What Can You Do About the Senate?

who to support if you want Democratic control

The current shenanigans with federal judges (which I discussed in more detail in the previous post) underlines the importance of controlling the Senate. Conservative judges, in turn, are responsible for making campaign finance an even bigger mess than it already was, and for opening the door to the voter suppression we’ve seen in recent primaries. So if you want to fix the government, fixing the Senate has to rank high on your list.

Currently Republicans have a 54-46 Senate majority (as long as independents Angus King of Maine and Bernie Sanders of Vermont continue caucusing with the Democrats). That what gives them the power to monkey-wrench the Obama administration and the country as a whole.

Fortunately for the Democrats, though, this fall all the Republican senators from the Tea Party wave election of 2010 are up for re-election, including some who won in reliably blue states (like Illinois’ Mark Kirk). Conversely, the Democratic incumbents are the ones who were strong enough to win when the wave was crashing against them.

So Republicans have to defend 24 seats and the Democrats only 10. That improves Democrats’ prospects of gaining the five seats (or four plus the presidential election, since the vice president breaks ties) necessary to gain control.

Predictions. My usual prediction guru is Nate Silver, but other than a couple of articles about specific races his 538 blog hasn’t weighed in yet on the Senate. Three other election-predicting web sites (Larry Sabato’s Crystal Ball, Cook’s Political Report, and Predictwise) tell similar stories: Democrats are likely to gain Republican seats in Illinois and Wisconsin, and they have an even shot to flip four others: Ohio, Pennsylvania, New Hampshire, and Florida. The only Democratic seat that looks iffy is the one Harry Reid is retiring from in Nevada.

Sabato thinks three other Republican seats — Arizona, Missouri, and North Carolina — could flip if a serious Democratic wave develops. Cook and Predictwise are pessimistic about Arizona and Missouri, but agree on North Carolina. Predictwise sees possible trouble for Republicans in Indiana and Louisiana, but Cook and Sabato disagree.

The three have a minor disagreement about how secure Democratic Senator Michael Bennett is in Colorado (partly because there’s a chaotic Republican primary still to come), but nobody rates that race as a toss-up.

In the PredictIt prediction market, a share that will pay $1 if the Democrats control the Senate is going for 64 cents, compared to 36 cents for Republican control.

This far out, I don’t think anybody’s predictions are all that reliable, but they do give you a sense of where the battle lines are. If the Democrats are going to gain four seats, they need to win in Wisconsin and Illinois, and then take three of the five toss-up states: Nevada, Florida, New Hampshire, Ohio, and Pennsylvania. (That turns a 1-6 disadvantage into a 5-2 advantage, gaining four.) If a Democrat doesn’t win the presidency, Democrats need to take four of the five toss-ups.

The seven key races. In Wisconsin, former Senator Russ Feingold is trying to get his old seat back from the guy who beat him in 2010, Ron Johnson.

In Illinois, two-term Congresswoman Tammy Duckworth is trying to unseat Mark Kirk.

In New Hampshire, Governor Maggie Hassan is running against Senator Kelly Ayotte. New Hampshire Republicans always try to project the Warren Rudman image of an independent-minded person with broadly conservative values, but when push comes to shove, Ayotte does what the Mitch McConnell tells her. So while she’s agreed to meet with Garland for appearance’s sake, she’s holding firmly to the party line of refusing hearings and or a vote.

In Ohio, ex-Governor Ted Strickland faces Senator Rob Portman, who suddenly discovered that same-sex couples deserve a shot at marriage after his son came out of the closet. You can give him credit for having the courage to say so, or you can see it as one more example of a Republican whose compassion ends at the boundaries of his own family.

In Pennsylvania, Senator Pat Toomey is defending his seat against an undetermined Democrat. Joe Sestak, who lost to Toomey by only two percentage points in 2010, is fighting a primary battle with Katie McGinty, the governor’s former chief of staff, who is less well known, but is backed by most of the party establishment.

In Nevada, former state attorney general Catherine Cortez Masto is expected to be the Democratic candidate. In recent polls, she’s been running slightly behind Republican Joe Heck and significantly ahead of 2010 Senate candidate Sharron Angle, famous for her call for “Second Amendment remedies” if Democrats couldn’t be stopped at the ballot box.

The unexpected toss-up is Florida. This is Marco Rubio’s seat, which he decided not to defend to emphasize how committed he was to his presidential campaign. Neither party has picked a candidate yet; the primary is August 30. Polling on both sides has Undecided far ahead of any candidate.

What you can do. Citizens influence elections in three ways: by voting (if there’s a race in your state), giving money (if you have it), and working. Working for a candidate is a lot easier if you live nearby, but in this era of inexpensive long-distance calls, just about anybody can phone-bank for a candidate, and you can always write letters to newspapers in a candidate’s state. If nothing else, you can go to a candidate’s web site, click whatever link asks you to volunteer, and see what they say.

Who to support. The voting part is a no-brainer: If there’s an election in your state, you should vote. Unless you’re rich, though, you’re not going to give significant amounts of money to more than one or two candidates, and even one candidate can absorb all the volunteer time you have. So once you get past voting, you need to be selective: Which candidates deserve your support most?

Well, that depends on what you want.

If you’re sick of watching your candidates lose and you just want to win one you can feel good about, both Feingold or Duckworth are favored, and either can give you a sense of vicarious pride. In 2001, in the mad panic that followed the 9-11 attacks, the Senate voted 98-1 for the Patriot Act. Feingold was the 1. Duckworth flew helicopters in Iraq, where she lost both her legs in a rocket attack. Now she says, “When my colleagues start beating the drums of war, I want to remind them what the true costs of war are.” She also would increase the woeful number of women in the Senate (currently 20 out of 100).

