Tag Archives: constitution

What the Court Decided About Immigration

Last Monday, the Supreme Court struck down three of the four challenged sections of Arizona’s anti-immigrant law, S.B. 1070. As usual, the media covered the event as if it were nothing but a pivotal game in a partisan play-off series, and went back and forth on whether this was victory or defeat for the Obama administration.

Don’t be distracted or confused. If you read the decision, the outcome is pretty clear: It’s a victory for people who want to see immigrants (documented or undocumented) treated fairly. It’s a defeat for anybody who wants the police to hound Hispanics out of Arizona.

S. B. 1070 was passed by the Arizona legislature and signed by Governor Jan Brewer in April, 2010. The Obama administration challenged the law in court before it could take effect, and a federal injunction has prevented Arizona from enforcing it until the case was settled.

Well, now it’s settled. Three of the four challenged provisions were struck down immediately:

  • Section 3 made it a state crime for a non-citizen to fail to carry documentation authorizing their presence in the country.
  • Section 5C made it a state crime for an undocumented alien to seek or accept employment.
  • Section 6 authorizes Arizona state police to arrest without a warrant any non-citizen who they have reason to believe has committed an offense that would make them deportable.

Justice Kennedy wrote the majority opinion, with Chief Justice Roberts and three justices from the Court’s liberal wing (Breyer, Ginsburg, and Sotomayor) concurring. Justice Kagan recused herself because she was in the Obama administration when the case was being prepared, and so might appear to have a conflict of interest. (Recusal decisions are up to the justices themselves. Liberal justices take these decisions seriously. Conservatives like Thomas and Scalia do not, even when money is involved.)

The reason Governor Brewer claimed victory and some liberals complained of defeat was that the Court did not strike down the fourth provision, 2B, which Justice Kennedy summarized like this:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released.”

This section is why S.B. 1070 became known as the “papers please” law. It conjures up visions of police harassing anybody with brown skin or an accent, and locking them up until they can prove they’re in the country legally. (You always go swimming with your passport, don’t you?) Such behavior is certainly in line with the expressed purpose of the law, which is to pressure undocumented immigrants until they “self-deport”. And I’m projecting here, but I’d guess that many S.B. 1070 supporters will consider it a bonus if legal Hispanic immigrants leave the state too.

So why didn’t the Court strike 2B down? Justice Kennedy’s reasoning shouldn’t give any comfort to the people who want to harass Mexicans. It all hangs on the timing of the case and on that phrase “reasonable attempt”.

The administration sued before the law went into effect, before Arizona police came up with enforcement guidelines, and before the state courts had a chance to rule on whether those guidelines follow the state constitution. Kennedy doesn’t want to assume that those people won’t do their jobs properly.

At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

Justice Kennedy could imagine state courts toning 2B’s interpretation down to something like this: As long as we’re holding you for something else already, we might as well check with ICE to see if you’re in the country legally, and if not, see what they want us to do with you.

However, Kennedy also envisioned an interpretation where police would hold brown-skinned jaywalkers (rather than just ticketing them as usual) or extend the detention of other suspects while waiting for immigration information, which (since the rest of the ruling established that immigration is federal territory) is none of their business anyway. Kennedy left little doubt that this would be seen as an unreasonable attempt to determine a person’s immigration status.

So the Court didn’t endorse 2B, it just let Arizona off with a warning. If 2B comes back to the Court as a racial profiling case with actual victims, it will get struck down then.

If you doubt that reading of the Court’s decision, think about this: None of the liberal justices felt the need to write a dissenting opinion. That should tell you who won.

Supreme Panic and other short notes

Should ObamaCare supporters panic? That was the big debate on the legal blogs after the Supreme Court’s five conservative judges asked a bunch of skeptical questions during oral arguments. Jeffrey Toobin says panic, Steve Kornacki says not to.

So far I’m siding with Kornacki. For years legal specialists have been writing that you can’t predict how judges will vote by listening to their questions, so I’m surprised so many of them think they can this time.

