Media

The Commerce Clause and American Progress

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

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

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

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

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


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

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


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

You can read the full report here.

PFAW

Saving the Constitution From the Tea Party

What if our federal government didn’t have the power to provide for emergency disaster relief? To prevent children from being put to work at an early age…without even the protection of a minimum wage? To prohibit discrimination in employment, public accommodations, and public schools? To help struggling states fund public education?

These are the logical ends of the radical, regressive vision of the Constitution that has become popular among the Tea Party -- and that for the first time is enjoying serious consideration in the halls of Congress and in federal court rooms.

The Center For American Progress’s Ian Millhiser released a paper today outlining some of the ways the Tea Party’s selective worship of parts of the Constitution threatens to derail the success of the hard-won protections contained in the whole Constitution. Millhiser brainstorms a list of some of the things that would be unconstitutional under the Tea Party’s Constitution:

  • Social Security and Medicare
  • Medicaid, children's health insurance, and other health care programs
  • All federal education programs
  • All federal antipoverty programs
  • Federal disaster relief
  • Federal food safety inspections and other food safety programs
  • Child labor laws, the minimum wage, overtime, and other labor protections
  • Federal civil rights laws

 

You can add to that the basic definition of citizenship and the concept of separation of church and state. And that doesn’t even include the progressive amendments to the Constitution that Tea Party activists want to roll back, such as the amendment providing for the direct election of U.S. senators.

PFAW examined the Tea Party’s dangerous cherry-picked Constitution in a report last year, Corporate Infusion: What the Tea Party’s Really Serving America , which demonstrates that the Tea Party’s supposed allegiance to the Constitution deliberately ignores the text and history of the original document and the progressive amendments that have extended its freedoms to more and more Americans.

Earlier this week, PFAW Foundation, CAP and the Constitutional Accountability Center launched an effort called “Constitutional Progressives,” aimed at protecting and defending the whole Constitution – it’s its text, history and more than 200 years of amendments. You can sign a pledge to support the whole Constitution at constitutionalprogressives.org.

 

PFAW

PFAW Foundation Youth Leadership Programs Accepting Applications for 2012

We’re excited to announce that we are now recruiting for both our Young People For (YP4) Fellowship Program and the Front Line Leaders Academy (FLLA)!

Young People For (YP4) is a strategic long-term leadership development program that identifies, engages and empowers the newest generation of progressive leaders to create lasting change in their communities. The one-year fellowship equips college students with the skills and resources necessary to create lasting change on their campuses and in their communities.

Fellows receive access to:

  • Trainings from national and regional progressive movement leaders
  • One-on-one coaching from YP4 staff and/or other progressive movement leaders
  • Assistance and support in implementing a sustainable, community-driven action plan


Apply for the Fellowship today or nominate another progressive leader on campus! Applications are due no later than January 31, 2012. Contact Zach Dryden at zdryden@pfaw.org or by phone at 202.467.2367 if you have any questions about the fellowship.

The Front Line Leaders Academy (FLLA) is a premier campaign leadership development program offered every year by YP4 and the Young Elected Officials Network to 20 talented young people from across the country. For eight months FLLA provides young leaders the opportunity to learn political skills from successful political campaign professionals. Fellows selected into this elite academy are trained on how to be an effective candidate, campaign manager, finance director, communication director and field organizer. Fellows work one-on-one with young elected officials and campaign experts as they develop the necessary skills to become the next generation of progressive candidates, campaign leaders and community organizers.

Fellows receive access to:

  • Trainings on the five core components of campaigns: candidacy, field, campaign management, finance, & communications
  • Coaching from members of the Young Elected Officials Network and proven campaign experts
  •  A national network of FLLA alumni including progressive activists, organizers, and young elected officials

Apply for the Front Line Leaders Academy or nominate another progressive leader today! Applications are due no later than October 31, 2011. Contact Joy Lawson at jlawson@pfaw.org or by phone at 202.467.2315 if you have any questions about the fellowship.

Please share this information with your networks and don’t hesitate to let us know if you have questions about either fellowship. For more information about our work please visit www.youngpeoplefor.org.
 

PFAW

Senate Republicans Only Delayed Four of Five New Nominees Today!

This morning, Republicans on the Senate Judiciary Committee did something they have done only a handful of times: They exercised their discretion NOT to obstruct one of President Obama's judicial nominees.

The Committee was scheduled to vote on ten nominations this morning. With only four exceptions during the entirety of Obama's presidency, Republicans have exercised their prerogative to delay a committee vote for judicial nominees, even when those nominees are unopposed and are desperately needed to address burgeoning judicial emergencies. It is part of their larger strategy to throw sand in the wheels of the confirmation process in every way possible.

