Category Archives: Articles

Climate Denial is a Sunday Truth

May 19, 2014 – 9:29 am

On Monday morning, the business community knows better.

Probably every religion has what in the Christian world is known as Sunday truth: those comfortable notions that make you nod and shout “Amen!” when you hear them from the pulpit, but which conveniently evaporate from your mind by Monday morning when you have to conduct serious business.

Centuries ago, Sunday truth was mostly moral: Lying is always bad; you should never take advantage of the helpless; charging interest on a loan is wrong; and other sweet ideas that businessmen found inconvenient. But when the scientific revolution got rolling in the 1600s, educated people began to experience a different kind of Sunday truth: You’d agree on Sunday that the Earth was the center of the universe, and then on Monday use Copernicus’ methods to compute the dates of future Easters.

From there it only got worse. Now there are biologists who nod on Sunday to the idea that evolution is a satanic lie, and then on Monday go back to work in a profession that makes no sense without the evolutionary theory that holds it all together. Professors of linguistics teach the Tower of Babel in Sunday school, then tell their secular students something completely different on Monday. Astronomers listen without objection when preachers tell them the universe is less than 10,000 years old, then work out better methods for detecting stars billions of light-years away. Geologists likewise acknowledge a young Earth on Sunday, and then (when they are searching for oil on Monday) look for rock formations millions of years old.

Critics of religion have slang for this tendency to forget everything your profession teaches you when you step inside a church: It’s called “checking your brain at the door” — a colorful phrase that conjures images of brains in cubbyholes waiting to be reclaimed when the service is over, as illustrated here by the Naked Pastor.

When political movements become ideologically extreme, they can develop their own forms of Sunday truth and build their own check-stations for brains. As in religion, you say things not because they are true, but because you want to stay in the community. If the community defines itself by a set of bizarre beliefs, then you loudly confess those beliefs in order to assert your identity as a member in good standing. But you’re not stupid, so you don’t act on those beliefs when people aren’t looking and you have serious decisions to make.

The business community understands this. This week I found myself reading a Bank of America/Merrill Lynch report urging its investment clients to invest in stocks related to water. It outlined the global pressures on water supplies, and then titled a section “Climate change is making things worse”:

Given how closely food, water and energy security are connected, an impending perfect storm of events appears to be looming for the food and energy sectors, in a world constrained by extreme weather and climate change.

No caveats, no footnotes, no if-this-turns-out-to-be-true. Politically, Bank of America’s contribution profile leans conservative; their top three recipients are the Republican National Committee and the national committees to elect Republicans to the House and Senate. But if you’re trusting Bank of America to advise you on investing, they want you to know that climate change is happening and you’d better adjust to it.

And that makes me wonder how many BoA/ML clients are making a similar distinction between Sunday and Monday truths. Your investments are between you and your broker, so maybe at that point Tea Partiers retrieve their brains from the check room and act on what they know is real: climate change.

Insurance companies (who also give more to Republicans than Democrats) have been adjusting to climate change for years, because this is money we’re talking about. It’s serious. You don’t choose ideology over science when there’s money on the line. Evan Mills watches the insurance industry’s response to climate change for Lawrence Berkeley National Lab:

Allstate, for instance, has said that climate change has prompted it to cancel or not renew policies in many Gulf Coast states, with recent hurricanes wiping out all of the profits it had garnered in 75 years of selling homeowners insurance (Conley 2007). The company has cut the number of homeowners’ policies in Florida from 1.2 million to 400,000 with an ultimate target of no more than 100,000. The company has curtailed activity in nearly a dozen other states. In 2008, State Farm—Florida’s largest private insurer—stopped writing new policies in the state (Garcia and Benn 2008). This was after suspending sales of new commercial and homeowners policies in Mississippi the year before (Tuckey 2007). A few months later, after being denied a 47% average rate increase, State Farm announced a complete pull-out, (Hays 2009). About 1.2 million customers will be affected. The Florida Insurance Commissioner referred to the decision as “unnecessary destabilization of the insurance market” (Hays 2009). The editor of trade magazine published an editorial about the problem entitled “Like a Bad Neighbor?” (Friedman 2009).

Also in 2008, Farmers announced that they would stop writing homeowners policies throughout North Carolina and not renew existing ones. Such decisions are not taken lightly; Farmers will forego $55 million in annual premiums but claims that losses would be twice this amount (Hemenway 2008). … Insurers are recognizing that simply raising prices to keep pace with the impacts of climate change may be an elusive undertaking.

Munich Re is a reinsurance company — its clients are primarily other insurance companies, not the general public — whose profitability depends on its accuracy in assessing risk. It describes climate change as “one of the greatest risks facing mankind”.

That’s how the business community acts on Monday mornings, when it’s doing serious work. But business is also an important part of the Republican establishment, and Republicanism has become an extreme ideological movement defined by bizarre beliefs, one of which is climate change denial. And so you have moments like this during the debate between GOP candidates for the Senate in North Carolina — one of those states where insurance companies are cutting back coverage because of climate change. “Is climate change a fact?” asks the moderator. Chuckles are heard in the audience and all four candidates — even the eventual winner Thom Tillis, supposedly the “establishment” candidate — say a curt “no”. (The Rand Paul candidate, Greg Brannon, adds: “God controls the climate.“, upstaging Mike Huckabee’s candidate, Mark Harris, who is supposed to represent the GOP’s evangelical wing.)

This is typical. After Jon Huntsman’s failure as the reality-based Republican presidential candidate, no one wants to take up that banner. Increasingly, rank-and-file Republicans (about half nationally*, including 61% of those who don’t identify as Tea Party) believe climate change is real, and about half of those attribute it to human activity. But what Republican leaders are willing to stand up in public and represent that position? Anybody?

Many of them know the facts. In late 2007, I sat in the front row at a John McCain town hall meeting in Nashua, New Hampshire, a few blocks from where I live. He told us emphatically that climate change was happening and the government needed to do something about it. The following May, he still whole-heartedly supported the McCain-Lieberman cap-and-trade bill. But by fall, his ads were implicitly against cap-and-trade, and by the time he ran for re-election to the Senate in 2010, he was openly against his own bill.

Such Galileo-like recantations are a standard feature of repressive religious environments. (See Romney and RomneyCare.) Did McCain learn something new that changed his mind? Don’t be silly; the scientific support for climate change just keeps getting stronger. But he needed to re-affirm his conservative identity, so he accepted conservative Sunday truth the same way he accepted Sarah Palin as his running mate.

The problem with adopting a Sunday truth, though, is that sometimes it’s not enough to nod and say “Amen!”; you may need to defend the Sunday truth against the infidels. And that can be difficult when you’re smart enough to know that it’s nonsense.

That’s what happened to Marco Rubio this week. He has already wrecked his position in the early presidential polls by trying to solve the immigration problem — a conservative candidate isn’t supposed to try to pass bipartisan legislation that addresses a problem — and even recanting hasn’t restored him to grace. He can’t afford to contradict the right-wing catechism anywhere else, so when conservative-friendly interviewer Jonathan Karl brought up climate change Rubio recited the Sunday truth:

I do not believe that human activity is causing these dramatic changes to our climate the way these scientists are portraying it. … And I do not believe that the laws that they propose we pass will do anything about it, except it will destroy our economy.

But sadly (for him) that wasn’t the end of it. Tuesday at the National Press Club he was asked: “What information, reports, studies or otherwise are you relying on to inform and reach your conclusion that human activity is not to blame for climate change?” He had to dodge, because he had been asserting his conservative identity, not championing a coherent theory that he adopted after prudent investigation. Instead, he put forward a new position:

The truth of the matter is the United States is a country. It is not a planet. … But for people to go out and say if you passed this bill that I am proposing, this will somehow lead us to have less tornadoes and hurricanes. And that’s what I take issue with.

In other words, the United States can’t fix climate change alone — a point even Al Gore wouldn’t dispute. So that response wasn’t satisfactory either, and Rubio had to go on Sean Hannity’s radio show and try again. This time he opted for distraction by flashing the big, shiny object of abortion: Liberals deny the settled science that human life begins at conception**, so why shouldn’t he deny the science of climate change?

I can’t imagine Rubio is endearing himself to the conservative base with these awkward gyrations. But that’s the problem when you show up on Monday morning spouting Sunday truth: You can’t give reasons, because you didn’t adopt the position for reasons. It’s about identity, not evidence or logic.

So that’s how you have to defend it. It’s simple, Marco: The Koch brothers said it. I believe it. That settles it.

* The recent trend line here might be suspect. A lot of polls that track opinion by party identification show a similar divergence between Republican and independent opinion. The reason isn’t that people in those camps are changing their minds in opposite directions, but that a lot of Tea Partiers have begun telling pollsters they’re independent rather than Republican.

** In addition to putting forward a two-wrongs-make-a-right argument — my denial of science doesn’t justify your denial of science — Rubio was also attacking a straw man. I’ve never heard any abortion-rights activist deny that a zygote is alive or that its DNA is human. The argument is about the point at which a fetus has developed sufficiently to merit the moral status we accord to a person. A typical abortion-rights position — mine, for example — is that a fetus grows into its personhood rather than being a person from conception. The disagreement is entirely moral and spiritual, and is unrelated to the science Rubio cites.

