DOMA’s Days Are Over
This piece is the third in a series of guest blog posts on “Why It’s Time to Dump DOMA.” In the weeks leading up to the Supreme Court arguments on the anti-gay Defense of Marriage Act, we’re asking friends of PFAW to share why dumping DOMA matters to them. Be sure to check back soon for the latest post in the series.
All Americans deserve equal treatment under the law. The President has acknowledged that, as have the nine states (plus the District of Columbia) that allow gays and lesbians to marry. A number of other states offer some form of relationship recognition status. But thanks to DOMA, the federal government doesn’t recognize all legally married couples, and states can refuse to recognize same-sex marriages from other states. And in Montana, same-sex couples can’t get married to begin with. That's why I care about dumping DOMA.
I'm queer and would like the chance to marry the person I love someday. Heck, I've got a master's degree and was elected to the City Council at age 28, but I'm not to be trusted with a lifelong commitment? All loving couples should have access to the legal protections they need to take care of each other, and I don't feel like I should have to move to a city to be myself and have the kind of life I want.
I'm a fourth generation Idahoan and now a proud Montanan, and I want to raise my kid in a place where they can hike, climb, backpack, fish, and hunt just a few minutes from home. Most Montanans value fairness and dignity. They judge you more by how you treat your neighbor than what you do in the privacy of your own bedroom. They believe in following the law. I think my fellow Montanans will come around when they see the sky doesn't fall when committed same-sex couples tie the knot.
So let's do it. Let's dump DOMA, and allow all Americans to pursue happiness by marrying the person they love.
Caitlin Copple, Missoula, MT City Councilmember
Member of affiliate People For the American Way Foundation’s Young Elected Officials Network
As the Supreme Court decides whether or not to hear a challenge to Montana’s prohibition on corporate independent expenditures to affect state elections, Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI) urged the court to let the Montana law stand, according to a report in Roll Call. Since that decision was handed down, super PACs have spent close to $100 million in this election. It’s time to take another look at the system and restore the balance of power to the people.
In the wake of Citizens United, the 2010 Supreme Court decision that opened the floodgates to unprecedented, unlimited corporate spending on politics, municipalities across the country have enacted resolutions calling for a constitutional amendment to overturn the decision. Passed before the Supreme Court’s decision, Montana has refused to stop enforcing its clean elections laws. Three corporations have filed a challenge, claiming the law is invalid under the Court’s ruling.
The Court can and should use this case as a means to full re-examine the Citizens United decision. Justice Ruth Bader Ginsburg acknowledged that the case presents the Court with an opportunity to re-examine the Citizens United case. “A petition for certiorari will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway,” Justices Ginsburg, joined by Justice Stephen Breyer, wrote in a statement.
Senator McCain is a longstanding proponent of campaign finance reform, and Senator Whitehouse is a supporter of a constitutional remedies to overturn Citizens United. Together they filed an amicus brief, echoing the justices’ concerns: “Evidence from the 2010 and 2012 electoral cycles has demonstrated that so-called independent expenditures create a strong potential for corruption and the appearance thereof. The news confirms, daily, that existing campaign finance rules purporting to provide for ‘independence’ and ‘disclosure’ in fact provide neither.” Representative Chris Van Hollen (D-MD), Montana Attorney General Steve Bullock and others also filed briefs urging the Court to either let the Montana ban stand or re-examine the Citizens United Ruling. A decision as to whether to hear the case is expected by June.
The Supreme Court was wrong when it decided that corporations should be able spend their vast treasuries on elections. The State of Montana is providing a welcome chance to fix that mistake.
Earlier this week a Great Falls Tribune reporter found something startling in his inbox: a shockingly racist and misogynistic email forwarded from the most powerful federal judge in Montana, which "joked" that the president of the United States was the product of his mother having sex with a dog. The story soon became national news, with groups like ours calling on Judge Richard Cebull to resign. Cebull quickly apologized to the president and submitted himself to a formal ethics review, somewhat quelling the story. But the story is about more than one judge doing something wildly inappropriate and deeply disturbing. It's about a conservative movement in which the bile and animosity directed at the president -- and even his family -- are so poisonous that even someone who should know better easily confuses political criticism and sick personal attack. Come on: going after the president's late mother? Attempting to explain his email forward, Judge Cebull told the reporter, John S. Adams,
The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn't send it as racist, although that's what it is. Is sent it out because it's anti-Obama.
