The "Augean Stables" — How Corruption Has Amended the Constitution

Hercules starting to clean a 1,000-cattle stable that hadn't been emptied in 30 years. Like the U.S. government, says Gary Hart. (Hercules quickly gives up on the shovel.)

by Gaius Publius

Not something you don't already know if you're a regular reader of these pages, but it's becoming more and more mainstream to deliver a radical* analysis of government in the U.S. That's why I found the following so interesting — the source is former U.S. Senator and former presidential candidate Gary Hart. And believe me, this is a radical analysis.

But first, two definitions. The Augean Stables is a reference to the Fifth Labor of Hercules, one of the Twelve (click to read the context). The task was to clean the king's stables, which housed 1,000 cattle and which hadn't been cleaned in 30 years, the life of the man who owned it. Cleaned of what? Surely you know:

The fifth Labour of Heracles (Hercules in Latin) was to clean the Augean (/ɔːˈdʒiːən/) stables. Eurystheus [the king assigning the tasks to Hercules] intended this assignment both as humiliating (rather than impressive, like the previous labours) and as impossible, since the livestock were divinely healthy (immortal) and therefore produced an enormous quantity of dung (ἡ ὄνθος). These stables had not been cleaned in over 30 years, and over 1,000 cattle lived there. However, Heracles succeeded by rerouting the rivers Alpheus and Peneus to wash out the filth.

The second definition — corruption. Most think of corruption as an outcome that's perverted for the sake of money. Hart, correctly, says, Not so:

From Plato and Aristotle forward, corruption was meant to describe actions and decisions that put a narrow, special, or personal interest ahead of the interest of the public or commonwealth. Corruption did not have to stoop to money under the table, vote buying, or even renting out the Lincoln bedroom. In the governing of a republic, corruption was self-interest placed above the interest of all—the public interest.

Corruption is "self-interest placed above the interest of all," or in some cases, one's legal or contractual obligation. Thus, for example, some college football referees and refereeing groups are obviously corrupt. When Conference A plays Conference B using Conference B's referees, and year after year the bad calls go Conference B's way, especially with the game on the line, the referees are corrupt.

Are they betraying their obligation for money? No, likely not. Are they betraying their obligation in order to satisfy animus against Conference A, or to make sure the "home teams" win? That's an obvious explanation, and by this definition (and mine), that's corrupt.

Or take another situation. By this definition, the Supreme Court since at least 2000 and likely before has acted corruptly, if the definition is "self-interest placed above the interest of all." No legal analysis of Bush v. Gore passes the "upholds the interest of all" test — the Republicans on the Court simply put a Republican (the home team candidate) in the White House because they could. Nor do the major decisions around money and corporate rights, like Citizens United or even Buckley v. Valeo, the 1976 Burger Court decision that lifted restrictions on campaign contributions, and its follow-up, First National Bank of Boston vs. Bellotti, whose majority opinion was authored by Lewis Powell, of the infamous Powell memo.

By this definition — perverting an outcome to benefit a group in which one has a personal interest — the Supreme Court acted corruptly in the cases above. Likely corrupt in Buckley, Citizens United, and First National Bank of Boston. Certainly corrupt in Bush v. Gore, where Republican justices favored a Republican candidate for president over a Democratic one on no defensible grounds. They weren't metaphorically "corrupt," with the quotes. They were corrupt by definition.

Gary Hart on the Systemic Corruption of the U.S. Government

Hart's piece is an interesting Time magazine essay, and also a long section from his new book, The Republic of Conscience (I don't support Amazon, so no Amazon link). I don't want to quote a ton of it, since its main argument is likely familiar to you. But he makes a systemic point in a way that seems original; that is, he puts pieces together to make a bigger whole than most of us were aware of. For example, it's likely that the "army of lobbyists" we all hate aren't a perversion of government — they are government.

A few notable sections (all emphasis mine):

Gary Hart: America’s Founding Principles Are in Danger of Corruption

Welcome to the age of vanity politics and campaigns-for-hire. What would our founders make of this nightmare?

