Tag Archives: Supreme Court

Money and Politicians, Plus Judges

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ThinkProgress reports that the Supreme Court sensibly ruled, in a 5-4 decision, that a state can restrict lawyers’ campaign contributions to judges. Chief Justice Roberts explained why:

States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or control him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

So a majority of the Court agreed that it’s important for judges not to be influenced by campaign contributions, because judges are expected to serve the public good. Does that mean it’s acceptable for politicians to be influenced by campaign contributions, since they’re expected to serve the interests of whoever gives them money?

The obvious problem with Roberts’s explanation is that politicians should serve the public good as much as judges. A President is supposed to serve the national interest. Senators are supposed to serve the national interest and the interests of their particular states. Politicians are only supposed to do little favors for people who give them money. Otherwise, we’d say the politicians were for sale!

After all, we vote anonymously so that nobody, not even the candidates, know who we voted for. That makes sense, because how a particular person voted shouldn’t matter to a politician who represents “the people”.

But doesn’t that suggest that campaign contributions (assuming they’re legal at all) should be anonymous too? Politicians shouldn’t know who gave them money or spent money on their behalf, because they’re not supposed to be influenced by such things. They’re supposed to make their decisions on the merits, not reward the rich people or groups who paid for their campaigns. Nor should politicians be able to extort contributions by threatening anyone.

Anonymous campaign funding was the subject of a 2004 book called “Voting With Dollars” written by two law professors. They argued that all voters should be given government-financed “gift cards” that could only be used to finance presidential campaigns. Last year, two political scientists called for making all campaign contributions anonymous, even those made by major donors:

Indeed, if we think about all the ways transparency helps contributors and candidates put pressure upon each other, it is clear that reporting contributions can make matters worse. Suppose, then, that we turned out the lights? What if we let Adelson and Shaun McCutcheon spend their money on politics but not take credit for their “generosity”? What if we made all campaign contributions and independent expenditures anonymous — and made sure they stayed anonymous?

I don’t know if it’s possible to design a system that would guarantee anonymity. If people contributed to a general fund from which payments were made to their candidates of choice, it would be difficult for the contributors to see that they’d made a specific contribution to a particular candidate without their having the ability to share that information with the candidate in question. Maybe it would be enough to make it illegal to communicate the source of donations or “independent” spending, as the political science professors suggest.  

In addition to reducing the number of favors politicians did for their major contributors, anonymity would theoretically reduce the amount of money in politics too. Presumably, some of the wealthy would limit their spending if they couldn’t expect something in return. Of course, even anonymous contributions won’t solve the Big Money problem. Fixing that will require a majority on the Supreme Court that doesn’t equate unlimited political spending with free speech.

Justice Ginsburg Shoots Down a Dumb Conservative Argument

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Our era’s radical Republicans are willing to take a conservative position when it suits them. Thus, during the recent Supreme Court argument regarding same-sex marriage, the right-wingers on the Court pointed out that marriage has involved a man and a woman for thousands of years. From ThinkProgress:

The Court’s conservatives [sic] fixated upon their belief that same-sex marriages are a very new institution. “Every definition [of marriage] I looked up prior to about a dozen years ago,” Chief Justice John Roberts claimed, limited marriages to opposite-sex couples. Advocates for equality, Roberts continued, are “seeking to change what the institution is.” Meanwhile, Justice Samuel Alito argued that even “ancient Greece,” a society he perceived as welcoming to same-sex relationships, did not permit same-sex marriage. Justice Antonin Scalia insisted that “for millennia, not a single society” supported marriage equality.

A natural response would have been: “Of course, and now we’re changing that. Sometimes we make progress”. Justice Ginsburg, however, pointed out that for thousands of years marriage was legally defined as a relationship between a dominant man and a subordinate woman. A further ThinkProgress article on the subject quotes the 18th century legal authority Sir William Blackstone:

…the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.

Traditionally, wives were subservient to their husbands. Being married wasn’t a relationship that two men or two women would ordinarily enter into. Today, however, the law considers marriage to be a relationship between equals. Since marriage is now egalitarian from a legal perspective, it makes sense for anyone who wants an equal partner, whether that partner is of the opposite or same sex, to want to be married. Since there are benefits to being married, and since being able to procreate isn’t a requirement, justice dictates that any two adults who want to get married should be allowed to.

Political Corruption in America, Then and Now

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Zephyr Teachout is a law professor at Fordham University. She recently ran against Governor Andrew Cuomo in the Democratic primary, a quixotic venture if her goal was to become the Governor of New York. Her more realistic goals included calling attention to Cuomo’s political shenanigans, highlighting ways to improve our politics and maybe selling a few copies of her book (we all have to eat).

The book is Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. The snuff box was a diamond-encrusted gift that Louis XVI gave to our ambassador to France. “Citizens United” is the recent Supreme Court decision allowing corporations and other organizations to influence elections as much as possible by spending unlimited amounts of money.

From a review of Corruption in America by the journalist Thomas Frank:

Today’s [Supreme Court] understands “corruption” as a remarkably rare malady, a straight-up exchange of money for official acts. Any definition broader than that, the justices say, transgresses the all-important First Amendment. Besides, as Justice Anthony Kennedy announced in the Citizens United decision, the court now knows that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” — a statement that I guess makes sense somehow in law-land but sounds to the layman’s ear like the patter of a man who has come unzipped from reality….