This morning, they did not request a delay for Jennifer Guerin Zipps, who has been nominated to be a district judge in Arizona. What makes Guerin Zipps different? The seat is a judicial emergency, but that has not mattered before. The nominee is unopposed, but even nominees without opposition and with the strong support of their Republican home-state senators have seen their votes delayed.

Only one thing makes this nomination different: Republicans know that the American people are paying attention, because this is to fill the seat that was held by Judge John Roll, who was among those killed in Tucson last January when Congresswoman Gabrielle Giffords was shot. Roll was seeking to meet Giffords to discuss the worsening caseload crisis overwhelming the area's federal judges. Americans were appalled by the violence, which brings this particular vacancy far more public attention than usual.

Knowing the American people are somberly watching, Senate Republicans declined to play political games with this nomination.

Not surprisingly, for all the other nominations that were scheduled for a committee vote for the first time this morning, they demanded a needless delay.

PFAW

Fox News’ Misinformation Campaign on Muslims a Rousing Success

The Brookings Institution today released a new extensive poll on American attitudes toward racial and religious diversity in the ten years since 9/11. There are a whole lot of interesting themes in the study, but one thing that stood out was the amazing success of Fox News’ concerted misinformation campaigns on race and religion.

When Brookings asked participants about their views on American Muslims, those who trust Fox News -- along with those who trust public television -- were more likely than those who trust other news sources to “report knowing a lot about the beliefs and practices of Muslims." But Fox News viewers were far more likely than other subgroups or the general public to say “that the values of Islam are at odds with American values” and to agree that “American Muslims want to establish shari’a law in the U.S.”


Those who trust Fox News were also more likely than other groups to agree that “discrimination against whites has become as big a problem as discrimination against blacks and other minorities.”

Some of this can probably be contributed to self-selection – those who think that Muslims want to establish Sharia law and that white people face greater discrimination than minorities are more likely to want to watch news that affirms their views. But what Fox News does so well is to present its audience with a closed world of right-wing “facts” – on Muslims, on race, on economics – and repeat those "facts" over and over until they seem to be unquestionable truths. It’s no wonder, then, that Fox News viewers were the most likely to report being Islam experts, while having wildly off-base views on American Muslims.

For more on how Fox News and other right-wing media outlets have succeeded in making up and popularizing their own “facts” on American Muslims, check out PFAW’s report The Right Wing Playbook on Anti-Muslim Extremism.
 

PFAW

Ongoing Focus on GOP Obstruction of Judicial Nominations

Since President Obama took office, Republican obstruction of his judicial nominees has been multifaceted, unstinting, highly partisan, hypocritical, and unprecedented in scope. When the Senate left town at the start of the month, Republican leaders prevented the Democrats from scheduling a vote on 20 extremely qualified nominees who had cleared the Judiciary Committee.

Yesterday, the White House Blog called attention to the obstruction and to the highly qualified and diverse federal bench that the president is working to build:

[T]he President's nominations for federal judges embody an unprecedented commitment to expanding the racial, gender and experiential diversity of the men and women who enforce our laws and deliver justice.

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called "not only frustrating but also destructive" in an editorial published yesterday.

As the Republicans know, their intransigence is exacerbating a destructive vacancy crisis in federal courtrooms, one that is making it harder and harder for Americans to secure their rights:

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench. Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships "create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions."

Click here to see the White House's infographic highlighting the obstruction and its consequences for families and businesses. It shows that:

  • The average wait time between committee approval and confirmation has leapt from 29 days for George W. Bush's circuit court nominees to an incredible 151 days for President Obama's.
  • For district court nominees, a 20-day wait for Bush's nominees has become a 103-day wait for Obama's.
  • Judicial vacancies have grown from 55 in 2009 to 91 today.
  • People are forced to wait an average of more than two years for a civil jury trial.
PFAW

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

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

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

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


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


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


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


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


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


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

PFAW

Rick Perry: Uniting the Really Far Right and the Really, Really Far Right

Cross-posted from the Huffington Post

Texas Gov. Rick Perry formally launched his presidential campaign last weekend, apparently hoping to upstage those competitors who were slugging it out in the Iowa Straw Poll. The event was won by Michele Bachmann, whose core supporters come from the same Religious Right-Tea Party crowd expected to be Perry's base. He may have just made it official, but in fact Perry has already been running hard. A week before his announcement, he solidified the devotion of Religious Right leaders and activists with a defiantly sectarian prayer rally sponsored by some of the country's most extreme promoters of religious and anti-gay bigotry. His financial backers began hitting up donors a while ago.

