Saturday, January 30, 2010

Inviting Foreign Influence

I get dizzy easily, so to avoid going in circles, I'll comment only on one remark made in response to the latest posting on Citizens United v. Federal Elections Commission. It is the facet most energizing congressional Democrats. However, if D.B. is correct, they are wasting their time on what is a moot point, the ruling having left untouched the ban on foreign influence in U.S. elections. He cites the following passage from The New York Times:

President Obama called for new legislation to prohibit foreign companies from taking advantage of the ruling to spend money to influence American elections. But he is too late; Congress passed the Foreign Agents Registration Act in 1996, which prohibits independent political commercials by foreign nationals or foreign companies."

As (Jerry) Seinfeld periodically dead-panned in his sitcom of the same name: I don't think so. Or, rather, it turns on the definition of "foreign nationals" and "foreign companies." Fred Werteimer of Democracy 21 explains

Section 441e prohibits contributions or expenditures by any "foreign national" - which is defined to include any corporation "organized under the laws of or having its principal place of business in a foreign corporation."

Thus, a corporation organized in Germany, or with its headquarters in China, remains subject to a ban on spending in U.S. elections.

But there are domestic corporations - those organized under state law in the United States - which are and can be controlled by foreign interests.

Those kinds of corporations - domestic corporations owned by or controlled by foreign governments, foreign corporations or foreign individuals - are not in any way prevented by section 441e from spending corporate treasury funds to influence U.S. elections.

Prior to the Citizens United decision, these corporations were prevented from spending their funds on expenditures to influence federal campaigns by the general prohibition on corporate campaign spending. But now that that prohibition has been struck down, these foreign-controlled domestic companies are free to spend their treasury funds directly to influence U.S. elections.

Thus, there is no statutory prohibition against foreign-controlled domestic corporations from making expenditures to influence federal elections, following the Citizens United decision.

The Federal Election Commission has a regulation in this area, but it is inadequate and does not provide effective protection for the public against foreign involvement in federal elections.

The FEC regulation prohibits any foreign national from directing, controlling or directly or indirectly participating in "the decision-making process" of any person, including a domestic corporation, with regard to that person's "election-related activities," including any decisions about making expenditures.

The regulation does not prevent foreign owners from making their views known to their American domestic subsidiaries about the governmental and political interests of the controlling foreign entity; it just prevents them from directly or indirectly participating in the formal "decision-making process."

Those who manage the domestic subsidiaries, furthermore, can be expected to know the governmental and political interests and needs of their foreign owners, and to be responsive to the needs of their owners, even absent any participation by the foreign owners in the formal "decision-making" process regarding expenditures in federal elections.

In other words, the existing FEC regulation is an inadequate and ineffective safeguard, by itself, to prevent foreign nationals from exerting influence on U.S. elections through the use of election-related expenditures made by domestic corporations which they own or control.

Thus, following the Supreme Court's invalidation of the ban on corporate expenditures, section 441e does not address at all the problem of expenditures made by domestic subsidiaries of foreign companies or domestic corporations controlled by foreign nationals, and there is no statutory prohibition on foreign nationals being directly involved in expenditure decisions made by foreign owned domestic corporations.

The only restriction here is an ineffective FEC regulation administered by an agency that is widely recognized as an abject failure in carrying out its responsibilities to enforce the nation's campaign finance laws.

The Center for Public Integrity observes

CITGO Petroleum Company — once the American-born Cities Services Company, but purchased in 1990 by the Venezuelan government-owned Petróleos de Venezuela S.A. The Citizens United ruling could conceivably allow Venezuelan President Hugo Chavez, who has sharply criticized both of the past two U.S. presidents, to spend government funds to defeat an American political candidate, just by having CITGO buy TV ads bashing his target.

And it’s not just Chavez. The Saudi government owns Houston’s Saudi Refining Company and half of Motiva Enterprises. Lenovo, which bought IBM’s PC assets in 2004, is partially owned by the Chinese government’s Chinese Academy of Sciences. And Singapore’s APL Limited operates several U.S. port operations. A weakening of the limit on corporate giving could mean China, Saudi Arabia, Singapore, and any other country that owns companies that operate in the U.S. could also have significant sway in American electioneering.


Some legal observers fear the ruling would open up the floodgates for any corporation operating in the United States, no matter who owns them. J. Gerald Hebert, executive director and director of litigation at the non-partisan Campaign Legal Center, told the Center for Public Integrity that the existing prohibition on foreign involvement does not refer to foreign controlled domestic corporations. “With the corporate campaign expenditure ban now being declared unconstitutional, domestic corporations controlled by foreign governments or other foreign entities are free to spend money to elect or defeat federal candidates,” he believes.

Politico speculates that wealthy foreigners "might start corporations in the U.S. solely or primarily to funnel money in to spend on U.S. elections." How about that for irony- free speech in the form of independent political commercials off-limits to a class of individuals (foreigners), but open to the corporations they form.

If legislation, such as that contemplated by Senator Chuck Schumer (D.-NY) and Rep. Chris Van Hollen of Maryland to curb the influence of foreign nationals and foreign companies in U.S. elections, is unnecessary, someone better alert the corporate sector. According to The National Journal through Think Progress, "The Organization for International Investment a trade group representing foreign banks, oil companies, and other foreign corporations operating in the United States, 'lashed out' at Van Hollen’s proposals." Apparently, the organization was not comforted by the article in The New York Times.

Hopefully, efforts by Democrats to close any loopholes opened by the court's ruling will be joined by those Republicans who are more interested in national security than in protecting the interests of multinational corporations. Both of them.

Friday, January 29, 2010

O'Keefe On The Loose

On January 25, four young men- one of them James O'Keefe, who himself and his right-wing allies claim is an "independent filmaker," were arrested trying to tamper with the phones at the New Orleans office of Senator Mary Landrieu (D.-La.).

In a statement posted on Andrew Breitbart's right-wing website, O'Keefe, who with his alleged co-conspirators had posed as telephone workers, claimed in part

I learned from a number of sources that many of Senator Landrieu’s constituents were having trouble getting through to her office to tell her that they didn’t want her taking millions of federal dollars in exchange for her vote on the healthcare bill. When asked about this, Senator Landrieu’s explanation was that, “Our lines have been jammed for weeks.” I decided to investigate why a representative of the people would be out of touch with her constituents for “weeks” because her phones were broken. In investigating this matter, we decided to visit Senator Landrieu’s district office – the people’s office – to ask the staff if their phones were working.

You can believe this explanation if you wish. But reached by The Advocate in Baton Rouge, Senator Landrieu denied a malfunction with the phones, indicating the voice mailbox was full, and stated "Our lines have been jammed for weeks, and I apologize."

O'Keefe issued a standard non-apology apology: "On reflection, I could have used a different approach to this investigation, particularly given the sensitivities that people understandably have about security in a federal building."

Aside from using a different approach because the one he took probably was illegal (charged with entering a federal property under false pretenses with the intent to commit a felony, he faces a possible ten years in prison), O'Keefe's sincerity is suspect. You remember him from his videotaped visits to various Association of Community Organizations for Reform Now offices with blogger Hannah Giles of, posing as a prostitute and a pimp. That scam appeared from doctored tapes to implicate ACORN in unethical and illegal activity. However, an analysis now reveals:

1- Transcripts reveal that O’Keefe and Giles said they needed ACORN’s help to protect Giles from a violent pimp—but they carefully edited this out of their videos.

2- While their press releases claim they were posing as a “prostitute and a pimp,” the transcripts show that O’Keefe consistently introduced himself as Giles’ boyfriend trying to protect her.

3- In each of the cases, the ACORN staff advised the prostitute to pay taxes, not to evade them.

