Constitution

Scalia Asked to Withdraw from Speaking to Bachmann’s Far-Right Caucus

As first reported by Right Wing Watch, Justice Antonin Scalia is set to lecture about the Constitution for the opening class of Rep. Michele Bachmann’s new Constitutional Conservative Caucus. Bachmann, a favorite of Tea Party and Religious Right groups alike, hopes to promote to her peers her far-right and fringe perspective on the Constitution. For example, Bachmann bizarrely rejects the notion of “negative rights” as “infantilism,” even though negative rights are the basis of constitutionally protected non-interference, such as freedom of speech or the freedom from slavery.

But for Bachmann’s Tea Party-inspired caucus, the language and spirit of the Constitution is altered and manipulated to fit their ultraconservative outlook on the country.

On Saturday, the New York Times called on Justice Scalia to bow out from his class for Bachmann’s group in order to maintain the independence of the Supreme Court and to avoid lending credence to the Tea Party’s radical approach to the Constitution:

The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

There is nothing like the Tea Party on the left, but if there were and one of the more liberal justices accepted a similar invitation from it, that would be just as bad. This is not about who appointed the justice or which way the justice votes. Independence and the perception of being independent are essential for every justice.



By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.

Just as Bachmann’s caucus won’t include balanced perspectives on the Constitution, there is nothing apolitical about Bachmann’s caucus either. Other lecturers for Bachmann’s group include right wing Fox News commentators Sean Hannity and Andrew Napolitano. She is also organizing a lecture by pseudo-historian David Barton, a Republican Party activist who has no training or expertise in history but publicizes the belief that the Framers intended to create a Constitution that reflected Biblical law.

Bachmann recently floated conspiracy theories about the Census and AmeriCorps, which she likened to reeducation camps, and demanded investigations of “people in Congress and find out, are they pro-America or anti-America?” But with increased influence in the House GOP and help from Justice Scalia, Bachmann and her radical ideas will have more power as Republicans hold the majority in the House next session.

PFAW

The Conservative Assault on the Constitution

Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.

For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.

Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?

- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.

A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.

He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.

Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?

- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.

Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.

Who sits on the Court has consequences for us all.

PFAW

Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

PFAW

Future of Public Education at Risk in Florida

Even though Florida’s initial experiment with school vouchers was ridden with cases of fraud and profiteering, Governor-Elect Rick Scott plans to drastically expand the voucher program and put the state’s public schools in his crosshairs. While a recent state-commissioned study found that “students using vouchers to attend private schools in Florida are doing no better and no worse than similar students in public schools,” the new Governor wants to expand the voucher program to include all Florida students.

Scott called for the diversion of funds from the public education system to “education savings accounts,” which families can use to pay for public, charter, private, or virtual schools. While such a plan appears innocuous on its face, the devil is in the details.

Valerie Strauss who writes on education issues for the Washington Post suggested that by encouraging students to leave public schools for private institutions, Scott’s plan would badly undercut efforts to make schools more accountable since most private schools are not subject to the same measures of public accountability, like tests and grading. Strauss maintains that “the notion that private schools would inherently be any better than a system of public schools overlooks all the key factors -- poverty being the first but not the only one -- that affect our most troubled public schools right now.”

Stephanie Mencimer of Mother Jones adds that “Scott’s education ‘reform’ plan seems be less about actually making Florida’s schools better and more about paying private companies to run bad ones.” Under Scott’s proposal, oversight would be seriously weakened, while private and virtual schools stand to profit immensely and at the expense of the public education system. Mencimer profiles cases of fraud and underperformance among the programs that would be given the greatest advantages under Scott’s plan, which she described as “a formula for disaster.”

The St. Petersburg Times questions how Scott would clear basic Constitutional and financial requirements. Firstly, Florida’s Supreme Court has found similar voucher programs unconstitutional before for violating the state constitution’s provision for a “uniform system of free public schools.”

Moreover, the numbers just don’t add up. Scott wants to severely reduce school property taxes and abolish corporate taxes, cutting significant revenue sources. The Times adds that since his plan entails “taking a portion of the per student funding for public schools and allowing families to spend that amount as they wish,” Scott “would not leave enough money for public education. And presumably, the hundreds of thousands of students already in private schools would receive public money as well.”