Our current Supreme Court, in Citizens United, “took that which had been named corrupt for over 200 years” — which is to say, gifts to politicians — “and renamed it legitimate.” Teachout does not exaggerate. Here is Justice Kennedy again, in the Citizens United decision: “The censorship we now confront is vast in its reach. The government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’ ”

You read that right: The economy needs to be represented in democratic politics, or at least the economy’s “most significant segments,” whatever those are, and therefore corporate “speech,” meaning gifts, ought not to be censored. Corporations now possess the rights that the founders reserved for citizens, and as Teachout explains, what used to be called “corruption becomes democratic responsiveness.”

Being “unzipped from reality” aptly describes much of our politics, including a series of decisions by our Republican-dominated Supreme Court.

Did it matter that the Supreme Court helped George Bush get elected in 2000, which made it possible for him to be reelected in 2004? David Cole, writing in the New York Review of Books, reminds us:

… when Justice [Sandra Day] O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come. Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way. But it was not to be.

Returning to Thomas Frank’s review of Zephyr Teachout’s book, it’s hard to believe that political lobbying used to be shameful, even criminal, not a multi-billion-dollar industry:

Once upon a time, lobbying was regarded as obviously perfidious; in California it was a felony; and contracts to lobby were regarded as reprehensible by the Supreme Court. Here is a justice of that body in the year 1854, delivering the court’s decision in a case concerning lobbyists and lobbying contracts:

“The use of such means and such agents will have the effect to subject the state governments to the combined capital of wealthy corporations, and produce universal corruption, commencing with the representative and ending with the elector. Speculators in legislation, public and private, a compact corps of venal solicitors, vending their secret influences, will infest the capital of the Union and of every state, till corruption shall become the normal condition of the body politic, and it will be said of us as of Rome —omne Romae venale [in Rome, everything is for sale].”

Well, folks, it happened all right, just as predicted. State governments subject to wealthy corporations? Check. Speculators in legislation, infesting the capital? They call it K Street. And that fancy Latin remark about Rome? They do say that of us today. Just turn on your TV sometime and let the cynicism flow.

And all of it has happened, Teachout admonishes, because the founders’ understanding of corruption has been methodically taken apart by a Supreme Court that cynically pretends to worship the founders’ every word. “We could lose our democracy in the process,” Teachout warns, a bit of hyperbole that maybe it’s time to start taking seriously.

Considering how money pollutes our politics, and how gerrymandering, vote suppression, low turnout (especially among the young and the poor) and the Constitution itself skew the results, the idea that America is an oligarchy, not a democracy, doesn’t sound hyperbolic at all.  

Nevertheless, quixotic or not, I’m still going to vote in a couple weeks for the Democratic candidates for the U.S. Senate (he’s sure to win) and the House (she’s sure to lose), as well as for bail reform and more environmental funding. It’s the least I can do.

A Federal Judge Tells the Supreme Court to Shut the F*** Up

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Judge Richard G. Kopf, presumably a Republican since he was appointed to the Federal bench by George H. W. Bush (the first one), reacts to the Hobby Lobby ruling:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynist because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law….

Next term is the time for the Supreme Court to go quiescent – this term and several past terms has proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids says, it is time for the Court to STFU. 

Being one of the “most people”, there is no doubt in my mind that the Hobby Lobby decision was stupid, partisan, misogynist and religiously-motivated, but it’s understandable that Judge Kopf expresses himself more judiciously.

There is a little more on the subject from the judge here:

Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.

The Burdensome and Anti-Christian “EBSA Form 700”

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As noted in the previous post, a majority of justices on the Supreme Court granted Wheaton College a temporary reprieve from having to fill out and distribute EBSA Form 700. That’s the form that’s supposed to be used by non-profit religious organizations to say they don’t want their employees’ health insurance to cover some or any forms of contraception.

Wheaton told the Supreme Court that Form 700 constituted a significant burden on their religious beliefs. They preferred writing their own letter to the government instead. Understandably, the three women on the Supreme Court thought that was crazy (I’m guessing that the other Democrat on the Court, Justice Breyer, agreed with Justices Sotomayor, Ginsburg and Kagan, but this isn’t the kind of issue that requires the whole Court to express an opinion. Maybe he was out of town or so fed up with some of his colleagues that he’s thinking of giving up the law.)

As government forms go, Form 700 is simplicity itself. Here are its key features:

This form is to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing…

[Enter name of objecting organization, individual authorized to make this certification, name and address, etc.]

I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.

[Signature and date.]

The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.

That’s basically it. The form doesn’t even ask for the name and address of the health insurance issuer/administrator, something I certainly would have included if I were the senior bureaucrat responsible for EBSA Form 700.

I think Wheaton objected to this form because they didn’t want to send a copy to their health insurance issuer or third party administrator. Apparently, they thought that doing so would amount to being too cooperative with the government in its anti-Christian effort to make sure health insurance covers contraception. Justice Sotomayor argued in her dissent that forcing the government to identify the issuer/administrator and then send them a copy would be wasting the government’s time, especially if such religious exemptions become common.

Her main point, however, was that it’s the Court’s job to determine whether a law is too burdensome on somebody, not simply take their word for it, as the majority on the Court did here. But the activist Republican judges on the Supreme Court are clearly making this stuff up as they go along.

The burdensome (?) and anti-Christian (?) EBSA Form 700 is available here.

The Court’s brief ruling and Justice Sotomayor’s lengthy dissent is here.