Political update for February, 2010

At last, a new spirit sweeps the land

You think no one is reading you except for a few reprobate friends and insomniacs who like to play Google's blog random search feature and are incredibly unlucky. And then . . .

I think it may just be possible, a year and a bit past the election, now that the inner partisan ("he's a Muslim," "she wants raped women to be punished," etc.) of some of the more moderate citizens on both sides have had time to calm down, that perhaps a glimmer of my message that too much power in the hands of one party is not a good thing has started to enter the public minds.

Not that this very unique. Can't be. What political notion is? So, why, you reasonably ask, do I even bring it up. Well, there's a reason for that - when I watch television, read the papers and surf the blogs on the web, and more importantly, read the comments to them, I really don't find a lot of people advocating it. Actually, that's an exaggeration. Let me rephrase that. I heard Joe Scarborough say it the other day on his show. That was the first time I've seen anyone publicly discuss it or suggest it or say it was generally a good idea, and I watch and read a lot more politics than the average bear. It seems that close to everyone with a political bone in their body is just positive that their side is always right and that the others need to perish from the political arena. I say, "that big talk's worth doodly-squat." (Josey Wales fans of the world unite).

Coming back to the real universe, where my only readers are in fact a handful of reprobate friends and some unlucky insomniacs, power sharing is more often what actually happened through the history of our imperfect, but resilient democracy. Power always goes back and forth between federalists and state power advocates, between conservatives and liberals, between Democrats and Republicans, and has very often been shared. It's better when it is, because the extremists, who often control the parties, are forced to compromise. Still, the excited multitudes now and then seem to think that when their candidate wins an election, especially the presidency, it's because everyone is starting to agree with them. I don't accept that this belief as human nature; it is cultural, and we don't have to do that.

Some people think that the reason a fairly unknown Republican state senator won the "Ted Kennedy" Senate seat in liberal Massachusetts is because the people are mad at the Democrat's handling of the health care bill. there is at least some polling support for this. Howard Dean somehow thinks it was because they were protesting the failure of health care reform (so illogical, even Chris Matthews laughed at him). Others think it was national security issues (i.e., the belief that Obama is weak on national security), but I think people are so used to the seemingly endless wars that an occasional limited terrorist attack has stopped having much meaning to them. Really, when you think about it, how upset were people at the murderous rampage on an Army base in Texas? Outside of the media, not a whole lot. I bet lots of people have already forgotten about it.

Some think it's because having seen Democrats in action, people realize that they must be stopped! No doubt, there's some truth to that, but it's also true, that having seen the Republicans in control, they realized that they needed to be stopped, and that's why we have a President Obama in the first place. I'd like to stop all of them. Good luck to me.

Sure, some conservatives, filled with adrenaline and testosterone now think that they are going to take over the country the way some liberals thought they were after Obama won. But, they are all wrong. Both parties, and I'm so glad to know this, are ideologically split themselves.

With the conservatives, there are those who want that ideological purity. No campaign funds unless you pass the litmus test. Many Republicans, including this time the often wacky Michael Steele (who not too long ago, I hate to admit, I thought was something special) reasonably thought it a terrible idea. Good thing for the Republicans because they would have lost much support now headed their way.

With the Democrats, there are the ideological baby step socialists (we had no choice - we had to take over the industry) and those who actually want capitalism to stick around, but think some regulation is not a bad idea.

So, why did the Massachusetts makeover occur. It's not like Virginia, which is a basically conservative state that went for Obama in reaction to Bush, but more like New Jersey. Massachusetts, after all, is probably the most liberal state in the country. It was this. People may not understand the health care bill (congress doesn't), and they may not know the law with respect to "enemy combatants," but, they saw the broad strokes of what went on with health care - it was that there was an issue critical to our country, which the majority handled by throwing their adversaries aside, and worse, tried to win by astonishing payoffs to Louisiana, Nebraska and Vermont. These were among the most openly corrupt acts of legislation ever perpetrated on the American people. It doesn't take a masters in poli-sci to see that and be repelled by what occurred. The independents and even some moderate liberals rebelled.