Rick Scott’s radical experiment with the Florida education system is the latest example of attacks on public schools that are taking place throughout the country. Just as Florida’s vouchers have so far proven largely ineffective, studies about voucher programs in Wisconsin and Washington D.C. also found that the programs did not come close to producing the promised benefits. In essence, Scott’s voucher plan drains money away from public schools in favor of an untested, unaccountable, and financially-questionable voucher program without any evidence that it will improve results.

PFAW

Today's Healthcare Ruling: Ideology and Judicial Activism

Today, a Bush-nominated federal district court judge struck down the insurance mandate of the landmark health care bill. This is the bill that Republicans did everything in their power to derail - including creating the breathtaking lie that Democrats wanted to kill voters' grandmothers.

The modern Republican Party has a deep-rooted antipathy toward the federal government (unless they're running it). They have created all sorts of legal theories to reinterpret the Constitution - especially the Commerce Clause - so as to prevent Americans from using government as the founders intended to tackle our most serious nationwide problems. With a federal government made impotent by this revision of the Constitution, corporations will continue to pollute, cheat their consumers, discriminate against their workers, and put out fatally defective products with impunity.

Today, it is health care legislation on the docket. But that is just the opening salvo against a wide variety of government endeavors.

Talking Points Memo observes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Indeed, contrary to conservatives' long-standing anathema to "activist" judges who "legislate from the bench," that is precisely what Judge Hudson appears to be doing in this case.

For instance, on page 38:

However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care - over 400 in all.

These are not the words of a neutral, apolitical judge, but of someone with a policy ax to grind and his own view of what the legislative process should have comprised. The activist ax comes out again on page 39, when discussing whether striking down the insurance mandate section of the bill requires the judge to strike down the entire law:

The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, with Section 1501.

If you didn't know better, you might think this was a talking points document put out by Congressional opponents of health care reform.

PFAW

Policy Questions at the Supreme Court

At yesterday's oral arguments on Thompson v. North American Stainlessthe case of the fired fiancé – the Justices discussed whether Title VII allows Eric Thompson to sue his employer for firing him in retaliation for a discrimination complaint lodged by his fiancée. Everyone agrees that Title VII prohibits the company from firing her. The Justices of the Supreme Court are trying to figure out if that federal law also protects her fiancé.

The Washington Post reports:

But Justice Samuel A. Alito Jr. wondered if the betrothed were included, how far would the law extend.

"Does it include simply a good friend?" he asked. "Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?"

[The fired employee's attorney] said the person fired would have to prove the intent was to punish the person who complained. And then the person would have to show that the retaliatory action was serious enough to dissuade a reasonable person from filing a complaint.

Justice Antonin Scalia put himself in the role of employer, saying he would want a clear rule on who he "had to treat with kid gloves."

Note that Justices Alito and Scalia are not mechanically calling balls and strikes, as in the severely flawed umpire metaphor then-Judge John Roberts used at his confirmation hearings - and which conservatives have been using since to bamboozle the American public. In interpreting Title VII, they are taking policy considerations into account: How would their interpretation work? How could any line-drawing be justified? How could the needs of employers for clarity be met?

This is exactly what we expect judges to do.

Conservative supporters of Alito and Scalia who repeat the tired "balls and strikes" line simply cannot be taken seriously. They simply use it to mask their extremist, results-oriented viewpoint that no matter what the Constitution and statutes actually say, corporations and powerful special interests should win, while workers, women, gays, immigrants, and liberals should lose.

PFAW

Appeals Court Starts Hearing Prop 8 Case Today

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 factual record that Judge Walker gathered in the original trial—much of which demolishes the “facts” presented by anti-gay activists.

You can watch the proceedings live here:

...and follow the Constitutional Accountability Center’s live blog at the Huffington Post.

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.


 

 

PFAW

Democrats Eschew Republican Example and Follow the Constitution

This week, Americans get to see the difference between a party that respects the rule of law and one that holds it in contempt.

Earlier this week, Senate Democrats got a food safety bill passed - then discovered a procedural problem with constitutional implications: One section of the Senate bill would raise revenue, but the Constitution requires revenue bills to originate in the House. Now, in the face of Republican obstruction, Democratic leaders are working to figure out how to get the bill passed correctly before time runs out.