Perry is hoping to take advantage of a relative lack of enthusiasm for the current Republican field and its erstwhile front-runners. His potential to upset the field is reflected in the fact that he was polling in the double-digits before even entering the race, drawing far more support than candidates like Newt Gingrich and Rick Santorum who have seemingly been running for years. Ed Kilgore at The New Republic wrote recently that Perry has become "the unity candidate of the GOP" because he "seems to perfectly embody the Republican zeitgeist of the moment, appealing equally to the GOP's Tea Party, Christian Right, and establishment factions while exemplifying the militant anti-Obama attitude that holds it all together." Perry does indeed draw support from both establishment and far-right Republicans: last year, prizes offered by his election campaign included lunch with GOP strategist Karl Rove and a spiritual tour of the U.S. Capitol with right-wing pseudo-historian David Barton.

The Religious Right

Perry's love affair with even the most extreme elements of the Religious Right is a long-term relationship that started years before the recent prayer rally. Over the years, Perry has persistently backed the efforts of Religious Right activists on the Texas school board to use the textbook selection process to impose right-wing religious and political ideology on science and history textbooks. He has shown little respect for the separation of church and state and has worked to further restrict access to abortion in the state.

His reelection campaigns have relied heavily on church-based organizing and networks of far-right evangelical pastors mobilized by the likes of self-described "Christocrat" Rick Scarborough. According to the Texas Freedom Network, Between May 2005 and October 2008 the Texas Restoration Project held eight pastors' policy briefings. Part of Perry's invitation to the October 2008 event said:

While Congress occupies its time trying to legislate defeat in Iraq, we hope you will attend a Pastors Policy Briefing that will equip you to walk point in the war of values and ideas.

Rediscovering God in America -- Austin is intended to remind us that excuses are not the proper strategy when facing evil and confronting enemies. Instead, we must rally godly people and seek God's provision for the resources, the courage, and the strength necessary to win and, ultimately, glorify Him.

In 2009, he participated in a closed-door session with Texas pastors sponsored by the U.S. Pastor Council, and hosted a state prayer breakfast that featured Gary Bauer as the keynote speaker. And last year, he was visited by a group of pastors associated with the dominionist New Apostolic Reformation, who told him that God had chosen him for bigger things; they were among the leaders of last weekend's "Response."

The Response itself was called by Perry but sponsored and paid for by the American Family Association, which has been designated a hate group by the Southern Poverty Law Center for its pattern or spreading false and denigrating information about gay people, and which promotes some of the ugliest bigotry spewed on the nation's airwaves. Among the extremist co-sponsors and speakers at The Response were dominionist Mike Bickle, who has said that Oprah is a harbinger of the anti-Christ, and pseudo-historian David Barton, who claims that Jesus opposed progressive taxes, the minimum wage, and collective bargaining by unions.

The Tea Party Right

Perry also seamlessly blends the Tea Party's anti-Washington fervor with the Religious Right's Christian-nation vision. Last year, at an event sponsored by the Texas Eagle Forum, Perry said the November 2010 elections were "a struggle for the heart and soul of our nation." Said Perry, "That's the question: Who do you worship? Do you believe in the primacy of unrestrained federal government? Or do you worship the God of the universe, placing our trust in him?"

If it seems remarkable and contradictory that Perry would seek the presidency so soon after speculating on the benefits of seceding from the union "if Washington continues to thumb its nose at the American people," it is no less contradictory than Perry promoting his anti-Washington book, "Fed Up: Our Fight to Save America from Washington," while repeatedly requesting federal emergency assistance to fight wildfires that have raged in Texas this year.

The Economic Right

Perry is almost certain to make jobs -- and his claims that Texas' low-tax, low-regulation, low-wage environment would be good for what ails America -- a centerpiece of his campaign. In fact he has been publicly praying about regulations that he says stifle business and jobs. That vision will almost certainly make Perry popular among the corporate funders that are increasingly funneling money into Republican campaigns in the wake of the Supreme Court's Citizens United decision that corporations have the same rights as citizens to influence elections.

Perry's economic policies may be good for corporate profits, but they aren't much of an economic model for the rest of us. Nobel Prize-winning economist and New York Times columnist Paul Krugman wrote earlier this year:

Texas is where the modern conservative theory of budgeting -- the belief that you should never raise taxes under any circumstances, that you can always balance the budget by cutting wasteful spending -- has been implemented most completely. If the theory can't make it there, it can't make it anywhere.