Plus, although I think the left misses the point on this - the "people" don't want commando fighters who come to our country to get treated like common criminals - not even common serial killers. They want them to be made military prisoners and kept until the fight is over or they are completely defanged, or tried in a military setting. I'm for a fair process to make sure that accused combatants are who we say they are, as plainly we make many mistakes, and not some poor snook in the wrong place, wrong time - particularly if they are in their own or an allied country. And, generally, we can tell the difference. After all, even a dog can tell the difference between being kicked and being stumbled over.

What really is beneficial to our country is compromise, civility and good faith, although real partisans tend to think doing that means losing everything and giving up all their values. In the end, it is not the conservatives or liberals who will win if the spirit of good faith persists. And for that point, I resort to quoting a late American judge with a wonderful name and with powers of eloquence far beyond mortal men, and who I am fond of quoting here (I think this is the third time - but I don't think people can read this enough):

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. Justice Learned Hand (1944).

And taking my tongue out of my cheek, do I really believe that people are starting to get it, to learn to question what they hear, to be cynical about their government, to figure out that just because someone says something that sounds good ("An interest rate below prime? Where do I sign."), doesn't mean it's good and sustainable.

You know what would be a better idea, Mr. President?

I find that President Obama is a likeable person. I thought GB was a likeable person. Not surprisingly, many liberals I know, personally despised Bush and many conservatives Obama. But, being likeable is almost a requirement for presidents these days, particularly when they are first campaigning. It is up there with proof of their religiosity in importance. You could make an argument that once someone passes the religion hurdle, if they aren't more likeable in their campaigns than their adversary, they aren't going to win - Carter over Ford (that one was close, but Carter was very well liked at first), the cheery Reagan over the more morose Carter and the grey Mondale, Bush I over the nerdish Dukakis, the emotive Clinton over Bush I and then Old Bob Dole, and then the congenial regular guy, Bush II over the stiff Gore and the dreary Kerry. Finally, Obama over Hillary and then McCain, the latter of whom seemed to drain himself of his natural charm and popularity once he won his party's nomination.

And, when Obama went to speak with the Republican congress last week, his likeability was in evidence. He was smiling, measured and sounded reasonable, and even in lecturing Republicans on not being partisan, would occasionally point the finger at his own side. And, while there was much I agreed with in what he said in general, there was one glaring weakness to it.

It would have been a better idea if he was lecturing his own side, as they still have the majority of power in the two more powerful branches of government. It would have been more dramatic; he would have gathered more respect from Republicans; and he could have done it on tv too. Don't lecture the adversary on the faults they share with your own team. What for? They'll be polite and then go fight their battles the same way as before. For Obama's problems has never so much been Boehner and McConnell, but Reid and Pelosi. And just so you don't think I am just following the consensus right now, I posted the following a few days after the election:

This is already the big question -- will he govern from the center or left? The real battle here is not conservative versus liberal. The conservatives will do what all parties out of power do, make nuisances of themselves as best they can. That’s to be expected. Any conservative not expecting a liberal administration can start screaming now. The real fight for Obama is between him and Pelosi and Reid.

Right now, Obama is not winning. There's only so much he can do without congress. If he isn't an ideologue as he claims; if he is a centrist, let's see him be a leader and rescue this administration, his chances for re-election, and his legacy from disaster. But, he's got to talk to his own side about it.

Citizens United v. FEC

Here we go again. Another 5-4 decision for the ideologically split Supreme Court. My interest in it started when a predominantly liberal friend emailed me last week to lambaste the court for an ideological and evil decision. Actually, I have only two quarrels with my friend. He thinks the world is 99% fraudulent, and I think it is 70% fraudulent. He thinks it is just the right and I think it is both sides.

I have some problems with the decision. As usual, when I cover a voluminous Supreme Court decision, I can't go over it in depth, because those readers who make the effort to get to the end of my absurdly lengthy posts deserve a break. But, I will make a few comments.