If you want to make the biggest difference, the most toss-uppy toss-up is either New Hampshire, where PredictIt is giving 53-47 odds in favor of Hassan, or Pennsylvania, where Predictwise makes the (still unchosen) Democratic candidate a 48-52 underdog. (The polls in Pennsylvania are dismal for the Democrats, but that’s not unusual when an incumbent is matched against someone who hasn’t nailed down the nomination yet.) I’d pick Hassan here, because all Senate seats have the same power, while New Hampshire is a small state. So one contribution or one campaign worker is likely to have a bigger impact in New Hampshire than in Pennsylvania.

If you want to dream the big dream, I’d try to unseat John McCain in Arizona. It’s remotely possible, and it would make an enormous splash.

If you want to send a message, the senator most responsible for stalling the Garland nomination (other than maybe McConnell, who isn’t up for election this year) is Iowa’s Chuck Grassley, the chair of the Judiciary Committee. Grassley was once thought to be untouchable, and still is seen as a likely winner, but the Garland issue is making him vulnerable. As a result, some high-profile Democrats have been drawn into the race who might otherwise have decided it’s a waste of effort, like former Lieutenant Governor Patty Judge.

Or just roll some dice and pick a race. Whatever you decide to do, you’ll feel better about it than if you do nothing.

April 11, 2016 – 10:17 am Categories: Articles | Comments (18)

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The Broken Senate is Breaking the Courts

Merrick Garland is just the tip of a dangerous iceberg.

There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination is holding. The quick threat of a primary against Kansas Senator Jerry Moran (when it looked like he might break ranks) not only got him back in line, but served as a warning to any other Republican who might consider taking the Senate’s constitutional duties seriously.

Ironically, the court blockade is one of the indirect effects of the Supreme Court’s dismantling of campaign finance laws, and shows the advantage that development gives extremists in the Republican Party. A few cycles ago, the threat of whipping up a statewide primary challenge from scratch against an otherwise popular incumbent in just a few months (the Kansas Senate primary is in early August) would have been laughable. And it still would be laughable if the far Left made a similar threat against a Democratic senator over some progressive issue. But everything changes when a handful of deep-pocketed donors can call up a potential challenger and say: “We’ve got the money, are you ready to go?”

Jennifer Bendery, Huffington Post‘s congressional reporter, points out that Garland is just the highly visible tip of a much deeper iceberg: The Senate has all but stopped processing judicial nominees up and down the federal court system.

For some broader perspective, consider that Republicans have only confirmed 16 judicial nominees since becoming the Senate majority in January 2015. At this same point in President George W. Bush’s eighth year, when Democrats controlled the Senate, 40 judicial nominees had been confirmed.

… The last time the Senate confirmed a judge was in mid-February, and that was only because McConnell postponed a package of judicial nominees from 2015 into the new year. There are 15 judicial nominees ready for a confirmation vote right now, but only one of those votes has been scheduled. Another 32 are waiting on the Judiciary Committee, which hasn’t held a hearing for a nominee since January. Federal courts, meanwhile, are at 79 vacancies and climbing.

That kind of behavior almost forces the Democrats to respond in kind if the political situation reverses. To do anything else — to let the Senate resume its constitutional duties as soon as a Republican enters the White House — would mean conceding that only Republican presidents are empowered to appoint judges. Such acquiescence would guarantee a conservative judiciary for the foreseeable future.

That exemplifies why it’s nearly impossible to be the Good Government Party once the other side decides to be the Bad Government Party. And so the deterioration I’ve been tracking in my Countdown to Augustus posts goes on.

Last fall, Bendery explored the effects of a broken judicial-appointment system: overloaded judges who burn out and cases that drag on forever. Courts prioritize criminal cases for good reason: A long delay risks either leaving a predator on the streets or wrecking an innocent defendant’s life by letting him rot in jail. But something has to give, as Chief Judge Morris England of the U.S. District Court for California’s Eastern District explains:

What happens is you have to keep pushing civil cases further out. They’ve already been waiting sometimes three to four years. I get concerned when cases are so old. Memories are fading; people are no longer around. It’s not serving anyone trying to get justice.

Take that a step further: As the federal court system continues to deteriorate, any right those courts enforce deteriorates as well. Little by little, we wind up living in a country where “Yeah it’s illegal, but what are you going to do about it?” is a viable strategy.

That, in turn, creates a temptation to flip the situation around: to get even with your own illegal act, and let the other side beg for justice from the broken courts. And so the back-and-forth of political hardball begets a similar back-and-forth of hardball in everyday life.

April 11, 2016 – 8:08 am Categories: Articles | Comments (4)

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The Monday Morning Teaser

This week I mostly look away from the presidential race and turn to the Senate and the courts. The huge Republican Senate class of 2010 is up for re-election, so there are lots of opportunities for Democrats to flip the four (if they keep the White House) or five (if they don’t) seats they need to gain control.

For me personally, the one to focus on is obvious, since my local race in New Hampshire is considered a toss-up, the Democratic candidate (Maggie Hassan) has been a good governor, and the Republican incumbent (Kelly Ayotte) is supporting Mitch McConnell’s refusal to grant Supreme Court nominee Merrick Garland the fair hearing every other nominee has gotten.

But what if you’re not in one of the five toss-up states where Senate control is likely to be decided? Or you are, but your local candidate doesn’t give you the kind of feeling you want from a politician that you go all-out for?

Well, the Koch brothers aren’t sitting out the Senate races just because their guy in Kansas looks safe, and you shouldn’t either. You may not have millions to sprinkle all over the country, but your money travels as well as theirs does, and in this era of cheap long-distance, you can phone bank for anybody.

One of this week’s featured articles “What Can You Do About the Senate?” takes you through the races that will decide whether Mitch McConnell keeps his veto power over the next Supreme Court justice, and makes suggestions for who you might help, depending on what you want to accomplish.

That link between the legislative and judicial branches is the theme of this week’s other featured post, “The Broken Senate is Breaking the Courts”. Merrick Garland is not a unique example. The Republican Senate is refusing to process the Democratic president’s nominees at all judicial levels, creating a long-term threat to the rule of law. That problem sounds abstract, but it could easily show up in your life.