In San Diego and Philadelphia, ACORN workers called police. In all the videos, O'Keefe appears in ACORN offices in normal business attire- not in the "pimp" outfit in which he has appeared as the outdoor scenes are televised ad nauseum.

A former state attorney general, who analyzed the tapes for ACORN, reached a similar conclusion, observing

The videos that have been released appear to have been edited, in some cases substantially, including the insertion of a substitute voiceover for significant portions of Mr. O'Keefe's and Ms. Giles's comments, which makes it difficult to determine the questions to which ACORN employees are responding. A comparison of the publicly available transcripts to the released videos confirms that large portions of the original video have been omitted from the released versions.

By then, of course, opportunistic Republicans and timorous Democrats in Congress had jumped to conclusions and voted to cut off funding for ACORN. It was a response almost (almost) as predictable as it was irresponsible, given the never-ending shots of the pimp and the prostitute and exploitation by the mainstream media, including by one Jon Stewart.

Now we find that O'Keefe shockingly- shockingly! is not quite so independent. In September, the Village Voice reported it

has learned that O'Keefe, in fact, has had heavyweight conservative backers who funded the young filmmaker as recently as a few months before his ACORN films were made.

The ACORN videos are actually just the latest of several films O'Keefe has produced and uploaded to YouTube. An earlier film posted in February, "Taxpayers Clearing House" featured nonwhite, working class people being duped by O'Keefe, who led them to believe they had won money in a sweepstakes.

That video was produced with the help of a grant -- said to be about $30,000 [Thiel's spokesman says closer to $10,000 -- see update] -- from Peter Thiel, one of the founders of PayPal and an early investor in Facebook -- an investment which made him a billionaire. Thiel is one of Silicon Valley's more interesting figures: a gay man (according to Gawker's "Valleywag") who has railed against the evils of "multiculturalism." He lives in San Francisco and today runs a hedge fund.....

O'Keefe is a former member of the Leadership Institute, the conservative think tank that has turned out such graduates as Bush strategist Karl Rove, Christian Coalition leader Ralph Reed, Senator Mitch McConnell (R-Kentucky), Americans for Tax Reform President Grover Norquist, and "Talon News" fake White House blogger Jeff Gannon (real name: James Dale Guckert). The Institute has been involved in setting up conservative newspapers at colleges across the country, and gave O'Keefe a $500 "Balance in Media" grant to begin the Rutgers Centurion in 2005.

O'Keefe, who recently addressed in New Orleans the Libertarian Pelican Institute for Public Policy, was celebrated following the ACORN sham by Republican legislators in Texas. That state, however, features a GOP gubernatorial primary in which arch-conservative Kay Bailey Hutchison is the more liberal candidate, so it's not quite representative of The Party of No. Still, this ought to be a cautionary tale about videotape, the right wing, and the passivity of the Democratic Party. Ought to, but won't.
Always, The Cheap Shot

We take a break from campaign financing to check in with our favorite corporate cheerleader, who today characteristically demonstrated the unconditional love he has for his fellow American citizens. Patriot Rush Limbaugh today sneered

Now, the New York delegation in Congress, they got some good news today when they learned that Obama and Eric Holder are indeed looking at an alternative place to hold the Khalid Sheikh Mohammed trial. Again, Detroit or Washington are the two places I would go. Detroit would be much better chance for a jury of his peers. In Washington, Holder and Obama could drive by the trial every day and check out the $200 million a year in security. In Detroit, even if some terrorist blew some things up, depending on where they did it, you wouldn't know. So that's another reason for maybe considering Detroit for this.

I come not to bury Rush but to praise him. He appeared to be on to something, noting "Detroit would be much better chance for a jury of his peers." And according to, Michigan is second only to California as the state with the largest number of citizens of Arab background. Reportedly, Michigan has the highest concentration of Arab-Americans, which may be the third largest ethnic group in the state of Michigan. And Dearborn, just west of Detroit, is a hotbed of Arab-American culture. None of these thoughts appears to have crossed the mind of Limbaugh.

Not all of these individuals are Muslim and even of those, most would not be sympathetic to the mastermind of the 9/11/01 terrorist attacks. Nonetheless, the prominence of Arab-Americans in the greater Detroit area would represent a pool of jurors who either would be more sympathetic- or perhaps more objective- toward KSM than would other Americans. And such a prospect, even advanced as a joke, would give Rush an opportunity yet again to paint President Obama and Democrats as sympathetic to Al Qaeda.

But citing statistics or referring to the rich cultural heritage of the greater Detroit area, even if it would help Limbaugh make his case, would mean indulging facts. Unfortunately, these simply are not something that he and most of his listeners are partial to.

Instead, Rush took the easy way out, as his dittoheads evidently prefer, by declaring "in Detroit, even if some terrorists blew some things up, depending on where they did it, you wouldn't know." Why cite statistics, emphasize facts, or make any kind of reasonable argument when prejudice will do? If there is an opportunity to smear a city with a lot of poor people and minorities (blacks, in the case of Detroit), it's an opportunity not to miss. Especially if the middle class gets swept up in his stereotype. And especially if the only recourse is to give even passing attention to facts which, in the conservative fact-free zone, is anathema.
Upon Further Review, The Court Is Still Wrong

Reader D.B. continues the discussion of the Supreme Court's Citizens United decision with, given the weakness of the position, impressive effectiveness.

He writes

you again argue that restricting corporations from adverising in no way inhibits speech because they can speak in other ways and individual members can speak on their own. By the logic of your argument, if the government proghibited me from writing on blogs, it wouldn't be infringing on my rights becasue I couls still write a book or go on the radio.

I really don't know what government would prohibit you from writing on blogs- or writing a book or going on the radio. Perhaps the government of Hugo Chavez' in Venezuela, which is not relevant to this case. Oh, wait- yes it is, given that its government quashes dissent and owns corporations, and through its corporations now may be able to influence U.S. elections.

In either case, the law (BCRA) which is substantially eroded by this decision applied only to election-related advertising, not genuine issue advertising or, as Justice Stevens pointed out (pp. 25-26 of opinion, pp. 112-113 of transcript)

or to Internet, telephone, and print advocacy. Like numerous statutes, it exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions in recognition of the unique role played by theinstitutional press in sustaining public debate. It also allows corporations to spend unlimited sums on political communications with their executives and shareholders, to fund additional PAC activity through trade associations, to distribute voting guides and voting records, to underwrite voter registration and voter turnout activities, to host fundraising events for candidates within certain limits, and to publicly endorse candidates through a press release and press conferences.

D.B. may wish to compare himself to a corporation but unlike a corporation, he is not a thing. I know he is a person; I'm sure of it. I've seen him.

It is argued

corporations have many different people (employees, shareholders, etc.) who have different views and opinions, but so do organizations. Both do not have uniform thought and interest in the way one individual does.

Corporations are not typical groups organized around a central principle, or set of principles. Stevens (p. 80/167) notes

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r]influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”

Compared to other organizations, then, corporations have extraordinarily deep pockets; engage in the political process not to inform or join the debate, but to enhance their profitability; and attempt to influence the electoral process in a manner often inconsistent with the political preferences of its shareholders, executives, customers, and others. Their advocacy, as Stevens notes, "may bear 'little or no correlation' to the ideas of natural persons or to any broader notion of the public good." And experience has shown "corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process" (p. 63/170).

It is claimed

If the Founders were so uniformly united that free speech applied only to individuals, or if they specifically believed this shouldn't be a guarantee for corporations, one would expect more specific language saying so.... I have to say that I believe the First amendment is broad because if the amendment had specifically only applied to individuals, rather than groups, it would not have passed. This leads me to believe a majority of the Founders would have supported free speech for groups of individuals, and I believe the First Amendment confirms this.

