Is SCOTUS Preparing A Third Strike Against The Executive?

Arguably, Citizens United was the first strike, using the First Amendment free-speech clause to remove virtually all limits on political campaign contributions by corporations. It seems a strange ruling to me, in that it grants free-speech rights to virtual persons that can live forever and often have and can spend more money than any living human individual.

The second strike was Burwell v. Hobby Lobby, another odd bird that effectively grants First Amendment freedom of religion to corporations, allowing them to impose the corporate owner's religious constraints on medical insurance benefits offered to employees, e.g., refusing to cover the cost of abortion.

And now the apparent third strike: the Court appears to be taking direct aim at the constitutionally listed powers of the Executive branch. As Tierney Sneed at TPM states the matter:

It was not unexpected that the Supreme Court took up a case Tuesday challenging the Obama administration's executive actions on immigration. But it was somewhat of a surprise that in doing so, the court asked to be briefed on whether the memo outlining the administration's policy “violates the Take Care Clause of the Constitution” -- a question which was not addressed directly in lower court decisions and not among those the U.S. government included in its petition.

...

The surprise is not that the Supreme Court is a political entity; that was true of the very first Supreme Court seated. If there is a surprise, it is that today's Court (possibly influenced by Chief Justice John Roberts) is requesting from trial courts (or other lower courts whose cases SCOTUS ultimately hears on appeal) information on issues not introduced by either side at trial or on appeal, issues to allow archconservative Roberts & Co. to set particular precedents they desire on issues never raised in trial or earlier appeals.

Our nation's founders framed the Judiciary as the weakest branch among the three. The Judiciary, starting immediately with John Marshall, set about rectifying that disparity. Today the Roberts Court, by applying all kinds of powers assumed over the centuries, as well as a few tricks the founders never imagined, can be, when it wishes, vastly more powerful than the Congress or the President. I am quite certain that if a Republican takes the presidency this year, the Roberts Court will find and hear some case that allows them to remove the hobbles they have been placing and continue to place on Executive branch power while Obama is president.

Do these rulings serve the cause of justice? C'mon, gimme a break...

President Carter On American Government Today

Interviewed by Thom Hartmann (YouTube), the venerable former President Jimmy Carter has something to say about the nature of American government today:

... It [the extreme role of money in politics since the Citizens United ruling - SB] violates the essence of what makes America a great country, in its political system. Now it's just an oligarchy with unlimited political bribery being the essence of getting the nominations for president or elected president. And the same thing applies to governors and US senators and Congressmembers. So now we've just seen a complete subversion of our political system as a payoff to major contributors, who want and expect and sometimes get, uh, favors for themselves after the election's over. ...

Please, readers, be sure to listen to the entire interview. And to Mr. Carter: you go, Mr. President! (We all should exhibit such crystal clarity at age 90. Carter was not the greatest president, but he was probably the most honest one since Honest Abe...)

(H/T Sara Jerde at TPM.)

Goodwin And Clements: Supreme Court Egregiously Wrong, Time To End Citizens United

When the Supreme Court's Citizens United ruling emerged in 2010, once I understood it, the next words out of my mouth suggested a course of action that was impolite, illegal, immoral, probably painful, possibly anatomically impossible and... worst of all... completely ineffective.

So I didn't follow my own advice. From that day to this, I have contemplated a simple question: what is the least draconian action that will accomplish a reversal of Citizens United's utter gutting of campaign finance reform laws in America and in each state?

The Roberts Citizens United Amendment

Today I reached a tipping point when I read an article by historian Doris Kearns Goodwin and attorney Jeff Clements (found via the indispensable Bill Moyers) titled "When the Supreme Court is this wrong, it’s time to overrule them". Yes, they are indeed "this wrong," and the only way to overrule them... it appears John Roberts did his homework... is with a constitutional amendment.

I am no fan of new constitutional amendments in general. The only one I've ever (sigh!) actively supported is the Equal Rights Amendment, and it was killed by the goddamn conservatives, so my blessing on an amendment may well be a kind of curse.