Asssuming that the pessimists are right, though, the Court could be headed for a Brown v Board of Education-scale ruling: If they limit the Commerce Clause, all kinds of previous rulings (including ones written by the five conservative judges) come up for review. If they decide that the Medicaid expansion is an illegal coercion of the states by the federal government, the whole federal/state relationship changes.

Two points are worth making here: First, a partisan Supreme Court is a dubious asset politically, and striking down ObamaCare would seal the impression that this Court is Republican. If ObamaCare is struck down, we’re back to worrying about the 50 million uninsured, and Republicans continue to have no plan for covering them.

Second, this is another reminder that institutions are neither good nor bad, liberal or conservative, they’re just institutional. For decades, liberals relied on the Supreme Court to limit the damage done by conservative state legislatures, and many of us got it into our heads that a powerful Supreme Court was good. On the flip side, many of us have it in our heads that global institutions like the WTO are bad because they are dominated by corporate interests. Well, maybe the WTO is also just an institution. We need to figure out how to make it work for us rather than against us, the way conservatives have done with the Court.

While we’re talking about the Court and ObamaCare, a number of liberals are making their usual mistake when they answer what has become known as the Broccoli Argument: If Congress can make us buy health insurance, can it make us buy broccoli?

There are literal legal answers to this question – BTW, the literal answer is “no” – involving the limitations of the Commerce Clause, but they miss the point. Don’t make them unless you’re trying to convince a lawyer. Politically, Akhil Reed Amar has the better answer:

The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office.

I think that’s called “democracy”.

About that Santorum “bullshit” incident. I don’t really care what words the guy uses, but imagine the outcry if Obama lost his composure like that. Think of all the lies that have been told about Obama – about his citizenship, his religion, his loyalty to the United States, and a hundred other issues that Rick Santorum never has to worry about. And yet he never snaps.

While we’re on that theme: Imagine the outcry if it’s 2007 and Nancy Pelosi says the Bush generals are lying about what they need. But Paul Ryan apologizes and its all OK now.

In an April Fools’ Day op-ed, David Javerbaum introduces the “quantum theory of Mitt Romney“.

Before Mitt Romney, those seeking the presidency operated under the laws of so-called classical politics, laws still followed by traditional campaigners like Newt Gingrich. Under these Newtonian principles, a candidate’s position on an issue tends to stay at rest until an outside force — the Tea Party, say, or a six-figure credit line at Tiffany — compels him to alter his stance

But Mitt is the first “quantum candidate”, and is governed by different rules.

In much the same way that light is both a particle and a wave, Mitt Romney is both a moderate and a conservative … The act of observing cannot be separated from the outcome of the observation. By asking Mitt Romney how he feels about an issue, you unavoidably affect how he feels about it. More precisely, Mitt Romney will feel every possible way about an issue until the moment he is asked about it, at which point the many feelings decohere into the single answer most likely to please the asker.

There’s more.

Salon’s Michael Lind explains how the rich took over airport security, getting their own faster lines. He then makes this modest proposal:

Why don’t we just make the new class-based discrimination official? Instead of leaving it to airlines and other corporations to construct the new apartheid piecemeal and informally, let the government issue a Premium Elite Citizen Card, valid for multiple purposes. For the right price, a price carefully calculated to be unaffordable by the majority of Americans, those willing and able to pay would be allowed to cut in line, not only at airports, but everywhere: at taxi stands, movie theaters, restaurants. All they would have to do is flash their Premium Elite Citizen Card to force the rabble to step aside and make way.

David Wong of Cracked.com follows up his viral 6 Things Rich People Need to Stop Saying with an almost equally worthy 5 Ways Modern Men are Trained to Hate Women.

It amazes me how misunderstood hate crime laws are, even by people who ought to know better — like NYT editor Bill Keller:

In most cases, hate crime laws take offenses that would carry more modest sentences — assault, vandalism — and ratchet up the penalty two or three times because we know, or think we know, what evil disposition lurked in the offender’s mind. Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.

Bill: It doesn’t take a genius to understand that painting “Bob loves Mary” on an underpass is a less serious crime than painting swastikas on a Jewish elementary school.