D.B. notes "the final language of the First Amendment is broad and makes no specific mention of corporations as exempt, and it does not even say the rights apply only to 'persons'" It does in fact read

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Note that it does not read "Congress shall make no law.... abridging the freedom of speech, to include corporate speech." It does not refer even to "abridging the freedom of speech, to include that of the press." The framers distinguished "speech" from the "press" and made no mention of corporate political activity. Consequently, it is reasonable, and almost unavoidable, to accept Justice Stevens' finding that

members of the founding generation had a cautious view of corporate power and a narrow view of corporate rights (not that they “despised” corporations,), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition—if not also the very notion of “corporate speech”—was inconceivable.

It is alleged

As for the public will, it is revealed by who wins elections. Oil companies can spend billions supporting a candidate in favor of drilling or opposing one who is against it. If the public will is really to oppose drilling, they will vote for the candidate who opposes it.

That is an interesting argument. Of course, the hundreds of billions of dollars in electioneering expenditures will distort the debate and likely skew the election. Check out the campaign donations received by the candidates of the two major political parties in presidential elections the past 40 years. The correlation is stunning- no, not stunning, unsurprising to virtually everyone.

But more importantly: suppose candidate A supports more oil drilling and candidate B opposes it. And candidate A opposes the right to an abortion while candidate B supports it. And suppose you, supporting more oil drilling while virulently supporting the right to an abortion, decide therefore to vote for candidate B.

It's hardly hypothetical. What you have is a choice between John McCain as candidate A and Barack Obama as candidate B and, being an ardent proponent of the pro-choice position, you have decided to vote for Mr. Obama, despite agreeing more with the Republican's take on energy.

You have not only sacrificed your position on a vital national issue (energy) but behold! If President Obama's primary domestic initiative (health care reform) survives in either its House or Senate version, you have gotten legislation expanding the reach of the Hyde Amendment and therefore further restricting abortion. Kind of a two-fer, in reverse.

In the meantime, those of us who, having voted for Mr. Obama, accept your position (as some have enthusiastically done) say to the GOP: the public will is revealed by who wins elections. Step aside for health care reform (in the version we dictate to you); for cap-amd-trade; for granting student loans by the federal government rather than by banks; for ending tax cuts for the wealthy. And for reversing by legislation (if not by constitutional amendment) the Citizens United decision by the Supreme Court. Do what we tell you- the public will has been revealed by the election. Abandon all opposition, ye who enter the halls of Congress.

It is a daunting task, arguing in support of the Court's majority position in Citizens United v. Federal Election Commission. The case probably was not properly brought to the Court, as Justice Stevens argues beginning on page 4 (page 91of the transcript), which then has tossed aside the principle of stare decisis. The ruling cannot be justified easily without downplaying the extraordinary impact it might have on this nation's representative democracy and vibrant two-party system. And it cannot be justified at all without demonstrating that corporations are people, and that the electioneering of these individuals had been unacceptably hampered by existing law and its interpretation.

Thursday, January 28, 2010

Expecting Too Much

President Obama's popularity among Democrats remains sky-high. But as his presidency turns into its second year, Republicans are increasingly hostile toward, and independents increasingly disillusioned about, Obama 44.

Race may indirectly play a role in the disappointment of many respondents toward the President, who in his State of the Union message last night acknowledged

Now, I am not naïve. I never thought the mere fact of my election would usher in peace, harmony, and some post-partisan era. I knew that both parties have fed divisions that are deeply entrenched. And on some issues, there are simply philosophical differences that will always cause us to part ways.

As he stated, Senator Obama never claimed his "election would usher in peace, harmony, and some post-partisan era." In his famous "race speech," delivered on March 18, 2008 in Philadelphia, Pennsylvania (not Philadelphia, Mississippi; that would be candidate Ronald Reagan's venue), the candidate declared

This is where we are right now. It's a racial stalemate we've been stuck in for years. Contrary to the claims of some of my critics, black and white, I have never been so naïve as to believe that we can get beyond our racial divisions in a single election cycle, or with a single candidacy - particularly a candidacy as imperfect as my own.

Nevertheless, Senator Obama immediately followed that by asserting

But I have asserted a firm conviction - a conviction rooted in my faith in God and my faith in the American people - that working together we can move beyond some of our old racial wounds, and that in fact we have no choice if we are to continue on the path of a more perfect union.

Still, Senator Obama continuously labored to disabuse Americans of the notion that he was the "black candidate," or should be elected because he is black, or that he would be a better president because he is black.

He didn't have to. The headline and first paragraph of The New York Times (online) on November 6, 2008 made it clear:

Obama Elected President As Racial Barrier Falls

Barack Hussein Obama was elected the 44th president of the United States on Tuesday, sweeping away the last racial barrier in American politics with ease as the country chose him as its first black chief executive.

At The Philadelphia Inquirer (hard copy), it was

Historic Win

Democrat Barack Obama, the 47-year-old son of a black father from Kenya and a white mother from Kansas, decisively won election yesterday as the nation's first African American president, a victory that seemed unthinkable a generation ago.

And on and on and on.

The coverage of Obama's victory mirrored a major theme, not of Obama himself but of his supporters virtually everywhere: "It is an historic election. We are on the verge of making history. Historic change is coming."

The election, the mainstream media seemed to tell us, was less about the failure of the previous eight years and rejection of the party that brought it to us and more about rejection of a racist past. Some people bought the line. They may have included the individuals who, after months of unprecedented coverage of the election campaign (and the primary season preceeding it) were undecided until election day. Wikipedia observed "On average, Obama received three percentage points more support in the primaries and caucuses than he did during polling." The train was leaving the station- don't miss it, or you may miss making history.

So it has been observed, though too seldom, that many Americans appear to feel betrayed. You've heard it- don't deny it. Citizens who argue that President Obama has not ushered in the era of bipartisanship (a different, but related, instinct) racial harmony they seem to believe he promised. And it doesn't help when MSNBC's Chris Matthews comments (video below) following the State of the Union address

You know,he's gone a long way to become leader of this country and past so much history in just a year or two. I mean, it's something we don't think about. I was watching. I said wait a minute- he's an African-American guy in front of a bunch of other white people and there he is, President of the United States and we've completely forgotten that tonight- completely forgotten it. I think it was in the scope of his discusssion, it was so broad-ranging, so in tune with so many problems and aspects, and aspects of American life that you don't think in terms of the old tribalism, the old ethnicity. It was astounding in that regard, a very subtle fact,it's so hard to talk about, maybe I shouldn't talk about it.

Matthews is wrong when he says "maybe I shouldn't talk about it." Too seldom is race discussed, and at least Matthews has shown no reluctance to do so.

But he is really wrong, or dishonest, or simply foolish when he says "we've completely forgotten" that "he's an African=American guy in front of a bunch of other white people." Or that "it's something we do't think about." Talk about, no. Think about, yes.

Matthews doesn't make a fetish of objectivity, nor does he claim to be without feelings. Still, it is embarassing when a guy gets on television and says, with shades of "thrill up my leg," "it was so broad-ranging, so in tune with so many problems and aspects, and aspects of American life." We ask of Obama that he be a good President- not the National Psychologist.

These remarks, with the suggestion that Mr. Obama supernaturally transcends his ethnic background, reinforce the mistaken notion that one individual can wipe out centuries of the American struggle with race. This approach leads only in one direction- to further disillusionment- and cannot have a happy ending.