Judge Cebull is hardly alone in using the old "I'm not racist, but..." line. In fact, his email was the result of an entire movement built on "I'm not racist, but..." logic that equates disagreement with and dislike of the president with broad-based, racially charged smears. These smears, tacitly embraced by the GOP establishment, are more than personal shots at the president -- they're attacks on the millions of Americans who make up our growing and changing country. Mainstream conservatives have genuine objections to President Obama's priorities and policies. But since he started running for president, a parallel movement has sprung up trying to paint Obama as an outsider and an imposter -- in unmistakably racially charged terms. Too often, the two movements have intersected. The effort to paint Obama as a threatening foreigner sprung up around the right-wing fringe in the run-up to the 2008 election with the typically muddled conspiracy theory that painted him as both a secret Muslim and a member of an America-hating church. They soon coalesced in the birther movement, which even today is championed by a strong coalition of state legislators and a certain bombastic Arizona sheriff. But the birther movement, the "secret Muslim" meme and the idea that the president of the United States somehow hates his own country are no longer confined to the less visible right-wing fringe. Former House Speaker Newt Gingrich, until recently a frontrunner in the GOP presidential race, continually hammers on the president's otherness, most notably criticizing his "Kenyan, anti-colonial behavior." Rick Santorum flatly claims that Obama does not have the Christian faith that he professes, and eagerly courted the endorsement of birther leader Sheriff Joe Arpaio. And before they dropped out, Rick Perry and Herman Cain couldn't resist flirting with birtherism. But perhaps more than either of these fringe-candidates-turned-frontrunners, Mitt Romney has been catering to the strain of conservatism that deliberately confuses policy disagreements with racially-charged personal animosity. Romney went in front of TV cameras to smilingly accept the endorsement of Donald Trump, whose own failed presidential campaign was based on demanding the president's readily available birth certificate. And Gov. Romney continually attacks Obama -- falsely -- for going around the world "apologizing for America." Judge Cebull needs to take responsibility for his own actions. And if the GOP has any aspirations of providing real leadership to this country, it needs to jettison the deeply personal vitriol being direct against Barack Obama and start talking about real issues. When a federal judge has seen so much racially-charged propaganda against the president of the United States that he can claim not to know the difference between genuine disagreement and offensive personal smears, something in our discourse has gone terribly awry.
In an address to the Montana State Legislature, Republican Congressman and Senate-candidate Denny Rehberg blasted a federal judge who ruled that the grey wolf had to remain on the Endangered Species list, saying: “When I first heard his decision, like many of you I wanted to take action immediately. I asked: how can we put some of these judicial activists on the Endangered Species list?”
Despite the call for greater civility in politics after the shooting in Tucson, Arizona, that left a federal judge and five others dead, Rehberg continued to employ violent rhetoric to score political points against a judge who was simply doing his job.
In the wake of the Tucson shooting, People For the American Way President Michael Keegan said that all people have a “duty to consider the impact of our words and to approach political discourse with honesty and responsibility,” and the politicians “who denounce violence should also denounce the rhetoric that can incite it.”
Now, the children of the vilified judge are speaking out against the Congressman’s ferocious language targeting their dad in a letter to the Helena Independent Record. The judge’s children ask Rehberg “to remember that words matter, and inflammatory words inflame,” and point out that their father was simply following his role as a judge to “interpret and apply the laws” no matter how unpopular. The judge’s children remind Rehberg and all politicians that such vicious rhetoric has no place in the political and legal debate:
We are writing to express our disappointment and voice our concerns over the comments that Congressman Rehberg recently made at a joint session of the Montana Legislature. Although Congressman Rehberg didn’t identify by name U.S. District Judge Don Molloy — our dad — it was clear to whom he referred.
For the benefit of those not there, here is what was said: When referring to a recent federal court decision about wolves and the Endangered Species Act, Rehberg stated, “When I first heard his decision, like many of you I wanted to take action immediately. I asked: ‘How can we put some of these judicial activists on the endangered species list.’ I am still working on that!”
We, too, are still trying to figure out exactly how he thought it appropriate or responsible to make these comments, especially in light of recent events in Tucson.
