Money in Politics

May 26, 2015

For decades before the Supreme Court decided Citizens United, political scientists concluded that more money helped our democracy by increasing competition. They had also concluded that it did not disadvantage Democrats, who would hold their own in fundraising. Even after Citizens United, those conclusions still seem true. But those scholars did not address other ways that money changes politics.

I’m still angry with Ralph Nader for his part in the 2000 election. His claim that there was no difference between the parties seems way off the mark. It’s hard to imagine Al Gore would have made the same mistakes George Bush did. But Nader was onto something else. Every candidate, from Gore to Hilary and Bush to Romney, has sought support from the financial industry and other tycoons and multinationals. Some regulatory proposals looked different when first made but all were whittled down. Obama supported Elizabeth Warren for a new agency but relented to the opposition. Money matters.

That’s fiendishly difficult to measure. Most scientific work is based on comparisons. When everybody’s doing it, there are no satisfactory comparisons.

But the consequences are huge. The cost of campaigns is increasing fast, doubling since 2000. More than a fifth of the expense of Senate races, and more than a third of the cost of House races came from PACs in 2014. Outside organizations now spend more than 20% of campaign expenses, increasingly from undisclosed sources. Of the rest, less than a third of 1% of the adult population of the U.S. provides two thirds of all individual contributions to federal candidates, PACs and Parties.[i]

What do they get for that? From 2007 to 2012, according to the Sunlight Foundation, “America’s most politically active corporations spent a combined $5.8 billion on federal lobbying and campaign contributions.” The Foundation concluded that, in return, those same corporations got “$4.4 trillion in federal business and support,” more than the government paid all Social Security recipients, and two-thirds of all the money that all of us together as “individual taxpayers paid into the federal treasury.” Kevin Phillips had described the power of such political investment as many thousands to one?[ii] Sunlight Foundation calculated that “for every dollar spent on influencing politics, the nation’s most politically active corporations received $760 from the government,” a seventy-six thousand percent return.[iii] Contributions coupled with lobbying work exceedingly well at those levels.

Bruce Bueno de Mesquita and his colleagues elaborated the impact of what they call the “selectorate,” the people who dominate the choice of political leadership.[iv] As the selectorate shrinks, politicians direct ever increasing public benefits toward that shrinking group and fund them on the backs of everyone else, paving a path to the collapse of democratic government. Here, that one tenth of one percent of Americans, who bring home the great majority of America’s wealth, dominate our politics as they do our wallets.

Political scientists urge public funding as the best available solution. Just take money out of the equation. The public doesn’t like funding politicians they may not agree with, and we don’t much like paying their salaries either. But to get a politics which takes account of the welfare of the entire American population, it appears to be the most likely path. And a very good investment.

Next week, the risks.

— This commentary was broadcast on WAMC Northeast Report, May 26, 2015.

[i] The Center for Responsive Politics keeps track of the data at OpenSecrets.org. See https://www.opensecrets.org/overview/index.php, https://www.opensecrets.org/overview/cost.php and https://www.opensecrets.org/overview/donordemographics.php [visited May 12, 2015] for the information presented.

[ii] Kevin Phillips, Wealth and Democracy (Random House 2002).

[iii] https://sunlightfoundation.com/blog/2014/11/17/fixed-fortunes-biggest-corporate-political-interests-spend-billions-get-trillions/.

[iv] Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior Is Almost Always Good Politics (New York: Public Affairs, 2011); Bruce Bueno de Mesquita, Alastair Smith, Randolph M. Siverson and James D. Morrow, The Logic of Political Survival (Cambridge, MA: MIT Press, 2003).


Canadian Comparative Religion Case

May 19, 2015

I’d like to tell you about a recent decision of the Supreme Court of Canada regarding religious education.[1] Quebec has a “mandatory core curriculum” which includes a Program on Ethics and Religious Culture, to teach “about the beliefs and ethics of different world religions from a neutral and objective perspective” as the Court described it. It “requires teachers to be objective and impartial” and “to foster awareness of diverse values, beliefs and cultures.” The court decided that freedom of religion required Quebec to allow a Catholic school, to teach about Catholicism from a Catholic perspective, but the Court held that the school nevertheless needed to present other faiths in a neutral way, a position that the school largely accepted.

I understand the problems with the case. I understand that there will be difficulties interpreting and enforcing the decision and the law on which it is based, and in balancing the rights of the schools and the students. But it’s also very interesting.