Wednesday, January 27, 2010

Still A Bad Decision

Reader D.B. (not D.B. Cooper, unfortunately) asks:

I'd like to know which of the 3 positions you advocate:

1. this rule does not inhibit their speech, which they are entitled to and can pursue other ways (this position does not hold up)

2. their speech should be inhibited in this limited set of circumstances because of the danger to our democracy (again i ask how you can infringe on this right)

3. they have no right to free speech because they are not "persons" (I expect you are in favor of this position, but I wonder how this does not then allow Congress to restrict the speech of any group in any form or circumstance)

The outrage on campaign financing recently perpetrated by the United States Supreme Court has, obviously, not come from the people's representatives in the legislature but rather from the Court which is the highest authority in the land on the Constitution. Consequently, the 5-4 decision cannot be entirely refuted by reliance on #2, the danger to our democracy (notwithstanding how real it is). As distinguished leftist blogger Glenn Greenwald put it

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists)....

Except to the extent that some constitutional rights give way to so-called "compelling state interests," that the Court's decision will produce "bad results" is not really an argument.

It really is an argument; it's simply not the controlling argument. Still, it's hopeful that one of the two parties is sufficiently concerned about the impact of the Court's decision on national security. ABC News reports

"There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions...."

The problem, former Federal Election Commission Chairman Scott Thomas told ABC News, is that it's much tougher to determine whether foreign money is behind a political ad when the check is cut by a multi-national corporation.

"There are unfortunately lots of examples where foreign businesses or governments have tried to route money through U.S. subsidiaries and into party coffers," Thomas said. "Now we're permitting businesses to get involved directly in advocacy messaging. There will have to be a lot more scrutiny on the question of whether the money is coming from a foreign source, and whether it can be constrained."

It would be ironic if, in the absence of legislation ameliorating the impact of the Court's ruling, the government of mainland China, through a state-owned company, ended up having a greater affect on American politics than does the American middle class.

There hardly was a ban on corporate electioneering prior to the Citizens United decision, as Justice Stevens described in pages 23-28 of his opinion, pages 110-115 of the transcript. He explains

Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations availthemselves of this option; during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.

He notes further

Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue.

A major role, indeed. Inhibited, hardly. Unless we are able to ignore television commercials completely, we all know the positions of the insurance industry, pharmaceutical industry, and nurses associations on health care. But are we aware what the individual across town believes on mandatory insurance, drug re-importation, or a public option? Not unless we happen to know that fellow across town, and even then we might not know his position. Nor would it matter, because he/she doesn't have the resources to convey that position to the general public.

For that matter, do we know the thoughts of Bill Gates, Warren Buffett, or Lawrence Ellison- three of the four wealthiest people in the world- regarding health care? If they were to utilize their "speech" and run ads advocating for or against health care, we at least would know whom they represent- themselves- rather than wondering whether they are representing executives, the Board of Directors, shareholders, or merely the CEO. Or in the words (p. 77/164) of the Justice,

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officersor directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful.It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.

Consequently, a restriction on what the Court majority construes as "speech" does not imply a restriction on any other group or organization, as further explained by Stevens (p. 37/124):

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings,and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.”

Corporations, rather, have "special advantages- such as limited liability, perpetual life and favorable treatment of the accumulation and distribution of assets" (p. 47/134), which also distinguish them from other groups and organizations.

The danger presented by the expenditure of billions of dollars from corporate treasuries, overwhelming the public interest and will, does not justify targeting even a narrow class of expenditures as had been enshrined in law. But corporations are not, according to the Founders or common understanding, persons with consciences, beliefs, thoughts,or desires and there are at times a compelling governmental interest in restricting their activities while "leaving untouched" their contribution to "the broader public dialogue."

Tuesday, January 26, 2010

Stevens Gets It Right

Credit to Messrs Greg and Dan for a spirited and enlightening exchange on the Supreme Court's grievously misguided decision in Citizens United v. Federal Elections Commission, invalidating at least parts of two Supreme Court decisions (Austin v. Michigan Chamber of Commerce, 1990; McConnell v. Federal Elections Commission, 2003) and one federal law (Bipartisan Campaign Reform Act of 2002). However, some of the arguments in support of the majority position need to be rebutted, as Justice John Paul Stevens did so effectively in his opinion.

It is accurate that the position taken initially by the FEC's counsel was sufficiently ambitious that it elicited astonishment on the part of one or more justices, and on re-hearing a more modest argument was made. That course correction obviously was insufficient, and a Court (bare) majority effectuated a radical revision of the prevailing approach to campaign financing reform. If only the Court majority had recognized its own extremism in re-writing the law in a radical fashion rather than exercising judicial restraint.

As noted, Justice Kennedy, in his majority opinion wrote (p. 56 of his opinion, p. 183 of within transcript) that law as it stood "would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds." But while he refers to Section 441B, the synopsis of the ruling states

As amended by §203 of the Bipartisan Campaign Reform Act of 2002(BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate within 30 days of for Federal office” and is made within 30 days of a primary election,§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),which in “the case of a candidate for nomination for President . . . means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days,” §100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneer-ing communications purposes. 2 U. S. C. §441b(b)(2).

In short, Kennedy seems to be referring to the BCRA, which banned within 30 days of a primary election corporations and unions from using their general treasury funds to make independent expenditures for any broadcast, cable, or satellite communication to recommend by name a candidate for election. We are left, I suppose, to determine for ourselves how that would affect blogs and it is not entirely clear. Or likely.

Neither are traditional media outlets threatened. As the Court indicated in Austin, "media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public.” (p. 84/171) Accordingly, Justice Stevens quotes McConnell as acknowledging that government is entitled to regulate media corporations differently from other corporations “to ensure that the law ‘does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.’" (footnote on p. 32/119)

It would have been foolish for me to have argued that corporations "should be banned from (spending to advertise for or against candidates)." However, I had acknowledged- without suggesting that it be enjoined from doing so- that the Chamber of Commerce had spent over $100 million (in one year) to advance its viewpoint and that prior to the recent decision, it and every corporation had enjoyed the constitutional protection of freedom of speech. Of this, Justice Stevens, quoting from the two court cases at issue (and a third) clarified (pp. 23-28/110-115)

Our cases have repeatedly pointed out that, “[c]ontrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending."

He observed "like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form."

Corporations hardly were hamstrung under existing law, as Stevens points out (pp. 112/113, 25/26)

the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications; (2) capable of reaching at least 50,000 persons in the relevant electorate; (3) made within 30 days of a primary or 60 days of a general federal election; (4) by a labor union or a non-MCFL, nonmedia corporation; 5) paid for with general treasury funds; and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Only if all those criteria were met would the speech be proscribed- hardly the "censorship" Justice Kennedy claimed.

Not everything a distinguished jurist writes is to be taken at face value; indeed, it is confounding to read of Kennedy's claim "at least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue."

It is possible, though barely so (and "barely" is headed out of town) that no such cases ever had been considered by the United States Supreme Court. Surely, Kennedy could not been suggesting with a straight face that no class of speakers has been, or is, excluded, "from the general public dialogue." As he surely must know and Stevens reminded him (pp. 28-34/ 115-121)

The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.

Even in the context of elections, Stevens notes, "the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled."

The special restrictions placed by government on "its own employees" may be illustrated by those imposed on judicial employees in at least New Jersey, and no doubt in others. No public expression (other than voting) of political sentiment is permitted, extending even to placement by a homeowner of a sign supporting a candidate on his/her lawn. As Stevens simply yet eloquently declares, "it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close."

In those categories enumerated, it is clearly "speech" which is curtailed, but it is not so clear with the limitations struck down last week by the Court. It is a necessary precondition- necessary, not sufficient- that the restrictions the Court majority finds noxious are prohibitions on actual "speech." Justice Stevens, helpfully quoting not from a 21st century dictionary but rather from one dating from the time of the Founders, explains (footnote on p. 137/24)

In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853–1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulate utterance; the power of expressing thoughts by vocal words”); 2 N.Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes”). Indeed, it has been “claimed that the notion of institutional speech . . . did not exist in post-revolutionary America.”