While the headlines are on the mistake, the main focus really should be on how Democratic leaders are responding appropriately to it - in stark contrast to how Republican leaders dealt with a similar foul-up in February 2006, when they controlled Congress. GOP leaders sent a bill for the president's signature that they knew had not passed the House.

The Deficit Reduction Omnibus Reconciliation Act of 2005 squeaked through the Senate after Vice President Cheney cast the tie-breaking vote. But when the bill was transmitted to the House, in a mistake that no one noticed at the time, one of the numbers in the bill text was changed, changing the rights of Medicare recipients and creating a $2 billion difference between the two bills. The House passed its version with a bare two-vote margin. Then Republican leaders discovered that the two chambers had voted on different bills, meaning that a basic constitutional requirement had not been met.

Having a revote would have been politically difficult. So, faced with a choice between their partisan political agenda and the United States Constitution, GOP leaders chose ... politics. They sent the Senate version to the White House for President Bush's signature, with the Republican Speaker's false certification that it had passed both chambers.

As the Washington Post reported at the time:

Once the mistake was revealed, Republican leaders were loath to fight the battle again by having another vote, so White House officials simply deemed the Senate version to be the law. ...

The issue would be solved if the House voted again, this time on the version that passed the Senate. But that would mark the third time House members would have to cast their votes on a politically difficult bill, containing cuts in many popular programs, and it would be that much closer to the November election.

The way the two parties handled similar situations speaks volumes about their commitment to the Constitution and the rule of law.

PFAW

Groundswell of Support for Overturning 'Citizens United' Continues

The latest polling on the Citizens United decision reflects the growing public support for overturning the Roberts Court’s ruling. According to a new Public Policy Polling analysis, 46% of Americans agreed that “Congress should consider drastic measures such as a constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections,” while 36% disagreed and one-in-five had not formed an opinion.

A large majority of Americans across party lines disagree with the Citizens United decision, according to poll after poll after poll after poll. Members of both the House and Senate have already introduced constitutional amendments to overturn the ruling and reaffirm Congress’s right to limit corporate spending in elections. As Rep. Donna Edwards (D-MD), the chief sponsor of one amendment in the House, told the Huffington Post:

A lot of progressives are not accustomed to using the mechanisms of the Constitution. The right has used-- has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we're not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.

People For the American Way and Public Citizen joined together this election year to support candidates who pledged to back a Constitutional Amendment overturning Citizens United, and are continuing the fight for both constitutional and legislative remedies by advancing bills such as the DISCLOSE Act. Americans are increasingly speaking out against the Court’s far-reaching pro-corporate bent, and calling on Congress to make sure that corporations don’t dominate the political system and drown out the voices of individuals.

PFAW

Empowered GOP Seeks to Sink Immigrant Rights

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, Politico reports 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.

PFAW

Bipartisan Agreement Breaks Out at Hearing on Faith Based Initiatives

At today’s hearing before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties, there was one item on which witnesses and Members of Congress from across partisan and ideological divides agreed: the Obama administration is ducking an important and controversial decision on whether religious organizations that take federal money to provide social services can discriminate on the basis of religion when hiring people to provide those services.  The administration further dodged the issue and rankled committee members by declining an invitation to testify.

There is some progress to report: the hearing came one day after the White House issued a long-awaited Executive Order (Subcommittee Chair Jerold Nadler called the pace of reform “glacial”) on the topic of federal funding for faith-based groups.  The Executive Order implements a number of recommendations made by an advisory council the administration had created to review what was called the Office of Faith-Based Initiatives by the Bush Administration and what is now called the Office of Faith-Based and Community Partnerships. Melissa Rogers, Director of the Center for Religion and Public Affairs at Wake Forest Divinity School and a co-chair of the president’s commission, was among those who testified.
 