There are at least three significant points weighing against a constitutional amendment:

• First, someone may use one essential amendment (such as this one) as an excuse to call another constitutional convention, which would open the floor to every motherloving nutjob's wet dream of wholly destructive rewrites of large portions of the Constitution. 
• Second, assuming the debate can be confined to the single required amendment (not easy in America's legislative system), the amendment as ultimately crafted may be ineffectual in remedying the real problem. I've seen some of the proposed campaign finance reform amendments; frankly, I could probably write a better one than most I've seen, and IANAL. Note also what at least one of our major political parties has managed to do already to skirt existing campaign finance laws; they're damned good at it, and I doubt the ratification of an amendment will stop their attempts.
• Third, the amendment may fail to be ratified, again a very real possibility given that at least one and perhaps both of our major political parties will surely oppose it. If it fails, Citizens United will be affirmed, locked in, as you can only imagine in your worst nightmares. As things stand, there's at least some hope that a future Court will overturn the ruling, though I doubt that, under a government of the 1%, by the 1% and for the 1%.

That said, I see no alternative: America must attempt a campaign finance reform amendment. As Goodwin and Clements point out, it's not the first time in our history that a constitutional amendment has addressed a divisive issue that could be solved by nothing less than such an amendment... remember the 19^th, for example?

So... put me on record as supporting a well-crafted campaign finance reform constitutional amendment. I'll get back to you on specifics... (sigh!).

In Case You Had Forgotten, Bill Moyers And Two Legal Scholars Explain How Citizens United Allows Corp's To Buy Elections

The video below appears originally as the first video on this page. Please watch Bill Moyers interviewing Monica Youn, an attorney at the Brennan Center for Justice, and Zephyr Teachout, a professor at Fordham School of Law, on the direct and indirect consequences of Citizens United:

If we want to preserve any semblance of democracy in America, we must find a way to rid ourselves of that execrable Supreme Court ruling. Otherwise the Golden Rule applies ("those who have the gold make the rules"), and we the people (except for the very wealthy) will have no participatory role in our government, and our flag may as well look like this:

I understand Sen. Bernie Sanders (I-VT) has a good campaign underway to rid us of Citizens United; perhaps you can join his effort. If that doesn't suit you, please find something, or prepare to lose your democracy.

Citizens United And Coordination Between Candidate Campaigns And Outside Issue Groups: Results Are Proving As Bad As Opponents Predicted

No, said Justice Kennedy, writing the Supreme Court's opinion in Citizens United: notwithstanding the ruling's opponents, independent issue-advocacy groups will be legally prevented from coordinating their expenditures with candidates' official campaigns, so there will be no "corruption or the appearance of corruption."

That was in 2010; now, in 2014, it isn't turning out that way at all. Take, for example, Gov. Scott Walker of Wisconsin, as described in a NYT editorial:

In the years since that disastrous opinion, politicians around the country have set out to prove Justice Kennedy wrong by stealthily working with the “independent” groups that raise money on their behalf. The latest to get caught doing so is Gov. Scott Walker, Republican of Wisconsin. According to state prosecutors, he was at the helm of a broad and illegal fund-raising effort that involved coordinating with outside spending groups and even controlling them.

No intelligent person living in the politically extreme real world of today's America could have failed to predict this, and worse. Look at the GOP: their attitude on this matter is "anything we can get away with surely must be legal" and "if we can delay the resolution of any legal action brought against us long enough, the election will be a moot point, and we will have won." Democrats may be slow to follow, but believe me, if this ruling stands, they'll get there... and then our elections will be wholly owned.

Our nation's founders would without a doubt have fought a revolution against such a provocation. Given today's military options available to the party in power, from drones to extreme crowd control devices and techniques, a revolution just isn't going to happen, and that's just as well, if we can resolve the matter without one. But steps must be taken to disarm Citizens United... or we shall have no government "of the people," let alone by or for those people.

I know Obama's attitude seems to be "can't we just all get along?" But in the case of Citizens United, the answer is an emphatic NO. There's no time like the present to start shutting down this truly evil Supreme Court ruling.

Supreme Court Rules 5-4 In McCutcheon v. FEC In Favor of GOP Golden Rule: "Who Has The Gold, Makes The Rules," Or "One Buck, One Vote"

Please read these two articles by Sahil Kapur at TPM:

• Supreme Court Deals Another Blow To Campaign Finance Limits
• Blistering Dissent: SCOTUS Ruling 'Devastates' Campaign Finance Laws

You can read the particulars and quotes from the sententious majority decision and the outraged minority dissent better in Kapur's summaries than I could explain them to you, but the short version is this: our days as a representative democracy are numbered, if indeed we ever had any such days in reality, and congressional seats, not to mention the presidency, effectively go to the highest bidder from now on. The Supreme Court, while retaining individual limits per campaign, proclaimed aggregate limits contrary to the First Amendment and removed them, so that the few remaining scraps of campaign finance regulation left after the ruling in Citizens United are now gone.