The broken Senate article is pretty much done and should be out momentarily. The what-to-do article still needs some work, so let’s picture it coming out around 10 EDT. The weekly summary — where I will end up saying a few things about the presidential race, as well as Mississippi’s new entry in the very competitive most-bigoted-state contest — should follow by noon.

April 11, 2016 – 7:24 am Categories: Morning tease | Post a comment

Paying Hell

Your vote is supposed to count. Break that understanding and there will be hell to pay.

— Josh Marshall

This week’s featured posts are “Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?” and “Where North Carolina’s New Law is Going“.

This week everybody was talking about the culture wars

The two featured posts cover the two main stories: whether banning abortion means punishing women who seek abortions, and North Carolina’s bathroom-regulating HB2 law that simultaneously prevents any local government from protecting gays and lesbians from discrimination.

What I didn’t mention in those posts was the economic backlash against North Carolina.

The transgender bathroom scare may not be as effective as some people believe.

and the presidential race

Tomorrow is the Wisconsin primary. Cruz is expected to win on the Republican side, and that injects more doubt into the race.

Josh Marshall makes an interesting point about the possibility that Trump may go to the convention with far more primary votes than anyone else, but not come out of it with the nomination.

Through 1968 — in my living memory in other words — nobody really expected their primary vote to decide the nominee of their party. Conventions had their smoke-filled rooms, where party bosses like Chicago’s Mayor Daley anointed a winner. That’s how it had always been done.

But since 1972 we’ve had a different system, where the people who vote in primaries think they’re actually choosing the nominee.

what most people never really thought through was that the clinch before the convention model was always based on fundamental party unity. A candidate didn’t win by winning. He or she won when they demonstrated that no other rival could win. After that, the money dried up for the also rans and they were ushered out of the race. This just wasn’t obvious before because we’d never seen this system operate under these different conditions.

But right now the Republican Party is fundamentally divided, and so the arcane rules of delegate selection are really starting to matter. In many states, delegates “won” by Trump in the primary are being named by the party establishment. Many of them are obligated to vote for Trump on the first ballot, but aren’t actual Trump supporters. If Trump can be stopped on the first ballot, his nomination prospects may be over. What happens then?

Over half a century, the national primary process has been enshrined as a national election process. It may be run by party rules and may have all sorts of obscure and nonsensical bylaws. But you vote in the same precinct station as you vote in real elections. For real people that means it’s an election, period. You vote and your vote is supposed to count. Break that understanding and there will be hell to pay. Whatever rules you can cite simply are not going to matter that much.

On the Democratic side, polls make Sanders a slight favorite to win in Wisconsin. If he does, the question will be whether he won by enough, given how far behind he is in the national delegate totals. Nate Silver has made a projection of how many delegates Sanders needs from each remaining contest if he’s going to win a majority of pledged delegates (leaving the superdelegates out of it). In that model, Sanders needs 50 of Wisconsin’s 86 delegates, and would probably have to win the popular vote by 16 points to get them.

Why does this keep happening? The Washington Post took the bait from a Republican congressperson who claimed to know, and reported that 147 FBI agents were working on the Clinton email case. That number echoed all over the media, creating the impression that as Chris Cillizza put it, “this investigation was far more wide-ranging than I, at least, believed”

As usual, the report turned out to be bogus. The WaPo had to back off, saying that no more than 50 agents were involved. NBC later was able to lower that number to 12.

But for some reason this game never gets old: A Republican congressman (or someone on his staff) feeds the media some scandalous “fact” about Clinton, which then gets reported as if it had some news value. When the story turns out to be false, the liar’s identity is protected.

This week the Sanders and Clinton campaigns threw charges and counter-charges about campaign contributions from the fossil fuel industry. MaddowBlog’s Steve Benen and the WaPo’s fact-checkers try to sort it all out.

and you might also be interested in

If black history gets its own month, why not Confederate history? In Mississippi, it does: April is Confederate Heritage Month.

On his Orcinus blog, Dave Neiwert has decided to take that seriously, using this month to make sure we don’t forget noteworthy aspects of our Confederate heritage, like lynching. Or the fact that the Civil War wasn’t about “states rights”, as neo-Confederates claim. The Confederacy was created to defend slavery, pure and simple.

The Apple/FBI controversy ends with a whimper rather than a bang: Never mind, Apple, we can do it without you.

If you’re wondering what people are thinking, when they support the Senate refusing to consider a Supreme Court nominee for the first time ever, it’s something like this: Obama’s nominee is going to do his bidding, with the result that “at least four million illegal immigrants would be rewarded with jobs, welfare, and other taxpayer-paid benefits”.

In other words, they’re looking at the Supreme Court not as a court of law, but as a super-Senate that votes for or against certain results.

A sign that we need a higher minimum wage, at the very least:

2014 was the first year that Pew studied in which median spending on [housing, food, and transportation] was higher than the median income for those in the lower third of income groups.

Increased housing costs were the immediate cause of the change.

Tough decision: Should I watch an Opening Day baseball game on TV this afternoon, or scrape the snow off my car?

and let’s close with a math experiment you can do at home

There was a time this guy might have been hung as a witch. Watch the “miraculous” thing he can do with a metal plate, a violin bow, and a can of couscous.

April 4, 2016 – 11:36 am Categories: Weekly summaries | Comments (2)

Where North Carolina’s New Law is Going

HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.

When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”

For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.

The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:

[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)

So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.

You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.

The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.

Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.

Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:

Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)

But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).

So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.

So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.

So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.

April 4, 2016 – 9:48 am Categories: Articles | Comments (8)

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Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?

Did Trump get the pro-life position wrong? Or just express it too bluntly?

Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.

You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:

MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?

TRUMP: The answer is that there has to be some form of punishment.

MATTHEWS: For the woman.

TRUMP: Yeah. There has to be some form.

That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)

But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?

After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?

The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.