Among the elements of the new Executive Order and provisions to: require that beneficiaries who object to a religiously affiliated program have access to a secular alternative; clarify rules requiring that federal money not be used for religious activities like worship or proselytizing; ensure that awards are made on the basis of merit, not religious or political considerations; and require meaningful oversight of grants without excessive entanglement in religious groups’ internal affairs.  These provisions were mostly welcomed across the political spectrum (with some sniping from the Religious Right), though there was disagreement in the advisory council over the issue of social services being provided in rooms where religious art or symbols are displayed (the administration OK’d religious symbols in rooms where secular programs are carried out) and over the question of requiring churches to set up separate nonprofit organizations to receive federal money (the administration decided not to require that step).
 
But the big unresolved issue is one that the Obama White House prevented its own advisory commission from addressing – whether groups can decide to hire only people of a certain faith for social service jobs that are being funded by American taxpayers.
 
People For the American Way, like all the Democrats present at the hearing, believes the Obama administration should overturn the poorly reasoned Bush-era Justice Department memo that misinterpreted the law to allow federally funded discrimination.  During his 2008 campaign, Obama explicitly pledged to do so. But since then the administration has declared that the Justice Department would consider the issue on a case-by-case basis. 
 
Religious Right groups and their political allies want the administration to explicitly embrace the status quo set up during the Bush administration, which allows hiring discrimination.  Progressive groups want the administration to revoke the controversial Bush-era legal memo and return to a bright line standard against taxpayer-funded discrimination.  Pretty much everyone agrees that churches and religious groups can and should be able to make religiously-grounded hiring decisions for jobs that are paid for with privately raised funds.  And everyone agrees that administration’s “case by case” approach makes no sense.
 
Come to think of it, there was one other topic of agreement: Rep. Trent Franks doesn’t know what he’s talking about.  Franks, who gained a measure of infamy last year when he denounced President Obama as an “enemy of humanity,” popped into the hearing to assert that the administration’s lack of clarity on the hiring issue was stirring controversy over a principle that the federal courts had settled for 50 years, the right of religious groups to hire based on religion.  After Franks left, there was general consensus in the room that, to be charitable, Franks was confusing the basic issue: the difference between private and taxpayer funds.  Franks wrapped his embarrassing confusion in Religious Right rhetoric about groups that supposedly want to erase religion from public life, or in his memorable words, ensure that “anything in the shadow of the American flag cannot be religious.”
PFAW

The Mugging of Democracy in Alaska

The latest example of Tea Party violence making the news - Rand Paul’s county campaign coordinator stomping on the head of a pinned-down MoveOn activist - highlights just how completely outside the American norm these Tea Party candidates and their followers are. The actions of Paul’s goon squad also refocuses attention on a similar event in Alaska last week.

In Alaska’s Joe Miller, we have a candidate for Senate who not only refuses to open himself to press inquiry, he surrounds himself with an aggressive group of bullies who rough up a reporter who dares ask questions of the candidate.

As PFAW President Michael B. Keegan wrote in the Huffington Post, this is not acceptable behavior in a democratic society. It’s not even a close call.

History has proven time and again that democracies are fragile. The civil compact underlying a democratic society must be monitored and renewed constantly. Part of that contract is that candidates for public office don’t have private goons squads who use physical force against reporters or anyone else they perceive as a threat to their ambitions.

Another requirement is that when a candidate goes so far over the line against the norms of a democratic society, his supporters recognize the danger, put their country’s welfare first, and withdraw their support. Again, this is not even a close call.

So this is a moment of truth for the Republican Party, as it has to choose between the values of the Tea Party and those of the United States Constitution.

The GOP should not only loudly condemn this assault on democracy, it should stop funding Miller’s campaign and urge Alaskans to vote for someone else. Since Lisa Murkowski, the incumbent Republican senator who Miller defeated in the primary, is already engaged in a write-in campaign to keep her seat, it’s not like the party doesn’t have an alternative, corporate-friendly candidate to easily turn to. Polls have shown her nearly even with Miller.

Continuing party support for a thug whose behavior undermines the foundations of our free society is a canary in a coal mine, another dangerous indication of the contempt for democracy held by a Republican Party under the sway of the Tea Party.

Should the voters of Alaska reward Miller and the Tea Party with a victory on November 2, America will have crossed a line: The tactics of Miller and his bully boys will no longer be considered quite so far beyond the norm, and we can expect to see more of the same.

And that should concern all patriotic Americans.