We fully recognize that the wolf issue has become a polarizing, politicized issue. Through the years, we have come to understand that the press and public will often critique court decisions without a full understanding of the law or facts. Many cases, like the one involving wolf delisting, are complicated. Politicians like Congressman Rehberg have every right to comment, and like the rest of the public, they have the right to do so on an uninformed basis. But a line is crossed when language such as that used by Congressman Rehberg is spoken. It is not acceptable or appropriate to make veiled or outright threats of harm toward anyone, including a judge who is performing a constitutional responsibility to interpret and apply the laws that Congress enacts, based on the facts and law presented in the court room, and not on public opinion.
This is a personal issue for us, and not only because of these comments about Judge Molloy. We are proud Montanans. In fact, we are fourth-generation Montanans and our parents raised us to respect other people, even people with whom we may disagree. We grew up in a Montana where threats and jeers were unwelcome on a school playground and unheard of in political discourse.
It is our firm belief that we must hold our elected officials to a standard of conduct that is representative of Montanans and how we wish to be known. The respect and civility that we call upon Congressman Rehberg to demonstrate are qualities that we see every day in our fellow Montanans. Each of us can and should rise above the divisive and shallow rhetoric that is becoming so common in public discourse. Each of us can commit to showing through our own words and actions how we can debate the issues with respect, thoughtfulness and vigor.
It is our hope that the image of Montana and its citizens that we have grown up holding tightly to remains — that we are strong in our willingness to stand up and behave responsibly and respectfully to all. For all Montanans, and on behalf of our family, we ask Congressman Rehberg to remember that words matter, and inflammatory words inflame.
Molly, Brynn, Jennifer and Daniel TC Molloy are the children of U.S. District Judge Don Molloy of Missoula.
While Republicans in Washington are celebrating the anniversary of Citizens United by threatening to scrap the public finance system for elections and allow corporations to donate directly to candidates, Senator Max Baucus of Montana is standing up with the vast majority of Americans who want to see Congress curb the enormous political clout of corporations and overturn Citizens United. Yesterday, Senator Baucus said he will reintroduce a Constitutional Amendment that would give elected officials the right to regulate corporate contributions to political organizations and reverse the Court’s sweeping ruling:
“The foundation of democracy is based on the ability of the people to elect a government that represents them - the people, not big business or foreign corporations. As Montanans, we learned our lesson almost a century ago when the copper kings used their corporate power to drown out the people and buy elections. Today, we have some of the toughest campaign finance laws in the land, and they work. Now we've got to fight to protect the voices on hard-working Montanans and keep elections in the hands of the people, and that's just what I intend to do,” Baucus said.
In the Citizen’s United case, the Supreme Court ruled that corporations, including foreign corporations, had the right to spend unlimited dollars from their general funds to make independent expenditures at any time during an election cycle - including directly calling for the election or defeat of a candidate.
As a result of the Supreme Court's ruling, Montana's century-old campaign finance laws limiting corporate spending are now also in jeopardy.
Baucus’ Constitutional amendment would restore the authority to regulate corporate political expenditure and protect states' right to regulate contributions in the way that works best for them. The amendment does not modify the First Amendment, and the language specifies that this does not affect freedom of the press in any way.
This year People For the American Way Action Fund endorsed over eighty candidates of the age 35 or younger who were running for public office. Many of the candidates were already elected officials, while others were running for office for the very first time. The PFAW Action Fund helped provide young progressives with the resources to spread and bolster their messages of equality, justice, and good-government, and put them in the leadership pipeline to strengthen the progressive movement.
Of the candidates we endorsed for the general election, seventy-two of the eighty-six endorsed candidates won their races! Highlights from Tuesday include:
Congratulations to all of the young candidates, and we hope you can support the efforts of the PFAW Action Fund to ensure a progressive future.
"I don't want everybody to vote ... our leverage in the elections quite candidly goes up as the voting populace goes down." - Paul Weyrich, founding father of the conservative movement, 1980.
When news hit last week that Democrats were doing better than expected in early voting turnout, Republican Dick Armey - whose FreedomWorks organization ensures that the Tea party is well funded by Big Business - immediately took to the airwaves with two goals: to delegitimize any potential Election Day victories for Democrats, and to justify this year's efforts by Republicans and their allies to keep people of color from voting. Armey told Fox News viewers that:
Democrats vote early because there's "less ballot security," creating a "great opportunity" for fraud. He also claimed that such fraudulent early voting is "pinpointed to the major urban areas. The inner city."