By weeklysift | Tagged | Comments (23)

Privilege and the Bubble of Flattery

May 12, 2014 – 9:42 am

a response to that unapologetic Princeton freshman

Eighteeen-year-old Tal Fortgang became a national sensation this month when his essay “Why I’ll Never Apologize for My White Male Privilege” got published in Time. In the last week and a half it’s been linked and emailed and responded to all over the internet. (I first noticed it because of a bump in the hits on my essay “The Distress of the Privileged“. Privilege, I realized, must be hot for some reason.)

Let’s glide past the question of whether any 18-year-olds whose parents weren’t able to send them to Princeton might have written better, more thoughtful essays that haven’t gotten national attention, and instead dive into the content of Fortgang’s argument. He is tired of having his opinions and accomplishments diminished by people who tell him to “check his privilege”, so he does check his privilege and determines that it’s all quite justified: His Jewish great-grandfather was killed by the Nazis. His grandfather escaped Hitler and languished in displaced-persons camps before making it to America and starting a business. His father got a graduate degree and worked hard, and Tal himself has put considerable effort into making something of himself.

What he finds is not that he has been blessed by some “invisible patron saint of white maleness”, but that he benefits from a family legacy of values like self-sacrifice and entrepreneurialism and faith and resolve, and the habits that pass those values down from generation to generation. He is also privileged that his ancestors made it to America

a country that grants equal protection under the law to its citizens, that cares not about religion or race, but the content of your character.

So, he concludes, “I apologize for nothing.”

How to respond to that? First, I don’t know who at Princeton has been telling Fortgang that there is a patron saint of white maleness handing out success like a Sicilian godfather, or that “nothing you have accomplished is real”, but I hope that sooner or later someone gives Tal a more accurate metaphor: Privilege is like a tailwind. You have to handle the sails, but if you handle them moderately well, you get further. The places you get to are quite real, but … you had a tailwind and a lot of other people had a headwind. Sometimes that’s the difference between arriving at your destination, being lost at sea, or never getting out of port.

In short: Lots of people studied in high school and have strong values and characters. Lots of people’s parents and grandparents were smart, long-suffering, plucky, and hard-working. Not all of them are where Tal is or have the prospects he presumably does.

Recognizing privilege shouldn’t make a person apologize — which wouldn’t do anybody any good anyway. But it should raise humility, as well as compassion for those born to less favorable winds.

Second, I hope Tal takes some courses in cultural history, and learns that in every era privileged youth grow up in a bubble of flattery. In ancient times, the poets would trace your ancestry back to the gods, philosophers and theologians would explain how your slaves had been born with a servile nature or bore the mark of some ancient curse, and historians would glorify the battles of the valorous warriors who conquered the lands to which you now fall heir. And all of them would emphasize that blood is thicker than water: Worthiness flows down the family bloodline in precisely the same way that property does.

Today, well-funded think tanks and endowed chairs and glossy magazines and news networks and at least one-and-a-half of our two political parties are devoted to extolling the virtues of the rich: They are on top because they deserve to be. They are smarter, harder-working, wiser, more entrepreneurial, and just generally better than everyone else. The rest of us should be grateful to them, because they create our jobs, and their inventiveness is the engine that powers our economy. Without them, the rains would fail, the Earth would refuse to produce its bounty, and the rest of us would forget how to provide goods and services to each other.

Rather than asking scions like Tal to check his privilege, our gratitude should flow down the genetic line just as it always has, crediting the virtues of the fathers to the sons to the third and fourth generations (and, conversely, letting those born in the gutter wallow in filth like the animals they are).

As of old, this is flattery. People say and write these things because powerful people want to hear and read them. (Or, as in your case, Tal, people in privileged classes say and write such things for their own justification, and then are rewarded. You are well on your way to a fine career flattering people even more privileged than you.)

I haven’t been in the room when people have asked Tal to “check his privilege”, but I doubt they were asking for an apology. I would guess they were asking him to grow up, to poke his head out of the bubble of flattery, and to stop repeating what his flatterers told him as if the rest of us should believe it.

We don’t believe it, and we never will … even though some of us will echo those ideas if we’re paid well enough.

By weeklysift | Tagged | Comments (21)

New Evidence that ObamaCare is Working

May 12, 2014 – 8:20 am

More people have insurance, insured people are less likely to die, and hospitals are making fewer mistakes.

Already this month we’ve seen three major pieces of evidence that ObamaCare is working, is improving healthcare generally, and will save lives. First, Gallup says that the number of uninsured people is dropping, and is now clearly below where it was before the Great Recession started.

Here’s why I suspect Gallup’s report understates ObamaCare’s impact: Prior to ObamaCare, a lot of people had junk insurance; it covered everything but the pre-existing condition that threatened to bankrupt them, or the insurance company could cancel it if they got sick, or it had a yearly or lifetime cap that would make it useless in the face of a major illness. (Those “cancelled policies” that got so much attention a few months ago were mostly either the replacement of junk insurance or the normal churn of the health insurance market.) A lot of those people probably didn’t tell Gallup they were uninsured, but if they got seriously ill their options were to forgo treatment or declare bankruptcy. Now they have real insurance.

Insurance saves lives. Second, a study published in the Annals of Internal Medicine says that the program ObamaCare was modeled on, RomneyCare, has lowered the death rate in Massachusetts. The Incidental Economist blog (“Contemplating health care with a focus on research, an eye on reform”) summarizes the results:

[The authors] estimate that overall mortality in Massachusetts declined 2.9 percent relative to control counties between 2007 and 2010; mortality amenable to health care declined 4.5 percent. This translates to one death prevented for every 830 people who gain insurance, and the effects were larger in counties with low income and low pre-reform insurance rates—the counties we would expect to be most favorably impacted by reform.

Another fact that points to insurance being the key factor: The study also didn’t find any drop in mortality among the elderly, who were already covered by Medicare.

Amenable mortality is the right measure. The quick sound bite for criticizing the American healthcare system is that we have the world’s highest costs but lower life expectancy than any other wealthy country. (We’re 35th in life expectancy, well behind countries like Canada and Australia that are culturally similar, but have universal health care.) If you do that, though, opponents of socialized medicine will explain that those other countries have healthier lifestyles or less violence or better genes or something.

But “mortality amenable to health care” — in laymen’s terms “people who die from things we know how to treat” — avoids that rejoinder: No matter why you get sick, if you have something curable the healthcare system should cure it. That’s why I keep harping on this statistic (here and here and here).

No country gets amenable mortality down to zero, but a 2011 article in the research journal Health Policy said:

If the U.S. had achieved levels of amenable mortality seen in the three best-performing countries — France, Australia, and Italy — 84,300 fewer people under age 75 would have died in 2006–2007.

I have never seen politicians opposing ObamaCare confront the amenable-mortality numbers with anything but denial. As Rick Santorum put it: “I reject that number completely, that people die in America because of lack of health insurance.”

The Incidental Economist article goes on to say that RomneyCare’s drop in amenable mortality is an indication of more than just saved lives:

“mortality amenable to health care” does not just magically decline. If fewer people are dying, that is almost certainly because diseases are being better treated, managed, or prevented—because of improved health.

How much is a life worth? The Cato Institute’s Michael Cannon is up to the challenge Rick Santorum dodged: He recognizes lives are being saved, but says the saved lives cost too much.

this Annals study also suggests that success has come at a very high cost. The authors estimate that “for approximately every 830 adults who gained insurance [under RomneyCare], there was 1 fewer death per year.” If we assume the per-person cost of covering those 830 adults is roughly the per-person premium for employer-sponsored coverage in Massachusetts in 2010 (about $5,000), then a back-of-the-envelope calculation suggests that RomneyCare spent $4 million or more per life saved…. As an economist might put it, this means there are likely to be policies out there that could save a lot more lives than RomneyCare does per dollar spent.

A different Incidental Economist article points out two fallacies of this argument: (1) It assumes that saving lives is the entire benefit of health insurance.

Health insurance gives you access not just to live saving care, but also to the rest of medical care, including things like hip replacements that allow you to walk and run, and free you from chronic pain. Insurance also protects your family from financial ruin. It’s the total contribution of health insurance to well-being that needs to be considered in deciding whether we should support universal coverage. If Cannon is going to place a value on being insured, he needs to consider the total benefit a person experiences from having health insurance, not just the chance that it will save her life.

And (2), the opponents of ObamaCare aren’t proposing any of those “policies .. that could save a lot more lives … per dollar spent”. They’re just proposing saving the money and letting people die.

How many [states] refused to expand Medicaid, but then did nothing else for the health of their uninsured? If politicians in those states just refused the money and let the poor die, they do not have standing to make Cannon’s criticism about paths not taken.

How are lives being saved? A NYT article on the new study provides some suggestive anecdotes about how insurance saves lives:

In the waiting rooms of the East Boston Neighborhood Health Center, bustling with a working-class clientele, doctors said much had changed since the state insurance law passed in 2006. People are less likely to put off care out of fear of unaffordable bills, and patients with diabetes can get medication regularly.