It was fun while it lasted. But America now faces a challenge to its founding principles not less than the one posed by the Civil War, reconstruction, two world wars and the Great Depression. Will we overcome these threats to democracy? We can, but only by facing down the meanest, coldest rich-assed sumbitches that ever lived here and fighting them on their own turf, by their own rules.

Have a nice day!

---

ADDENDUM: CREDO Action provides Mr. Justice Scalia with a new robe in honor of the occasion:

Young People Turning Dem? (Yawn...)

According to Catherine Thompson at TPM,

...

A Gallup poll released Friday found that over the last eight years the average gap in favor of the Democratic Party among young adults has been 18 percentage points. Last year 53 percent of young Americans identified with the Democratic Party or said they leaned Democratic while 35 percent aligned themselves with the Republican Party, Gallup said.

The poll cites the racial and ethnic diversity of today's young adults as a major reason youth are likely to prefer the Democratic Party.

...

A decade or two ago such news would have filled me with hope for America's future. Today? not so much. What, if anything, gives you hope? Today, as an American, nothing political gives me any hope. What can possibly overcome the corporate contributions to both parties, which, according to OpenSecrets.org (Center for Responsive Politics), turned approximately equal, Dem=GOP, in 2008 and more to Democrats, Dem>GOP, in 2010?

And it isn't going to get any better, unless somehow the Citizens United decision is overturned by constitutional amendment, an event I do not foresee within my lifetime, if ever.

Have a nice day!

How American Government's Presumption Of Good Faith Among Opposing Parties May Yet Be Its Downfall

Sahil Kapur of TPM wrote the post that drove me to that thought:

This Supreme Court Case Could Upend The Separation Of Powers

Sahil Kapur – January 10, 2014, 6:00 AM EST

The Supreme Court is scheduled to hear oral arguments on Monday in a case with potentially dramatic long-term implications for the balance of power between the executive and legislative branches.

The legal question is whether the president may temporarily appoint people to staff executive branch agencies when Congress is not conducting business but also not technically in recess -- known as pro forma sessions. Noel Canning, a business based in Washington State, claims that actions taken against it by the National Labor Relations Board (NRLB) are invalid because they relied on the decisions of recess appointees to the board who were put in place during pro forma sessions.

A decision against the Obama administration "would overturn the long-settled understanding of the Recess Appointments Clause, upsetting the equilibrium between the political branches created by our Constitution's framers," said Elizabeth Wydra, the chief counsel for the Constitutional Accountability Center, a liberal legal advocacy group.

Wydra called the lawsuit "ahistorical and myopic."

...

It is a sign of the times we live in that a decision preserving the historical interpretation of a clause in the Constitution could be advocated by a "liberal legal advocacy group," while supposedly "conservative" elements propose to overturn that traditional interpretation. "War is peace. Freedom is slavery. Ignorance is strength" ... to which I suppose we may now add, "radicalism is conservatism."

Will this dog hunt?

US Supreme Court, 2013

There is an apparent assumption implicit in the crafting of America's Constitution that all parties are good-faith advocates for their positions and willing to abide by the legitimate result of the legal process. But in the American body politic, there is a kind of person who spends all of his (or occasionally her) efforts in attempts to game the system, sometimes with the apparent intention of tossing a spanner in the works. Unfortunately, some members of our current Supreme Court seem hellbent on assisting those individuals in matters of American government. For example, who would ever have thought up the chain of "reasoning" in Citizens United, were it not for Chief Justice John Roberts's hostility toward the framework of American government as observed by pretty much the whole political spectrum in America... until now?

Prior to the Roberts Court, prior to Citizens United, I'd have felt more confidence that such a decision as Noel Canning is seeking here would be outside the pale. But that was then, and this is now. Yes, this dog may hunt, the Roberts Court may be the hunter, and President Obama may be the prey it pursues.

Will Supreme Court Create A 'Citizens United' Allowing Corporations To Circumvent Obamacare Birth Control Mandate, Claiming Religious Freedom?

Does a corporation resemble an individual human being in having protected freedom of speech, including freedom to make effectively unlimited campaign contributions? In Citizens United v. FEC, the Supreme Court ruled in effect that yes, corporations do have free-speech rights.