(Justice Scalia, who wrote a concurring opinion as a member of the majority, and Justice Kennedy unsurprisingly cling to the rather expansive, stylish concept of speech, as they did when ruling that burning a flag is "speech." They haven't learned.)

Similarly, the majority's opinion collapses if it cannot substantiate the theory that a corporation is a person. Ask any person on the street if a corporation is a person. No more than is a doctor's office, the Knights of Columbus, or the apartment building across the street. Evidently only a lawyer would dare attempt to construe an organization, a business, or a corporation as a "person." As Stevens explains (p.2/89)

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.

Although their interests may conflict with those of eligible voters, corporations, under this ruling, will be able to do at least one thing that the political parties representing those voters will not be able to do (pp. 107-108/20-21):

corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions— and the narrow interests they represent—vis-à-vis the role of political parties— and the broad coalitions they represent— in determining who will hold public office.

And whose interests will these corporations represent when they spend voluminously on political ads? The shareholders, customers, or Board of Directors? It's not entirely clear. Clear, however, is that (pp. 55-56/142-143),

over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to “‘[p]reserv[e] the integrity of the electoral process, preven[t] corruption, . . . sustai[n] the active, alert responsibility of the individual citizen,’” protect the expressive interests of shareholders, and “‘[p]reserv[e] . . . the individual citizen’s confidence in government."

(Ancient wisdom supports modern understanding: 33 references in the Bible to “speech” and none pertaining to anything other than the spoken word coming from one’s mouth; and 102 references to “person” and nary a one pertaining to anything other than a human being.)

It is accurate that the position taken initially by the FEC's counsel was sufficiently ambitious that it elicited astonishment on the part of one or more justices, and on re-hearing a more modest argument was made. Notwithstanding the course correction, a Court (bare) majority effectuated a radical revision of the prevailing approach to campaign financing reform. But it failed, apparently, to recognize its own extremism in re-writing the law in a radical fashion rather than exercising judicial restraint. As demonstrated by the attention Messrs. Greg and Dan have afforded the subject, the Court's decision (unless modified by the peoples' representatives) poses a nearly unprecedented threat to the American experiment.

Saturday, January 23, 2010

Kennedy Strikes A Blow For The Powerful

Q. What do you call someone who aims to make a powerful argument in favor of a
position and in so doing undermines his own position?

A. Anthony Kennedy

Delivering the majority position in Citizens United v. Federal Elections Commission on Thursday, Justice Kennedy argued

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.... The rights of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self government and a necessary means to protect it.... (p. 30)

Premised on mistrust of governmental powers, the First Amendment stands against attempts to disfavor certain subjects or viewpoints .... (p, 31)

Quite apart from the purpose or effect of regulatory content, moreover, the Government may commit a constitutional wrong whereby how it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right of the use speech to strive to establish worth, standing, and respect for the speaker's voice. (p. 31)

And so Justice Kennedy led the fight to disfavor certain subjects or viewpoints. Think Progress reports that the U.S. Chamber of Commerce has told Roll Call that the $123 million it spent in 2009 influencing federal policy

shouldn’t come as a shock to anyone because it was an incredibly active year for the president and the economy,” said Tita Freeman, a chamber spokeswoman. “Hence the chamber was active in all of the major debates that impacted the economy and business community.”

Freeman said the big spike in spending in the fourth quarter was due largely to health care, including issue ads, meetings and letter-writing campaigns.

Aside from health care, the chamber listed a slew of other lobbying issues, including energy and climate change legislation, endangered species regulatory processes, executive compensation and travel promotion.

And it shouldn't- shouldn't- come as a surprise to Justice Kennedy that if the Chamber of Commerce is spending $100-$150 million (and that in only one year) to "favor" the anti-climate science or anti-health care "viewpoints," it is disfavoring the other viewpoints, whose proponents are not likely to have a hundred million bucks lying around.

The Court, led by Justice Kennedy, surely is "taking the right to speak from some and giving it to others," thus "depriving the disadvantaged person or class of the right to use speech" for its purposes. The Chamber already spent over $100 million to advance its viewpoints, probably more than most readers of this blog had to promote its point of view. It may be hard for us to think of the Chamber of Commerce as "the disadvantaged person or class"- but then we are not Anthony Kennedy.

No one would deny, or would have denied, that "speech is an essential mechanism of democracy." The First Amendment guarantees the right against government intrusion to "freedom of speech"- a right held, even before Thursday, by every executive of the Chamber of Commerce and of every corporation in the United States. In its decision creating the right of a corporation to spend its treasury funds on broadcast ads, campaign workers or billboards that urge the election or defeat of a federal candidate, the Court seems to suggest that speech becomes "free" when an organization is able to buy it. Officials thereby become accountable not to the people but to those able to buy the speech, who purchase, as Think Progress put it, "the opportunity to purchase its own fleet of friendly lawmakers."

This purchase would be easily made. Jamie Raskin, a professor of constitutional law at American University and Maryland state legislator, on Friday's Democracy Now! spoke of

Exxon Mobil, which is the biggest corporation in America. In 2008, they posted profits of $85 billion. And so, if they decided to spend, say, a modest ten percent of their profits in one year, $8.5 billion, that would be three times more than the Obama campaign, the McCain campaign and every candidate for House and Senate in the country spent in 2008. That’s one corporation. So think about the Fortune 500.

Justice Kennedy is right to be concerned that government might "identify certain preferred speakers." He should know- he has done so himself or, rather, with four co-conspirators.

Friday, January 22, 2010

Precedent Quashed

This has been a very curious week in politics. A Republican, Scott Brown, wins a United States Senate seat in Massachusetts, thereby reducing the Democratic majority in that chamber to 18 seats. Eighteen seats. And Rush Limbaugh's argument? the Democrats are "arrogant" even to consider proceeding with health care reform, in a nation with over 30 million legal citizens uninsured.

But curious is exceeded by ironic. The real arrogance lies with five members of the United States Supreme Court.

Stare decisis, they call it, "to stand by that which is decided." And at his confirmation hearing in 2005, then-Judge Roberts, righteously compared himself to an umpire in that

Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.

As Richard Hasen explained in Slate

The court has long adhered to a doctrine of "constitutional avoidance," by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute. That's what the court did in last term's voting-rights case—in fact, going so far as to adopt an implausible statutory interpretation to avoid overturning a crown jewel of the civil rights movement.

In that decision, Northwest Austin Municipal Utility District Number One, Chief Justice Roberts, writing for the Court, noted "Our usual practice is to avoid the unnecessary resolution of constitutional questions."

But that was then, and this is now. Citizens United is a nonprofit corporation which in January 2008 released in theatres and on DVD a 90-minute disparaging documenary entitled Hillary: The Movie. By statute, it was considered an "electioneering communication," one which refers to a candidate for Federal office within 30 days of a primary or 60 days of a general election. The Federal Elections Commission clarified the expression as one which would be "publicly distributed."

The film, and the three short ads which Citizens United had produced to publicize it, apparently ran afoul of the statutory ban on corporate-funded independent expenditures. Consequently, the corporation sought relief against the FEC, arguing that the the Bipartisan Campaign Reform Act was unconstitutional as applied to the movie and the ads.

Citizens United lost in District Court, which denied a preliminary injunction and granted declaratory relief for the FEC. The Supreme Court at the end of the last term entertained oral arguments in which Citizens United argued merely that Austin v. Michigan Chamber of Commerce, which upheld limits on corporate spending in candidate elections, should be overturned.