Dr. Stelios Maheras, medical director of the emergency department, said some patients used to ask for prices “like at the supermarket.” He recalled one patient who was having chest pains but refused an ambulance because he was afraid of the bill.

… Dr. Catherine Silva, a primary care physician at the East Boston health center, said some fatalities might have been prevented by helping people control their high blood pressure and cholesterol, which can increase the risk of heart attacks. She recalled a patient who had hypertension, but dropped out of treatment when she lost insurance, and came back three years later with breast cancer that proved tricky to treat because she had uncontrolled high blood pressure and diabetes.

“That conversation about why did you leave me for three years, that doesn’t happen anymore,” she said.

Keep these examples in mind when conservatives argue that the way to cut costs is to make the consumer more cost conscious. These are the kinds of costs that wind up getting cut.

The NYT article ends by pointing out that an even bigger study is coming in a few years: About half the country has expanded Medicaid under ObamaCare and half has refused. Eventually public-health researchers will be able to estimate how many lives that refusal has cost.

Structural changes are working. Third, the part of ObamaCare that has gotten the least press is its attempt to restructure how healthcare is delivered. The system prior to ObamaCare had perverse incentives: If complications of treatment caused a person to be hospitalized longer, or to come back after a few days, the hospital might make more money. No one is suggesting that hospitals made mistakes intentionally, but they had negative financial incentive to root out the processes that were likely to produce mistakes.

But ObamaCare has changed some of those incentives. For example, ObamaCare

penalizes hospitals that have the highest readmission rates. Hospitals can now lose as much as 2.5 percent of their Medicare revenue if they have lots of patients turning up in the hospital again. One analysis showed that hospitals have lost $227 million in fines because of this program.

Result? Hospital readmissions are falling after having been flat for years.

and hospital-created conditions are dropping, coinciding “with health law programs that try to penalize these exact types of events.”

So that’s what the evidence is showing: The things ObamaCare was created to do — insure the uninsured and underinsured, save the lives of people who otherwise might go untreated to save money, streamline and restructure the incentives to deliver good care — are exactly what it’s doing.

By weeklysift | Tagged | Comments (9)

Restoring the Constitution Is Now a Liberal Issue

May 5, 2014 – 11:26 am

Justice Stevens proposes constitutional amendments to fix right-wing judicial over-reach.

Once upon a time, judicial activism was an issue that belonged to conservatives. Unelected liberal judges, they claimed, had re-interpreted the Constitution to mean things that neither the Founders nor any amending super-majority had ever intended, and so some plain-spoken constitutional amendments were necessary to put our legal house back in order: a Human Life Amendment to undo Roe v Wade, a School Prayer Amendment to undo Engel v Vitale and Abington School District v Schempp, a Flag Desecration Amendment to undo Texas v Johnson, and so on. Occasionally conservatives would propose an amendment to fix an oversight of the Founders — why didn’t they insist on term limits or a balanced budget? — but mostly the theme was: The Founders had it right, we just need to restore the Constitution to what it originally meant before liberal activist judges twisted it out of shape.

Levin’s Eleven versus Stevens’ Six. Given that history, it’s interesting to look at the 11 amendments talk-radio host Mark Levin proposed in his recent popular-on-the-Right book The Liberty Amendments. His rhetoric is still about restoration. (The book’s subtitle is “Restoring the American Republic”, and the National Review review  — from which I get the list of amendments; I haven’t read the book — styles it as “how to restore the Founders’ original vision of government”.) But only one of the 11 proposed amendments (a much-restricted Commerce Clause) is even arguably fixing a judicial misinterpretation.

Two of the 11 alter the clear intent of previous constitutional amendments: One repeals the 17th Amendment; it takes election of senators away from the people and returns the choice to the state legislatures. The other limits the income tax to 15%. That changes the 16th Amendment, which left the specifics of the income tax up to Congress, and corresponds in general with the Founders’ belief that regular elections are sufficient to restrain excessive taxation*.

But the other eight “liberty amendments” fix what Levin seems to regard as the Founders’ mistakes: They didn’t foresee what future generations would do within their Constitution, and so they should have locked things down better. Levin’s Founder-correcting amendments include: term limits on Congress and the Supreme Court, allowing 3/5ths of Congress to overturn a Supreme Court decision**, allowing 3/5ths of the states to reverse an act of Congress, requiring an across-the-board 5% budget cut if Congress fails to enact a balanced budget (not exceeding 17.5% of GDP) by a deadline, requiring government compensation for regulations that affect property values, requiring photo ID and proof of citizenship to vote, requiring Congress to reauthorize each federal agency every three years, and allowing 2/3rds of the states to approve a constitutional amendment without Congress’ involvement.

Other than photo ID, these are all things the Founders could have written into the Constitution, but they didn’t. And that should tell you something: Levin’s book isn’t about restoring anybody’s “original vision”; it’s about radically reshaping the American government into something it never was and was never intended to be.

Contrast this with the proposals in retired Supreme Court Justice John Paul Stevens’ new book Six Amendments. Only one of Stevens’ amendments — adding a phrase to the Eighth Amendment to define the death penalty as cruel and unusual punishment — would change what Stevens’ argues was the Founders’ original intent. (Hanging and the firing squad were common in the founding era.) He composed the other five to reverse the drift of wrong-headed judicial interpretation.

Anti-Commandeering and Sovereign Immunity. Two of Justice Stevens’ amendments address somewhat technical issues that are not widely debated by the general public. (So skip this section if you’re not interested.) In the Supremacy Clause (Article VI) the Constitution specifically says that federal laws outrank state laws and “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In the 1997 case Printz v United States, the Court interpreted this to mean that only judges are so bound, and that Congress is prohibited from (in Stevens’ words) “requiring state officials to perform federal duties”. Stevens points to the role state officials were assigned in the World War I draft as an example of “historical events in which the federal government relied on state officials to carry out federal programs” without lawsuits or other protests from the states.

The fact that throughout our history the federal government has required the states to play a critical role in providing the manpower to fight our wars demonstrates that the anti-commandeering rule was invented by the Printz majority.

Stevens’ amendment would change the Supremacy Clause’s “Judges” to “Judges and other public officials”.

Sovereign immunity is a principle we inherit from English common law, which said that the king could not be sued without his consent. After the Supreme Court ruled in Chisolm v Georgia in 1793 that the states did not have sovereign immunity, the Eleventh Amendment was passed:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Through Reconstruction, this amendment was interpreted to prevent federal courts from ordering states to pay their debts to citizens of other states. It did not begin to become a blanket sovereign immunity until the 1890 decision Hans v. Louisiana. Stevens thinks that (and subsequent decisions relying on it) was a mistake, and would fix it by this amendment:

Neither the Tenth Amendment , the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.

Gerrymandering. Gerrymandering means drawing the boundaries of districts of representation in an attempt to pre-determine the results of elections. (The current Republican majority in the House is largely the result of gerrymandering in states like Pennsylvania, where Republicans control 13 of the 18 congressional seats despite getting fewer total votes than Democrats.) Wisconsin Republican Congressman Reid Ribble described the situation like this:

I think the American people have a misperception of elections. We’re at a place now in this country where voters are not picking their representatives anymore. Representatives, through the gerrymandering process and redistricting, are picking their voters.

Current Supreme Court interpretation says that gerrymandering is illegal if its purpose is to disenfranchise a minority group — by, say, dividing up the black neighborhoods so that no city council district has a black majority — but that the courts can’t touch a gerrymander whose purpose is to gain advantage for one political party over another. In an era in which Republicans are increasingly becoming the “white man’s party“, it can be hard to tell the difference: Does Texas’ map under-represent Hispanic Democrats because they’re Hispanic, or because they’re Democrats?

That conundrum is an artifact of judicial interpretation rather than anything in the Constitution. Whether your right to choose your representatives is being undermined because of your ethnicity or your party, you’re still not getting the “equal protection of the laws” citizens are promised by the 14th Amendment, or the “Republican Form of Government” promised in Article IV, Section 4. In order to get back to the Founders’ one-man-one-vote vision, Stevens proposes:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

Campaign Finance. You can’t blame the Founders for not addressing campaign finance or corporate rights, because neither was a major part of their world***. But Congress passed and Teddy Roosevelt signed a ban on corporate campaign contributions back in 1907, and it wasn’t particularly controversial.

For decades thereafter, Congress, most state legislators, and members of the Supreme Court apparently assumed that it was both wise and constitutional to impose greater restrictions on corporate participation in elections than on individuals.

That position was supported by a unanimous Supreme Court decision in Federal Election Commission v. National Right to Work Committee as recently as 1982. But then conservative justices started inventing the corporate right to free speech and discounting the corrupting effect of large contributions.

Such was the consensus that the first opinions written by any member of the Court arguing that corporate expenditures in election campaigns are entitled to the same constitutional protection as the activity of individual voters were not announced until 1990.

But that recent legal development is now the majority opinion on the Court. A similar evolution has happened with regard to large contributions from rich individuals. The Citizens United and McCutcheon decisions have moved towards a money-is-speech doctrine that has a perverse effect on democracy.