Four qualities have distinguished republican government from ancient Athens forward: the sovereignty of the people; a sense of the common good; government dedicated to the commonwealth; and resistance to corruption. Measured against the standards established for republics from ancient times, the American Republic is massively corrupt.

From Plato and Aristotle forward, corruption was meant to describe actions and decisions that put a narrow, special, or personal interest ahead of the interest of the public or commonwealth. Corruption did not have to stoop to money under the table, vote buying, or even renting out the Lincoln bedroom. In the governing of a republic, corruption was self-interest placed above the interest of all—the public interest.

By that standard, can anyone seriously doubt that our republic, our government, is corrupt? There have been Teapot Domes and financial scandals of one kind or another throughout our nation’s history. There has never been a time, however, when the government of the United States was so perversely and systematically dedicated to special interests, earmarks, side deals, log-rolling, vote-trading, and sweetheart deals of one kind or another.

What brought us to this? A sinister system combining staggering campaign costs, political contributions, political action committees, special interest payments for access, and, most of all, the rise of the lobbying class.

Worst of all, the army of lobbyists that started relatively small in the mid-twentieth century has now grown to big battalions of law firms and lobbying firms of the right, left, and an amalgam of both. And that gargantuan, if not reptilian, industry now takes on board former members of the House and the Senate and their personal and committee staffs. And they are all getting fabulously rich.

Gargantuan numbers of lobbyists with gargantuan amounts of money. There's a point where corruption of government on that scale systemically changes government itself.

The "Big Three" Lobbying Conglomerates Are a "Fourth Branch of Government"

For Hart, the movement of office-holders and their staffs between lobbying firms and government is not a "revolving door" to government; that revolving door is government. Hart makes his point by looking at the lobbying firm WPP, the largest of three giant lobbying conglomerates. WPP isn't just a lobbying firm, it's an international conglomerate of firms that wields enormous power and wealth.

Consider — WPP has been eating up lobbying firms the way Macy's, Inc. eats department stores or Darden eats restaurant chains. At some point, you simply own the business you're in, and the size of your operation changes the nature of the game itself.

Hart on how lobbying at this scale changes our government:

[T]he largest [lobbying "predator" (his term)] by far is WPP (originally called Wire and Plastic Products; is there a metaphor here?), which has its headquarters in London and more than 150,000 employees in 2,500 offices spread around 107 countries. It, together with one or two conglomerating competitors, represents a fourth branch of government, vacuuming up former senators and House members and their spouses and families, key committee staff, former senior administration officials of both parties and several administrations, and ambassadors, diplomats, and retired senior military officers.

WPP has swallowed giant public relations, advertising, and lobbying outfits such as Hill & Knowlton and BursonMarsteller, along with dozens of smaller members of the highly lucrative special interest and influence-manipulation world. Close behind WPP is the Orwellian-named Omnicom Group and another converger vaguely called the Interpublic Group of Companies. According to Mr. Edsall, WPP had billings last year of $72.3 billion, larger than the budgets of quite a number of countries.

With a budget so astronomical, think how much good WPP can do in the campaign finance arena, especially since the Citizens United decision. The possibilities are almost limitless. Why pay for a senator or congresswoman here or there when you can buy an entire committee? Think of the banks that can be bailed out, the range of elaborate weapons systems that can be sold to the government, the protection from congressional scrutiny that can be paid for, the economic policies that can be manipulated.

The lobbying business is no longer about votes up or down on particular measures that may emerge in Congress or policies made in the White House. It is about setting agendas, deciding what should and should not be brought up for hearings and legislation. We have gone way beyond mere vote buying now. The converging Influence World represents nothing less than an unofficial but enormously powerful fourth branch of government.

To whom is this branch of government accountable? Who sets the agenda for its rising army of influence marketers? How easy will it be to not only go from office to a lucrative lobbying job but, more important, from lucrative lobbying job to holding office?