PFAW

Alexi Giannoulias Makes the Case for Overturning Citizens United

Illinois Democrat Alexi Giannoulias discussed the need to amend the Constitution to overturn Citizens United, which he called “a dangerous decision,” in a debate with rival US Senate candidate Mark Kirk. His Republican opponent, who has a habit of distorting and lying about his record, spoke in favor of greater campaign disclosure laws. However, Kirk voted against the DISCLOSE Act, which would have made sure that political organizations disclose their donors and make their funding sources more transparent. Giannoulias, on the other hand, has signed the Pledge to Protect America’s Democracy, which calls on candidates for Congress to overturn Citizens United.

Crossroads GPS, which does not disclose its donors, has spent over $3 million in ads attacking Giannoulias, and its sister “Super PAC” American Crossroads has spent over $1 million to smear Giannoulias. Two groups which do not disclose their donors and are backed by corporate entities, the New Prosperity Foundation and the US Chamber of Commerce, spent around a half-million dollars each in ads to help Mark Kirk.

Watch:

 

PFAW

Goodbye, Don’t Ask Don’t Tell?

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.

 

PFAW

Rep. Edwards: Support for Constitutional Amendment growing in “chaotic political climate”

Rep. Donna Edwards, the sponsor of a constitutional amendment to reverse the Supreme Court’s decision in Citizens United, reacted today to the letter in support of such an amendment, signed by 50 prominent attorneys and law professors, that People For and Free Speech for People sent to congressional leaders this week:

“Corporate interests have already spent double the money spent in the 2006 midterms to influence our elections and undermine the voice of the American people,” said Congresswoman Edwards. “That is why I introduced an amendment with Chairman John Conyers to the U.S. Constitution immediately after the Roberts’ Court declared that corporations have the same First Amendment rights as citizens. I am pleased that during this chaotic political climate support for my Constitutional Amendment is growing across the country with academics, elected officials, and working families. Now is the time to remove corporate influence from our policies and our politics. We cannot allow corporations to dominate our elections as they have done this year, to do so would be both undemocratic and unfair to ordinary citizens.”

You can read more about the letter here.

And watch Rep. Edwards explain the need for a constitutional amendment at the panel we hosted at Netroots Nation this summer. “We back up and back up against a wall of corporations, of corporate money, that isn’t just trying to influence the process, it’s trying to own the process”:
 

PFAW

And Support for Marriage Equality Keeps on Inching Up…

The Pew Research Center reported this week that fewer than half of Americans are opposed to same-sex marriage, the first time opposition has dipped below 50% since Pew began polling on the issue 15 years ago.

Opposition to marriage equality still edges out support, with 48% opposed and 42% in favor, but Pew’s data show’s a clear and steady trend toward acceptance of equal rights for gays and lesbians. And take a look at this chart showing how support breaks down among different age groups. The trend is remarkable:


In August, People For’s president, Michael Keegan, wrote in the Huffington Post, “The Right has won many important battles against gay rights, but they are losing the war...and they know it”:

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.

This isn’t to say that the Right Wing has been taking the hint that an anti-gay agenda might be a losing proposition in the long run. Rather, prominent figures on the Right seem to be trying to revel in homophobia as much as possible before the issue becomes marginalized. Opposition to the “homosexual agenda” was a major theme of last month’s “Values Voter Summit,” which drew GOP leaders (and aspiring GOP leaders) like Mitt Romney, Tim Pawlenty, and Bob McDonnell. And even Glenn Beck, who drew flack from the far right for saying that gay marriage wouldn’t be a threat to the country, regularly invites pseudohistorian and professional homophobe David Barton—who recently opined that gay people were such a threat to the country that gay sex should be regulated—to lend his expertise to his program.

Maybe the most stunning thing about the Right’s commitment to anti-gay politics is the continuing opposition to allowing gays and lesbians to serve openly in the military. Pew found that Americans support allowing gays and lesbians to serve openly by a 2-1 margin—yet the Republican Party continues to side with a small minority of right-wing extremists dedicated to preserving Don’t Ask Don’t Tell.
 

PFAW

Stevens: Campaign money is “simply not speech”

In a wide-ranging interview with NPR’s Nina Totenberg this week, former Justice John Paul Stevens touched on his strong opposition to the Supreme Court’s decision in Citizens United v. FEC, to which he wrote an adamant dissenting opinion.