Debt owed by the state of Texas has doubled during Perry's tenure as governor; the state's per-capita debt is worse than California's. And this year, Texas lawmakers wrestled with a budget shortfall that Associated Press called "one of the worst in the nation." Perry's budget relied heavily on federal stimulus funds to plug a massive 2010 budget deficit. The budget finally passed this year cut some $4 billion out of state support for public education and is expected to result in tens of thousands of teacher layoffs.

Meanwhile, Texas ranks at or near the bottom of many indicators of individual and community health. It is worst in the country in the percentage of children with health insurance and pregnant women receiving early prenatal care. It has the highest percentage of workers earning at or below the minimum wage. It has the lowest percentage of adults with a high school diploma. It is worst for known carcinogens released into the air and among the worst for toxic pollution overall.

The Right Online

Perry has sometimes adopted the Sarah Palin approach to media. According to the conservative Daily Caller, Perry declined to meet with newspaper editorial boards during his primary race against Sen. Kay Bailey Hutchison, but "went out of his way to make himself available to conservative bloggers." The Caller's Matt Lewis predicts that "a large percentage of conservative bloggers for sites like RedState.com" will "jump on the Perry bandwagon."

Perry the Prevaricator Perry statements have received no fewer than seven "pants on fire" ratings from Politifact Texas; he earned those awards for repeated false statements about his policies and his political opponents. Of 67 Perry statements reviewed by Politifact, 14 were declared false in addition to the seven "pants on fire" lies -- while another 10 were rated "mostly false." Only 17 were considered true (10) or mostly true (7), with 19 called "half true."

Perry and the Republican Party

If Rick Perry does indeed become the Republican "unity candidate," that will be further evidence that the GOP has become the party of, by, and for the far right -- a party that has abandoned any credible claim to representing the economic interests or constitutional values embraced by most Americans.

PFAW

ALEC maintains its secrecy with hypocritical media policy

As the American Legislative Exchange Council wraps up its summer conference in New Orleans this week, and the group maintains its usual modus operandi: presenting legislators with pre-written bills designed to increase corporate profits – in secret – then sitting back and watching elected officials enact those bills into law.

Earlier this week, PFAW teamed up with other progressive allies to hold a press conference across the street from the ALEC convention and highlight the negative affects that ALEC-sponsored legislation has on real Americans. Yet it would have been nice to have a first-hand account of what was happening inside.

Eric Carlson, a journalist with the Center for Media and Democracy, tried to gain access to ALEC’s events, but was repeatedly kicked out and threatened with arrest, even though the CMD did not violate ALEC’s press guidelines. According to Carlson,

After filling out my registration form to receive press credentials, I was told by an alarmed ALEC intern to wait while she fetched her boss. While I did not think she had ever heard my name, the look on her face made me think that perhaps she had heard of our new project ALEC Exposed.org. A very stern looking gentleman -- Ted Wagnon of Vox Global Communications -- arrived and told me my application would be denied on the grounds that the Center for Media and Democracy was an "advocacy organization." I asked Wagnon for a written explanation, and he handed me ALEC's Media Policy, which bears no mention of "advocacy organizations." Instead, news outlets funded by a "think-tank, political party, lobbying organization, trade association, or corporation" are forbidden from registering. CMD complies with this criteria even though most media outlets (owned by major corporations) do not…

Marriott security guards swarmed to where I was standing, demanding again that I leave the hotel or "face arrest." I escaped before they could follow through on their other promise of taking my picture for their permanent records. My only comfort? Al Jazeera English was also denied credentials on the grounds that ALEC was not an “international” conference -- even though it has an International Relations Task Force whose priority results in the offshoring of U.S. jobs and even though international politicians were addressing the conference.

You can read the rest of Carlson’s account here.