But the activist, maximalist Roberts-led Court wanted to do more, and it scheduled for September another round of arguments to reconsider the Austin decision and McConnell vs. Federal Election Commission. At the time, it was widely assumed that the hundred year old legacy (Tillman Act, 1907) of campaign finance reform would be nearly obliterated, and the Court on Wednesday unsurprisingly struck down Austin, most of the BCRA (McCain-Feingold), and part of McConnell.

It's not as if the Court needed to make such a sweeping decision. The goal of Citizens United was much more modest, and there was a time- say, until a couple of days ago- when conservatives claimed that those elitist liberals wanted to legislate while they were strict constructionalists, wanting merely to interpret the intent of the Founding Fathers.

That has turned out to be as empty a claim as Roberts assertion that he saw himself and the Court as mere impartial arbiters.

In his dissent, Justice Stevens explained

The Court points to no intervening change in circumstances that warrants revisiting Austin. Certainly nothing relevant has changed since we decided WRTL two Terms ago. And the Court gives no reason to think that Austin and McConnell are unworkable.

In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the business community, organized labor, and the nonprofit sector, together with more than half of the States, urge that we preserve Austin.

Victories by the powerful and well-connected are not unusual and if conservatives couldn't get it done by the people's representatives in Congress or an elected chief executive, they would get it done by five unelected, politically-motivated jurists.

Thursday, January 21, 2010

Way Beyond Health Legislation

No gloating, here. It's merely a suggestion that Senator John McCain (R.-AZ) may want to turn his attention away from health care (especially given the limited nature of the Senate bill) to what is probably an even more important matter- a direct assault on a cause McCain has long weathered attacks from fellow Republicans and conservatives to push.

A CBS News blog notes that on its The Early Show today, McCain

said the health care reform plan Democrats have been trying to push through Congress "hopefully is dead," following the election of Republican Scott Brown as Massachusetts senator.

"We are more than happy to sit down and start over. Not scale back, but start over in a true negotiating process rather than the Democrats going back to try to pick off one or two Republicans."

Health care reform is not dead, and Pennsylvania Governor Ed Rendell had a good suggestion (especially the first, beginning at approximately :45) yesterday during his appearance (video below) on The Rachel Maddow Show. No, health care reform is not dead. But, unfortunately, McCain-Feingold is- as we've known it- dead. CNN reports that Citizens United, barred by campaign financing law to televise its hit job on Senator Hillary Clinton during the 2008 presidential primary season, has won its case in the United States Supreme Court:

A 5-4 conservative majority crafted a narrow overhaul of federal campaign spending Thursday that could have an immediate effect on this year's congressional midterm elections....

The opinion radically alters the election calculus, offering greater spending flexibility for a broader range of for-profit and nonprofit groups seeking a voice in the crowded national political debate.

In dissent, Justice John Paul Stevens wrote, "In a democratic society, the long-standing consensus on the need to limit corporate campaign spending should outweigh the wooden applications of judge-made rules."

He added, "The court's ruling threatens to undermine the integrity of elected institutions around the nation."

The case was the first one heard on the bench for newest Justice Sonia Sotomayor, and she voted in dissent with her three more liberal colleagues.

The issue hinged on whether corporations' ability to pour money into election campaigns could be strictly regulated, or whether corporations have free-speech rights to spend their cash to influence elections, just as individual donors do.

In this ruling, the justices also nullified earlier rulings upholding the core of a 6-year-old federal law aimed at curbing corporate campaign spending. Under current law, there are severe restrictions on campaign ads used by corporations for federal elections. They generally must be issue-focused -- talking about abortion or taxes, for instance -- and not expressly supporting or opposing a candidate. Those limits have now been generally removed.

That law would be McCain-Feingold ("The Campaign Bipartisan Reform Act of 2002"), and this ruling has the potential to transform the American political system by further cementing the corporate domination of American political life and economy. And it is far more important than anything that happened on Tuesday in Massachusetts or any effort by any Republican Senator to derail efforts to provide higher quality health care to the American people.

Monday, January 18, 2010

Family Values, Not Really

It's all misdirection. Taylor Marsh is understandably aggravated by the (expected) failure of the Democratic Party to hold the Kennedy seat in the United States Senate and annoyed at the Administration's seeming lack of concern at this turn of events. Frustrated, she writes

And I don’t know about anyone else, but I find it immensely entertaining that the right-wing religious conservative Republicans may elect a former Cosmo winner of “America’s Sexiest Man” contest, complete with cropped naked photo from the Reagan year of 1982, in a state that has been dominated for a century by Kennedy clan hunks.

Entertaining it is; surprising, not so much.

Republicans haven't been talking about "family values" for a long time now. Perhaps it was the Democrats turning the jargon on its head, noting that attention to inadequate health care or housing, poverty, or domestic violence qualified as family values- and those are problems most of the GOP doesn't want to be bothered with. Or maybe it was a mere talking point all along.

But maybe the media simply confused "family values" and opposition to abortion rights, failing to recognize that obsession with the latter implies nothing about the former. Case in point: Sarah Palin, stout opponent of choice in abortion and darling of much of the right wing. She may have been a picketer of abortion clinics. She may defend individuals who bomb abortion clinics against being labeled as terrorists. And she famously gave birth to a baby whom she was aware might be born with Down syndrome, though she admits (brags?) she considered an abortion.

All that didn't stop the former Governor from accepting an invitation, where she reportedly would be paid approximately $250,00, at Juravinski Cancer Centre and St. Peter's Hospital in Hamilton, Canada. A part of Canada's national health care system- which Palin had derided- the hospital issued advance directives, which the former V.P. nominee has condemned as "death panels."

And it performs abortions. Fortunately for all, the appearance was canceled by the group extending the invitation, saving Palin from a charge of hypocrisy. (She will instead appear on behalf of a children's charity in the area.)

Or perhaps no such charge would have ensued because, like Republicans of an earlier era, she really is not about family values. Earlier this month, we read

The Wine & Spirits Wholesalers of America have announced that former Governor of Alaska, Sarah Palin, will be the keynote speaker at their upcoming convention in Las Vegas on April 6-8th at Caesars Palace.

There is nothing inherently evil or immoral about speaking on behalf of the alcohol industry (maybe) or at a medical facility which provides a wide range of services, including those of a family planning nature. But it does suggest that with Sarah Palin, it's anything for a buck, not unlike the famous woodsmen, Larry, Darryl, and Darryl, on the 1980s Newhart.

So when we contemplate the travels of the former Governor of Alaska, and recognize that principle means little to her, we can understand more easily that the party which previously found electoral gold in identifying with "family values" wouldn't give a second thought to the incongruity of its U.S. Senate candidate once being a pinup model.

It's not about morality, or cultural conservatism, or traditional mores. At most, it's about opposition to a woman's right to choose; and even that is negotiable. We suffered through eight years of the conservative icon, Ronald Reagan; four years of a Republican president succeeding him; and eight years of the most conservative president in many decades, all of them rhetorically anti-abortion. But as Jonathan Chait wrote in The Big Con, "republican leaders have persistently declined to expend political capital on behalf of social conservative causes." Little to restrict abortion rights was done- until, ironically, amendments proposed by Democrats (Stupak in the House, B. Nelson in the Senate) in a Democratic-controlled Congress faithfully supporting a Democratic president.

Surely, the Republican base is, to varying degrees at various times, energized by opposition to gay rights, opposition to abortion rights, opposition to black crime (think Willie Horton) or other cultural issues. However, GOP-leaning think tanks, lobbyists, punditocracy, political officials, and others are little interested in such matters, except during electoral campaigns. That is their right, of course, but failure to understand what is of fundamental importance to the Republican Party can only enable it to exert greater influence over government and further its agenda of corporate supremacy.
Have They No Shame?