One additional point I left out of my summary of Glenn Greenwald’s With Liberty and Justice for Some: With all the discussion of ways to cut government spending, how come nobody ever proposes that we stop locking up non-violent criminals for long prison terms? Other countries don’t, and it seems to work for them.

Where Are We on Citizens United?

So far, the 2012 election cycle has been everything the critics of the Citizens United decision expected. Mitt Romney is leading the race for the Republican nomination not because voters like him or his vision for the country, but because limitless quantities of money are available to tear down any serious rival. Newt Gingrich is able to stay in the race because one tycoon has decided that’s a good idea, and Rick Santorum has a super-rich sugar daddy as well. (Even so, a Romney-supporting hedge fund billionaire thinks the ultra-wealthy have “insufficient influence” on politics. I have a hard time picturing what would please him.)

Meanwhile, it’s been reported that the Koch brothers have pledged $60 million to defeat President Obama in the fall, and other plutocrats allied to them have offered $40 million more. Karl Rove’s Crossroads SuperPACs are planning to raise and spend $240 million, and there are many, many other such groups. That’s all in addition to whatever the Republican Party and its candidate spend.

So despite being opposed to SuperPACs in theory, President Obama has come to the conclusion that going into an election without one would be like playing in the American League without a designated hitter or refusing to take 3-point shots in the NBA; whether you think a rule is good for the game or not, you don’t have the option of moving to a fantasy world where the rule doesn’t exist.

There’s an argument about whether this is hypocrisy on Obama’s part. I agree with Kevin Drum that it isn’t. One of Drum’s examples applies to me: I claim income-tax deductions that I would do away with if I had the power. Playing by the rules and wanting to change the rules are two different things.

More money, more mud. Money equals speech, says the Supreme Court, and more speech means better democracy. But in practice, more money means more negative misleading speech.

With a little bit of money a candidate can get a positive message out and present an attractive image. But before long everyone has seen the beautiful family and its adorable dog. Everyone has heard that you want to turn Washington around and make America great again. Repeating those ads 24/7 doesn’t help you.

But carpet-bombing a state with charges that your opponent wants to strangle grandmothers, sell little girls to the Chinese, and raise taxes to subsidize terrorist training camps — that works. (It works even better if the charges come not from Candidate Smith, but from some untraceable Coalition to Save America From Everyone But Smith.) The more repetition the better. So the more SuperPAC money, the more negative the campaign.

What to do? This is the world wrought by Citizens United. Even Republicans don’t like it.

According to a new poll by pollposition.com … 68% of registered Republicans want money out of the Super PACs and only 21% said they were fine with it.

Democrats and Independents oppose this new unlimited-money politics by even larger margins. Wouldn’t it be great if we had the kind of political system where large majorities could change things?

Imagine that we do. What then? We could pass legislation to mitigate the worst effects of Citizens United. Or we could pass a constitutional amendment that undoes it completely. Or we could elect people who would appoint justices who would reverse the decision. Failing at that, we could craft legal cases carefully and hope to get the Court to change its mind.

People are trying to do all those things.

Legislation. Judge Kennedy’s decision in Citizens United imagined transparency rules that would allow intelligent voters to know where campaign money was coming from. The DISCLOSE Act would have implemented some minimal transparency rules, but Republicans filibustered it in the Senate. Democrats plan to reintroduce it in 2012.

I’ve googled “Republican alternative to DISCLOSE Act” and so far found nothing. GOP.gov says:

The proposed legislation is a punitive measure for associations of persons who choose to exercise their right to free political speech as guaranteed by the Constitution, and affirmed in the Citizens United v. FEC case.

which isn’t the kind of position that leads to compromise.

The Sunlight Foundation keeps track of this stuff. They’re also pushing the SUPERPAC (Stop Undisclosed Payments in Elections from Ruining Public Accountability in Campaigns) Act.

Constitutional Amendments. Senator Sanders of Vermont introduced the Saving American Democracy Amendment. It targets corporate personhood in general:

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

It prohibits corporate campaign contributions also allows Congress to pass laws limiting campaign spending in general.