Unlimited expenditures by nonvoters in election campaigns —whether made by nonresidents in state elections or by Canadian citizens, by corporations, by unions, or by trade associations in federal elections —impairs the process of democratic self-government by making successful candidates more beholden to the nonvoters who supported them than to the voters who elected them.

Stevens focuses his free-speech concern on making sure that voters have access to all relevant information, not on the right of the rich to shout louder than everyone else. So while he worries that limits on campaign contributions might be set too low, he sees no problems with limits in general. He points to the limits the Court itself sets on the arguments it hears:

There are, however, situations in which rules limiting the quantity of speech are justified by the interest in giving adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another. The most obvious example is an argument before the Supreme Court. Firm rules limit the quantity of both oral and written speech that the parties may present to the decision maker. Those rules assume that the total quantity permitted is sufficient to enable the Court to reach the right conclusion; they are adequately justified by interests in fairness and efficiency.

And so he proposes this amendment:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

Gun control. The Second Amendment is often abbreviated as “the right to bear arms”. But that right is set in a context:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

In the era of the Founders, this had nothing to do with sovereign citizens arming themselves in case they need to overthrow the government, as gun-rights enthusiasts sometimes claim today, twisting Founder quotes about arms and tyranny out of their original context.

You need to remember the security situation at the time: The federal standing army was miniscule, while state and local governments faced numerous local threats — armed gangs and Indian raids on the frontier, pirates on the coast, and slave rebellions in the South. Those threats were handled by citizen militias who were authorized and organized by the state and local governments. They were not self-appointed gangs of armed vigilantes or revolutionaries, like those currently at the Bundy Ranch.

The Founders worried about the possibility that the federal government might disarm the militias and create a need for an internal standing army, which then might either become the enforcers of a federal tyranny or arbiters of local laws. (For example, an abolitionist president might drag his feet about putting down a slave revolt.) The purpose of the Second Amendment was to ensure that state and local governments would maintain the right to their own law enforcement, rather than depending on a federal army.

The Second Amendment was understood that way for two centuries.

For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. … During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

But then the NRA perpetrated what Chief Justice Burger called “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” In the Heller decision of 2008, the Roberts Court signed on to that fraud. Out of thin air, it decided that the Second Amendment protects weapons “typically possessed by law-abiding citizens for lawful purposes” from regulation by state and local governments. (Heller is an example of a Roberts-Court phenomenon I noted last month: the covert reversal. In practice, Heller reverses the Miller decision of 1939, but the Court never admits that it is doing so.)

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.

He fixes it by changing the Second Amendment’s “right to keep and bear Arms” to “right to keep and bear Arms when serving in the Militia”.

Summary. The role of Constitution-amender is so powerful that it’s easy to be corrupted by it. At least in fantasy, you are re-writing the supreme law of the land, so it’s tempting to get all your digs in. Bad amendments are targeted at specific current outcomes that get over-specified, like Levin’s 15% income tax or limiting government spending to 17.5% of GDP. (Who knows what “income” or “GDP” will even mean 100 years from now?)

With that in mind, I find Justice Stevens amendments not just well intentioned and well thought out, but elegantly written. They are not wordy, they don’t create arbitrary limits and rules, they don’t invent procedures that have no precedent in American history, and they leave future Congresses and judges the room to do their jobs. I think I could support all of them.

* The taxing clause in Article I Section 8 (“The Congress shall have the power to lay and collect taxes”) is one of the most open-ended grants of power in the Constitution. Interestingly, the 16th Amendment was itself intended to overrule the Supreme Court’s limitation on that power. The first income tax was passed to finance the Civil War in 1861, but the Court found such a tax unconstitutional in the 1895 case Pollock v Farmers’ Loan and Trust, leading to the passage of the 16th Amendment in 1909 and its ratification in 1913.

** It’s widely believed on the Right that the Supreme Court’s power to declare a law unconstitutional was created out of thin air by Chief Justice John Marshall in Marbury v Madison in 1803, and so represents a judicial usurpation that the Founders never foresaw. Consequently, allowing Congress to reverse a Supreme Court decision might be seen as restoring the Founders’ vision. This is all completely false. Federalist #78, written by Alexander Hamilton in 1788 while the Constitution was being ratified, says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Hamilton went on to explain why the Founders had rejected one of Levin’s other proposals, term limits for the Supreme Court:

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

*** But you should read Thom Hartman’s account of the Boston Tea Party as an anti-corporate (rather than anti-government) protest.

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No, Donald Sterling Isn’t the Victim

May 5, 2014 – 9:14 am

Wednesday, NBA Commissioner Adam Silver announced his response to the recordings in which L. A. Clippers owner Donald Sterling makes racist statements: Sterling is fined $2.5 million and banned for life from interacting with the Clippers or any other NBA team. Silver can’t force Sterling to sell his team, but he says the other NBA owners collectively can, and he’s going to ask them to do so.

Trust Fox News’ Megan Kelly* to address the side of the story the liberal media doesn’t want to face: Isn’t the rich white guy the real victim here?

The question is whether the deprivation of his property rights — in terms of his ownership rights of a sports team … of basically taking away his livelihood, is a slippery slope. … Is this the future of America, where private conversations between two people who are supposedly in a relationship wind up going public and then somebody who makes clearly inappropriate remarks (to put it charitably) has everything taken away from them?

In this telling of the story, Sterling is the victim of two injuries: the original invasion of privacy, and then the reaction of the NBA commissioner, which might force Sterling to sell his team.

In response, I would paraphrase Supreme Court Justice Oliver Wendell Holmes: An NBA owner has a constitutional right to be a racist, but he has no constitutional right to be an NBA owner.

The invasion of privacy is definitely an injury, but it’s the kind of thing that has been happening to public figures (and occasionally non-public figures) for some time, usually without negative comment from Kelly. Just this week, there was another Rob Ford crack-smoking video. Remember the rant Alec Baldwin left on his daughter’s answering machine or when he was recorded yelling homophobic slurs at paparazzi? Or Mel Gibson? John Kerry got in trouble this week because someone leaked a recording of a closed-door meeting. Both Romney and Obama had trouble with secret recordings. The whole ACORN sting video was based on secret recordings (which were then edited to make them sound worse). Linda Tripp secretly recorded Monica Lewinsky. ESPN’s Erin Andrews was filmed naked through a hotel-room peephole, and let’s not even get into all the sex tapes and nude photos of ordinary people that have become public without their consent. (Here’s an example of someone who really lost her livelihood.)

I’m happy Megan Kelly has finally noticed this issue, now that there’s a racist billionaire to defend.

But “property rights” is a complete red herring. First, the obvious: Being forced to sell something is not the same as having it (or “everything”) taken away from you. Sterling will get a good price for the Clippers and continue to be a billionaire. His “livelihood” is not at stake.

Second, an NBA team is not an independent business like a barber shop or a diner. The NBA is a cartel, not a collection of independent businesses, and the value of the Clippers comes from its membership in the cartel, not its potential earnings as an independent basketball team. The cartel has rules that the owners have agreed to. If we start defending Sterling’s right to do what he wants with his team, regardless of what the league agreement says, then we’d also have to defend the other owners’ right to do what they want with their teams — like refuse to schedule games against the Clippers, making Sterling’s team more-or-less worthless.

There’s a reason sports teams are called “franchises”. You may own a McDonald’s franchise, but if you bring shame to the McDonald’s chain, I’m sure they have a way to get that franchise away from you. Same thing here.

In addition to shame, Sterling is bringing labor problems to the NBA.

Players’ union Vice President Roger Mason Jr. said Tuesday he spoke to representatives from every playoff team about the possibility of boycotting the upcoming postseason games in solidarity against any ruling that didn’t include a mandate for Sterling to sell the Clippers.

The NBA is 76% black, and the idea that the white (but for Michael Jordan) owners don’t respect them because of their race must always be in the background. In addition, Sterling’s remarks made it clear that he has a paternalistic view of ownership in general. Asked about his players, Sterling said:

I support them and give them food, and clothes, and cars, and houses. Who gives it to them? Does someone else give it to them? … Who makes the game? Do I make the game, or do they make the game?

The players don’t earn their money — much less earn money for Sterling — Sterling “gives it to them”. This is straight out of Atlas Shrugged, when John Galt tells the workers at Hank Rearden’s steel mill:

Would you dare to claim that the size of your pay check was created solely by your physical labor and that those rails were the product of your muscles? The standard of living of [a medieval] blacksmith is all that your muscles are worth; the rest is a gift from Hank Rearden.

So players are threatening work stoppages, sponsors are pulling out, and fans are protesting. In the lingo of another famous cartel — the Mafia — Sterling’s continued ownership is “bad for business”. The other bosses need to take him out.

* Kelly was the first one to draw my attention, but in fairness Sterling-as-victim has been a popular topic in the conservative media. See also Donald Trump, Rush Limbaugh, Alex Jones, John Hinderaker, National Review …

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More Than Just Affirmative Action

April 28, 2014 – 10:57 am

The Court has decided to trust majority rule to defend minority rights. That didn’t work very well the last time.