What are those murderous, imperialistic, even genocidal, Israelis up to now?, apparently an Israeli news source, today reports

CNN reported that Israel is the only state so far to have sent a field hospital equipped with all that is required for surgical operations. Doctors from various missions send patients requiring surgery to Israel's makeshift hospital, particularly those whose condition is critical, the news network said.

According to the report, other field hospitals contain no more than stretcher beds and medical teams who administer first aid, and they are not prepared for complex surgery....

More than 100 injured patients require surgery, but are unable to get it anywhere except at the Israeli field hospital in Port-au-Prince. The doctors are unable to meet the demand, and meanwhile the patients lie in tents, administered with painkillers, and cry for help. "They'll die within 24 hours if they don't get operated on," a reporter said.

The woman who appears in the video (below) to be the reporter marvels "the Israelis came from the other side of the world.... This is like another world compared to the other hospital." The Ohter woman maintains "no one except the Israeli hospital has taken any of our patients."

One of the men in the piece laments "it makes you almost embarrassed to be an American"- but it need not. It was Israel- the generous, swift, and effective action should not have surprised anyone.

Or is this just another dastardly Israeli scheme to curry international favor in order to continue their brutal oppression of the Palestinians?

Global Warming Not Abating

If you didn't know his modus operandi, you would think it was just a matter of bad timing. On January 15 Rush Limbaugh referred to an article in the North Florida Herald and said

Oh, by the way, a little weather. North Florida has the longest stretch of cold weather in 100 years. North Florida, the longest stretch of cold weather in 100 years. "National Weather Service Meteorologist Jason Hess said that it’s the length of the cold that is most significant. 'This is the longest stretch ever in 100 years of record keeping,'" in the midst of climate change and global warming.

However, on January 13 Science magazine reported that it

has obtained exclusive data from NASA that indicates that 2009 was the hottest year on record south of the Equator.

Last month, the World Meterological Association noted

The decade of the 2000s (2000–2009) was warmer than the decade spanning the 1990s (1990–1999), which in turn was warmer than the 1980s (1980–1989).

Also in December, the National Climactic Data Center of the National Oceanic and Atmospheric Administration found not only that the decade of the 2000s was the warmest on record (since the 1880s) but that each year of the last decade ranked among the ten warmest years of that 130-year period. Not only has there been a significant rise in temperature, but one which NOAA argued would have been predicted on the basis of human activity. Ominously, it observed

There have been two sustained periods of warming, one beginning around 1910 and ending around 1945, and the most recent beginning about 1976. Temperatures during the latter period of warming have increased at a rate comparable to the rates of warming projected to occur during the next century with continued increases of anthropogenic greenhouse gases.

It's easy to understand why many Americans would question whether the earth is warming. Canada and the United States (especially the north-central U.S.A.) were among the few regions with below-average temperatures in 2009. And it currently is mid-winter, an easy time to imagine that it is cooling, not warming. But as Limbaugh no doubt understands, but would never admit, there are both temporal and regional anomalies in temperature. And the mid-term and long-term trends are up, up, up.

Saturday, January 16, 2010

Stewart, Misguided

Sometime last year on CNN's Reliable Sources, Tucker Carlson told (video below, starting approximately 2:22) host Howie Kurtz

I think Jon Stewart is dishonest. I also think he's a sacred cow. There's nobody who has the huevos to attack Jon Stewart because he's too popular. The press sucks up to him...

Stewart may or may not be dishonest, but in the months which have followed, still no one has attacked Jon Stewart any more than, say, someone inside the Beltway will say that homosexual behavior is deviant or there is no constitutional right to bear arms.

But "Heather" at Crooks and Liars has, albeitly gently, boldly stepped up and criticized Stewart. She notes

Rachel Maddow responds to Jon Stewart's criticism of her reporting this week on USAID and has no apologies for Stewart.

Maddow: I know that's politics, but listen, I love me some Jon Stewart and The Daily Show. I'm a big fan. But no apologies for reporting which agency is the lead in our national effort to respond to Haiti, whether or not that agency is well resourced, whether it has been subject to partisan attacks, how much the current administration values and prioritizes and indeed brags on that agency. We all as Americans are counting on our government to do a good job in responding to this catastrophe. This is what it looks like to report on our government's capacity to do just that.

When President Obama gave USAID the lead role in coordinating this response to the disaster in Haiti he handed that agency its biggest humanitarian mission in years. Six days before the earthquake in Haiti Sec. of State Hillary Clinton had just given a major speech about how the Obama administration was going to elevate USAID to a primary position in the government.


Six days later the earthquake in Haiti and USAID gets put in charge of America’s response to it. They report that as of today USAID is fifty five million dollars into that response. They’re the ones coordinating America’s search and rescue efforts, water and emergency food aid, the way that supplies get into the country, shelter and sanitation and hygiene. At this point the road to being the world’s premier development agency runs through Haiti and we’ll keep reporting it.

Here's the Daily Show segment Rachel was responding to. I think Stewart is comparing apples to oranges to put Maddow anywhere near the same category as Limbaugh and Robertson. He completely misses the mark on this one. This is from the Jan. 14th edition of The Daily Show.

You'll notice that after playing the clip (video way below) of Maddow, Stewart remarks

Not the right time! Congratulations, MSNBC viewers, you are on the right side of this terrible, terrible,tragedy.

It's a curious response from this media/journalistic/entertainment icon toward the effective use of "soft power." Maddow was not expressing a hard ideological position but merely adding context to the approach of the United States government. She did not do it sarcastically, maliciously, or in a narcissistic manner, but carefully, rationally, and moderately. It was less an opinion piece than analysis, as was evident when she explained

That was Hillary Clinton speaking just last week. Today, USAID in charge of our country‘s massive recovery and relief effort in Haiti.

Not only is this us doing what we think is our obligation as a responsible partner in the community of nations, but in blunt terms, it often has good consequences for our country in terms of American power, our prestige, goodwill around the world.

This is the kind of thing that transcends politics. It is a way for us to directly help the citizens of another country, often in difficult parts of the world, and the interaction is not mediated by politics or by their government, really.

I don‘t think we do it so that we will be better liked in the world, but that, fortunately, is often a side effect.

President Obama's response is not motivated totally, and probably not primarily, by the impact his government's actions toward the tragedy in Haiti will have upon our standing in the world. But it necessarily is a factor and for Obama (as he no doubt is aware) to neglect consideration of the "consequences for our country" would be thoroughly irresponsible.

The responsibility for conducting a "war on terror" (or more accurately, struggle against terrorism) was thrust upon this nation before the attacks of 9/11/01. President G.W. Bush's decision to invade Iraq under false pretenses, as well as the perception of hostility toward Islam, has made the U.S. the target of hostility in much of the Muslim world. That is not a good thing. Obviously, President Obama, in his speech in Cairo and otherwise, is determined to turn that around. If our generous national response in Haiti saves lives and allows us to "be better liked in the world," all the better. Rachel Maddow understands that. Whether Jon Stewart does is now an open question.

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Friday, January 15, 2010

Competition For Limbaugh In The Disinformation Business

There is seemingly no limit to the right's enthusiasm for making political hay out of the extraordinary natural disaster in Haiti.

Pat Robertson blames it on "a pact with the devil" he believes Haitian slaves made 200 years ago. Rush Limbaugh, unable to connect the earthquake with Nancy Pelosi, naturally blamed Barack Obama on Wednesday, claiming “Everything this president sees is a political opportunity, including Haiti, and he will use it to burnish his credentials with minorities in this country and around the world, and to accuse Republicans of having no compassion.” The next day he was at it again, stating "If I said it, I meant to say it."