Pro-lifers use the word murder in its literal sense, intending nothing metaphoric or hyperbolic. That’s why they so often equate the millions of abortions that have happened since Roe v Wade with the Holocaust.

If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?

And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:

Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.

A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.

But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.

The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:

[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.

The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.

Steven Ertelt of LifeNews.com makes a similar point:

the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.

That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.

Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:

Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?

That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.

Broadly legal abortion is the product of privileged men.

… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.

What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.

Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.

Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.

The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)

Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.

Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.

I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.

Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.

Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.

Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?

Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.

I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.

It stopped working for me because, alas, I started listening to what I was saying.

That led to an “unsettling” realization.

I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.

Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …

I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.

Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]

Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.

That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.

Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.

[1] Of his statements checked by PolitiFact, only 8% are judged True or Mostly True, compared to 78% Mostly False, False, or Pants on Fire. By contrast, 51% of Hillary Clinton’s checked statements rate True or Mostly True, with only 28% Mostly False, False, or Pants on Fire. Bernie Sanders‘ split is similar: 51% to 29%.

[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.

On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:

And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.

That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.

[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.

[4] I made a similar claim in the fifth of my “Five Take-Aways from the Komen Fiasco“.

April 4, 2016 – 9:14 am Categories: Articles | Comments (39)

Tagged |

The Monday Morning Teaser

As you know, I’m trying (not always successfully) to resist having the Weekly Sift turn into an all-presidential-politics blog. The presidential election is important and the race is addictive once you start paying attention to it. But figuring out who will (or even should) be the next president isn’t the be-all and end-all of what the Sift is for.

On the other hand, the presidential race does focus the public’s attention, and so occasionally provides a good hook for discussing something that has independent value. That’s what I’m doing with this week’s first featured post: “Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?”

As you probably already know, this week Donald Trump first said that after he outlaws abortion (as he wants to do for all but a few exceptional cases) women who get abortions will have to be punished. That caused an uproar not just from feminists, but from pro-lifers who usually deny that they want to punish women. And so something rare happened: Trump had to walk back one of his headline-making statements.

There’s a whole political angle on whether that was a good thing to do and how it will affect his chances in the Wisconsin Primary tomorrow and so on, but other people have that covered already. To me, the interesting question is: Did he have it right the first time? Whatever pro-lifers might say now, won’t the inevitable logic of their position lead to punishments for women who seek abortions? And if that’s true, why do they say otherwise? That post is just about done, and should be out shortly.

The other featured post will be “Where North Carolina’s New Law is Going”. North Carolina’s hastily passed LGBT-rights-restricting HB2 is close enough to laws the Supreme Court has already thrown out that the issues involved are pretty clear. There’s only one facet of the situation that needs new Supreme Court guidance, and it’s already obvious how all the justices will vote. Or at least that’s how it looks to me.

I’m still looking for a cartoon to illustrate that article, so let’s say it gets out by 10 EDT.

That doesn’t leave much space of the weekly summary. I’ll check in with the presidential race, get annoyed with the WaPo for yet another false alarm about Hillary’s emails, and maybe do a few other things. That still needs work, so let’s predict it for noon.

April 4, 2016 – 8:23 am Categories: Morning tease | Post a comment

Common Mistakes

In going to war, it is a common mistake to begin at the wrong end: to act first, and wait for disaster to discuss the matter.

— Thucydides, History of the Peloponnesian War, 5th century B.C.

This week’s featured post is “Buying Back American Democracy“. And if yesterday’s church service left you feeling uninspired or maybe even a little alienated, check out the “Struggling With Easter” service I led three years ago.

Last week’s featured post “Tick, Tick, Tick … the Augustus Countdown Continues” turned out to be way more popular than I expected, with more than 8000 hits in its first week.

This week everybody was talking about terrorism

As you undoubtedly know, Tuesday morning three bombs went off in Brussels, two at the airport and one at a train station, killing 34 (including three suicide bombers) and injuring 300. The perpetrators had ISIS training, and some were connected with the Paris attacks in November.

Whenever something like this happens, I try to remind people of the points I covered in “Terrorist Strategy 101: a review“. What makes a terrorist attack different from all other kinds of warfare is that its targets have no military significance. In this case, for example, the attackers did not go after NATO headquarters (which is also in Brussels), or a Belgian air base. If they killed or injured any military personnel, it was by coincidence.

A terrorist attack is similar to a bank shot in pool. The attack itself accomplishes little that is useful to the attacking side, so its whole purpose is the bounce it leads to: the response from the side attacked. That’s why, if some response immediately leaps to mind, you always have to ask yourself: “Is this exactly what they want me to do?”

The pool of potential ISIS recruits consists of Muslims who feel that a world community dominated by the West has no place for them, and leaves them nothing but bad choices: They can be ruled by autocrats more loyal to Western money than to their citizens, like the House of Saud or the generals in Cairo. Or they can live in war zones like Syria or Iraq or Libya or Gaza. Or they can come to the West and join a despised and dishonored underclass.

ISIS’s terrorism aims to goad us into responses that expand their recruiting pool by justifying that view of Islam and the West. If they can get us to heap scorn on Islam in general, to ghettoize and demean immigrant Muslims in Western nations, to commit atrocities against innocent Muslims in the Middle East, or in some other way to make it harder for Muslims anywhere to find a place in our world order, then they’ve succeeded.

President Obama understands this, which is why he always seems so unresponsive after an attack. He generally says something equivalent to: We have a long-term strategy, which is to tightly focus our counterattacks on the people who threaten us and our allies. That strategy is going to succeed and so we’re going to stick with it.

Admittedly, that’s really unsatisfying. What anybody with mammalian hormones wants to hear is that we’re going to lay waste to everything that has even the faintest connection to the attackers, until they’re really sorry they riled us up. But that’s a sucker’s response; the whole point of the attack was to trigger it.

By contrast, Ted Cruz went straight for the sucker response:

We need to immediately halt the flow of refugees from countries with a significant al Qaida or ISIS presence.

We need to empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.