PFAW

Wisconsin News Round-Up, 8/5

News from Wisconsin:

  • Election Day is only four days away, but there’s still a long road ahead. RNC Chair Reince Priebus, in a spectacular failure of expectations management, said Friday that the RNC is “all in” on the Wisconsin recalls, and that they’re “not nervous” about winning the elections. I’m not sure I believe him, especially as his position has now shifted to “nothing to see here, move along please”, telling reporters these are local races and there's no national significance to the recalls. That would be why the Republican National Committee that Priebus chairs is pouring money into the race, right? He might be on to something, though: regardless of the outcome of the elections, the people have already won by shining a light on the plight of working people and the dangerous policies of Walker’s right-wing agenda. Still, with We Are Wisconsin announcing they have contacted one million voters, and absentee voting at “near record pace” in some areas, I think Priebus has reason to be nervous. Even Dan Kapanke seems to agree, with the Pierce County Herald reporting that Kapanke said Republicans better hope public employees sleep through Election Day. Except it’s not just public employees he has to worry about: it’s seniors, students and ordinary working families across Wisconsin who have been damaged by Walker’s policies, and unfortunately for Kapanke, I think they already woke up.
  • Still, that doesn’t mean the radical Right isn’t fighting with all they’ve got (which is a lot) to win this thing, and they’re not playing by the rules, either. Americans For Prosperity, a Koch brothers front group which has already funded Walker’s campaign against Wisconsinites, is sending out absentee ballots with false information on them, telling voters to return their ballots after election day, to a non-government address used by other right-wing groups in the past. Stay classy!
  • Last week, we learned that Kim Simac thinks our public schools have similarities to schools under the Nazi regime. This week she’s clarifying those comments, by telling us our public schools have similarities to Nazi schools. Asked about her comments, she told WPR that she’s “not worried that we're going that way, absolutely not”, but then went on talk about “similarities that seem to happen”, concluding that this isn’t “a conversation that I should hide from.” Please, Kim, let’s keep talking about our Nazi schools. It’s not like there’s an economy that needs fixing or anything.
  • Alberta Darling is still managing to surprise us with her detachment from reality: she thinks people who earn over $250,000 “aren’t wealthy people” and thus deserve a tax break, while working families continue to struggle with the consequences of Walker’s massive cuts. By the way, the median household income in Wisconsin is less than one-fifth of that at $49,994 (which means half the households in Wisconsin earn less than that). About 2% of Americans, and 3% of small businesses for that matter, make more than $250,000 a year.
  • In other news, the “chokehold” incident between Justice David Prosser and Justice Ann Bradley is facing further investigation, with the Dane County District Attorney asking that a special prosecutor be appointed.
  • On Monday, the State Senate approved the one-week waiting period for unemployment benefits, with Assembly Republicans supporting the bill because it saves the state money- despite the reality that unemployment benefits are one of the best forms of stimulus, generating a return to the economy of $1.64 for every $1 spent. But Republicans don’t really care about the economic crisis’ impact on ordinary people, as long as their friends in the top 2% get their tax break. Welcome to Scott Walker’s Wisconsin.
PFAW

The Slow Pace of Diversity in the Courts

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.
 

PFAW

Wisconsin News Round-Up, 8/2

More news from Wisconsin:

  • Election Day is only a week away, but there’s still a long road ahead. RNC Chair Reince Priebus, in a spectacular failure of expectations management, said Friday that the RNC is “all in” on the Wisconsin recalls, and that they’re “not nervous” about winning the elections. I’m not sure I believe him. With We Are Wisconsin announcing they have contacted one million voters, and absentee voting at “near record pace” in some areas, I think Priebus has plenty of reason to be nervous. Even Dan Kapanke seems to agree, with the Pierce County Herald reporting that Kapanke said Republicans better hope public employees sleep through Election Day. Except it’s not just public employees he has to worry about: it’s seniors, students and ordinary working families across Wisconsin who have been damaged by Walker’s policies, and unfortunately for Kapanke, I think they already woke up.
  • Still, that doesn’t mean the radical Right isn’t fighting with all they’ve got (which is a lot) to win this thing, and they’re not playing by the rules, either. Americans For Prosperity, a Koch brothers front group which has already funded Walker’s campaign against Wisconsinites, is sending out absentee ballots with false information on them, telling voters to return their ballots after election day, to a fake address used by other right-wing groups in the past. Stay classy!
  • Alberta Darling is still managing to surprise us with her detachment from reality: she thinks people who earn over $250,000 “aren’t wealthy people” and thus deserve a tax break, while working families continue to struggle with the consequences of Walker’s massive cuts. By the way, the median household income in Wisconsin is less than one-fifth of that at $49,994 (which means half the households in Wisconsin earn less than that). About 2% of Americans, and 3% of small businesses for that matter, make more than $250,000 a year.
  • In other news, the “chokehold” incident between Justice David Prosser and Justice Ann Bradley is facing further investigation, with the Dane County District Attorney asking that a special prosecutor be appointed. Yesterday, the State Senate approved the one-week waiting period for unemployment benefits, with Assembly Republicans supporting the bill because it saves the state money- despite the reality that unemployment benefits are one of the best forms of stimulus, generating a return to the economy of $1.64 for every $1 spent. But Republicans don’t really care about the economic crisis’ impact on ordinary people, as long as their friends in the top 2% get their tax break. Welcome to Scott Walker’s Wisconsin.  
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Another Dirty Trick in Wisconsin? AFP Sends Out Absentee Ballot Applications with Wrong Return Date

This one is particularly shameless:

Americans for Prosperity is sending absentee ballots to Democrats in at least two Wisconsin state Senate recall districts with instructions to return the paperwork after the election date.