But Rush did not stop with Obama. On Friday, he blustered:

Get this. "Following the earthquake in Haiti, millions of people are dealing with death, a lack of food and water, shelter, and basic medical care. Planned Parenthood, sending a good time for a fundraising opportunity, is asking for donations for its local affiliate to promote birth control and condoms." Planned Parenthood is asking for money to help it pass out condoms and birth control to children who are simply looking for a bite to eat and medical care for injuries that they and their families sustained in the earthquake. I wonder, ladies and gentlemen, if Martha Coakley would tell Catholics to not be part of the triage units down in Haiti. And yes, I meant to say it.

Barack Obama, Martha Coakley, Planned Parenthood, they're all to blame. Limbaugh continually attacks Obama; Coakley is in a tight race with Republican Scott Brown in the U.S. Senate race in Massachusetts; but what about "Planned Parenthood?"

Apparently he got it from the an article on the website of, which, referring to Planned Parenthood's Facebook page, in which Steven Ertelt claims

The international Planned Parenthood arm is accepting donations for PROFAMIL, a locally based Haitian organization," the abortion business says. "Fully 100% of donations will go directly to PROFAMIL’s operations."

At the International Planned Parenthood secure giving web page, the abortion giant says PROFAMIL has been operating in Haiti since 1984 to provide "sexual and reproductive healthcare."

The group "educates the public about prevention and ensures widespread access to condoms" to "young people aged 10-25" with "regular condom demonstrations."

In other words, Planned Parenthood is asking for money to help it pass out condoms and birth control to children who are looking for their next meal and medical care for injuries they and their family sustained in the earthquake.

Well, not really. The page from the website of Planned Parenthood International which pertains to Haiti explains:

100% of donations collected will go directly to PROFAMIL's operations, so they can get their clinics and mobile health units up and working as soon as possible.

Since 1984 PROFAMIL has provided low-cost, quality sexual and reproductive healthcare. As a leader in the field, PROFAMIL meets regularly with the Minister of Health to develop strategies for increasing access to sexual and reproductive healthcare.

Programs that Profamil offers include:

* Sexual & Reproductive Health Services: PROFAMIL clinics provide family planning, early detection of breast and cervical cancers, high-quality sexual and reproductive health clinical services for men and women, and pre-and-post natal services.

* Mobile Health Clinics: PROFAMIL brings health providers directly to the rural communities where the people are totally isolated. Approximately 200 men, women and children are provided with basic health care services at each visit.

* HIV/AIDS Prevention: PROFAMIL conducts voluntary testing and counseling for HIV/AIDS, educates the public about prevention and ensures widespread access to condoms.

* PROFAMIL Youth Program: PROFAMIL provides youth-friendly clinical and educational services to young people aged 10-25.

* Health Education: PROFAMIL covers issues such as promoting family planning and presenting various methods; cervical cancer and the need for routine pap smears; relationships; gender issues; domestic violence; HIV/AIDS prevention with regular condom demonstrations. In 2006, PROFAMIL educated over 225,000 people.

In its operations in Haiti, PROFAMIL apparently promotes education in family planning, domestic violence, and the need for preventive health care and is asking for donations for clinics and mobile health units. But the euphemistically-titled "Life News" sees none of that; instead, it quotes the phrases referring to condoms and disingenously- no, dishonestly- concludes

In other words, Planned Parenthood is asking for money to help it pass out condoms and birth control to children who are looking for their next meal and medical care for injuries they and their family sustained in the earthquake.

Well, no. The IPPF is looking for money to provide basic health services, generally unavailable in a natural disaster such as this one. It could, of course, appeal to the emotions of individuals and collect money for unspecified purposes like many other organizations, but apparently it's not their style. Meanwhile, it is the target of invective by a publication obsessed with its political agenda and anxious to distort the motives of its ideological foe. And to do so, conveniently, by reverting from use of International Planned Parenthood Federation to "Planned Parenthood," a devil in the eyes of extreme anti-choice advocates.

It's fine to be obsessed with one particular issue, as Life News apparently is. It is not fine, however, then to condemn another organization which is raising funds in its particular field of interest, reproductive health. (And, to a lesser extent, to promote other healthful behavior.)

It is telling that Ertelt provides only one link, to another article he wrote, which itself provides no links. Opinion is splendid; but cheap manipulation ought at least to be accompanied by a modicum of truth. Otherwise it is mere fodder for propagandists like Rush Limbaugh.

Thursday, January 14, 2010

No Passion For Coakley

The U.S. Senate contest in Massachusetts has been heating up for weeks now, with Scott Brown (R.- Cosmo) dramatically gaining ground on Attorney General Marsha Coakley.

High-profile Republicans have been all over the race and Brown has raised tons of money. The Democrats finally responded. Governor Deval Patrick has been campaigning with Coakley. A fundraising appeal from Vicki Kennedy, widow of Edward M. Kennedy (for whose seat, now held by Paul Kirk) Brown and Coakley are vying) brought in more than $500,000 and Senators Chris Dodd, Patrick Leahy, Al Franken, and Harry Reid "passed the Kennedy appeal on to their fundraising lists," according to Talking Points Memo. Tomorrow, Senator Kerry and former President Clinton will appear at a rally to gin up voter turnout.

Who could be missing? Presidential Press Secretary Robert Gibbs on January 11 stated "The president doesn't have any travel plans to campaign in
Massachusetts." President Obama has cut a two-minute web video sent to "Democrats and Coakley supporters" in Massachusetts but has neither appeared in person nor cut a television ad.

Republican Party chief Rush Limbaugh suggests that Obama is less popular in Massachusetts than Coakley and that the President's involvement probably would hurt the Senate candidate, though characteristically, Limbaugh stops just short of a definitive claim. Nevertheless, the President's apparent, relative lack of interest in the race is perplexing, especially given Brown's promise to be the 41st vote in the Senate to kill health care reform.

The reason for the Mr. Obama's nearly-hands off approach may lie in consideration of the ways in which legislation might be passed if (as is still slightly improbable) Coakley is defeated. The New Republic's Jonathan Chait raises three possibilities, the first two of which he credits to Politico's Ben Smith:

The first is to rush a bill through both chambers before Brown takes office. The second would be for the House of Representatives to pass the Senate bill unchanged, which would require no further vote by the Senate.

The third possibility, unmentioned by Smith, would be to go back to Olympia Snowe.

Chait believes the second scenario is likeliest. The second and the third option, however, would yield roughly the same outcome: further debasement of already debased legislation. If Harry Reid/Emanuel/Obama go back to Olympia Snowe, the concessions offered to the Maine Senator would leave even Ben Nelson's Nebraska shortchanged by comparison (and probably result in Susan Collins joining Snowe as "reform" ironically passes with 61 votes).

If House Democrats- many of whom, not being conservatives, believe their bill does not go far enough- are strongarmed into passing the Senate version unchanged, it will mark a devastating defeat for genuine health care reform. It wasn't so long ago that the mantra of congressional liberals/progressives was "let's just pass a bill, we can clean it up in conference." That's still a possibility- but not if the Senate bill is approved unchanged.

If Rush Limbaugh is wrong- and he usually is- the President and Chief of Staff may see a defeat of Coakley as not an obstacle but rather an opportunity- a chance to pass a weakened health care reform bill and deliver a blow to the left. That probably is a way of ingratiating the President to the special interests, and possibly to middle-of-the-road voters, but hardly a way of rewarding those who envisioned an Obama presidency as a path to change.


The husband-wife (or, rather, wife-husband) duo of Supreme Court Justice Samuel Alito and Martha-Ann Alito nee Bomgardner flew an upside do...