We need to secure the southern border to prevent terrorist infiltration.

And we need to execute a coherent campaign to utterly destroy ISIS.

The bizarre implication of that second point is that we don’t just have a problem with terrorist individuals, like the couple who carried out the San Bernardino massacre, but that we face a threat from entire Muslim neighborhoods. Even weirder is Cruz’ belief that a heavier police presence in those neighborhoods can prevent “radicalization”, when it obviously would push in precisely the opposite direction: Nothing alienates people faster than being hassled by police because of their race or religion.

Vox connects this radicalized-neighborhood paranoia to the imaginary “no-go zones” in Muslim neighborhoods of European cities, a bit of dystopian nonsense Bobby Jindal invented after the Paris attacks. As so often happens in the conservative echo chamber, delusions don’t get corrected as facts emerge; instead, each delusion becomes a building block for the next one.

Cruz has spelled out his “coherent campaign to utterly destroy ISIS” before: carpet bomb areas that include large numbers of ISIS fighters, rather than being “politically correct” by trying not to kill innocent civilians. (Words that might substitute for “politically correct” here are humane or not a war criminal.) Killing their innocent wives and children might radicalize a few people too.

Trump similarly took the bait, reiterating his endorsement of torture and “knocking the hell” out of ISIS, whatever that means. The Chicago Tribune‘s Rex Huppke summarized the Cruz/Trump approach:

We see problem. We hit problem with big stick. Problem go away.

and Cuba

Bloody attacks and fist-waving responses are more eye-catching, but in the long run the most important thing that happened this week was probably President Obama’s trip to Cuba. He was the first American president to visit since President Coolidge came three decades before the Cuban Revolution.

Obama is doing what he can to normalize relations, but he can’t end the embargo against Cuba without an act of Congress, which he is unlikely to get because Congress is broken. At this point no one can argue that the half-century-long embargo has succeeded in overthrowing the Castro government, or that it will succeed if we stick with it just a little bit longer. It is one of those temporary policies that has continued through the decades precisely because it wasn’t working. If it had worked the way it was supposed to, Castro would have fallen in 1960 or 1962 and we’d have normalized relations with his successor.

This is something to remember when Donald Trump calls for a “temporary” ban on Muslim immigration “until we can figure out what’s going on“. Once something like that gets started, it can continue for half a century or more simply because no event allows us to declare victory and we can’t admit our mistake.

The Cuban embargo was such a mistake. In Cold War Europe, Communist East Germany had to limit travel to West Germany because it couldn’t let its citizens compare the two societies. Similarly, Communist Cuba would have had to prevent its citizens from measuring their lives against their cousins’ in Miami. But the embargo allowed Castro to blame us for the separation.

Everything Obama does is an outrage to conservatives, so this trip was too. Their outrage crystallized around this photo of Obama with a Che Guevara mural in the background.

How dare he! Of course it was fine for President Reagan to speak under a bust of Lenin at Moscow State University.

Or for the first President Bush to be photographed in Tiananmen Square with Mao’s image behind him.

But Obama and Che … that’s completely different!

This continues a pattern that goes back to the earliest days of the Obama presidency: When he does things that many previous presidents have done without incident — put his feet on a desk, take a vacation with his family, send a secular-themed Christmas card — it provokes outrage. It’s almost as if Obama himself were different, in some indefinable way, from all previous presidents. (I cataloged a bunch of examples of Obama-specific outrage two years ago in “What Should ‘Racism’ Mean?“.)

and the 2016 campaigns

The Sanders campaign has been saying for weeks that things would get better for them when the campaign got to the West, and they were right. Clinton may have won the Arizona primary, but Sanders put up huge margins in the caucuses in Utah, Idaho, Washington, Alaska, and Hawaii.

As a result, Clinton’s lead in pledged delegates shrank from 327 last week to 230. The amount that Clinton is running ahead of her minimum winning pace (according to Nate Silver’s model) fell from 112 to 92.

Unfortunately for Sanders, that nearly finishes the caucuses. (Participating in a caucus requires more time and effort than voting in a primary, which favors the candidate generating more enthusiasm.) Wyoming and North Dakota are the only state caucuses left. Worse, most of the remaining primaries are closed (i.e., restricted to registered Democrats), which favors Clinton. The big states still to come — New York, Pennsylvania, California — have large minority populations, which also favors Clinton.

The next contest is an open primary a week from tomorrow in Wisconsin. The limited recent polling indicates a small edge for Clinton. Two weeks later comes a closed primary in New York, where Clinton was a senator and recent polls have her up by around 30%. As I said last week, Clinton could still self-destruct in some way, but unless she does, it’s over.

If you thought the Republican race couldn’t go lower after the nationally televised discussion of Trump’s penis a few weeks ago, you were wrong. And it just keeps getting worse.

One point I’ll make about the smear-the-other-guy’s-wife exchange: Neither Melania Trump or Heidi Cruz has faced anything like the vitriol that has been unleashed on Michelle Obama these last eight years. Michelle has been a First Lady we should all be able to take pride in, but apparently she looks like a gorilla if you put your racist glasses on.

Thursday evening I was at a Massachusetts house party for Illinois Rep. Bill Foster, the only physicist in Congress. (If you’re a science type and aren’t excited by your local House race, check him out. He’s been winning close elections in a traditionally Republican district and needs your help.) Barney Frank spoke. Barney is expecting a 1964-scale landslide this fall, with Trump playing the Goldwater role.

Jamelle Bouie debunks “the myth of the Trump Democrat”. Trump’s favorable/unfavorable ratings among Democrats are roughly the same as Ted Cruz’, or about where Mitt Romney was four years ago. Likewise, among working-class white Obama voters, Trump and Cruz are about equally popular. In short, Trump’s working-class white support mainly comes from people who stopped voting for Democrats a long time ago.