It’s hard to appreciate this week’s Supreme Court decision on affirmative action without knowing about a case from the 19th century.

The Civil Rights Cases. In 1883, just a few years after Union troops stopped occupying the states of the former Confederacy, the Supreme Court ruled on five cases it combined into the Civil Rights Cases (Wikipedia, text of decision). Eight justices ruled unconstitutional the Civil Rights Act of 1875, which banned racial discrimination in “accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement”. The Court said that Congress had overstepped its power, because the 13th and 14th Amendments only gave it “corrective” power to reverse state laws that denied blacks their civil rights. Congress couldn’t legislate directly to guarantee those rights.

And then the Court went on to make a more sweeping statement:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

In other words, if the former slaves needed this kind of protection, they should seek it from their state governments, the way white people would. No doubt that sounded very reasonable to most whites, even most Northern white liberals: Slavery was over; the former slaves were citizens now; they should avail themselves of the protections the law had made for other citizens.

But Douglas Blackmon observed in Slavery By Another Name that things didn’t quite work out that way.

Civil rights was a local, not federal issue, the Court found. The effect was to open the floodgates for laws throughout the South specifically aimed at eliminating those new rights for former slaves and their descendents. … [A] declaration by the country’s highest courts that the federal government could not force states to comply with the constitutional requirement of the equal treatment of citizens, regardless of race, opened a torrent of repression.

As reasonable as it may have sounded at the time, from the perspective of history the Civil Rights Cases decision was the opening bell for the Jim Crow era. Due process and equal protection under the laws had become pro forma rights; if a state preserved certain outward appearances, it need not provide any real equality. Or, more accurately, the state continued to have a moral obligation to provide equality, but the federal government had no authority to enforce that obligation. The lone dissent of Justice John Harlan (not to be confused with his grandson, John Harlan II, a 20th-century Supreme Court justice whose opinions figure as precedents in this week’s ruling) was prophetic:

[I]f the recent amendments are so construed … we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master.

Harlan also was the lone dissent in the 1896 Plessy v Ferguson decision that enshrined separate-but-equal. He deserves to be more famous than he is.

Michigan. Now let’s talk about this week’s decision, Schuette v Coalition to Defend Affirmative Action. Like most race cases these days, there has been a back-and-forth that makes the underlying principles hard to sort out: Until 2003, the University of Michigan used race as a consideration for admission to both its undergraduate program and its law school. That year, the Supreme Court ruled on both: It threw out the undergraduate system in the Gratz decision but upheld the law school system in Grutter.

Both cases hung on the same issues, and Justices O’Connor and Breyer were the swing votes. Previous cases had identified only one interest that could justify affirmative action by a state university: the overall educational advantage provided by a diverse student body. In other words, the state couldn’t favor one race for the simple purpose of giving that race an advantage, but it could decide that a diverse student body provides a better education for everyone. (Imagine studying the Civil War in an all-white classroom versus a classroom where other races are represented. Probably the discussions would be very different, and a university might legitimately decide that the mixed-race classroom experience is better.) But the Court insisted that the particular plan to promote diversity had to be narrowly tailored for that purpose, rather than resembling a racial quota system. The law-school plan passed muster under the narrowly-tailored standard; the undergraduate plan didn’t.

But Michigan’s anti-affirmative-action groups weren’t satisfied with a split decision, so in 2006 (as a direct response to Grutter), a referendum added an amendment to the Michigan Constitution banning “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin” in education, hiring, or contracting by the state or any public institution under the authority of the state. Overall, the amendment passed with a clear 58%-42% majority, but the exit poll showed major demographic splits: White men voted for it 70%-30%, while non-white women opposed it 82%-18%. If you work out the numbers, the entire margin of victory came from white men (42% of the electorate), while everyone else split almost evenly.

So you wind up with two separate levels of dispute: affirmative action itself, but also the limits of democracy. In other words, if the majority doesn’t get its way for some reason, under what circumstances can it change the rules?

The Political Process doctrine. The history of the Civil Rights movement since 1883 has been a story of the white majority changing the rules whenever the black minority seemed about to rectify some disadvantage. If the 15th Amendment gave blacks the right to vote, poll taxes and literacy tests could take it away, while grandfather clauses protected poor or illiterate whites from disenfranchisement. If Arkansas couldn’t keep blacks out of Little Rock’s Central High, the governor could shut the school down. Slavery By Another Name is about how Southern whites circumvented the elimination of slavery itself by inventing bogus crimes that blacks could be convicted of and then sentenced to hard labor.

The Supreme Court cases on race — from the Civil Rights Cases to Brown and beyond into enforcing Brown‘s requirement of integrated schools — revolve around the Court’s increasing realization that it couldn’t deal with state and local governments under the assumption of good faith. The white majority simply did not want blacks to receive due process and equal protection under the laws, and any high principles announced by the Court would be examined for loopholes rather than implemented.

As a result, the Court evolved what came to be called the Political Process doctrine: If a minority achieves one of its goals through the ordinary decision-making process — courts, school boards, elections, etc. — and the majority responds by changing the rules to move the decision to a different body where the minority will lose, that rule-change deserves special scrutiny from the courts. If there was no compelling reason to change the process beyond frustrating the minority, the change is invalid.

Justices Sotomayor, Ginsberg, Scalia, and Thomas all agree that the Political Process doctrine applies to this case. Sotomayor and Ginsberg want to invoke it to invalidate the Michigan constitutional amendment, while Scalia and Thomas want to take this opportunity to reverse the doctrine entirely. The plurality opinion (written by Justice Kennedy, and joined by Roberts and Alito), is another example of something I complained about two weeks ago: covertly reversing decisions without appearing to do so. After Schuette, the Political Process doctrine is dead. While it remains as a precedent, it’s hard to imagine a situation where it could be invoked.

And that development has consequences beyond affirmative action.

The opinions. The plurality opinion (representing Kennedy, Roberts, and Alito) was written by Justice Kennedy. If you’ve been reading the Sift since last summer, you know I don’t think much of Justice Kennedy’s writing style and the muddled mind it seems to represent. (Lower court judges seem not to know how to apply Kennedy’s rulings, which tells you something.) I suspect that’s why the Chief Justice chose Kennedy to write this opinion rather than doing it himself. Any judge who tries to invoke the Political Process doctrine in the future will have to glean some principles of application from Kennedy’s opinion; probably they will just throw up their hands and decide the case on some other basis.

Kennedy reminds us that “It cannot be entertained as a serious proposition that all individuals of the same race think alike”, that there are no clear legal standards for determining the interests of a racial group, or even of defining who is in or out of the group, and so on. If the Court allows that there are racial interests that prevent rule changes, race might be dragged into any number of issues in order to freeze the process in place.

In short, if racial majorities decide to act in bad faith, judges are simply not clever enough to catch them. Kennedy concludes:

Democracy does not presume that some subjects are either too divisive or too profound for public debate.

as if anyone had ever made that claim.

Scalia’s dissent (joined by Thomas) is painful to read, because as he gets older, Scalia is less and less able to pretend that he respects anyone who disagrees with him. So his opinions increasingly contain more attitude than law. But at least he does go through the relevant precedents, explaining why they were all wrongly decided. I would love to hear Justice Scalia’s opinion on the Civil Rights Cases, or whether rule changes that disadvantage a minority should ever be thrown out by the Court. Most of all, I want to hear how he will square all this with what he rules in the upcoming Hobby Lobby case, where the minority seeking protection is abortion-opposing Christian employers.

Justice Breyer’s concurrence shows more honest inner conflict than any of the others. He wants to support both the democratic process and minority rights, but has to come down on the side of democratic process.

the principle that underlies [the Political Process doctrine precedents] runs up against a competing principle, discussed above. This competing principle favors decisionmaking through the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.

Justice Sotomayor’s dissent (joined by Ginsberg) is as long as all the rest put together, probably because she alone is arguing that the Court needs to pay attention to nuance. Like Scalia, she takes the precedents seriously, but she wants to apply those precedents rather than reverse them. She also thinks the Court needs to consider where the Michigan constitutional amendment fits in the long history of changing the rules to short-circuit minority victories.

As a result of [the amendment], there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.

But that point of view lost. As in last summer’s Voting Rights decision (in which Chief Justice Roberts announced the profound legal principle that “things have changed”) the history of racism and racial progress in America is not considered relevant by the Roberts Court. Going forward, the Court appears ready to assume good faith on the part of the white majority. Let’s hope it works out better this time.

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Cliven Bundy and the Klan Komplex

April 28, 2014 – 8:50 am

Why the rancher’s racist rant shouldn’t have surprised anybody

If you’ve been paying attention to the Cliven Bundy situation at all (as I started doing last week) you no doubt heard that Wednesday night he went off script in front of a New York Times reporter:

“I want to tell you one more thing I know about the Negro,” he said. Mr. Bundy recalled driving past a public-housing project in North Las Vegas, “and in front of that government house the door was usually open and the older people and the kids — and there is always at least a half a dozen people sitting on the porch — they didn’t have nothing to do. They didn’t have nothing for their kids to do. They didn’t have nothing for their young girls to do.

