Smarter than the Average Bear and Nary a Clue

Constitutional Amendments 101

(Photo credit: Village Square)

The title above refers to me.  After writing my previous post suggesting consideration of  a constitutional amendment to combat the ever increasing role of money in politics,  I have come to see what deep waters I jumped into.  It all looks murky from below sea level.   After a response from a lawyer friend and watching a segment on UpwithChrisHayes Sunday.  I have several second thoughts, a few which I’ll mention.

This instance exemplifies how difficult it is to be a so-called informed citizen these days when the key issues are so complex they would be hard to figure out even if  the information available to us could be trusted.  As reflected in the growth of public fact checkers, such as factcheck.org, understanding requires much sorting out with questionable results from one’s efforts.

As I have written in this blog at various times, while  I have left of center biases, I am more concerned with illuminating issues than in pushing a political agenda.   The one thing I know right now is that the financial amendment issue, like so many other political issues I encounter,  probably deserves at least a book.   I cannot write a book on each issue, but I will try to do something useful short of that.  Though it will take time.

First, a couple of  second thoughts on that last post.  There I mentioned  two proposed constitutional amendments restricting political contributions, one proposed by an organization called Move To Amend, and the other by Lawrence Tribe, “one of the nation’s pre-eminent liberal legal scholars.”  The former amendment goes like this:

“We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights. ” (bold added).

That seemed to make sense, so I signed the petition.   Money isn’t speech and corporations are not people, right?   Well, legally not so fast.   My lawyer friend pointed out that corporations are usually treated like people, in that they have rights and restrictions.  As he wrote:

“I am saying that legal entities have the same rights as individuals (almost all statutes classify a business entity as a “person”)  Once you start limiting the rights of certain legal structures you head down a very steep and slippery slope because who is doing the limiting and where does the limiting end?”

Hmm….  Remember when Mitt Romney said  “corporations are people, too”?  I found that hard to swallow, but in this legal sense, a corporation does seem like a real person, just like Mitt Romney.

Then I watched the Chris Hayes show on Sunday and  saw Glenn Greenwald, who is hard to peg politically other than he is very concerned with civil rights.   He explained why he and a number of liberals (including the ACLU) favored the Citizens United  decision because they did not want government to regulate speech.  As someone at the ACLU wrote:   “…the ACLU does not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.”

So, we have some people on the left and the right joining together to resist bans on political speech.  They seem to be saying “money is speech.”  In any event, rather than restrict this “speech”  the ACLU and Greenwald  favor robust public campaign financing, while the ACLU also backs greater disclosure rules as ways to check the escalating cost of political campaigns.

Meanwhile my lawyer friend seems to like the Lawrence Tribe amendment, but I’ll save his reasoning for later after I try to understand it myself.  I will also develop a Constitutional Amendment page under the Centerville category above, where I will gather and sort out information on this topic.   I welcome help with this, especially from those with legal training  (I’ll have a comment button at the bottom of the Amendment page)Right now there doesn’t seem a need to rush.

I still think it a good idea to sign the petition at  Move To Amend, even if you disagree with the wording of the amendment.   That wording can change and a good response will suggest some people out here do care.   Also, I believe it good to do small political acts just to get in the habit should a day come when we can do big political ones together.   It’s  sort of like making a habit of doing  “random acts of kindness.”

Campaign Finance Reform … Yawn

When I was young the word “reform” had positive connotations, but after years of observing re-forms that turned out worse than the original forms, and others that only had the appearance of reform, I find myself falling asleep when now encountering the word.

Citizens United

Citizens United (Photo credit: Wikipedia)

While we need campaign financial reforms, it is hard to get excited about them for they tend to be complicated and take lots of time to pass and then most of us have little idea of what the real outcome will be.

Take the McCain-Feingold Act of 2002.  The immediate results seemed mixed and, though a step forward,  with the Citizens United decision of 2010 (discussed in my previous post), big money seems to have found yet another end run around good intentions.   So much so that one observer argued a few months ago we would be better off now if we repealed the act.

I don’t know enough to judge that, but after the U. S. Supreme Court just struck down the Montana state law limiting financial political contributions both the state’s Democrat governor and Republican Lt. Governor called for a constitutional amendment to offset the Citizen’s United decision.

I had heard here and there other calls for a constitutional amendment, including one from Harvard Law School professor Laurence Tribe, who had has long opposed such tinkering.   However, he has changed his mind now that the “distortive effects of Citizens United and its aftermath are becoming clearer every week.”  Writing recently for Slate, Tribe proposed an amendment, which has since been introduced by Rep. Adam B. Schiff (D-Calif.), that would allow “content-neutral limitations” on independent expenditures.