When one lobbying firm has billings of nearly $75 billion, you can "buy committees," not just individual votes; and you can "set agendas" rather than just pass laws.

Now consider that "revolving door" again. Is that a door out of government and back into it, or is it a door into another branch of government, one where policy decisions also get made?

Does an International Lobbying Firm Serve One Nation's Interest or Many?

And a final question: If the lobbying firm is international, with international clients and governmental "targets," are its interests "American" in any way? If not, how compromised are those who take its money?

Where are its [WPP's] loyalties if it is manipulating and influencing governments around the world? Other than as a trough of money of gigantic proportions, how does it view the government of the United States?

Why would not WPP act to modify the laws of one country to serve the interests of clients in another? And I'll ask again, are those who take its money compromised by the international goals of these mega-firms?

"Purchasing" Candidates and Office-Holders — Even Former Senators Are Saying It

Just as "corruption" is not a metaphor when it comes to decisions like Bush v. Gore, "buying" and "sponsoring" candidates and office-holders — the way soap is bought and race cars are sponsored — is not a metaphor, at least according to Hart:

The advent of legalized corruption launched by the Supreme Court empowers the superrich to fund their own presidential and congressional campaigns as pet projects, to foster pet policies, and to represent pet political enclaves. You have a billion, or even several hundred million, then purchase a candidate from the endless reserve bench of minor politicians and make him or her a star, a mouthpiece for any cause or purpose however questionable, and that candidate will mouth your script in endless political debates and through as many television spots as you are willing to pay for. All legal now. ...

The five prevailing Supreme Court justices, holding that a legal entity called a corporation has First Amendment rights of free speech, might at least have required the bought-and-paid-for candidates to wear sponsor labels on their suits as stock-car drivers do. Though, for the time being, sponsored candidates will not be openly promoted by Exxon-Mobil or the Stardust Resort and Casino but by phony “committees for good government” smokescreens.

I think he's literally correct. In the old days, it didn't take much money to wholly own a back-bench Congress person from coal country, say, and one coal company, if big enough, could do it. But the major office-holders had to be funded by competing interests. Now you can tag several  presidential candidates, at least on the Republican side, with the single name of their "benefactor."

For example:

• Marco Rubio — Sponsored by Norman Braman & (he hopes) Sheldon Adelson
• Scott Walker — Sponsored by the Koch Brothers
• Ted Cruz — Sponsored by hedge fund billionaire Robert Mercer
• Rick Santorum — Sponsored by Foster Friess
• Rand Paul — Sponsored by [this slot available]

And so on. Joe Biden's been called the "Senator from MBNA," and Chuck Schumer the "Senator from Wall Street." Seems right. In cases of such complete "sponsorship" I agree that wearing of badges should be required. Partial sponsorship could be handled like NASCAR jackets:

But this treats a serious problem too lightly. Remember, I said this was a radical analysis. In fact, by this practice we're actually amending the Constitution — not the one as written; the one as practiced.

The Other Way to Amend the Constitution

All constitutions and all systems of laws are amended in two ways, by formal agreement (legal process) and by informal agreement. In England, the second ways is in fact the primary way their "constitution" is amended.

In the U.S., if both parties enforce a law in the same way, even though that way deviates from the way the law is written, the law is amended until forced back to its original form in practice. Thus:

▪ We have, by bipartisan agreement, revoked the Fourth Amendment. Neither party enforces it, so it's gone. Do you think you'll see it enforced in your lifetime? It's possible. Is that likely, do you think, without another radical change?

▪ We have changed the "rule of law" to add a "circle of immunity" amendment. It started with Nixon — the circle of "who cannot be prosecuted" included one person, the president. That was granted him by Gerald Ford's pardon with no objection from Congress and confirmed by Obama's refusal to indict Bush II for violating laws against torture. (Can you see Obama being indicted by anyone for extrajudicial murder, assassination really, of Americans, some mere propagandists and some completely innocent?)