Josh Marshall and Nate Silver make a similar point with different data: In those blue states where Trump’s appeal to working-class whites is supposed to turn things around, there’s no sign of that happening. Trump trails Clinton by wide margins in rust-belt states like Pennsylvania and Michigan. When he has won primaries in blue states like Massachusetts, he’s been doing it with a fairly small number of voters, due to a relatively small Republican electorate split among many candidates.

Summing up: It’s way too early to say that Trump can’t win in the fall, but the scenarios Democrats worry about aren’t showing up in the numbers yet.

and bigotry

Apparently the biggest emergency in North Carolina is something about bathrooms. Wednesday, the NC legislature was called back for a special session to deal with the horrifying prospect of Charlotte protecting LGBT rights. In a single day (which allowed 30 whole minutes for public comment), Republicans managed to introduce, hold hearings on, pass through both houses, and sign into law a bill that:

overturns Charlotte’s ban [on LGBT discrimination]: It also prevents any local governments from passing their own non-discrimination ordinances, mandates that students in the state’s schools use bathrooms corresponding to the gender on their birth certificate, and prevents cities from enacting minimum wages higher than the state’s.

So can we finally dispose of the myth that Republicans and conservatives favor local control over Big Government? If a city or town in North Carolina wants to protect LGBT rights or insist on workers being paid a living wage, the bigger government in Raleigh says they can’t. And if the consensus opinion at some state college is that they can deal with gender ambiguity in their bathrooms, well, forget about it; the bureaucrats have spoken. Conservative political correctness says that men are men and women are women, so that’s that. (BTW: What if there’s a typo on your birth certificate?)

In another context, I ran into a phrase this week that applies here: dominance politics. There is no actual problem here that needs solving, and certainly nothing that couldn’t wait for the legislature’s next regular session. The point of the bill, which is emphasized by the elimination of all normal procedure in its passage, is for Christian culture warriors to express their dominance.

Naturally, a backlash is brewing, as national and multinational businesses that have LGBT employees resist sending them to work in a state where they have been declared to be second-class citizens, with no rights which the majority is bound to respect.

and you might also be interested in

This week’s guns-make-us-safer story isn’t about somebody shooting somebody by mistake, it’s evidence that nobody really believes the NRA’s propaganda. As in 2012, the 2016 Republican Convention will ban guns. I mean, if a good guy with a gun is the best way to stop a bad guy with a gun, what could be safer than to crowd thousands and thousands of good guys with guns into an arena? As Colorado State Rep. Carol Murray put it:

when you have a gun-free zone, it’s like saying, ‘Come and get me.’

I shudder to think of all those unarmed Republicans huddled together with nothing but professional law enforcement to protect them, waiting helplessly for someone to come and get them. It’s just too horrible.

If you listen to Trump or Cruz speeches, you’ll frequently hear the prediction that Hillary Clinton will soon be indicted for her emails, or, if not, it will only be because the Obama Justice Department is blocking such an indictment.

One typical version of this Republican fantasy was in the March 20 New York Post. According to anonymous “associates in the private sector” who claim to have contact with unnamed FBI agents, who supposedly know the mind of FBI director Jim Comey (whether by talking to him directly or by hearing talk filtered through several other intermediaries), Comey “is getting stonewalled, despite uncovering compelling evidence that Clinton broke the law.”

The article is a near-perfect conspiracy theory: Since even its third-hand sources are anonymous, and neither the “compelling evidence” nor the laws allegedly broken are specified, nothing in the story can be checked against reality. And it makes no predictions that could be checked in the future: If nothing happens, that’s because Obama’s stonewalling succeeded.

A much more compelling analysis comes from Richard Lempert, one of the authors of the security manual for the Department of Homeland Security, who explains why Clinton won’t and shouldn’t be indicted: Whenever you identify a specific law that Clinton might have broken, and then check the known facts against the provisions of that law, there’s no crime.

The staff of Malheur National Wildlife Refuge is cleaning up and getting ready to reopen in a few weeks. Estimates of the costs to taxpayers stemming from the Bundy occupation are at $5.7 million and rising, not to mention the loss of time and data in environmental research projects, and the unquantifiable damage to archeological sites. This week, local media got its first look at how trashed the place was.

and let’s close with an intervention

Ireland gives America the girl-to-girl talk we really need. “Don’t give away your nuclear codes to the first megalomaniac that flashes his cash at you. You’re worth more than that, America. Have some self respect.”

March 28, 2016 – 11:36 am Categories: Weekly summaries | Comments (1)

Buying Back American Democracy

Reversing Citizens United might take a decade or more. But that doesn’t mean nothing can be done in the meantime.

A few weeks ago I got an email from an anti-Citizens-United group inviting me to learn about their 10-year plan for amending the Constitution to regain control of money in politics.

I think they wanted to motivate me and give me hope, but in fact I found their message depressing. I know they were trying to be realistic, but maybe I just wasn’t ready for that much reality: Ten years? And a result that soon only if everything goes according to plan!

But they’re right; constitutional amendments face a high bar, and building up the strength to clear that bar can take a long time. The various groups and leaders pushing a constitutional amendment haven’t even united on a text yet, or even an intention: Should the amendment just deal with campaign finance, or should it also cover corporate personhood? Should it ban corporate contributions itself, or just empower Congress to do so? And so on.

I have to admit it: Given where we are, ten years might be optimistic.

But Scalia’s gone. Doesn’t that change everything? OK, maybe a constitutional amendment is still far in the future, but couldn’t the Supreme Court just reverse Citizens United itself? In theory, yes. The Supreme Court could find a case tomorrow, and issue a ruling that said, “Our bad. Let’s just pretend that never happened.”