As the related article at the bottom of this post indicates, some have criticisms of the wording of Tribe’s amendment, but there will be a lot of quibbling over the exact wording should an amendment gain momentum.   Also, need I point out that given the election, the real battles over this won’t likely be fought until 2013?

Still, it will take months to develop momentum anyway.  In Googling the amendment issue I just discovered an organization that I had never heard of, established in 2009, Move To Amend.   Obviously they were working to reduce the political  influence of big money even before the flood gates were opened wide with Citizens United.  And if you look around the site for a few minutes, you’ll find a host of organizations that support their efforts, along with a comparison of their suggested amendment to that of others (though not of Tribe’s as yet).

They are asking for people to sign a petition that goes as follows:   “We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights. “

That makes sense to me.  Perhaps their wording could prompt problems, too, but there is nothing binding there and signing it seems a positive gesture, so I did.  It has been signed by over 200,000 others while their goal is to reach  500,000.   I would be interested in feedback if you did sign  or have reasons not to sign that  you are willing to share.

MONEY, MONEY, MONEY: Montana vs. the United States

Does unlimited spending by corporations and unions on elections  corrupt the democratic process or not?   For a 100 years the state of Montana has said “yes”, including when its Supreme Court voted down recent attempts to challenge the law, but yesterday the U. S.  Supreme Court reversed that decision and said “no.”  Actually, they said “no” in a 5-4 decision in the Citizens United case in 2010, and just reaffirmed that yesterday.

English: The United States Supreme Court, the ...

English: The United States Supreme Court,  in 2010.  (Photo credit: Wikipedia)

Back in 2010, Justice Anthony Kennedy wrote the majority opinion declaring that independent expenditures by corporations and unions “do not give rise to corruption or the appearance of corruption” if those expenditures are absent direct links to political candidates.   Hence the seeds of the burgeoning  Super Pacs were sewn.

Not that this has surprised most of the folks in Montana.  Their history shows the effects of unlimited political spending, which is why they have had a law on the books since 1912 limiting it.   The law was written to reduce the overwhelming influence of big mining interests in the state.  After the Citizens United decision this law was challenged by corporate interests and the Montana Supreme Court affirmed it, so it was appealed to the U. S. Supreme Court.

Not surprisingly they (the same five judges who had decided in favor of Citizens United) summarily rejected the Montana State law, which means they refused to even hear arguments in favor of it.   According to the NY Times, two of the liberal justices, who dissented in the Citizens United decision — Ruth Bader Ginsburg and Stephen Breyer — argued that both events since 2010 and the history of Montana were good reasons to reconsider the “absence of links” assumptions used in the 2010 decision.  But they were ignored.

“Absence of links” implicitly means the majority of the Supreme Court believe that you can prevent corruption if the  money bulging Super Pacs do not directly coordinate their activities with the candidates.  Really?  You think the Pacs can’t figure out what to trash in the opposition that will help their candidates win.  That they can’t grasp the general themes of each campaign and fuel them with their millions?  And they don’t expect something in return for their generosity?  It doesn’t require a genius or even a phone call for the Pacs to figure it out.  At the very least it gives “the appearance of corruption”.

Given how money influenced the Republican primaries, such as Sheldon Adelson’s millions alone keeping the Newt Gingrich campaign afloat, isn’t that enough reason to at least hear the Montana arguments?  And now Adelson’s pledged another $60 million or so to support other  Republican fall election campaigns AND the fellow billionaire Koch brothers  is seeing that $60 million with their own dough while raising it with an additional $360 million they plan to gather…..  How could that kind of political clout by a handful of individuals  not corrupt the political process?

No matter, Justice Kennedy and his four like minded Supremes refused to rehash the issue.  Hence the summary judgement against the Montana law.

Of particular interest to me is that the decisions of the two courts reflect the tension among what seems the multiple personalities in the Republican psyche.   Montana is a blood red state whose legislature, for example, is overwhelmingly Republican.  But Montana’s court opinion reflects an older, reformist Republicanism, that of Teddy Roosevelt’s time, when big money influence was seen as  leading to big corruption. It also reflects the traditional conservative preference for a reduction in centralized power, i.e. more returned to the states.

Whatever their thinking, the five Supremes deciding this issue further fueled the politics of expediency:  The belief that whatever it takes to win, no matter what elements of democracy are weakened or destroyed in the process.  Not surprisingly, Mitch McConnell was all in favor of striking down the Montana law – anything to beat Obama –  while John McCain, who’d love to beat him as well, has retained enough of his old “America first” self to disdain it.

In short even if advantageous at the moment, not all Republicans are blind to the corruptive influence of the invasion of the billionaires.   As such this seems a fruitful topic for developing centrist dialogue and actions, as I will gradually elaborate upon in my Centerville pages above.