Of course, the former congressman had no more evidence to support his false and inflammatory claims than Joseph McCarthy had for his. But he does have an echo chamber of Republican and allied supporters all making the same unsupported claims of rampant voter fraud to justify aggressive efforts to keep likely Democratic voters - especially African Americans - out of the voting booth.
First, let there be mo mistake: Analysis after analysis has shown that there is no national problem with voter fraud. For instance, in its report The Truth About Voter Fraud, the Brennan Center for Justice has
analyzed purported fraud cited by state and federal courts; multipartisan and bipartisan federal commissions; political party entities; state and local election officials; and authors, journalists, and bloggers. Usually, only a tiny portion of the claimed illegality is substantiated - and most of the remainder is either nothing more than speculation or has been conclusively debunked.
Similarly, when the New York Times turned its investigatory resources to the "problem" of voter fraud in 2007, it found that
[f]ive years after the Bush administration began a crackdown on voter fraud, the Justice Department ha[d] turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.
Nevertheless, the Republicans and their close allies are up to their usual election-time hysterics about voter fraud, especially by nefarious dark-skinned people. They are ginning up fears of stolen elections ... so they can suppress the vote and thereby steal the elections themselves.
Over the past few weeks, as reported in Talking Points Memo and elsewhere:
This isn't new territory for the Right. For instance, in 2006, the Bush Administration fired U.S. Attorneys who refused to press phony voter fraud prosecutions. In 2008, until their plans were exposed, Michigan Republicans planned to use home foreclosure lists to challenge likely Democratic voters at the polls, supposedly to prevent voter fraud. That same year, the Montana Republican Party challenged the eligibility of 6,000 registered voters in the state's Democratic strongholds after matching the statewide voter database with the National Change of Address database to identify voters who aren't living where they are registered to vote. In Ohio, voter caging was used as a prelude to challenge individuals at the voting precinct.
These actions were part of a larger pattern. During the fall of 2008, the Right was setting itself up to challenge the integrity of the election. Across the country, they repeatedly trumped up claims of voter fraud, attacking ACORN and other voter registration efforts and lambasting the Justice Department for its failure to stop this alleged "fraud." However, that effort sputtered when the false claims of voter fraud mushroomed into threats against ACORN workers and vandalism of their offices, which PFAW helped to expose. Last year's doctored "pimp and prostitute" ACORN videos and their aftermath showed the lengths Republicans and their allies are willing to go to demonize and ultimately destroy successful minority voter registration efforts.
Clearly, the Right puts a great deal of energy into tackling a non-existent problem. But while these actions may do nothing to prevent instances of voter fraud that were never going to happen in the first place, they do accomplish something very important, as noted above: They intimidate people, often people of color, into not voting. They also work to paint any election victory by Democrats as illegitimate, thereby seriously destabilizing one of the foundations needed for America's constitutional government to work.
Voting is our assurance that those in power govern only by the consent of the people. The theory of American electoral democracy is that We the People act through government officials who we elect to act on our behalf. However, that assumes that all parties are willing to abide by the results of free and fair elections, win or lose.
Unfortunately, when the most powerful groups in society are willing to ignore democratic principles when it’s convenient - when they are eager to disenfranchise those who are most likely to vote against them - the democratic system fails.
In the past, these forces used poll taxes, literacy tests, and even brute force to keep disfavored Americans from voting, staining the legitimacy of the elected government in the process. Today, far more wary of appearances, they use the false accusation of "voter fraud" to do the same thing, often against the same targets: African Americans and other people of color.
Traditionally, political parties and their campaign arms spend the most amount of money promoting their congressional and senatorial candidates across the country. Following the Supreme Court’s decision in Citizens United, however, a flurry of outside groups has materialized with gigantic war chests. As profiled in After Citizens United: A Look into the Pro-Corporate Players in American Politics, the Court’s decision allowed for new groups to surface and older organizations to increase their fundraising capacities. In the midterm elections, Kristin Jensen and Jonathan D. Salant of Bloomberg report that political committees supporting Republicans and attacking Democratic officials have so-far outspent both the Republican and Democratic parties’ campaign arms in 2010:
Republican-leaning groups outspent the two political parties combined during September’s first four weeks in a bid to sway the U.S. congressional elections, Federal Election Commission reports show.