Under Reagan–Bush I that circle expanded to include their top cabinet officers, like Defense Secretary Casper Weinberger. Under Bush II–Obama it includes all money-center bankers and former senators (and outright crooks) like Jon Corzine.

▪ Regarding that parenthetical comment about Obama and his drone kills above, we've now amended the trial-by-jury section of the Sixth Amendment to allow executive assassination, death by executive fiat. It just awaits a Republican president to confirm it by following suit, but Congress has already approved.

And so on. Now we can add one more:

▪ The mega-lobbying firms, with their combined more-than-$100 billion annual budget, are a fourth branch of government. Policy is set in these firms and passed to Congress and the executive branch to "discuss." Once discussed and passed, those who passed these policies then return to the firms to set more policy — and receive what's often the biggest payoff of their lifetime.

Was TPP drafted first in these mega-firms before being negotiated between nations? There aren't many other ways to convene 600 lobbyists (pdf).

Cleaning the Augean Stables

Back to Hart's essay and where we started, with the Augean Stables. The way out of this mess, if Greek myth is any indicator, is not incremental. You can't shovel your way out. Remember, that's a 1,000-cattle stable, and in our case a literal army of lobbyists. With a mere shovel, we'd be buried to our necks before the fourth toss of filth out the window.

How did Hercules clean his stable? He diverted a river and ran the whole mess out to sea in one pass. There's a word for that equivalent in government life — radical change, and it comes in several forms.

I recommend the peaceful kind, like backing this guy for president. Click to support; you can adjust the split at the link.

* Did you know that "radical" means "going to the root or source"?

Radically yours,

GP

"Justice O'Connor regrets"

"There is no more eloquent testimony to the evolution of the Republican Party than the ideological fate of the last three Justices to leave the Supreme Court: O'Connor, Souter, and Stevens. In this way, O'Connor's apostasy on Bush v. Gore is a surprise -- but perhaps only because it took so long."

-- Jeffrey Toobin, in a newyorker.com
post, "Justice O'Connor Regrets"

by Ken

I expect you noticed that retired Supreme Court Justice Sandra Day O'Connor recently expressed strong second thoughts about about the dreadful 2000 Bush v. Gore decision, for which she wrote the 5-4 majority opinion that terminated any effort to achieve a more accurate count in the Florida presidential vote and effectively awarded the election to the unelected George W. Bush.

As New Yorker legal correspondent Jeffrey Toobin notes in a new newyorker.com blogpost, "Justice O'Connor Regrets," what she said to the Chicago Tribune editorial board "was not a full-fledged denunciation of the Court's opinion, but it was a decided shift in O'Connor's views." Until now she has consistently defended what Toobin describes as "one of the signature decisions of her judicial career." He notes that "she did so on 'The Daily Show,'" and adds, "I have heard O'Connor defend Bush v. Gore any number of times, at events ranging from law-school convocations to small dinner parties."

"SO WHAT CHANGED?" JEFFREY ASKS

And he answers, "The Republican Party -- O'Connor's Republican Party."

Toobin notes that Justice O'Connor was, at least as of now, the last of the long line of Supreme Court justices to have held elective office. (He cites as examples former California Gov. Earl Warren, former President William H. Taft, and former U.S. Sen. Hugo Black.) Her political experience, he argues, "has always been crucial to understanding her judicial philosophy."

Temperamentally as well as politically, she was a Republican, to be sure, but she was a moderate conservative; even more than Ronald Reagan, the President who appointed her, George H. W. Bush, was O'Connor's ideal President. In the ballot box as well as on the Supreme Court, O'Connor voted for George W. Bush thinking that he would be a President much like his father. (The story of O'Connor's election-night rooting for Bush in 2000 is well-known; I've told it in two books.)

I assume we've all heard the story that O'Connor was so keen to see the younger George Bush "elected" because of her own desire to retire, a plan that would have been problematic if a President Gore had been choosing her replacement. She got her wish, but as so often happens in life, things didn't turn out the way she hoped. The second President Bush "disappointed" her, "to put it mildly."