The fliers, obtained by POLITICO, ask solidly Democratic voters to return ballots for the Aug. 9 election to the city clerk "before Aug. 11."

A Democrat on the ground in Wisconsin said the fliers were discovered to be hitting doors in District 2 and District 10 over the weekend.

"These are people who are our 1's in the voterfile who we already knew. They ain't AFP members, that's for damn sure," the source said.

If this is true, AFP will be only the latest right-wing organization to try to influence the outcome of Wisconsin’s recall elections by tricking the other side into not voting. But AFP is no unknown fringe group – backed by the influential and well-connected Koch brothers, the group spent millions of dollars last year running often-misleading ads in contentious congressional districts

AFP’s alleged absentee-ballot trick comes as the Wisconsin GOP is attempting to use statutory means to keep low-income people, youth and seniors from accessing the ballot. The state’s Republican legislature and governor have passed a Voter ID bill that will require voters to present government ID at the polls, setting up a hurdle for the 175,000 seniors and many students and low-income people who don’t have the proper documents. Gov. Scott Walker then moved to close DMV offices – where those without IDs could obtain them for a fee -- in several heavily-Democratic areas.

The Right likes to harp on the dangers of “voter fraud” – individuals going to great lengths to vote in the wrong districts, an exceptionally rare occurance. But the bigger problem has always been voter suppression, or systematically keeping large groups of people from accessing the ballot box. Rather than passing unnecessary Voter ID laws that keep traditionally disenfranchised people from voting, states would be better off making sure there are stringent laws against the kind of unethical and undemocratic behavior AFP is allegedly engaging in. Those who conspire to prevent Americans from exercising their constitutional right to vote should be held fully accountable.
 

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Stephen Colbert Takes On Repressive Voter ID Laws

Earlier this week Omari told us about Stephen Colbert's excellent "It Gets Better" video, in which Colbert dropped his hyper-conservative character and adopted a more serious approach to give teens advice on bullying. Today we have another example of his brilliance in more familiar Colbert style: a blistering take-down of voter ID laws passed by several states this year, which he correctly characterizes as laws designed to "keep the wrong people from voting." 

This segment from his show on Wednesday does a great job of pointing out the ridiculousness of saying there is in any way a significant problem with voter fraud in these states. Colbert cites the case of Ohio, where there were four instances of fraud documented last year, amounting to "a jaw-dropping 44 one-millionths of one percent" of all votes cast. As Colbert puts it, these laws seem to be aimed at "an enemy so small it could be hiding anywhere!" Colbert also points out the troubling impact these laws will have on voters: in South Carolina, 178,000 voters do not have the government-issued photo ID now needed to vote.

These laws are an egregious example of the radical right attempting to tip the rules of the game in their favor by violating the rights of citizens, and creating a false narrative of a voter fraud epidemic that simply doesn't exist.

 

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Can Muslim-Bashing Win Votes?

In Mother Jones, Stephan Salisbury argues that anti-Muslim race-baiting – popular among the Tea Party Right in 2010 – isn’t actually an effective tactic for winning elections. He looks at some of the most prominent congressional and gubernatorial candidates to hop on the anti-“Ground Zero Mosque” bandwagon and finds that most of them didn’t score enough political points to actually win their elections.

While prominent Muslim-bashers like Rep. Renee Ellmers and Rep. Allen West won seats in Congress, Salisbury points out, many others – including New York gubernatorial candidate Rick Lazio, Tennessee’s Ron Ramsey and Lou Ann Zelinick and Nevada’s Sharron Angle – couldn’t scare up enough Islamophobia to catapult them into elected office.


Of course, it’s encouraging that anti-Muslim scare tactics aren’t powerful enough to win general elections, or even Republican primaries, on their own. But looked at another way, Salisbury’s data is incredibly depressing. The kind of Islamophobic fear-mongering that was so pervasive in the 2010 elections is a variety of ugliness that had, until very recently, existed on the fringiest fringe of the Right. But, in 2010 that ugliness spread from fringe crusaders like Pamela Geller to long-shot Tea Party candidates looking to make a name for themselves to prominent figures on the American Right. The fight over the so-called “Ground Zero Mosque” brought dangerous anti-Muslim rhetoric into the mainstream – and many of those who repeated it were considered not fringe characters but serious contenders for office.

