections but also paved the way for more attacks on restrictions on corporate power. Raskin asks:
Do you want to wipe out the ban on federal corporate contributions that has been in place since 1907? This should be a piece of cake. If a corporation is like any other group of citizens organized to participate in politics for the purpose of expenditures, why not contributions too?
Apparently, the answer is “yes.” While the majority decision in Citizens United said that corporations can use money from their general treasuries to finance outside groups, the ban on direct donations from corporations to candidates was left intact. But as profiled in People For’s report “Citizens Blindsided,” corporations have a number of mouthpieces, front groups, and political allies who want to create even more ways for Big Business to influence American politics.
NPR’s Peter Overby reports that pro-corporate activists from groups like Citizens United and the Center for Competitive Politics now want Republicans in Congress to further weaken already-diluted laws on transparency and fairness in elections:
Citizens United has helped to upend the debate over political money — so much so that when the American Future Fund ran a radio ad targeting Sen. Kent Conrad earlier this month for the 2012 Senate race, it was treated as just part of the political game. Conrad, a North Dakota Democrat, said this week that he won't seek re-election.
Michael Franz, a political scientist with the Wesleyan Media Project, tracks political ads.
"The effect of Citizens United in 2010 may not have been as huge, because what was going on had been set in motion earlier," he said. "But what the court did in Citizens United could suggest huge effects for other campaign finance laws down the road."
First of all, disclosure is under attack.
"Just because it may be constitutional to impose these disclosure rules, doesn't mean it makes for sound policy," said Michael Boos, counsel to the group Citizens United.
The federal ban on foreign donors faces a court challenge. House Republicans plan to vote next week to kill off public financing in presidential elections.
And the Center for Competitive Politics, an anti-regulation group, wants to undo the century-old ban on corporate contributions to federal candidates.
That was one of the first campaign finance laws on the books. The center says the corporate world now is far different from what it was in 1907, when Congress imposed the ban.
Friday is the first anniversary of the Supreme Court’s 5-4 ruling in Citizens United v. FEC, which helped unleash massive corporate spending in the 2010 elections, and more voices have emerged to denounce the Court’s wrongheaded and extreme ruling. The decision’s impact on public policy debates became more apparent today as the House of Representatives prepares to vote to repeal the health care reform law after pro-corporate groups spent handsomely to discredit the law with bogus charges and attack Congressmen which supported reform.
Ben Cohen and Jerry Greenfield of Ben & Jerry’s ice cream, along with companies like Patagonia, Stonyfield Farms and Honest Tea, have launched Business for Democracy, “a coalition of like-minded businesses to protest a Supreme Court ruling that struck down limits on corporate campaign spending in candidate elections.” The Wall Street Journal reports that “members of ‘Business for Democracy’ believe ‘the decision is inconsistent with the basic ideal of ‘government of the people, by the people, for the people,’" and support a constitutional amendment to reverse the decision.
In today’s Washington Post, Katrina vanden Heuvel discussed how the vast corporate spending to influence the midterm elections was “just an experiment” compared to how corporations plan to sway the 2012 election. But despite the push by pro-corporate groups to keep spending by businesses in elections unchecked, the efforts for legislative remedies and the push for a constitutional amendment to overturn Citizens United persevere:
According to Bill de Blasio, New York City's public advocate, Citizens United spending - that is, spending that was only made possible by the court's ruling - accounted for 15 percent of the roughly $4 billion spent on the 2010 midterm elections. Eighty-five million dollars of Citizens United money was spent on U.S. Senate races alone. Worse, 30 percent of all spending by outside groups was funded by anonymous donations, an illegal action prior to the ruling. Forty million of the dollars spent on Senate races came from sources that might never be revealed.
But as striking as these consequences might be, the 2010 election was just an experiment, the first opportunity to test the new law. In future elections, corporations and shadowy organizations will have a clearer understanding of the boundaries they are operating within, a reality that is sure to translate into more undisclosed cash. And the savvier corporate players know that the mere threat of a corporate onslaught of funding for or against a candidate is enough to win legislative favor, in effect blunting prospects for sound regulation, consumer protection and fair tax policies. As former senator Russ Feingold (D-Wis.), himself a victim of Citizens United spending, said, "It is going to be worse in 2012 unless we do something - much worse."
Yet even as we lament this decision, we should recognize the opportunity it presents. Justice Roberts and his allies overreached so brazenly that they have created an opening for genuine reform.
The clearest and boldest counter to the court's ruling would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards (D-Md.) introduced such an amendment to counter Citizens United during the last session of Congress and views it as the only sure way to beat back the court. "Justice Brandeis got it right," she noted last February. " 'We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.' "
Campaigns for constitutional amendments demand a great deal of patience and tenacity. But as Jamie Raskin, a Democratic Maryland state senator and professor of constitutional law at American University, notes, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy's enemies." Not only is a push for an amendment a worthy act, it also provides a unique opportunity to educate the broader public, raise the profile of this important issue and force elected officials to go on record as to where they stand. The campaign could create enormous pressure on state legislatures and Congress, prompting changes to campaign finance even before an amendment is ratified.
Success will require a coalition that transcends party. In this case, there is promising news. An August 2010 Survey USA poll found that 77 percent of all voters - including 70 percent of Republicans and 73 percent of independents - view corporate spending in elections as akin to bribery. Broad majorities favor limiting corporate control over our political lives. A coordinated effort, executed right, could unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.
There has been a development in investigating one of the Election Day efforts to suppress the Democratic vote.
On Election Day, Maryland Democrats received telephone calls late on Election Day telling them that Democratic Governor Martin O'Malley had won reelection, so they could "relax" (i.e., not vote). It was soon discovered that the calls were generated by an operative working for the campaign of O'Malley's Republican opponent, former Governor Bob Ehrlich.
On Friday, state police raided that operative's home. According to the Baltimore Sun:
Investigators for the state prosecutor on Friday raided the home and office of Julius Henson, the political operative who ordered the controversial Election Day robocalls for former Gov. Robert L. Ehrlich. ...
Henson, a Democratic operative who was working this year for the Republican Ehrlich, ordered more than 112,000 robocalls before the polls closed on Election Day last month.
The calls focused on Democratic precincts in Baltimore and Prince George's County. The recorded message featured a female voice suggesting that Democratic Gov. Martin O'Malley had already won the election and encouraging supporters to stay home. ...
Ehrlich, who paid Henson $111,000 for "community outreach," told the Annapolis Capital last week that the calls were "done outside of my purview." When news of the calls broke on Election Night, an Ehrlich spokesman called them "absolutely irresponsible."
Maryland Attorney General Douglas F. Gansler has filed a civil lawsuit against Henson, alleging voter intimidation and vote suppression.
By the way, the effort to suppress the Democratic vote failed. Not only did Governor O'Malley win reelection by 14 points (double the margin over the same opponent in 2006), but Democrats gained seats in the state senate.