Move to Amend has a similar proposal, which goes on to say:

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

Such amendments are drawing grass-root support. Several dozen Vermont town meetings passed resolutions of support earlier this month.

Vermonters are not the first Americans to urge that the Constitution be amended to renew the century-old principle that citizens have a right to prevent corporations from buying elections. Referendums have already passed in Boulder, Colorado and Madison, Wisconsin. Cities across the country, including Los Angeles, have urged Congress to begin the amendment process. State legislatures in Hawaii and New Mexico have done the same.

Lawrence Lessig points out the Citizens United is not literally a corporate-personhood decision, but instead interprets the First Amendment to protect (in Justice Scalia’s words) “speech, not speakers”. So it’s not that Exxon has a right to speak, but that Congress has no power to limit the spread of Exxon’s message. Lessig’s proposed amendment is simpler:

Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.

Non-citizens in this case means both corporations and foreign individuals.

Lessig finds it hard to imagine that any such amendment will get the 2/3 majority it needs in Congress, given that infinite corporate money will rally to defeat representatives who support it. (Several elections would go by before the amendment could be ratified.) That’s why he favors a constitutional convention.

Congress hasn’t voted on any of these yet. Any amendment faces a long, slow road. But both Left (Equal Rights Amendment) and Right (Human Life Amendment) have shown that an amendment is a good long-term goal to build a movement around, even if it doesn’t get adopted.

Judicial remedies. Russ Feingold thinks Citizens United was just a mistake, and the Court needs to undo it. “The best thing to do is to get new justices, different justices, who will do the right thing.”

But the traditions of the Court itself work against such a plan. The doctrine of stare decisis requires the Court to respect the decisions of past courts unless and until they prove unworkable. “I wouldn’t have done that” is not a good enough reason to reverse a decision. That’s why major reversals (like Brown v Board of Education) are rare, and usually come after a long process of trying and failing to make the original decision work (as David Strauss explained in The Living Constitution).

The Montana Supreme Court has attempted an interesting end run around Citizens United. Justice Kennedy’s majority opinion in Citizens United said:

We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

Five Montana justices said, more-or-less, “Given Montana’s unique history of corruption, things are different here.” That case has been appealed to the Supremes, and it will be interesting to see what they say. Probably they’ll overturn Montana’s decision and reaffirm Citizens United, but Justice Ginsburg might use the occasion to put the Court’s conservative majority on the spot and hold its ridiculous and unpopular reasoning up to ridicule.

Summary. At the moment, we have no immediate prospect of reversing Citizens United. But when you don’t have a bill, you have an issue. Democrats need to pound on this in 2012, because Republicans in Congress are taking positions that are out of step even with rank-and-file Republicans.

A good test case will be Scott Brown. He comes up for re-election this year, and claims to be an “Independent Voice for Massachusetts” rather than a right-wing extremist. He cited a number of reasons for voting against the DISCLOSE Act, including wanting to make it apply to unions as well as corporations, but he never put forward an alternative that he would support. (Republican moderates did the same thing on health care. Snowe, Collins, etc. — they seemed to be considering the ACA and came up with many minor objections to it, but they never said “Add this amendment and I will vote for it.”)

In the old days, the role of the moderates in each party was to craft pragmatic solutions and provide the swing votes to pass them. If they’re not doing that any more — if, instead, they’re just wringing their hands and making excuses for supporting the partisan agenda of their extremist colleagues — then there’s no reason to elect moderates.

The ball’s in your court, Scott. Do you want to do something specific about Citizens United, or are you OK with the system the way it is?

Escalating Bad Faith, Part I: Recess Appointments

This week conservatives had a new reason to be outraged at President Obama: He appointed Richard Cordray head of the new Consumer Finance Protection Bureau, plus he added three members to the National Labor Relations Board.

What’s the problem with that? Well, these are recess appointments, a power that the Constitution gave the President so that vital posts wouldn’t go unfilled during the months when Congress was out of session.

In the era of cell phones and jet planes, recess appointments are an anachronism, because it’s quick and easy to call Congress back into session for anything really important. But in the last few administrations they’ve become part of an escalating power struggle between Congress and the President. As the struggle continues, the positions of both institutions (under either party) get further and further from anything the Founders wanted or should have wanted.