As for the court's recent ruling allowing corporations and unions to spend unlimited amounts on candidate elections, Stevens thinks it was dead wrong — and, indeed, still doesn't think that money is the same thing as speech. "Can you hear it talk? Can you read it? [Money is] simply not speech," he says. "And I have to confess that my own views are that there is an interest in trying to have any debate conducted according to fair rules that treat both sides with an adequate opportunity to express their view. We certainly wouldn't, in our arguments in this court, give one side a little more time because they could pay higher fees to hire their lawyers, or something like that."

Stevens is hardly alone among legal luminaries in thinking that the decision in Citizens United was flat-out wrong. On Monday, People For and the fair elections group Free Speech For People sent a letter signed by over 50 prominent lawyers and law professors urging Congress to consider amending the Constitution to undo Citizens United.

Corporate political expenditure regulations do not infringe any speech rights of the American people whatsoever. Rather, such regulations reflect the power of the American people to regulate corporations and the rules that govern such entities as the people and our representatives see fit. Justice John Paul Stevens’ dissent rightly calls the majority opinion a “radical departure from what has been settled First Amendment law.”


You can read the full letter here.
 

PFAW

Ms. Angle’s Civics Class

In a remarkable speech reported today in the Mesquite (Nevada) Local News, Sharron Angle seemed to be taking her cues directly from our Rogues’ Gallery of right-wing candidates.

She started off with a novel civics lesson, telling her audience, "Government isn't what our founding fathers put into the Constitution.” (A statement that covers two favorite Tea Party themes: suspicion of the federal government as a whole, and made-to-order “facts” about the founding fathers).

Then, she articulated her priorities for the money saved by phasing out social safety net programs like Social Security and Medicare: eliminate industry regulation, and “lower the corporate income tax from 35% to 20%.”

Finally, Angle threw in some classic right-wing fear-mongering. Asked a question about “Muslims taking over the U.S.," Angle replied that yes, a few U.S. cities with large Muslim populations are at risk of coming under Sharia law:

"We're talking about a militant terrorist situation, which I believe isn't a widespread thing, but it is enough that we need to address, and we have been addressing it," Angle said.

"Dearborn, Michigan, and Frankford, Texas are on American soil, and under Constitutional law. Not Sharia law. And I don't know how that happened in the United States. It seems to me there is something fundamentally wrong with allowing a foreign system of law to even take hold in any municipality or government situation in our United States."

Historical revisionism? Check.

Focus on corporate profits above the welfare of individuals? Check.

Stoking xenophobia for political gain? Check.

Angle’s statements are over the top even for this year’s far-right candidates—but the sentiments she expresses are being repeated by candidates across the country. Read more in the  Rogues’ Gallery.
 

PFAW

Right Wing Watch In Focus: "Rogues' Gallery"

Today, People For the American Way released our latest Right Wing Watch In Focus report examining the slate of extremist GOP Senate candidates running for office this year.

Entitled "The Rogues' Gallery: Right-Wing Candidates Have A Dangerous Agenda for America and Could Turn the Senate," the report examines the radical agendas and views held by Joe Miller, Carly Fiorina, Ken Buck, Christine O'Donnell, Marco Rubio, Rand Paul, Roy Blunt, Sharron Angle, Kelly Ayotte, Richard Burr, Rob Portman, Pat Toomey, Mike Lee, Ron Johnson, and Dino Rossi, plus the role that Sen. Jim DeMint has played in dragging the GOP further and further to the right.

Here is the introduction:

Republicans in the U.S. Senate have already broken all records for unprincipled partisan obstructionism, preventing the administration from putting people into key positions in the executive branch, blocking judicial confirmations, and delaying and preventing Congress from dealing with important issues facing the nation, from financial reform to immigration. Now a bumper crop of far-right GOP candidates threatens to turn the "deliberative body"into a haven for extremists who view much of the federal government as unconstitutional and who are itching to shut it down.

Fueled by the unlimited deep pockets of billionaire anti-government ideologues, various Tea Party and corporate-interest groups have poured money into primary elections this year. They and conservative voters angry about the actions of the Obama administration have replaced even very conservative senators and candidates backed by the national Republican establishment with others who embrace a range of radically right-wing views on the Constitution, the role of government, the protection of individual freedoms, and the separation of church and state.