The story of the last decade or so of her life is the story of her increasing alienation from the modern Republican Party. The key moment for her was the Terri Schiavo case, in 2005, when the President and congressional Republicans mobilized overnight to intervene in the case of a Florida woman who was in a persistent vegetative state, and attempted to overrule her husband's request to remove her feeding tubes. O'Connor, who was at that moment dealing with the descent of her own husband into Alzheimer's disease, was appalled at the fanaticism on display. But largely because of her husband's condition, O'Connor nevertheless announced her departure from the Court later that year -- and gave George W. Bush the chance to put his stamp, and that of the modern Republican Party, on her beloved Court.

In the past seven years, O'Connor has been increasingly clear about her disenchantment with the work of her successors, especially Chief Justice John G. Roberts and Samuel A. Alito, Jr., (who took her seat). She has been harshly critical of the Court's decision in Citizens United, which revolutionized the law of campaign finance. Indeed, her major outside activity since retiring has been to try to persuade states to have a system of appointed, as opposed to elected, judges. A primary reason why O'Connor opposes judicial election is because of the influence of campaign contributions -- which is, of course, precisely the kind of spending allowed by Citizens United.

WHY HAS JUSTICE O'CONNOR GONE PUBLIC?

Toobin even offers a suspicion as to the timing of O'Connor's apparent public change of heart: "because she knows (or suspects) that the Court is about to demolish one of her most important achievements," and "the prospect of a thwarted legacy focusses any retired Justice's mind."

In 2003, O'Connor wrote the majority opinion in Grutter v. Bollinger, which allowed the use of affirmative action in admissions in higher education. The decision was a classic O'Connor compromise: she supported diversity but not quotas; she embraced racial preferences but put a time limit on their use -- twenty-five years. But now, just a decade later, the Court appears poised to undo, or at least limit, O'Connor's decision. In the next month or so, the Justices will decide Fisher v. University of Texas, which is a direct challenge to Grutter.

"O'Connor was not alone," Toobin reminds us, "as a Republican Justice looking on with horror at what her party has become."

The two Justices who left the Court after O'Connor were also Republicans who departed aghast at the modern Republican Party. David Souter and John Paul Stevens were so repulsed by the party of George W. Bush that they gave the most precious gift any Justice can proffer to his successor, Barack Obama -- their seats on the Court. There is no more eloquent testimony to the evolution of the Republican Party than the ideological fate of the last three Justices to leave the Supreme Court: O'Connor, Souter, and Stevens. In this way, O'Connor's apostasy on Bush v. Gore is a surprise -- but perhaps only because it took so long.

#

Bush v. Gore "didn't just scar the Court’s record; it damaged the Court’s honor" (Jeffrey Toobin)

'

The scene in front of the Supreme Court in December 2000

"George W. Bush, for his part, found little reason to dwell on the controversial nature of his ascension to office, and in his memoir, “Decision Points,” he devotes less than a page to the Supreme Court decision. ('My first response was relief,' he writes of his reaction.) In public appearances, Antonin Scalia, a member of the majority in Bush v. Gore, regularly offers this message to people who question him about the decision: 'Get over it!'”

-- Jeffrey Toobin, in "Precedent and Prologue,"
in the Dec. 6 New Yorker

by Ken

It puzzled me why New Yorker legal correspondent Jeffrey Toobin should choose to write this "Comment" piece for the new issue on the Gore v. Bush decision by which the Supreme Court stopped the Florida vote-counting and installed George W. Bush in the White House. The first paragraph left me even more puzzled.