If the Senate approves Judge Garland, or if Bernie or Hillary gets to replace Justice Scalia with somebody even more liberal, quite likely the Court will soon have a majority that even wants to undo CU. But there’s still a problem: The law isn’t supposed to work that way, and (in spite of decades of conservative complaints about “liberal activist judges”) the four current liberal justices plus Garland or whoever probably will have more legal integrity than to reverse a ruling just because they don’t like it. [1]

The Supreme Court is supposed to work according to a principle called stare decisis, which basically means that old decisions should stand. In general, it wouldn’t do for the laws to keep shifting every time a new justice got appointed, so the Court is obligated to try to make past decisions work, even if the current justices would have decided those cases differently. [2]

So a more liberal Supreme Court may stop the bleeding, in that it probably wouldn’t continue John Roberts’ conservative-judicial-activism project of dismantling campaign finance law completely. But we can’t count on it to reverse old decisions, at least not without trying everything else first.

What exactly are we stuck with? For the time being, then, we’re stuck in the world Citizens United created. And that leaves us with the question: Given that we’re stuck here, is there anything we can do to make our politics less corrupt, and to lessen the undue influence billionaires and corporations have on the political process? In other words: Is there legislation (short of a constitutional amendment) that Congress could pass and that the Supreme Court wouldn’t declare unconstitutional?

Answering that question requires us to understand what exactly we’re stuck with. Basically what it comes down to is:

  • Money is speech.
  • The more political speech the better.

There is even — I hate to admit — a certain logic to this. We don’t put any limits on how much Verizon can spend on convincing us that they have the best wireless network, or how much Pfizer can spend telling us that they have the answer to erectile dysfunction. So why should political advertising be treated worse? The Founders’ intent was that political speech be freer than any other kind, not more restricted.

The big problem with Citizens United is that while it does recognize some exceptions to those principles, it ignores situations so similar as to make no difference. For example, CU still allows a ban on quid-pro-quo campaign contributions. In other words, you can’t say to a senator: “I’ll contribute a million dollars to your super-PAC if you vote for this bill that benefits my business” (at least not if somebody in the room is wearing a wire). But if a senator just happens to vote your way a lot and you just happen to spend a pile of money to keep him in office, that’s fine. [3]

In the real world, of course, large contributions are a corruption problem, even if no direct quid pro quo exists or is even implied. Imagine, for the moment, that Senator Inhofe came to his position on climate change honestly. Even so, it’s hard to imagine any Oklahoma citizen getting him to change his mind through evidence or argument, simply because at this point Inhofe knows which side his bread is buttered on. As Upton Sinclair put it: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

What that leaves. In short, according to the current interpretation of the First Amendment, the law can’t get between a large contributor and the megaphone he wants to buy or rent to make his point. So what options does that leave?

It’s simple really: The law can try to influence the other players in the system. It can give more power to small contributors, and to people who don’t have enough money to contribute to political campaigns at all. And it can influence candidates to refuse money from corporate PACs and instead focus their fund-raising on the newly empowered small donors.

In other words, if we can’t stop billionaires from spending vast amounts to get their way, we can at least make sure that they aren’t gatekeepers. We can use public money to make sure there is a non-billionaire-approved path to financing a congressional campaign. So yes, there will continue to be billionaire-funded and corporate-funded candidates running for Congress. But those don’t have to be all the viable candidates.

The problem with public financing. In a nutshell: Systems that finance campaigns with public money tend to become status-quo-protection schemes.

In every election there are fringe candidates who run just for vanity’s sake or to promote some crazy point of view. (In recent New Hampshire presidential primaries, we’ve had Vermin Supreme, who could generously be described as a performance artist.) If public financing were available to pay for their campaigns, they’d come out of the woodwork, wasting huge quantities of tax money.

So a candidate-based public financing system needs some way to vet the candidates. Looking at recent presidential candidates, for example, the system would have needed some way to decide that, say, Martin O’Malley and Jim Gilmore were serious in a way that Vermin Supreme wasn’t (even though most of the electorate hadn’t heard of any of them). In practice, such a system tends to favor incumbents (who obviously are serious candidates) and to favor the Republicans and Democrats over any new parties that try to emerge. (If you’re the Republican or Democratic nominee for an office, you’re obviously serious; if you’re nominated by the Rent is Too Damn High Party, maybe not.)

So a candidate-based or party-based campaign-finance system is easily painted as the Washington political establishment voting to subsidize itself. And if the public doesn’t keep close tabs on it, that’s what it can turn into.

Keeping citizens in control. Ideally, candidates in every race from the presidency down to city council would be able to do what Bernie Sanders is doing: raise enough money from small contributors to run a viable campaign. Sanders may not win and he may be outspent, but he has raised enough money to tell the voters who he is and what he wants to do.

Such small-donor financing may just barely be possible at the presidential level, where even low-information voters pay some degree of attention fairly early in the process. But is the waitress or trucker who gives $50 to Bernie Sanders also going to come up with $50 every couple of years for a Senate candidate and a House candidate and a governor and on and on? How will such voters even learn enough about lower-office candidates to know which ones are worth supporting? The way things stand, planning a congressional campaign around these kinds of contributors just isn’t practical. And that’s why Congress seems so corrupt: If you’re serious about running a competitive campaign, you have to either raise money from special interests or be so rich that you’re practically a special interest yourself.

But even at the level of senator and representative, it’s not impossible to raise money from small donors, it’ s just very, very unlikely that you’ll raise enough of it. And that brings us to the idea of small-donor public financing: What if public financing wasn’t focused on candidates or parties, but instead was used to magnify the effect of small donors? In other words, what if your donation of $20 to a candidate qualified that candidate for an additional $100 of public financing?

Such a plan would leave citizens in control, rather than bureaucrats or politicians. If voters wanted to give money to a well-known Republican or Democrat, fine. But if they’d rather give to an outsider major-party candidate, or to a Libertarian or a Socialist, or even to Vermin Supreme, that would be up to them. The public money would follow their lead.

Rep. John Sarbanes of Maryland [4] has a bill to do that. The Government By the People Act has three parts:

  • A $25 tax credit for people who contribute at least $25 to a congressional candidate. Essentially, the government is refunding to you the first $25 of contributions you make. So almost everybody has the means to donate something.
  • A 6-to-1 match of contributions up to $150 to congressional candidates who qualify for the match by agreeing to forego PAC contributions and getting sufficiently many small contributions. So if you give a qualifying candidate $50, his campaign gets $300. [5]
  • Provides additional matching in the home stretch of a campaign for candidates who raise $50,000 in small-donor contributions.