Recently, Religious Right leaders have been grousing that Republican candidates arent talking enough about abortion and same-sex marriage. But this report indicates that anti-gay and anti-choice activists have little to worry about, as the right-wing candidates profiled here share those anti-freedom positions even if theyre talking more about shutting down federal agencies, privatizing Social Security, and eliminating most of the taxes paid by the wealthiest Americans. A number of these candidates oppose legal abortion even in cases of rape or incest.

Sen. Jim DeMint of South Carolina is helping to lead the charge with his Senate Conservatives Fund. DeMint, an absolute favorite of both the Tea Party and Religious Right political movements for his uncompromising extremism on both economic and social issues, is at the far right fringe of the Republican Party and has committed himself to helping elect more like-minded colleagues. Sarah Palin, also popular among both Tea Party and Religious Right activists, has also injected her high-profile name, busy Twitter fingers, and PAC cash into numerous Senate races.

Among the right-wing insurgents who defeated candidates backed by national party leadership are Christine ODonnell of Delaware, Joe Miller of Alaska, Marco Rubio of Florida, Rand Paul of Kentucky, Sharron Angle of Nevada, Ken Buck of Colorado, and Mike Lee of Utah. Others, like Carly Fiorina of California, came through crowded primaries where right-wing leaders split their endorsements, but have now coalesced around her candidacy.

And thanks to the conservative Supreme Courts ruling in the Citizens United case, which said corporations have the same rights as citizens to make independent expenditures in elections, right-wing candidates across the board will be benefitting from a massive infusion of corporate money designed to elect candidates who will oppose governmental efforts to hold them accountable, for example environmental protections and government regulation of the financial industry practices that led the nation into a deep recession.

This In Focus provides an introduction to a select group of right-wing candidates who hope to ride a wave of toxic Tea Party anger into the U.S. Senate. The potential impact of a Senate with even half of these DeMint-Palin acolytes would be devastating to the Senates ability to function and the federal governments ability to protect the safety and well-being of American citizens.

Be sure to read the whole thing.
 

PFAW

New Term for the Supreme Court, New Opportunities for Corporations

As detailed in PFAW Foundation’s report Rise of the Corporate Court, the Roberts Court has been routinely and consistently bending the law and the Constitution to elevate the rights of corporations over the rights of individuals. To borrow a metaphor from Chief Justice Roberts, when corporate power over employees, consumers, and the American population at large is at risk, the umpire is biased. Corporations win, people lose.

In January, this judicial tilting of the scales of justice to favor corporate America reached a new height with Citizens United.

So what’s in store for the Supreme Court term that begins next Monday? While we will not know for sure until the opinions are issued, we are beginning to see some of the cases that may become important. For instance, the Court earlier today added a number of new cases to its docket, including three focusing on the rights of corporations in what the New York Times characterizes as “unusual settings.”

In two of the cases, the justices will consider how the state secrets privilege, which can allow the government to shut down litigation by invoking national security, applies in a contract dispute between the Navy and military contractors hired to create a stealth aircraft.

In the third case, the justices agreed to decide whether corporations have privacy rights for purposes of the Freedom of Information Act. ...

The privacy case [FCC v. AT&T] will consider whether a provision of the Freedom of Information Act concerning "personal privacy" applies to corporations. ...

AT&T seeks to block the release of documents it provided to the FCC, which conducted an investigation into claims of overcharges by the company in a program to provide equipment and services to schools. The documents were sought under the freedom of information law by a trade association representing some of AT&T's competitors.

AT&T relied on an exemption to the law for law enforcement records that could "constitute an unwarranted invasion of personal privacy." ...

The federal government, represented by Solicitor General Kagan, urged the Supreme Court to reject the argument that the exemption "protects the so-called 'privacy' of inanimate corporate entities."

This case will turn on the language and legislative history of the FOIA statute, as well as prior Court rulings. Court watchers will be looking out for any efforts by the Roberts Court to use this case, as it did in Citizens United, to aggrandize corporate power far beyond anything contemplated by the law or even the parties themselves.

PFAW