The groups -- including Crossroads GPS, advised by Republican strategist Karl Rove, and the U.S. Chamber of Commerce -- spent more than $33 million, mainly on advertising. That compares with just under $20 million spent by the Republican and Democratic committees charged with electing their party’s candidates.
Outside organizations are focusing most of their fire on Senate races, particularly in California, Colorado, Florida, Missouri, Nevada and Pennsylvania, their reports to the FEC show. Many of the groups are registered as nonprofits that don’t have to disclose their donors, drawing protest from Democrats including President Barack Obama and Montana Senator Max Baucus.
“Republican operatives in the shadows are clearly winning the hidden money game,” said Linda Fowler, a government professor at Dartmouth College in Hanover, New Hampshire.
Obama has used two of his recent weekly addresses to blast Republicans for blocking legislation that would make groups engaged in political activity report their contributions. Baucus, the Senate Finance Committee chairman, today asked Internal Revenue Service Commissioner Doug Shulman to investigate the organizations.
While political parties and their campaign arms must disclose their donors and have caps on contribution amounts, many outside groups accept unlimited amounts of money from individuals and corporations and do not have to disclose the sources of their funding. Thanks to such organizational advantages, such outside groups are now overshadowing political parties as regulations concerning transparency and spending fall by the wayside.
Since the Supreme Court decided earlier this year that corporations have a First Amendment right to spend however much they like to influence elections, groups have been attempting to use that decision to hack away at the core of federal and state campaign finance laws.
Last month, the Supreme Court declined to hear a challenge to the federal ban on soft money (unlimited contributions to political parties), a centerpiece of the 2002 McCain-Feingold campaign reform bill. Though that case was cut short, at least one other challenge to the law is in the works.
Now, groups at the state level are trying to use the Citizens United decision as leverage to do away with bans not only on independent expenditures by corporations, but also on corporate contributions directly to candidates’ bank accounts. 22 states, like the federal government, prohibit corporations from contributing directly to campaign committees. After Citizens United, business groups in Montana were the first out of the gates, filing suit to get rid of Montana’s 98-year old ban on both independent campaign expenditures by corporations (the spending that Citizens United allowed on the federal level) and direct corporate contributions to campaigns (which Citizens United didn’t touch).
In May, the Minnesota Chamber of Commerce convinced a federal court to strike down that state’s independent expenditures ban. Now, Minnesota business interests are following the Montanans’ lead and broadening their challenge to include the state’s ban on direct contributions:
State law now allows corporations to spend money independently of campaigns on ads supporting or opposing candidates, an arrangement that the U.S. Supreme Court approved early this year.
But the Taxpayers League of Minnesota, Minnesota Citizens Concerned for Life and Coastal Travel Enterprises seek to go beyond that ruling and allow direct contributions to candidates by corporations.
"Our clients believe ... that the First Amendment gives corporations ... the right to contribute to candidates and political parties through their general treasury funds," said Joe La Rue, an attorney for the plaintiffs, who sued this week in U.S. District Court in Minnesota.
In Citizens United, the Supreme Court clearly created a slippery slope of corporate money in politics. State-level bans on independent spending by corporations have been the first to go. Will guards against corporate-to-candidate contributions—and the very clear appearance of corruption that they create—be next
We’ve been worried about what will happen if liability suits from BP’s massive oil spill in the Gulf reach the Supreme Court. But it sounds like fans of justice might have more immediate concerns.
When a district court judge halted the Obama administration’s Gulf drilling moratorium last month, that judge’s history of ties to the oil industry caused a stir. Today, a three judge panel from the 5th Circuit Court of Appeals is set to hear an appeal of the case.
But we shouldn’t get our hopes up. Alliance For Justice has looked into the backgrounds of the three judges on the panel and found some pretty startling oil industry ties: two of the judges represented major oil companies in previous jobs, two have major investments in oil companies, and two went on an oil industry-financed junket to Montana in 2004 to learn “why ecological values are not the only important ones.”
A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.
Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.
Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).
“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”
State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.
In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.
In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Post reports:
Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.
[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...
[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.
Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?
When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"
[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...
If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?
The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.
Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.
So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.