The plaintiff was a corporation that wanted to have the movie it made on Hillary Clinton, one of the candidates in the 2008 primaries, be available on an "on demand" basis on cable television. In other words, the customer had to ask for it. The question was, was making it available a violation of the portion of the McCain-Feingold Act which forbid most corporations (not media corporations, for example) to broadcast political commercials paid for out of its general treasury if it could be viewed by 50,000 or more people? One legal question arising out of that is whether that law violates 1st amendment rights of free speech. In other words - the corporation wanted to speak through it's movie, and the law unlawfully prevented it. Or, did it?

The majority, five conservative judges, basically held as follows as to the main issue - individual Americans have freedom of speech; they have the right to associate with each other, including in a corporation, and to exercise that right from that association; and that when you subject speech to too many regulations at their peril or force speakers to bring a lawsuit to make sure they can speak - that unlawfully chills speech. Thus, it violates the first amendment speech clause.

I have no trouble with those basic concepts - in the abstract - but I do have some problems with the decision. First, conservatives are notorious sticklers for the rule that unless the issue was raised below the Supreme Court can't rule on it. Here, the plaintiff actually waived the very argument that came up to the Supreme Court in the trial court, thinking that under current law, they had no chance to win on First Amendment grounds. After all, this very issue had already been decided in previous cases.

The majority cited that limitation, but then used a see-throughable ploy to get around it. Here it is. The court said that even if it wasn't raised below (or waived) they can still rule on the issue if the lower court "passed on" the issue in making its decision anyway. Okay, that seems to make sense. If the lower court ruled on it, certainly then it can be overruled or affirmed by a higher court.

The problem is, the lower court didn't really "pass on" the issue (unless it means "mentioned in passing") - the lower court judge just mentioned sort of in passing that he pretty much wasn't dealing with it. Justice Kennedy, who wrote the opinion for the court, noted that the lower court judge had said that he couldn't rule on it because he'd have to overrule a Supreme Court case, and only they can do that. Well, that is true, but, that's not raising the issue - it's saying I CAN'T RULE ON IT - NOT MY PLACE TO DO SO. For the higher court to even take up the issue then, is a sham.

However, Justice Kennedy also said that since the plaintiff made a claim that their first American rights were violated, any argument they want to raise under that is okay. While I agree with that notion in the abstract, the plaintiff specifically waived it. Come on.

There's another issue with which I have a big problem. There is no doubt that as part of our constitutional interpretation history all of the individual rights given by the bill of rights are not to be understood as written, but are really limited to the degree that it is felt it makes governance too difficult, or the rights impact too much on other people's rights. You can argue with that all you want, but virtually all appeals court judges, right - left and otherwise, even originalists, all have given it their tacit approval by relying on precedent. For example, prisoners and children do not have full free speech rights. No one argues about this even though the text of the first amendment is by itself, unlimited. There are also a myriad of time and place restrictions. You can't say whatever you want whenever you want, for example, in a courthouse. I could go on, but you undoubtedly get the point. And, as I have written previously on this issue, most people like it this way - virtually everyone, in fact, including those who don't admit it.

McCain-Feingold actually took the free speech issue into consideration and gave the corporations an out. If they wanted to speak - as in this case, the corporation could create a political action committee (PAC) and segregate funds for the purpose. As the dissent pointed out - and Justice Stevens did an outstanding job and I thought had the better of the argument - corporations are not the same as people. They have limited liability and they may have eternal life, for two things. He also pointed out that the founders were, in various degrees, not very favorable to corporations, and severely limited them. They, he argued, would be shocked that corporations were considered to have constitutional rights.

Actually, all a PAC really is, technically, is a bank account, that is a "separate segregated fund" (SSF). That is - the corporation, pays the PAC's or SSF's costs, sets it up and controls it. It is really no different than the corporation itself (although, it could be if for some strange reason, the corporation didn't want control of it).