It has always been legal to teach comparative religion or the history of religion in public schools in the United States. The so-called “wall of separation” has always been about fairness toward all the students, denying government the power to promote any religious viewpoint over others. It has not been about total exclusion from the classroom. Here’s what our Supreme Court wrote:

While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. [2]

We perceive “exclusion” from public places and programs because litigants typically want to promote a specific religion or doctrine rather than treat us to a display of inter-faith brotherly love. Multi-faith displays aren’t generally a problem – except for the promoters. Most Americans support that kind of basic fairness. And there is much to admire in what Quebec has tried to do.

Some congregations themselves teach their young people about the differences in the ways people pray, taking them as a group on tours of other houses of worship. Sometimes the little congregation where I pray plays host to such groups, a practice I admire very much.

I’ve felt lucky over the years to spend time at Chautauqua where religious lectures and services are programmed into the Amphitheatre, so even if you don’t plan on attending you may be mesmerized just passing by, as I was a few years ago hearing thousands of people in the Amphitheatre in this historically Protestant religious community reciting a prayer in Arabic as part of what they called their Abrahamic initiative, exploring the different faiths that have roots in the religious world of the patriarch Abraham and the ancient Hebrews. They explored it by including clerics from each of those traditions.

My college experience was similar – we had to go to services, regardless of whose, and programming in the main university chapel was ecumenical – so I heard some of the world’s finest theologians of the era, regardless of faith.

I came to appreciate the fact that the finest minds of most faiths understand the similarity of their religious worlds, and the identity of unanswerable questions with which we all struggle. Most of all I appreciate what unites us and the import of that unity for us all.

Given the rise of religious war and cruelty in many parts of the world, I can’t bring myself to take brotherhood for granted. It is the hard won prize of our America.

— This commentary was broadcast on WAMC Northeast Report, May 19, 2015.

[1] Loyola High School v. Quebec, 2015 SCC 12 (2015), available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do

[2] Epperson v. Ark., 393 U.S. 97, 106 (U.S. 1968) quoting McCollum v. Board of Education, 333 U.S. 203, 225 (1948).


Prosecuting the Prosecutor – Thank Heavens

April 7, 2015

Here’s a news flash from the Innocence Project that left me both cheering and in tears:

The Texas State Bar filed a formal accusation of misconduct against the prosecutor in the case of Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Cameron’s defense, according to a disciplinary petition filed in Navarro County District Court this month.[1]

I was cheering because it is so rare that anyone takes action against any official in the criminal process who wrongfully assists in the conviction and execution of an innocent person. The U.S. Supreme Court blocks any litigation against prosecutors for murderous misconduct. I was crying because the man wrongfully convicted has long since been put to death.

Gov. Rick Perry refused to grant a stay requested by lawyers for Cameron who had been convicted for setting a fire that killed his three daughters. His lawyers asked Perry to stay execution because a report by an independent arson expert found no evidence the fire was intentionally set.

Calling Cameron a “monster,” Perry replaced members of a commission that dared to review the finding of arson.

At the trial, a jailhouse informant testified that Cameron had admitted the crime and that the informant had not been promised anything by the prosecutor for his testimony. Later a letter surfaced in which the informant reminded the prosecutor of his promise of leniency on other charges.

For me, there are so many lessons. One is that innocent until proven guilty is more than a slogan. Another is that the people who are supposed to be enforcing the law are sometimes actually lawless, doing great harm. A third, is that independent outside investigation of the behavior of the police and the prosecutors is a crucial form of accountability in a democratic society. And a fourth is that it is important that independent groups have the courage to follow up and do their best to right those wrongs without being attacked because they are impartially investigating people whose job description makes them seem sacrosanct.

When she was told that the state bar was taking action, Cameron’s step-mother responded: “Who would have ever thought that all this corruption would happen in small-town America?”

There’s another stereotype that needs to go. The devil lurks in all communities and among people of all colors. Cameron incidentally was white. A decent, honest, law enforcement system is important to all of us without regard to race, sex, faith or any other aspects of our background. And if they could do that to a white family, what kind of justice do we think our African-American brothers and sisters are getting.

To me this is a reflection of the problems we have been addressing with respect to police killing of unarmed people, even a child recently, and the Supreme Court’s indifference to injustice in what should be a system of criminal justice, not a system of official lynching. We need to be willing to see and stop misbehavior wherever it happens.

— This commentary was broadcast on WAMC Northeast Report, April 7, 2015.

