The Court’s attack on the “ever-normal granary”

June 30, 2015

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.


Democracy’s Future in America

June 2, 2015

The Court has now decided that states can stop judges but only judges from personally asking for campaign contributions. It left all the rest of its protections of economic privilege in place.[1] Corporations can use treasury funds to flood the airwaves with political ads. Donors can hide their contributions behind a variety of specialized corporate entities. The one-tenth of one percent of the wealthiest Americans can dominate American politics directly and through their domination of corporate treasuries.

As I explained last week, inequality in the United States is making democracy increasingly unsustainable. When the wealthy and powerful take control of the whole shebang – political money, jobs, the media – the mass of the public is left with few resources to control their government, while the wealthy and powerful have enormous resources at their disposal to control the people.

In addition, democracy is fairly explicitly under attack. Conservatives attack the voting rights of any who might vote against them. Corporations use arbitration clauses in consumer contracts and international treaties to sidestep democratic decisions and make it easier for them to tear down environmental, labor and any other regulation that the people want but the corporations dislike. Their argument against regulation of markets is a euphemism for rules that favor whatever they want to do. But their point is that democracy has no right to interfere. And they hide their contempt for democracy behind Reagan’s claim that government, democratic government, is the problem.

Both these direct attacks and the distortions of wealth on the political process create a real threat that this government of, by and for the people could perish from the earth, undermined by control over speech, press and politics and squeezed out by untouchable markets and the exclusion of democratic decision-making from anything corporations care about.

Only the Tea Party seems prepared to rebel and their exclusionary politics adds to the problem. The gun rights folk will, if anything, protect the current distribution of wealth, enforcing their prejudices. Liberals – race liberals, economic liberals, big money liberals – are hardly united.

Under domination from powerful corporate interests, we could hope at best for the crumbs off their tables. Welcome to the many so-called democracies in Central and South America, Asia and Africa, where hirelings and sycophants help control the public for the benefit of their wealthy patrons.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. We could fight back by supporting independent radio stations like WAMC. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to the consolidation of tyranny as it did for the Romans and is now doing in the Middle East.

Can we rally to save the planet and save democracy before we have lost them both? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Next week, the primaries.

— This commentary was broadcast on WAMC Northeast Report, June 2, 2015.

[1] Williams-Yulee v. Fla. Bar, 2015 U.S. LEXIS 2983 (U.S. Apr. 29, 2015).


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).


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