“And because they were basically on government subsidy, so now what do they do?” he asked. “They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn’t get no more freedom. They got less freedom.”

Reactions varied. Bundy’s own first reaction was to claim he had been misquoted — “I didn’t say nothing about picking cotton” — until Media Matters released the video of him saying it.

Mainstream Republicans who had made a hero of Bundy — Rand Paul and Sean Hannity in particular — claimed to be shocked, and dropped the rancher like a hot rock. But the true believers promoted a smeared-by-the-liberal-media theme. InfoWars posted a longer version of the video that it claims vindicates Bundy: “his argument is actually anti-racist in that it laments the plight of black families who have been caught in the trap of dependency on government.” (I invite you to click through and examine the larger context for yourself. I don’t think it vindicates much of anything, probably because I already see the “dependency on government” meme as a racist dog whistle. I mean, we all know who those dependent-on-government people are, don’t we? We’re not talking about my white mother depending on Medicare to pay her hospital bills.)

One of the best responses came from satirist Andy Borowitz, whose invented quotes nail the hidden meaning of the mainstream Republican reaction:

“We Republicans have worked long and hard to develop insidious racial code words like ‘entitlement society’ and ‘personal responsibility,’ ” said Sen. Rand Paul (R-Kentucky). “There is no excuse for offensive racist comments like the ones Cliven Bundy made when there are so many subtler ways of making the exact same point.”

Fox News also blasted the rancher, saying in a statement, “Cliven Bundy’s outrageous racist remarks undermine decades of progress in our effort to come up with cleverer ways of saying the same thing.”

If you hear someone saying that Bundy just wasn’t “politically correct” — or that the problem is “an old man rancher isn’t media trained to express himself perfectly” —
that’s what they really mean: It’s fine to imply that slavery wasn’t so bad and to characterize black people receiving government assistance (i.e., all of them) as lazy and promiscuous and criminal, but you have to use the right words, like Paul Ryan did in March:

We have got this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work. There is a real culture problem here that has to be dealt with.

Ryan presumably does have some media training, so he didn’t say Negro or mention slavery or picking cotton —  and it’s those words (and not the ideas behind them) that make Bundy’s quote racist, right? Ryan criticized the “culture” of the “inner city” rather than black people, so his comment couldn’t be racist — “I don’t have a racist bone in my body” he said afterward — even though everybody knew who he was talking about and what he meant.

By contrast to the apparent shock of Sean Hannity, liberals mainly expressed surprise that anybody would be surprised by the discovery that Bundy is a racist. Matt Yglesias found it “clarifying” that Bundy had gone off on race “because race has not been far from my mind since the story first hit the papers.”

On Bill Mahr’s Real Time, Daily Beast editor John Avlon explained:

The reason it’s predictable is that we’ve seen a pattern, especially at a time when the face of the federal government is an African-American. The association with racists is becoming the black lung disease of the conservative movement. It’s an occupational hazard. … You start seeing a pattern and at some point you’ve got to confront it: “How come we keep making common cause with racists?” Maybe it’s got something to do with some of the appeals they’re making.

Rachel Maddow did the best job of laying that pattern out: Much of what Bundy had been saying all along were the kinds of bizarre ideas that are not themselves racist, but are way more popular in white supremacist circles than anywhere else. (It’s like an accent; you don’t have to be Canadian to end a question with “eh”, but if you do you probably are.) Rachel drilled down into the history of one particular strange notion: that county sheriffs are the ultimate in legitimate legal authority. Bundy had been urging his own county sheriff to disarm the federal agents, as if the sheriff’s authority were paramount. (In 2012, a fringe candidate for sheriff in my own Hillsborough County, NH professed a similar view of the job he imagined himself to be running for. He lost.) Rachel chased that notion back through the 20th-century Posse Comitatus movement, and from there back to the Southern resistance to Reconstruction in the 19th century.

Something I’m just beginning to appreciate is how influential the Southern anti-Reconstruction movement that birthed the KKK has been in forming the ideas that are still running around on the extreme Right. If you want initiate yourself into this mindset, I recommend reading Thomas Dixon’s 1905 best-seller The Clansman: a Historical Romance of the Ku Klux Klan, which inspired the 1915 movie classic The Birth of a Nation, and whose themes were still echoing in 1936’s Gone With the Wind. Dixon drops you into a world where the Klan are the good guys. Evil Washington politicians have conspired with corrupt and rapacious local blacks to upend the natural order and create a black-dominated society. Unable to take any more, the noble Southern whites arm and organize themselves into a freedom-seeking secret society, the KKK. Once they do, the fundamentally cowardly black troops that Washington has tried to stand up against them scatter like nine-pins.

This “historical romance” has essentially nothing to do with the actual history of the KKK, which from the beginning was focused on terrorizing blacks out of claiming their rights.

But there’s a configuration of ideas we might call the Klan Komplex — a combination of Lost Cause mythology, John Calhoun’s* misinterpretation of the Constitution and miscasting of the Founders, love of guns, and hatred of the federal government — that survives to this day in radical right-wing fringe groups. Today many of these ideas sound like nonsense to outsiders, but the whole Komplex makes sense if you picture yourself as a defeated Southern aristocrat watching victorious Union troops side with your former slaves against you, and looking to the heroic knights of the KKK to restore you to your rightful dominance.

  • The federal government is illegitimate, having grossly exceeded the authority legitimately granted by the Constitution. Government officials have no claim to represent the American people.
  • The Founders were divinely inspired men whose vision has been betrayed.
  • The true federal government was an agreement among the states, and had no direct authority over the American people.
  • The Founders intended states’ rights to be paramount and the federal government to be weak.
  • Slavery in the old South was a benevolent institution. Through slavery, African savages were civilized and taught Christianity. They were treated well by their masters.
  • Slavery is the worst thing that can happen to a white man. Any time the federal government forces a white man to do something he doesn’t want to do, he is being enslaved.
  • Federal taxes are confiscation.
  • The federal government has corrupted blacks by removing them from the benevolent authority of whites and giving them goods that it has confiscated from whites. Blacks are addicted to these government handouts, and through that addiction the government dominates them more completely than their masters ever did.
  • The United States was founded to be a white Christian nation. Non-whites and non-Christians have been generously allowed to settle and prosper here, but now they are illegitimately taking over.
  • States can nullify federal laws.
  • States have the right to secede, and the South was right to do so.
  • The Second Amendment was put into the Bill of Rights so that citizens could overthrow the federal government if it exceeded its authority.
  • The vast armament of private citizens is the only thing that keeps the federal government from establishing tyranny. Armed citizens ready to revolt against the federal government are the true American patriots.

The three-percenters are fighting a new American Revolution.

Those ideas are not related to each other in any logical sense, so it would certainly be possible to believe a few of them without the others. But they originated together in the defeated South and have spread through the same channels ever since. As a result, although lots of people believe one or two of these ideas, if you hear more than a few of them from someone, probably you’ll eventually hear all the rest. When well-armed white men are rabidly opposed to the federal government and talk at length about their love of their own freedom, chances are excellent that they will eventually start waxing nostalgic about slavery, as Cliven Bundy did.

That shouldn’t surprise anyone.

* I keep meaning to write a longer article on the seminal influence of Calhoun on the Right. (Sam Tanenhaus has already done one, but I have a different take.) Whenever right-wingers talk about “the Founders” or “the Constitution” in ways that make no historical sense, they are probably invoking John Calhoun without realizing it. Calhoun re-interpreted (i.e., misinterpreted) the Founders in a way that allowed Jefferson Davis and the other Confederate secessionists to claim that they were the true heirs of the Revolution. In particular, Calhoun cast the Constitution as a confederation agreement among the states (similar to the Articles of Confederation it replaced), ignoring that it begins “We the People” rather than “We the States”.

Combining freedom-loving rhetoric with a positive attitude towards slavery goes back to Calhoun’s 1837 Senate speech “Slavery a Positive Good“. Slave-holding founders like Washington and Jefferson had been ambivalent about slavery, regarding it as an evil but not willing to support any of the schemes to end it. (Jefferson described slavery as holding “a wolf by the ear, and we can neither hold him, nor safely let him go.” Lincoln’s campaign platform that slavery should not be extended the territories — the cause of the South’s secession — was originally Jefferson’s idea.) But by the 1830s, abolitionism had progressed to such a point that Calhoun foresaw the slave system’s destruction unless the South full-throatedly defended it as good. Already in the first paragraph, though, he uses slavery as a vision of horror, if it should happen to white people.

[E]ncroachments must be met at the beginning, and those who act on the opposite principle are prepared to become slaves.

So Calhoun urges Southern whites to stand up to the abolitionists, lest they metaphorically become slaves of the North. But he holds literal slavery to be a good thing, when it happens to an inferior race like the Africans. That fundamental hypocrisy has been with us ever since.

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Rights Are for People Like Us

April 21, 2014 – 11:53 am

Those high-flown principles put forward by the militiamen defending Cliven Bundy’s rights … do they apply to anybody else?