The point of this series (for which recess appointments are just the most timely example) is to highlight a crisis that gets very little attention in the mainstream media: escalating bad faith in government. Whoever started it (being a Democrat, I see most fault on the Republican side), these downward spirals are very hard to stop, and they’re extremely dangerous to the future of democracy.

History. The recess-appointment struggle starts with Article II Section 2 of the Constitution:

[The President] … by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

For years that clause was interpreted to mean that the two branches would work together in good faith: The President would nominate reasonably acceptable people and the Senate would approve them unless they found something seriously wrong. Just disagreeing with a nominee was generally not enough — to reject him or her you needed to find a scandal of some sort. (That’s the plot of the 1959 Pulitzer-winning political novel Advise and Consent.)

Until recent decades, rejections were rare. In 1968, the Senate filibustered President Johnson’s appointee for Chief Justice, pointing to some questionable speaking fees. (The vote was roughly bipartisan, with 19 Democratic senators voting not to end the filibuster.) In 1989, President Bush’s nomination of John Tower as Secretary of Defense was rejected because of his personal life. (Only one Republican senator voted against him.)

President Reagan and the Democratic Senate both escalated the battle in 1987: Reagan slapped the new Democratic majority in the face by nominating the extreme conservative Robert Bork to the Supreme Court, and the Senate slapped back by rejecting the nomination on ideological grounds, without finding a scandal.

Filibusters on ideological grounds, at least for judicial nominations, became standard during the Clinton and Bush Jr. administrations, but most posts within the executive branch continued to be filled with only minor friction, on the principle that the President should be able to work with people of his own choosing.

Two major non-judicial nominations the Democrats held up during the Bush years were John Bolton as UN ambassador and Steven Bradbury as head of the Justice Department’s Office of Legal Counsel. Bush Jr. used a series of temporary recess appointments to put them in office long-term — clearly not what the Constitution meant that power for. The Senate struck back by holding pro forma sessions — leaving a skeleton crew in Washington to open and close the Senate every week, so that it would not legally be in recess — even though it was in recess in any practical sense.

Since their numbers increased in 2010, the Senate’s Republican minority has escalated again: Nominees are filibustered (or their nominations are simply ignored) not even because of their ideology, but because of general policy issues unrelated to the nominee. Republicans don’t want the NLRB or the Consumer Finance Protection Bureau to function at all. But they don’t have the votes to abolish them, so they refuse to consider nominations for those positions. They have defended that refusal against recess appointments with the same pro-forma-session technique the Democrats used against Bush. (With this added wrinkle: The Senate’s Democratic majority can’t end the session because the Constitution won’t let it as long as the Republican-controlled House is in session.)

Now Obama has re-escalated by refusing to recognize the pro forma sessions and making recess appointments anyway. This, Republicans say, is a “tyrannical abuse of power“.

And it is, in some sense. But without it the Senate minority’s abuse of power stands unchallenged. The Founders never intended any of this.

This is part of a pattern in which all sides are acting in bad faith, and have been for decades. (And it’s not the only example, as I’ll discuss next week. Signing statements are another.) It creates a vicious cycle in which each escalation challenges the other side to either accept a defeat that seems illegitimate or to escalate further. There seems to be no obvious place for this to stop.

Next week: At the end of this road democracy unravels, because democracy depends as much on good faith as on elections and constitutions.

Palin’s Big Con and other short notes

I told you almost a year ago why it was obvious Sarah Palin wasn’t running: She was clearly working to build the fan/hater base of an entertainer like Rush Limbaugh rather than the majority coalition of a successful candidate.

Wednesday she finally broke the news to her fans. It was time: The filing deadline for the New Hampshire primary was coming up, and she had already milked her supporters for end-of-the-quarter gifts to SarahPAC.

Jon Stewart makes the case that this was all an intentional con: A lot of SarahPAC money ultimately comes around to benefit Palin personally. Bristol Palin said in June that Sarah had already decided. And yet the September fund-raising letter made it sound as if her candidacy depended on how much money she could raise. “That,” says Stewart, “puts us in Nigerian prince territory.”