[1] See https://www.themarshallproject.org/2015/03/18/willingham-prosecutor-accused-of-misconduct and http://www.innocenceproject.org/news-events-exonerations/prosecutor-in-willingham-case-faces-misconduct-charges?utm_source=Main+IP+Email+List&utm_campaign=3a08bbb832-2015_February_Newsletter_02272015&utm_medium=email&utm_term=0_016cb74fd6-3a08bbb832-350279237


Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


World-Wide Radiance of the American Melting Pot

February 24, 2015

In this world the grossest of inhumanity is euphemistically described as ethnic cleansing. The mutli-directional genocide of the old Yugoslavia has become routine. Boko Haram takes aim at education and at religious difference in Africa, targeting connections with America and the west. The Islamic State and al-Qaeda in the Middle East, with tentacles into much of the Muslim world, target whoever doesn’t belong and subscribe to their version of Islam or dare question their authority, They have targeted America, England, Spain, France Norway and counting. It is terrifying how quickly decent peace-loving communities have been dismembered and destroyed.

The past is prologue, but can’t be undone. The question is what do we do now. This is partly an ideological struggle because terrorists depend on recruits. How can we handle such a high-stakes ideological struggle? One aspect of that is at home.

Urging the U.S. Supreme Court to end segregation in Brown v. Board of Education in 1954 both the Democratic Truman Administration and the Republican Eisenhower Administration explained to the Court that our respect for people of all races, faiths and national origins were central to American worldwide success, especially in the fight against Communism.

Our melting pot and mutual concern and respect define the best of America. Our unwillingness to give in to bigots and bigotry, racists and racism, our willingness to see, confront and deal with bigotry and racism, our determination to stop it, make our strongest appeal. It is our tolerance, our neighborliness, our welcome to all from everywhere that makes us the shining city on a hill that our Founders hoped we would be. It is not our bloodlines but our coming together to make ourselves and welcome each other as Americans that makes us so. That e pluribus unum is what the world admires. They want our neighborliness; they crave the American idealism that gives anyone and everyone a chance to make a decent living and a decent life. They crave the welcome that glows from our melting pot.

People dream of America in corners of the world where they are crushed as if they are worthless except for the masters’ business, worthless unless they are of the masters’ bloodlines, worthless unless they have something to offer, at least a bribe. We need to keep the dream of the American melting pot alive both for their sakes and for ours.

Our American melting pot is more important than ever to the world we inhabit. But make no mistake it is crucial here at home. If the hatreds that once fanned the Old World and now fan the so-called Third World land on our shores, none of us are safe. We were all melted in that pot and we all live or die together. There is no safety in a cauldron. We have to sustain the values of our shared tolerant American culture.  For all our sakes. We are all beneficiaries.

I pointed out last week that the American melting pot, one of our most fundamental of institutions, was the result of very deliberate decisions to educate us all together, without regard to wealth, faith, gender, national origin or spoken language, and then, finally, without regard to race. And yet, the Court that once announced Brown v. Board of Education is not helping to preserve that centuries-old melting pot. Instead it is making it easier, in some respects even forcing us to re-segregate ourselves by race, religion and wealth.[1] By doing that, the Court is plunging a dagger into the heart of America.

— This commentary was broadcast on WAMC Northeast Report, February 24, 2015.

[1] See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); and see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press 2010); Erica Frankenberg, Chungmei Lee and Gary Orfield, “A Multiracial Society with Segregated Schools: Are We Losing the Dream?”  The Civil Rights Project Harvard Univ. (Jan. 2003) available at http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf (June 22, 2007).


Dr. King’s Message of Love

January 20, 2015

Yesterday we celebrated Martin Luther King Day. We are still much too far from a post-racial society. For the big victories of the Civil Rights Movement, we think of Brown v. Board, and the Civil Rights Act of 1964, which the Rehnquist Court did its best to chip away, and the Voting Rights Act of 1965 which the Roberts Court is doing its best to tear up. There was another victory that I’d like to talk about, just a few years after Martin Luther King shared his dream at the Lincoln Memorial.

It often seems like a postscript to Dr. King’s legacy but was actually at its very core. When the NAACP planned its attack on school segregation, they started with graduate schools, racking up a string of victories so that any other decision in Brown would have flatly violated the teaching of a whole group of recent precedents abandoning separation in law school, medical school, graduate school in one state after another. But until Brown they didn’t touch grade school. They had concluded that grade school would be the most inflammatory and most difficult because of southern fear of what they called miscegenation, marriage between whites and Blacks. There was a sense in which worrying about marriage of kids in elementary school rather than adults in graduate school seemed backwards. But they understood the fear and went with it.