These outspoken anti-Muslim congressional and gubernatorial candidates, even the unsuccessful ones, helped create the echo chamber that made baseless Islamophobia the standard in Republican politics and the right-wing media.

Yes, it’s good news that the base that’s motivated by Islamophobic attacks is relatively small. But it’s stunning that those attacks are accepted in mainstream political discourse at all.

 

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More Than 50 Legal Academics Blast Obstruction of 7th Circuit Nomination

More and more Americans are fed up with freshman Senator Ron Johnson's single-handedly blocking the Senate from even considering the nomination of Victoria Nourse to Seventh Circuit Court of Appeals. Yesterday, the Milwaukee Journal-Sentinel reported that:

Johnson's decision to block the judicial nomination of a University of Wisconsin law professor has drawn a pointed letter of protest from a group of legal academics around the country.

Johnson has singlehandedly held up consideration of Victoria Nourse for the Seventh Circuit Court of Appeals, which reviews federal cases from Wisconsin, Illinois and Indiana.

"For a single senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin's merit-based selection system, blocking highly qualified nominees from a hearing and a vote," reads the letter to Senate Judiciary Chairman Patrick Leahy of Vermont and the panel's top Republican, Charles Grassley of Iowa. "The effect is an unbreakable one-person filibuster."

The professors say a "a nominee of sterling credentials who has served under both Republicans and Democrats" should not be subject to "unending delay." You can click here to see the letter and its 53 signatories, some of whom served under Republican presidents.

Indeed, the letter shows Nourse's support across the ideological spectrum. In addition to progressive legal scholars, signers also include conservatives like Randy Barnett (a senior fellow at the Cato Institute who has challenged the constitutionality of the healthcare reform law) and David Bernstein (author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform). The signers also include ten scholars from Wisconsin law schools. All agree that Nourse would make an excellent judge.

Nourse was originally nominated by President Obama more than a year ago after consultation with Wisconsin's two senators. Unfortunately, because of the unprecedented obstruction of qualified judicial nominees by Senate Republicans, Nourse was among the dozens of nominees who the Senate was prevented from considering before 2010 came to an end. President Obama renominated her in January, with the new Congress that now includes newly elected Senator Ron Johnson.

Johnson complains he should have been consulted before the renomination even though the appropriate consultation with Wisconsin's senators occurred when Nourse was originally nominated. Other states with new Republican senators have faced the same situation with the re-nominations of judicial nominees who were originally nominated last year. In every case but Wisconsin, the new Republican senator has allowed the nomination to go forward. Only Senator Johnson has refused.

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The Tea Party Constitution and the Debt Ceiling

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.
 

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A Milestone for Diversity on the Federal Bench

Today, the Senate confirmed J. Paul Oetken to be a federal judge in the Southern District of New York. He is the first openly gay man to be confirmed as an Article III judge (one with lifetime tenure).

In order for the federal judiciary to effectively protect our constitutional rights, the bench must reflect the diversity of America. That is not to say that demography determines how a judge will rule. But it is true that a person's background can give them insight into the effect of a law that others might miss. Ignorance of a law's actual impact can lead to a serious misanalysis of its constitutionality.

Some of the most notorious Supreme Court cases in history rest on such misunderstandings and show the results of a non-diverse bench. For instance, Plessey v. Ferguson, the 1896 case that upheld racial segregation, reflected the thinking of an advantaged class who had no real idea of how Jim Crow laws affected real people. The majority rejected out of hand

the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Similarly, Justice Scalia made headlines in 2009 when he angrily challenged the assertion that non-Christians might not see a Christian cross as a symbol of respect. While they may not have changed his mind, it was good that he had non-Christian colleagues who could have given him a sense of how people different from him are affected by the law. And perhaps the notorious 5-4 Bowers v. Hardwick opinion might have been different had there been an openly gay Justice there to tell his colleagues that their assumptions about "practicing homosexuals" were simply incorrect. Surely discussions of laws impacting women are improved by actually having women on hand to offer the benefit of their experience. And judges who have been stopped for "driving while black" may recognize the real-world impact of certain police practices that might seem relatively benign to others.