The best summaries I’ve seen of the conflict between Nevada rancher Cliven Bundy and the federal Bureau of Land Management are from the local St. George News and the Washington Post. Cutting it down somewhat: the BLM charges that Bundy has been grazing his cattle on public land without paying grazing and tresspass fees for 20 years. (They got their first court order telling him to stop in 1998; he ignored it.) The claimed fees now amount to over $1 million, and so April 5 the BLM started seizing some of Bundy’s illegally grazing cattle.

Self-appointed defender of Freedom.

Armed militiamen who support Bundy started gathering at a camp on April 10, and on April 12 the BLM backed down after what the Las Vegas Review-Journal described as “a 20-minute standoff … [w]ith rifles pointing toward each side”. The BLM released a statement:

Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public.

The Bundy Ranch blog described the scene like this:

The result was a group of Bundy’s family members and supporters making a slow advance on a line of armed agents who kept ordering them to halt. At one point, the protesters were even told “one more step and you’re dead,” but the group kept coming, eventually walking easily through the line of federal agents and SWAT members who obviously didn’t have the courage of their convictions. According to InfoWars, the BLM had already announced it was leaving, but the county sheriff refused Bundy’s demand to disarm the federal agents and return his cattle. Within about a half hour, the cattle were released from the federal pen.

In other words, federal agents tried to enforce the law, were met with armed resistance from a mob, and decided to temporize rather than start killing people. On the extreme Right, this was celebrated as a victory for Freedom. Bundy’s son said, “The people have the power when they unite. The war has just begun.”

And the mainstream Right went along. The Powerline blog wrote “Why You Should Be Sympathetic Toward Cliven Bundy” while admitting “legally, Bundy doesn’t have a leg to stand on.” National Review‘s Kevin Williamson made “The Case for a Little Sedition“, saying

Of course the law is against Cliven Bundy. How could it be otherwise? The law was against Mohandas Gandhi, too

Fox News commentator Andrew Napolitano described the BLM (and not the miltiamen) as “a group of thugs dressed in military uniform with loaded M16s pointed at a rancher and his family.” Fox News produced this sympathetic segment, in which National Review editor Rich Lowry described the resistance as “in the finest American tradition of civil disobedience going back to Henry David Thoreau.”

To me, the Bundy incident has captured much of the basic sickness of conservatism in America: The rhetoric is full of high principle, but it’s hard to find any actual principle that would apply to anyone other than People Like Us — people like the people who belong to the conservative fringe.

It’s tempting to characterize this kind of thing as racism. Certainly that’s what the NYT’s Timothy Egan is suggesting with:

If you changed that picture to Black Panthers surrounding a lawful eviction in the inner city, do you think right-wing media would be there cheering the outlaws?

But it’s more subtle than that. Probably a black man who behaved like a far-fringe-rightist in all other ways could become People Like Us and come to have similar “rights” recognized. But the Black Panthers are clearly not People Like Us, so it would be an absolute horror if they were to arm themselves and resist the law. Likewise, it would be a horror if a Hispanic militia decided to liberate one of Sheriff Arpaio’s detention camps for immigrants. If some miltiamen got killed in such an attempt, I doubt Fox News would lament about “government overreach”. The Occupy protesters weren’t People Like Us, so they could be thrown off public land with impunity. Imagine the outrage if Occupy had militarized Zuccotti Park!

One of the reasons Bundy is supposed to deserve sympathy is that “his family has been ranching on the acres at issue since the late 19th century”. You can imagine how far similar sympathy would extend if armed Native Americans were threatening to kill whites over land their people had been hunting and fishing on for thousands of years. Hispanics have been wandering back and forth across the Rio Grande for centuries, but if they do it today, we have to enforce the Rule of Law. If people get killed, well, so be it.

But not People Like Us. When we feel wronged and take up arms, everyone should sympathize, the government should show restraint, and the media should re-litigate our case to the general public.

A number of Bundy’s sympathizers are rehashing the bizarre claims he has made in court: that the federal government can’t own land inside a state, or that the federal government is itself illegitimate. Bundy repeatedly refers to the federal government’s ownership as “unconstitutional”, probably because his reading of the Constitution never got as far as Article IV:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States

This is why we have courts, to adjudicate disputes like this. Bundy made his argument in court and lost. Most people don’t then get to appeal their case to the Court of Nuts With Guns. But People Like Us do.

Whenever Bundy supporters are given media time, I would like to see them challenged to state their position in such a way that they would support similar rights for people not at all like them and not already part of the conservative movement. And I’d like to see mainstream conservative pundits confronted with a different challenge: Are there any limits to what you will support if the people doing it are on your side?

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Democracy By Coincidence

April 21, 2014 – 9:47 am

A new study concludes that We the People sometimes get what we want, but not because we have any real power.

For months after the Sandy Hook shootings, polls showed that large majorities of American voters wanted at least some strengthening of gun control laws, with support for universal background checks on gun buyers reaching the almost unheard-of level of 90%. A well organized and well funded interest group, the National Rifle Association, opposed this groundswell of popular opinion and won. A bipartisan bill that expanded background checks to sales at gun shows (and included a specific ban on the national gun registry the NRA said the proposal would lead to) failed in the Senate.

Recently, hopes for gun control rose again — not because of any further increase in its popularity, but because one rich man (billionaire and former NYC Mayor Mike Bloomberg) announced his intention to spend $50 million on the issue.

Forget for a moment the specific arguments for or against gun control: Does that resemble any process you studied in civics class? Do you think that’s what Lincoln had in mind when he talked about “government of the people, by the people, and for the people”?

There are plenty of other examples where the public has a definite opinion, but has been unable to get the result it wants: getting the NSA to stop tracking our phone calls, sending some bankers to jail after the known crimes of the housing bubble, or even things I disagree with, like prayer in public schools. One current issue is raising the minimum wage: It’s popular, but so far that hasn’t made much difference.

In addition to individual issues, consider our presidential primary process, an elimination race in which candidates compete until they run out of money. Until the 2012 cycle, you could argue that (while money was certainly influential) the voters were still driving the feedback process between money and elections: success at the polls led to contributions that keep the campaign going long enough to have another electoral success.

But the first presidential cycle after Citizens United worked a little differently: Casino billionaire Sheldon Adelson kept Newt Gingrich’s campaign going single-handedly, contributing $16.5 million. (Adelson went on to spend at least $98 million on the entire 2012 election cycle, a drop in the bucket for a man worth $37 billion. To get some perspective, imagine 37,000 millionaires each contributed $2650. Collectively, they would equal one Sheldon Adelson.) Rick Santorum, the other Romney challenger to survive deep into the process, had his own billionaire backer contributing millions of dollars: Foster Friess.

So if Romney (worth $250 million himself) had stumbled down the stretch, the only candidates in a position to benefit had been put there by individual rich men. Those without a billionaire backer were long gone. Does that resemble any process you studied in high school?

As persuasive as such stories may seem, they’re only anecdotes. People who think American democracy is working fine can find their own anecdotes in which popular opinion changes and something happens, apparently as a result. Majorities initially supported the Iraq invasion, especially in the early days when it appeared to be succeeding. But as the war dragged on, the public turned against it, and our combat troops are out now. Maybe the withdrawal took longer than it should have, but ultimately the voters got what they wanted.

In 2008, Barack Obama and the Democrats ran on a health plan very much like ObamaCare. They won huge majorities and implemented the program they ran on. In 2010, Republicans ran on deficit reduction, won, and the deficit has been considerably reduced. That’s democracy in action.

My anecdotes, somebody else’s anecdotes — who’s right? That’s the question political science professors Martin Gillens of Princeton and Benjamin Page of Northwestern set out to answer in their paper “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” which will appear in the Fall issue of the refereed journal Perspectives in Politics published by the American Political Science Association.

Gillens and Page (or more likely their graduate students) examined “1,779 instances between 1981 and 2002 in which a national survey of the general public asked a favor/oppose question about a proposed policy change”. They stipulated that the questions had to be specific enough to determine four years later whether or not the public had gotten its way, and that the results had to be broken down by income. They also compiled lists of major interest-group organizations (trade groups, labor unions, groups focused on single issues like abortion, mass-membership groups like AARP, etc.) and their public positions on these issues, then constructed an index (“Net Interest Group Alignment”) to measure the overall interest-group pressure on each issue.

From there, what makes the analysis difficult is that the policies favored by average citizens, wealthy citizens, and interest groups often overlap, so some advanced statistical juggling has to be done to determine who’s driving the bus and who’s just riding on it. (For example, you and your neighbor may have disagreed about background checks at gun shows, and one of you got your way. But was the really significant argument between you and your neighbor, or between the NRA and Mike Bloomberg?) I haven’t examined the specific techniques Gillens and Page used, but the general idea is that the variables that predict the outcome most often are assumed to be more powerful, and the power of the remaining variables is assessed after the influence of the more powerful variables is factored out. (Or, simplifying a bit, when public opinion and wealthy opinion contradict each other, who wins?)