Fear of intermarriage was a very big deal with reason. Sociologists have been finding that one of the main ways Americans have been putting stereotypes and prejudices behind them has been intermarriage, not just Blacks and whites, but Jews and Christians, whites and Asians, different white ethnic groups, and now the marriage of gay or lesbian children of straight families, all of us to some degree have been marrying out of our ancestral groups, introducing our families and producing children who celebrate all sides of their heritage. Marriage and intermarriage matter.

Rabbis don’t like Jews to intermarry – they’re afraid to lose another Jew to the assimilated culture. When Jeanette and I married, it was hard to find a rabbi who’d marry us. There are a lot of mixed families in our Temple, creating the loving, open community we love.

In the 1950s Mildred Delores Jeter grew up down the road from Richard Loving in rural Virginia. Richard was a white bricklayer; Mildred a young Black girl. In that part of the state, Blacks and whites often socialized, but didn’t marry. Mildred and Richard weren’t thinking of Dr. King or making a racial statement. They just fell in love, married and wanted to raise a family together. For that they were arrested, jailed, convicted and kicked out of Virginia. They were together until, tragically, Richard was killed in a traffic accident nearly twenty years later.

The year Martin Luther King shared his great dream with us, Mildred wrote to U.S. Attorney General Robert Kennedy about their inability to visit family and friends in Virginia. Kennedy sent them to the ACLU whose lawyers brought their case to the U.S. Supreme Court. In 1967 the Warren Court gave us the historic decision of Loving v. Virginia, one of its great decisions, establishing the right to marry, and marry without discrimination.

That part of the Civil Rights Movement seems resilient and lasting – we keep meeting, befriending and learning to love each other. The world changes, though slowly. It has always seemed appropriate to me that they were Mildred and Richard Loving. Dr. King’s was a message of love; love needs to run this world.

— This commentary was broadcast on WAMC Northeast Report, January 20, 2014.


Yipes – taxes for the New Year??? !!!

December 30, 2014

Some years ago I called Phil Shrag whom I knew from law school. He’d run the National Organization for the Rights of the Indigent for the NAACP and worked for the New York City Commissioner of Consumer Affairs. Phil was and is a very public spirited person. At the time he was teaching at Columbia. I don’t remember what I called him about but at some point in the conversation we made small talk. I asked him what he was teaching. Tax. That was a surprising answer since none of the things Phil had done suggested significant involvement with the tax code. But he pointed out that every public policy runs through the tax code. So it made a lot of sense.

Phil of course was right. Global warming? The tax code determines how cheap it is to buy carbon based fuels that warm the globe. And it determines whether the producers or somebody else has to pay for the cleanups, the environmental damage, dealing with the warming planet. And it determines what the carbon hawkers have to pay for threatening to obliterate our descendants and end human life on this planet. No tax – go ahead and choke the globe.

Antibiotic resistant disease? The tax code determines what cheap methods are OK to raise and sell animals and animal products. Jam animals together for “efficient” processing and they need antibiotics. The tax is on the land, not the antibiotics. Voila, it’s cheap to feed antibiotics to animals and ship them to us with resistant diseases. Of course we’ll pay the price with illness, doctors, and grieving for our dear ones – but, hey, the milk was cheap.

Landfills? Who pays for those? Do you get a break for composting, sorting, recycling or not buying so much? Nope – we all pay for garbage. But the tax could be shifted to producers and off our shoulders. Things would instantly get less wasteful.

Ever since the elder George said “Read my lips; no new taxes,” taxes have become the third rail of politics – instant suicide for any politician even to bring it up. But health, wealth and survival are right there in the tax code. We need smart taxes, that shape us the way we ought to be. The freedom to corrupt our country and our world with garbage, poison and heat isn’t legitimate freedom – that’s one person’s “freedom” to mess with another’s life, or the lives of many. That’s not freedom, not what our forefathers’ fought for, not patriotic, sensible or constructive. We need smart taxes. Now. Taxes that will make our world a better place.

So last week I wished for peace, health and good government – figuring I was on mostly safe ground. So now I’m blowing it – wishing for new, I’d rather say better, taxes. TAXES for the New Year! That Gottlieb character must be crazy.  Like a fox? Naahhh. Just nuts.  Republicans won’t allow it anyway.

Oh, devilishly inspired by Paul and Anne Ehrlich, how about a tax on more than two children per family – NO, don’t throw tomatoes, they stain. I’m out o’ here! Happy New Year everyone.

— This commentary was broadcast on WAMC Northeast Report, December 30, 2014.


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