Vodpod videos no longer available.

Stephen Colbert worries that he might have offended Karl Rove by suggesting that Rove’s PACs, whose design makes money-laundering possible, might actually be laundering money. “I have hurt Karl Rove,” Stephen laments. “Legends say you need an elvish blade to do that.”

Vodpod videos no longer available.

Last week I reacted to the drone attack that killed unindicted American citizen Anwar al-Awlaki. This week we began to hear about the process for putting Americans on the government’s “kill list”.

According to Reuters, a “secretive panel of government officials” assembles the list.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

I feel safer already, especially knowing that this process is authorized by a secret memo from the Justice Department’s Office of Legal Counsel. But why rant, when Glenn Greenwald does it so much better than I do?

I’m starting to get annoyed by all the people who talk reverently about the Constitution without having the faintest idea what it says. Witness Hank Williams Jr., who lost his gig introducing Monday Night Football when his Hitler/Obama analogy was too much even for the hosts of Fox & Friends, and he clarified by referring to President Obama as “the enemy”.

Reasonable people can disagree about whether ABC over-reacted, but Williams’ sacking has nothing to do with his “First Amendment freedom of speech” as he claimed in an indignant public statement.

If the government tried to punish Williams for his statement, that would be a First Amendment issue. But this is just free enterprise. When you’re the public face of a popular product, you have to stay out of controversy to avoid tainting the product with your issues. That’s why you don’t see Tiger Woods in commercials nearly as often as you used to.

Another guy with his foot in his mouth was Massachusetts Senator Scott Brown. I’ll let the Boston.com tell the story:

Brown was responding to a crack [Senate challenger Elizabeth] Warren made in Tuesday’s debate, when the Democrat was asked about Scott Brown using his centerfold spread in Cosmopolitan magazine decades ago to pay for college. Warren said “I didn’t take my clothes off” to pay for school.

Asked by the WZLX disc jockey for a response, Brown said “Thank God,” eliciting laughter from the DJs.

Where to start? (1) For what it’s worth, my hunch is that Elizabeth Warren looked pretty good when she was in college. (2) If Warren had posed nude, we wouldn’t be having this conversation, because she couldn’t be in politics. (3) While no individual male deserves the blame for society’s double standards, at a minimum we ought to be apologetic about taking advantage of them.

All of which leads to (4) Scott Brown is a jerk.

Here’s what I found disappointing in Rick Perry’s response to the Niggerhead Ranch controversy: I’m a little younger than Perry and grew up in a slightly less conservative region (rural Illinois rather than west Texas), but it’s clear in my memory that we were racists. All but a few whites were racists in those days. We said nigger and told nigger-jokes. It was the culture; you breathed it in like oxygen. (I wrote about this in more detail in 2007.)

So why not just admit it? Perry could say: “I grew up in a different era. I had a lot to learn about race and I’ve worked hard to learn it.” Is that too much to ask?

One more thing: Despite what some right-wing commentators are claiming, this has gotten nowhere near the coverage that the Obama/Jeremiah Wright story got in 2008.

The headlines say alarming things like Topeka Considers De-Criminalizing Domestic Violence, but the truth is only slightly better: City and county officials are playing chicken over who is going to prosecute misdemeanor domestic battery. Both think somebody should prosecute it, but they’re both threatening not to, and the side that blinks last will save money.

This is more of that “government waste” you hear so much about. Threatening to let wife-beaters walk is so much better than making rich people pay taxes.

More than half of what looks like investment in the official stats is really consumption in disguise: new houses, home improvements, and more places to shop.

Ezra Klein wrote a great piece on the early economic decisions of the Obama administration. Economists were slow to realize just how extreme the late-2008 collapse had been. That meant that the stimulus was too small and the predictions of the unemployment rate it would produce were too rosy. So it was easy for Republicans to claim the stimulus had failed and to block further stimulus.

ConConCon: Can the Grass Roots Find Common Ground?