Thus, no corporation which simply created a PAC or already had one, would actually be prevented from speaking. At all. And, in fact, many corporations do this.

Now, Justice Kennedy differed. He said, no, the corporation and the PAC are two different things. He gave no legal authority; he just said it. That was disingenuous of him.

Here's the kicker. Plaintiff actually had a very active PAC, and would have had no problems showing the movie if it had only used it.

Precedents are, of course, made to be followed, but, also, as the dissent admitted, broken. I usually find the issue of precedents just to be a rhetorical tool, particularly when there is a constitutional issue at stake. It all depends on whose ox is getting gored. Someone who doesn't like the decision overruling precedent, usually thinks breaking that precedent is terrible; thus, a pro-choice advocate would think reversing Roe v. Wade or the Casey case that redefined it, was terrible. A conservative would think it's just erasing a terrible mistake. However, as Justice Roberts pointed out - if you don't like breaking precedent, you are saying no Brown v. Board of Education and other landmark cases where precedent was overruled. Although there is a body of law which deals with when you should or should not break precedent, it is about as vague as you can get, and which rule you follow is almost always dependent on your political position on the outcome.

Still, as Justice Stevens pointed out, it is usually conceded that there should be some reason you are overruling a case other than a change in court personnel that just says, well, we now have enough people who think that rule was wrong. And, pretty much, that is what this court did. However, how far do you take that rule - what if it was 7-2 or 8-1 or 9-0? Still don't overrule?

Moreover, Stevens pointed out, cases treating corporations differently from people go back to 1907, which is quite possibly what Obama was referring to in the state of the union address (or will say he was referring to, if you are cynical) when he said a century of case law was overturned although he was wrong about foreign corporations. However, I agree that right or wrong, he could have picked a better time to say it.

So, here's my wind up. No doubt in my mind this was a political decision. Both sides took the position which they believes favors their preferred political parties. Although often I see cases that I believe are decided on different ideologies (say, death penalty cases) as opposed to partisanship, this wasn't one of them.

In this case, though I like the abstract principal that corporate speech should be as free and open as individual speech as a first principal of constitutional law, the reality seems to me that unless you just tear up our entire form of interpreting constitutional law - which is never going to happen short of revolution or a cataclysmic event - I'd say the majority ruled incorrectly. Moreover, I believe they knew this and did so deliberately. Kennedy, who is usually the fair moderate, and thus my favorite justice, did not play fair here, and some of his points were very weak - even unsupported.

And for another thing, the whole argument doesn't make a whole lot of sense. As Justice Stevens said, no matter how many times the court said so - there was no ban on speech or censorship. There never was. All there was was a rule that it had to be done through a PAC. You might say - but why? That's too bad. The answer is because congress said so, and if it doesn't violate the constitution, they have fairly free rein. Do you want to do away with our representative government too? And, in all honesty, a corporation might have some constitutional rights, like speech, but, of course it isn't a person - it doesn't vote, does it (Justice Stevens)? It can't carry a gun, can it? Or, claim a 4th amendment right of privacy in a home. Corporations have special privileges and special duties or limitations can be put upon them if they don't go too far. Requiring it to go through a PAC is not too far (although I can't see the reason for it myself - taxes perhaps?)

I know conservatives and liberals are on their high horses about this one. I think the decision was wrong, but it makes precious little difference. Whichever corporation wanted to make commercials or movies could have acted through a PAC. Do you really think that they are going to flood the market now with tv commercials just because they can do it without a PAC. It doesn't happen that way in the majority of the states which allow it in their state elections, and I sincerely doubt it will happen in federal elections either. Moreover, the idea that no one is as smart as "us" and they will all be fooled by commercials, etc., is more than a bit condescending and silly. Just as an example, did they really think a whole lot of liberals or moderates were going to spend their time watching an anti-Clinton movie. I just don't think so.

This one should have gone to the libs. And when I started reading the decision, my gut was I'd come out the opposite.