So even under the current Supreme Court interpretations of the First Amendment, no billionaire’s or lobbyist’s rights are infringed. If the Koch Brothers want to spend millions to oust your representative (as they have tried to oust mine), they still can. But a candidate who wants to appeal to the people rather than to monied interests has a plausible path to victory. Sarbanes does the math:

Imagine 35 people gathering at a neighbor’s home, each giving $50. With matching funds, that would add up to $10,500. Do five of those events, and 175 people donate a combined $52,500.

Politicians suddenly would find it worthwhile to spend time in backyards with real voters, rather than in rarefied high-rises with big shots. More importantly, the candidate would have made connections with people who would be willing to knock on doors and help work phone banks, something K Street swells never would do.

Why would Republicans go for this? As the party that benefits most from big-money contributions, Republicans generally get an advantage from the current system. So naturally, most of the current co-sponsors of Sarbanes’ bill are Democrats.

But among voters, Republicans worry as much as Democrats about the corruption of the current system. (That’s why Trump’s pledge to self-finance his primary campaign is working so well for him.) And while any public-financing plan would have a cost, there is a conservative case that this would be money well spent: If it could prevent just one Bridge to Nowhere or one Solyndra loan, the plan would easily pay for itself. That’s why a Republican as conservative as North Carolina’s Walter Jones is on board.

And there’s a self-serving answer to why congresspeople of either party might support such reform: If you build a network of small donors in your district, that network is yours. No one can call you up and threaten to take it away from you if you don’t do what they want. But under the current system, many apparently secure senators and representatives live in terror of getting such a call.

Whether we’re talking about liberals or conservatives, no one goes into politics because they dream of toadying for lobbyists and kissing the rings of billionaires. The dream is of being a real decision-maker, not the puppet of some vested interest.

Summary. We can continue laying the groundwork for an anti-Citizens-United constitutional amendment some time in the far future, and we can continue hoping that a future Supreme Court will see the inherently corrupting nature of huge campaign contributions. But in the meantime, there is an actual piece of legislation that would be a big help.

Politicians who think the current system works in their favor may want to ignore that bill. But their voters — even their conservative Republican voters — see the problem and want a solution. So if we can get the Sarbanes bill on the national agenda, to the point that every candidate will have to take a position on it, lots of people you don’t expect might decide they’d better support it. And even politicians who seem to be securely on somebody’s leash may decide they’d like to chew through that leash.

[1] Just for perspective: During the ten years between Scalia’s death and, Alito replacing O’Connor in 2006, the Court probably had a majority that wanted to reverse Roe v Wade. But it didn’t happen.

[2] A good example of how the process is supposed to work is in Chapter 4 of David Strauss’ book The Living Constitution, in which he describes how Brown v Board in 1954 came to overrule Plessy v Ferguson of 1896. The 1954 Court didn’t just reverse the 1896 Court out of the blue. In between came a long series of cases, in which the Court kept trying and failing to square “separate but equal” with the rest of the American legal tradition. By 1954, separate-but-equal was so full of exceptions and provisos that it couldn’t hold together. So Brown wasn’t just saying that separate-but-equal was a bad idea, it was saying “We tried to make this work and we can’t do it.”

[3] Suppose, say, that Senator James Inhofe is the voice of climate-change denial in the Senate and uses his position as chair of the Environment and Public Works Committee to block any effort to shift America away from its dependence on fossil fuels. And then suppose that his top campaign contributions all come from producers or consumers of large quantities of fossil fuels. The Supreme Court sees no problem there that the law might want to address; quite the opposite, it sees any law that might get in the way of that arrangement as a violation of free speech.

In particular, there are virtually no limits to what a contributor can spend on political “speech” if there is no direct coordination with the candidate. So if, say, the Koch Brothers decide (totally on their own) that (for the good of the country) they want voters to keep electing wise senators (like Jim Inhofe), and if they want to spend vast amounts of their money to say so (whether Jim Inhofe likes it or not), that is simply their First Amendment right.

[4] If the name rings a bell, you’re probably thinking of his father, Senator Paul Sarbanes.

[5] To me, that sounds like a 5-to-1 match, with your original dollar making the sixth. But apparently that’s not how they figure. I’m making my math consistent with the examples Sarbanes gives.

March 28, 2016 – 8:50 am Categories: Articles | Comments (16)

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The Monday Morning Teaser

Lots of news this week: Brussels, Cuba, the continuing presidential campaign, and so forth. But the featured post is about none of them. (My thinking about terrorism hasn’t changed since “Terrorist Strategy 101“, and I’m resisting the temptation to turn the Sift into a stop-Trump blog. My opinion of Trump is already out there in “Trump is an opportunistic infection“, “Peak Drumpf” and last week’s “Tick, Tick, Tick … the Augustus Countdown Continues“.) Instead, the featured post will be “Buying Back American Democracy”, about the campaign reform legislation that is still possible after Citizen’s United — immediately, without a constitutional amendment.

Some backstory about that: The weekend before the New Hampshire primary, I had the good fortune to be among the handful of people sitting around two tables at a Manchester coffee shop, listening to Rep. John Sarbanes of Maryland and my congresswoman (Rep. Annie Kuster) talk about Sarbanes’ proposed Government By the People Act. I thought at the time that more people should know about this, but week after week my planned article got nosed out by more time-sensitive pieces. So this week I decided to ignore the breaking news and finally post it. Look for it sometime before 9 EST.

And rest assured, the weekly summary does wade into the news, before closing with Ireland giving America a tough girl-to-girl talk about that bad boyfriend she’s been hanging around with lately.

March 28, 2016 – 7:50 am Categories: Morning tease | Post a comment