I think the fundamental problem in American politics is the corruption of our political system. It’s a corruption that makes it impossible for the Left to get what the Left wants and the Right to get what the Right wants.Lawrence Lessig to Cenk Uygur at the ConConCon

Left and Right alike have proposals that poll well, but never make it through Congress: taxing the rich and a public option for health care on the Left, a balanced budget amendment and (in some polls) harsher immigration policies on the Right. The grass roots on both sides object to corporate personhood (79% in one survey) and were appalled when their government responded to the 2008 financial collapse by dishing out money to the same bankers who had screwed things up.

Originally designed to be the People’s voice, Congress has become a bottleneck controlled by special interests. Consequently, Left/Right political competition has only a limited amount of meaning. No matter how many seats either party wins, we won’t see single-payer healthcare (Left) or a flat tax (Right).

On the other hand, some ideas with little-to-no public support get through Congress easily. Lessig’s favorite example is the Sonny Bono Copyright Act of 1998, which extended the life of copyrights issued since 1923 — keeping valuable characters like Mickey Mouse and Superman out of the public domain. Copyright is a temporary monopoly that the government grants to encourage creativity, but extending the copyright of works that already exist serves no public purpose whatsoever. (“No matter what the US Congress does with current law,” Lessig observes, “George Gershwin is not going to produce anything more.”) The extension, amounted to a gift from Congress to Disney and Time Warner, who lobbied for it like 10-year-olds in December.

So who gets what they want out of Congress? Lessig calls them “the Funders” — the entities that finance political campaigns. And how can the People change the system to regain control of their government? By getting Congress to pass new laws or Constitutional amendments?

Good luck with that.

That’s the origin of this idea: Without minimizing the significance of their philosophical differences, can grass roots from the Left and Right come together in a campaign to make democracy meaningful again?

Tea Party? Lessig’s Rootstrikers organization explored this idea by getting together with Mark Meckler’s right-wing Tea Party Patriots to co-sponsor a discussion of a way to end-run Congress and fix the system another way: via a constitutional convention called by the States. Hence the Conference on the Constitutional Convention held in late September at Harvard Law School. (I “attended” via the live feed on the Web. I had hoped video of the sessions would be posted by now, but they aren’t. Consequently, all quotes are from memory or my hastily scribbled notes.)

I find that whenever I mention this co-sponsorship, people jump to the conclusion that the goal must be to generate some kind of homogenized, centrist agenda. To explain, I came up with this metaphor: Imagine two swordsmen dueling over a great prize. While they swashbuckle their way around the arena, focused on each other, somebody else walks past them, calmly stuffs the prize into a sack, and walks out.

The duel is real, but it becomes pointless if the swordsmen can’t ally to protect the prize.

The Civics of Article V. The possibility of a constitutional convention is embedded in the Constitution itself.

on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments

Once proposed by the convention, amendments would follow the same ratification path as constitutional amendments approved by Congress: They’d have to be ratified by 3/4ths of the states — 38 of the current 50. So any 13 states could block any of the convention’s amendments.

Because this would be an orderly process authorized by the current Constitution, speakers began referring to it as an “Article V convention” rather than a general constitutional convention that could spring from nowhere and make up its own rules. (The hallowed convention that produced our current constitution was unauthorized by the Articles of Confederation that it replaced. In particular, the Articles said that any change had to be approved by all 13 states. But the new constitution wrote its own rules and said it would go into effect if only 9 states ratified it.)

Article V is about as vague as the rest of the Constitution. But since no such convention has ever been called, Article V has two centuries of rust on it rather than the reams of precedent and case law that interprets most constitutional provisions. So there are a lot of open questions, which the ConConCon’s legal panel spelled out:

  • How do 2/3rds of the states “apply” for a convention? Every now and then, some legislature passes a call for a convention to consider such-and-such an amendment. If you total all those up, we’ve already had calls from more than 2/3rds of the states. But the general opinion is that the state’s applications have to be similar in some way; they have to be calling for the same convention, not just a convention. How similar do they need to be? Lessig proposes that states pass similar wordings that call for a convention in general, and then (in a second clause) urge the convention to consider the particular amendments popular in that state.
  • What if Congress ignores the applications? A lot of the Constitution assumes that people will act in good faith, and doesn’t specify what happens if they don’t. For example, the 12th Amendment specifies that (in the presence of Congress) the President of the Senate counts the votes of the Electoral College — the final step in electing a president. What if Senate President counts the votes wrong and declares himself president? All Hell breaks loose, I think.
    Similarly, what if Congress looks at the States’ applications for a constitutional convention and says, “Not gonna happen”? Or calls a convention under rules that make it unworkable? It’s not clear that anything other than public furor keeps Congress in line.
  • How do the conventioneers get chosen? Maybe that’s defined in Congress’ call. If not, nobody knows.
  • What if the convention breaks the rules set out in Congress’ call? Again, we’ve got a good-faith issue. Probably nothing happens; if 3/4ths of the states go ahead and ratify the amendments anyway, they become part of the Constitution.

Runaway conventions. The big question everybody asks is: What if a “runaway” convention goes wild and designs some whole new country for us? What it declares a socialist republic or a Christian theocracy or something?

The simple answer is that 13 states refuse to ratify it and the whole plan goes into the dustbin of history. There are at least 13 blue states and 13 red states, so nothing could pass without bipartisan support.

This only gets tricky if the convention does what the original convention did: writes new ratification rules for itself. (Example: What if the new constitution says it will be ratified by majority vote in a national referendum?) Then you get into the fuzzier question of legitimacy: At some point the country just ignores the process and the old government continues.

What a convention could do. The consensus of the legal panel was that constitutional amendments should be about the mechanics of government, and that more specific proposals (like Prohibition) are better left to legislation that can be easily repealed if it doesn’t work.

But the Supreme Court has boxed us into a situation where the corruption of our system can’t be rooted out without constitutional changes. So we should be looking for structural changes that make legislative change possible.

In particular, Lessig wants public funding of campaigns, through a voucher system similar to the one Ackerman and Ayres proposed in Voting With Dollars.

Fear of democracy. Lessig argues that the fear of a runaway convention results from an underlying fear of democracy and fear of each other, which the Powers That Be encourage and profit from. This is backwards, he argues: The Powers That Be (and not our fellow citizens) have proven that they’re not to be trusted.

We are used to a managed democracy, where the People only choose after the options have been very tightly scripted. (As Cake put it: “Some people drink Pepsi, some people drink Coke. The wacky morning DJ says democracy’s a joke.”) A constitutional convention would be deliberative, not managed. The conventioneers would have real responsibility, and a chance to shape the questions rather than choose from a prepared list of answers.

Lessig has faith in the deliberative powers of ordinary people, and supports Sandy Levinson‘s idea that the best way to choose conventioneers would be randomly, as juries are chosen. (The one jury I’ve served on supports his case; we rose to the occasion and did a good job.)

You got a better idea? Even Lessig is not wild about a ConCon. He’s been driven to it by the failure of everything else. Would it work? Or would it be taken over the same forces that distort the rest of our political system? Would it all come to nothing or produce some crisis of legitimacy?

He doesn’t know. But he doesn’t think we can keep doing what we’re doing.

Lessig’s keynote address was one of the most inspiring speeches I’ve ever seen. Unfortunately, the most inspiring part was in the question session, which that link doesn’t include. I’ll try to fill in from my notes and from a similar talk elsewhere.

This is how he answered the will-this-work question. First, he admitted that it probably wouldn’t. But then he asked:

If a doctor told you that your child had terminal brain cancer and there was nothing you could do, would you really do nothing? Just look at the doctor and say OK?

No you wouldn’t do nothing, because that’s what it means to love: to have the willingness to act compassionately for something, even if it seems impossible.

I am acting on the faith that all over America there are people who have this kind of love of country.

It is very rare to hear a liberal grab hold of the patriotism theme like this, and to attach it to having the courage to trust each other rather than the vicarious “courage” to send soldiers into somebody else’s country. I got shivers. It’s a powerful emotional argument.

But it also makes sense. If we can’t trust each other, then we can’t be a democracy. Where does that kind of thinking lead?