How far does this concept go? Does a corporation have freedom of religion, the religion of course being that of the owner, including the freedom to refuse to comply with the birth control mandate in the Affordable Care Act? A divided D.C. Circuit Court of Appeals ruled earlier in this month that corporations do have such a right (The Hill's Regwatch blog has a good summary; Kaiser Health News has links to many articles about the ruling).

♱♱♱♱♱♱♱♱♱

Which one has a religion?

♱♱♱♱♱♱♱♱♱

Today, the Supreme Court hears the case. I don't mean to sound cynical, but I think I know how that will come out.

Back in the Saint Ronald Reagan era, before federal courts including the Supreme Court became so thoroughly dominated by men (sic) nominated by Republican presidents, conservative friends and colleagues (I actually had a couple of conservative friends back then) complained about something they called "agenda‑based adjudication," a process by which courts ruled in ways that allegedly favored a particular (Democratic) political agenda. It was never clear that that actually took place, but that was the allegation.

Today, there is no room for doubt that agenda‑based adjudication is as real as any other basis on which controversial issues are decided in the Supreme Court. At some point, by the look of it, not only will corporations have the rights of individuals, but only corporations will have such rights. It's a truly sorry trend.

---

UPDATE: according to Lyle Denniston at SCOTUSblog, "The Court did not expedite the briefing schedules for the new cases, so presumably they will be heard in March."

AFTERTHOUGHT: Shouldn't the six (6) Catholics on the nine‑member Supreme Court all recuse themselves, as every one of them has presumably the same religious aversion to contraception as the plaintiff?

Is Paul Ryan Bought, Paid For And Wholly Owned By The Kochs, Adelson, Etc.?

rafflaw at Jonathan Turley has found some evidence that the Kochs in particular and the highly questionable Sheldon Adelson have committed truly big bucks (perhaps $100 million from the Kochs) to super PACs supporting the Rmoney campaign... explicitly but secretly in exchange for his nominating Paul Ryan for his vice presidential candidate. Ryan has a history of support by the Kochs, and his worse-than-Tea-Party politics are just about right for their extremist views. And the notion of buying a veep would not trouble them one bit. Nor would the notion trouble the Rmoney/Ryan ticket one bit. Please read rafflaw's documentation. Many of the comments are also worthwhile, give or take a couple of concern trolls.

ADDED: Do not think it does not matter because Ryan would "only" be vice president. When Rmoney's hypothetical presidency is over, who, more often than any other individual, wins the next presidency?

We may be about to watch as our democracy is sold to the highest bidder. I, for one, am not happy with that. "I know. But I do not approve. And I am not resigned."

DISCLOSE Act Fails

From SFGate, a hostile editorial (op-ed? not clear):

D.C. Democrats are pushing the Disclose Act again. Disclose stands for Democracy is Strengthened by Casting Light on Spending in Elections. The ACLU and National Right to Life Committee oppose this bill because they fear it would chill free speech. As far as the anti-abortion group is concerned, Disclose stands for "Deterring Independent Speech about Congress except by Labor Organizations and Selected Elites."

Sen. Sheldon Whitehouse, D-R.I., frames this year's bill, which failed to win a floor vote in the Senate on Monday, as a reform made necessary by the U.S. Supreme Court's 2010 decision to allow independent expenditure campaigns to spend unlimited money from corporations, plutocrats and unions.

...

For once, I find myself opposed to the ACLU position. If spending truly were speech, chilling campaign contributions by identifying contributors might have a chilling effect on free speech. But the Roberts Court notwithstanding, spending is not speech: inequalities in campaign spending are surely the most corrosive influence on actual free speech by natural humans (not corporate entities, and not PACs or SuperPACs) of any in the long history of campaign abuses. Historically, the party that spends the most money on advertising (usually negative advertising, but put that aside for now) is the party that wins a given office, and historically and at present, that party is almost certainly the GOP. What could be more inimical to free speech regarding a partisan contest than effectively unlimited "speech" (i.e., spending) by Republicans and severely limited "speech" (i.e., spending) by Democrats? They should have renamed the Citizens United decision the "GOP Victory Assurance" decision. However imperfect the DISCLOSE Act may be, the notion that we can merely do nothing about this inequity and yet continue to call ourselves a representative democracy is ludicrous.

I'll revisit this topic, but right now I have other responsibilities.