Here’s what they concluded:

These results suggest that reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. …

Since the preferences of ordinary citizens tend to be positively correlated with the preferences of economic elites, ordinary citizens often win the policies they want, even if they are more or less coincidental beneficiaries rather than causes of the victory. … In any case, normative advocates of populistic democracy may not be enthusiastic about democracy by coincidence, in which ordinary citizens get what they want from government only when they happen to agree with elites or interest groups that are really calling the shots.

The authors realize that this paper represents an incomplete theory. They don’t, for example, come up with a formula that reliably predicts policy outcomes from elite opinion and interest group alignment. The degree of correlation they find isn’t large enough to suggest that such a formula is possible; probably other variables are at work as well. For example, they aren’t modeling

  • the views of opinion-makers who are only incidentally wealthy (like Glenn Beck, Anderson Cooper, or Rachel Maddow);
  • the interests of entrenched government bureaucracies like the Pentagon or the Federal Reserve;
  • the option-shaping power of academic elites at universities and think tanks.

or any of the other factors bound up in the idea of “serious people”. (The influence of “serious people” shows most clearly in issues like NSA spying. I don’t think the wealthy are any happier about having their calls logged than the rest of us, and there’s no NRA-like group that defends domestic spying. But “serious people”, like the ones who are presented as experts on the weekend talk shows, don’t make the case for reining in the NSA, and people who do aren’t taken seriously.)

In addition, the authors recognize weaknesses in their data that they believe understate the influence of the very wealthy. After all, even a poll that breaks down results by income isn’t going to provide a significant sample of billionaires. (The authors estimate the opinions of the wealthy by using data about the richest 10% of responders, figuring that the differences between opinion at the 50th percentile and the 90th percentile are indicative of greater differences higher up the ladder.) A method that more directly measures the views of the 1% or the .01% might find an even greater correlation with policy outcomes.

We also don’t know why there’s an overlap between elite opinion and public opinion. Perhaps the wealthy are paternalistically trying to do what’s best for everybody. (Mayor Bloomberg appears to have no personal stake in limiting guns, and Bill Gates‘ kids aren’t likely to need the public schools.) Perhaps public opinion itself has already been shaped by the influence of the rich. (Think of all the working-class people who vehemently oppose “the death tax” — not realizing it’s not triggered until your estates exceeds $5 million.)

Finally, there’s a point of view that says elites should run things. Maybe, as a class, the rich are more educated, better informed, and more insightful than the rest of us. (Then again, maybe our public discussion of poverty has such an abstract, other-worldly quality because the rich people whose opinions really matter don’t know any poor people.) That’s certainly a discussion worth having, but we ought to have it honestly, recognizing that we’ve decided to abandon all our 1776-ish rhetoric about government being founded on the will of the People.

Worst of all, though, is the thought of how that discussion would be judged: The elite wouldn’t have to convince the general public that they deserve to lead, because the opinion of the general public really doesn’t matter. Instead, the public would have to convince the elite that we deserve to be listened to.

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This is What Judicial Activism Looks Like

April 14, 2014 – 11:36 am

When John Roberts was being confirmed as Chief Justice in 2005, he likened his role to an umpire in a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. … I will remember that it’s my job to call balls and strikes and not to pitch or bat.

This was his way of invoking a common conservative trope: that “activist liberal judges” had “legislated from the bench” to create laws that were impervious to repeal through the political process. Roberts was pledging to be a different kind of judge, one who applied the law to the facts the way an umpire applies the rulebook’s definition of the strike zone to the pitch he just saw.

The umpire analogy was always suspect. As Justice David Souter pointed out in his 2010 Harvard commencement speech, cases that can be resolved just by reading the text and applying the facts usually don’t make it to the Supreme Court.

Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Constitutional values, Souter recognized, often “exist in tension with each other, not in harmony.” Resolving those conflicts in a way that stays as true as possible to the spirit behind the Constitution as a whole … that requires a judge, not an umpire.

Souter was in many ways the model of what conservatives didn’t want to see in George W. Bush’s judicial appointments: Appointed by Bush’s father, Souter had drifted into the Court’s liberal wing, the wing that conservatives accused of making up laws. Roberts was promising not to do that. He would stay objective, rather than drifting into liberal activism.

When the Court’s McCutcheon v Federal Election Commission decision came out earlier this month, we saw just how ironically things have worked out. The decision, written by Roberts and building on the Roberts Court’s earlier decisions in Citizens United and McComish, is one more step in his completely original remaking (or rather, unmaking) of campaign finance law. John Roberts has become arguably the most activist Chief Justice in U.S. history.

When you read McCutcheon, the most striking thing is the way that Roberts is talking to himself. The precedents quoted are almost entirely those of the Roberts Court itself, many written by Chief Justice Roberts.

Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C.J.). Pp. 18–21.

That bright line between quid pro quo corruption (direct bribery, where a campaign contribution is exchanged for a vote or other favor) and the more general buying of influence — and the idea that the Constitution limits Congress to legislate only on the quid pro quo side of that line — is a pure invention of John Roberts. It did not exist anywhere in law or legal tradition before he joined the Supreme Court.

Roberts also cites an older decision, Buckley v Valeo from 1976, but slides over the fact that he is reversing that decision. Buckley was the Court’s response to the post-Watergate rewriting of campaign finance laws. It upheld the part of the law that restricted campaign contributions, but threw out the law’s limits on campaign expenditures. The Court reached this conclusion via an interesting piece of reasoning that Roberts has completely written over: When a candidate spends money on his campaign, he is exercising his freedom of speech, and the government needs a very serious reason to stop him. But when a contributor gives money to a campaign, he is not himself speaking; contributors are exercising their right to free association, which is also a First Amendment right, but one that is not quite so sensitive as the freedom of speech.

In other words, in 1976 money was not speech.

The 1976 Court upheld the exact kind of restriction that McCutcheon throws out: an overall restriction on the amount of money an individual can give to federal campaigns during a two-year election cycle. So McCutcheon is a reversal, though you will struggle hard to find that fact acknowledged in the text. In Supreme Court tradition, reversals are not done lightly. A major reversal like Brown v Board of Education is a historical landmark, and typically happens only as a last resort. (See David Strauss’ book The Living Constitution for an account of all the ways the Court had tried for decades to make sense of “separate but equal” before recognizing in Brown that it just wasn’t going to work.)

If there is one cardinal symptom of judicial activism, reversal-on-a-whim is it. But Roberts does not struggle at all with reversing Buckley, he simply ignores that he’s doing it. And it’s not just Buckley. In Justice Breyer’s dissenting opinion, he quotes McConnell v FEC, the last major pre-Roberts campaign finance case, which upheld restrictions on soft money contributions:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­lished that Congress’ legitimate interest extends be­yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ment, and the appearance of such influence.’

But as Breyer complains, Roberts now quotes Citizens United as if it had reversed McConnell.

Did the Court in Citizens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it.

Another major symptom of judicial activism is a judge valuing his own view of reality above that of the legislature. Judges are presumed to be experts in the law. But often a case hangs on not on the law alone, but on facts about the world. Congress can hold months of hearings and require reports from the full apparatus of government, and so is in general better situated to investigate the state of the world than a court is. Within the court system, a district court can spend weeks or months assembling a body of expert testimony, and so higher courts typically defer to a lower court’s findings of fact. In our entire system, no one is more poorly positioned to assess the state of the external world than the Supreme Court.

Non-activist judges realize that.

Lots of reality-based issues enter into campaign finance law: How does corruption really work? How corrupting are various kinds of contributions? How diligently will contributors and political parties look for loopholes in the law? What kinds of legal restrictions are practically enforceable, and which ones require the government to prove intentions that no one can really know? How does the appearance of corruption influence the behavior of voters and the overall health of democracy?

The Bipartisan Campaign Reform Act (BCRA) of 2002 was passed after Congress had assembled massive amounts of testimony and evidence. Moreover, congressmen themselves have direct experience with the temptations towards corruption, and significant interactions with the voters. When McCutcheon came before a district court, that court upheld the law in view of the Buckley precedent, before getting to the evidence-gathering part of the trial. Breyer summarizes:

The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. … If the plu­rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

Why indeed? Is it that Chief Justice Roberts is afraid the facts would get in the way of what he wants to do? Or is he convinced that he already knows everything he needs to know?

Here’s the kind of thing I wish Justice Roberts knew: Last week I was in my home town, where I had dinner with my best friend from grade school. We have argued politics since we were seven, and he is quite conservative today. But we found one issue where we completely agree: No bank should be too big to fail. We agreed that Congress has done practically nothing to fix the financial system after the meltdown of 2008, and neither of us was optimistic that it would.

Why not? Not because the People want banks to be too big to fail. Between the two of us, I believe we represent a fairly broad public consensus on the issue. And not because bankers are delivering sacks of cash to congressmen in quid pro quo exchange for their votes. But the broader influence of big money in politics — the kind that Justice Roberts has placed beyond legal remedy — makes the too-big-to-fail issue unapproachable. Neither I nor my friend is actively pushing for Wall Street reform because … well, what’s the point?

That’s corruption of the political process undermining democracy. And Chief Justice Roberts has decreed that nothing can be done about it.

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