A richly diverse judiciary makes it more likely that judges will understand how their decisions will affect ordinary people, and that laws protecting individuals will actually be enforced as intended. President Obama's nomination of J. Paul Oetken is part of his overall efforts to significantly increase the diversity of the bench, an effort that has, unfortunately, been met with stubborn resistance by Senate Republicans.

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Judiciary Committee Republicans: More and More Delay

As People For the American Way has noted before, Senate Judiciary Committee Republicans have exercised their prerogative to delay committee consideration of every single one of President Obama's judicial nominees by at least one week, with only four exceptions. More than seventy of these nominees were confirmed without opposition.

Republicans have no good explanation for this. They are doing this simply to obstruct. The routine use of this hold, without cause and almost without exception, is unprecedented. It is part of a larger set of procedural roadblocks the Senate GOP uses to obstruct confirmation of qualified nominees whose only "fault" is that they were nominated by a Democratic president.

This morning, the Senate Judiciary Committee was scheduled to vote on the nominations of eleven judicial nominees, five of whom were scheduled for the first time. To the surprise of no one, they, too, fell victim to this form of partisan obstruction.

There is no reason that Republicans should have delayed committee consideration of Second Circuit Court nominee Christopher Droney or district court nominees Robert D. Mariani, Cathy Bissoon, Mark R. Hornak, and Robert N. Scola, Jr. All five appeared before the committee last month to answer questions. However, of the eight Republican members of the committee, only Ranking Member Grassley showed up for the hearing, where he spent just a few minutes asking questions of each nominee. Although all committee senators had an opportunity to ask follow-up questions in writing, no Republican but Senator Grassley did so.

So there really is no good reason for Senate Republicans to have exercised their prerogative to hold the vote over by a week for any of these nominees. But Republican obstructionism has become the rule: Highly qualified judicial nominees are blocked solely because they were nominated by a Democratic president.

Committee Republicans should be asked what exactly they need to learn about these nominees that they don't know already ... and, if they have questions, why they chose not to avail themselves of the many opportunities they have had to ask them.

More importantly, they should be asked why they are actively sabotaging the confirmation process when there are judicial crises all around the country. Americans need access to the courts, not partisan mudfights.

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ALEC’s Elections Agenda

Justin wrote earlier today about the trove of model legislation from the American Legislative Exchange Council (ALEC) that the Center for Media and Democracy released today. ALEC, which is funded largely by corporate interests, is a driving force behind a whole lot of state-level legislation that helps out big business at the expense of individual citizens – legislation that curtails workers’ rights, undercuts public education and other essential government services and, most importantly, and big tax breaks to corporations and the wealthy.

The agenda that ALEC helps to spread to state legislatures doesn’t just help give the group’s corporate funders a leg up – it also helps them keep American voters from wresting away any power they have in the electoral process.

The Nation’s John Nichols went through the ALEC legislation and found not only model Voter ID language – variations of which have been introduced in 33 states this year -- but various attempts to keep voters from imposing campaign finance limits:

Beyond barriers to voting, ALEC is also committed to building barriers to direct democracy. Horrified by the success of living-wage referendums and other projects that have allowed voters to enact protections for workers and regulations for businesses, ALEC’s corporate sponsors have pushed to toughen the rules for voter initiatives. “The legislative process should be the principal policy-making vehicle for developing state law,” declares one 2006 resolution, which specifically mentions concerns about state minimum wage laws, taxation and “the funding of other government programs and services.” ALEC’s Resolution to Reform the Ballot Initiatives Process recommends making it harder to qualify referendum language and suggests that proposals on fiscal issues should require supermajorities to become law.

ALEC is also determined to ensure that citizens do not have the final say on who is elected president, an agenda outlined in such documents as its Resolution in Support of the Electoral College and its ardent opposition to the National Popular Vote project (which it has warned would “nationalize elections and unravel Federalism”). A related resolution encourages state legislatures to formally complain that an interstate compact to defer to the popular will “would allow a candidate with a plurality—however small—to become President.” While ALEC worries about the candidate with the most votes winning, it has no problem with policies that increase the likelihood that the candidate with the most money and corporate support will prevail. Its 2009 Resolution Supporting Citizen Involvement in Elections bluntly “opposes all efforts to limit [citizen] involvement by limiting campaign contributions.” A resolution approved last year expresses support for the Supreme Court’s Citizens United ruling. ALEC even opposes moves to give shareholders a say in the expenditure of corporate funds on campaigning. At the same time, ALEC urges legislators to fight the “federal takeover” of state election procedures, objecting in particular to universal standards for voting procedures.

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