"Momentous Supreme Court cases," Toobin writes, "tend to move quickly into the slipstream of the Court’s history," and he cites Brown v. Board of Education (more than 25 case citations in the first ten years after the decision that barred segregation in public education) and Roe v. Wade (more than 65 citations in the first ten years after the decision that established a constitutional right to abortion). And then:

This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

But really, Mr. Toobin, why should we be surprised? Wasn't that written into the decision itself? The conservative majority that installed Chimpy the Prez (which included then-Chief Justice Rehnquist and retirement-bound Justice O'Connor, who by report needed a Republican president to enable her to vamoose from the Court, and therefore predates the ascension of those luminaries Chief Justice Roberts and Justice Alito) made it clear that this decision was not to serve as precedent of any sort.

Of course Toobin knows this:

Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated "per curiam," or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it's worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida -- at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast -- prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices -- Scalia, William H. Rehnquist, Sandra Day O'Connor, Anthony M. Kennedy, and Clarence Thomas -- issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states' rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems -- a classic example of judicial activism, not judicial restraint, by the majority.

Toobin explains finally why the ruling has such resonance for him in 2010:

[T]he case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.

The Court is now led, of course, by Chief Justice John G. Roberts, Jr., who was appointed by Bush in 2005 (and who, in 2000, travelled to Florida as a private lawyer working on Bush’s behalf). Under Roberts, the Court has continued to use the equal-protection clause as a vehicle to protect white people. In 2007, in Roberts’s first major opinion as Chief, he struck down the voluntary school-integration plans of Seattle and Louisville, which had been challenged by some white parents. Likewise, under Roberts the conservatives have abandoned their traditional concern with states’ rights if, for example, the state is trying to protect the environment. In another 2007 case, Roberts, Scalia, Thomas, and Samuel A. Alito, Jr. (who replaced O’Connor), argued in dissent that states had no right to force the Environmental Protection Agency to address the issue of global warming.

And as many writers, yours truly included, have pointed out frequently in recent years, the modern Court has abandoned all but the pretense of outrage at the Right's once-hated "judicial activism."

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments -- indeed, especially at those times -- they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.

#

SUPREME COURT FRAUD?

The Indiana photo-ID decision sets the stage for state legislators to restrict voting rights any way they can, as long as they invoke "voter fraud"

By Jon Dodson
DWT constitutional correspondent

The Supremes recently decided the biggest voting rights case since Bush v. Gore. The issue was whether Indiana's law requiring state-issued photo IDs for everyone voting in person violates the Equal Protection Clause of the 14th Amendment.

ABOUT THE EQUAL PROTECTION CLAUSE

In a long line of cases, the Equal Protection Clause attaches to certain fundamental rights. The landmark case on voting rights was Harper v. Virginia Board of Elections, 383 US 663 (1966), where the Court held Virginia's poll tax unconstitutional. The Court concluded that any state "violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." Moreover the Court stated that even rational restrictions on the right to vote would be unconstitutional if they "invidiously discriminate."

However, in Anderson v. Celebreeze, 460 US 780 (1983), the Court clarified that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are not invidious. This is the law the Court applied to Indiana's statute.

NOW, A WORD ON PHOTO IDs

We've all had the luxury of a visit to the DMV, which has become a trite parody of bureaucratic excess and inefficiency. In Florida, getting a photo ID costs $20 and about an hour of waiting at DMV--when one has all the documentation one needs.

But birth certificates can get lost or destroyed, and (as I found out) can be relatively expensive to replace (over $50 if you were born in North Carolina). So, depending on the various hoops one must jump through, getting an ID can take hours and a significant sum of money.

The good news is that if a person has the documentation and transportation he or she needs, the Indiana law ensures that photo identification can be obtained for free. The plurality repeatedly pointed this out, which leads me to believe--or desperately hope--that the Court may hold unconstitutional a law requiring voter ID that costs money.

On the other hand, the Virginia poll tax held unconstitutional in 1966 cost $1.50, so maybe that's the cutoff. But then the Court would have to calculate how much $1.50 is in 2008 dollars. And so, really, "not free" would be the easiest place to draw the line.

IF YOU DON'T HAVE A PHOTO ID . . .

The other good news is that the Indiana law provides an alternative for persons who do not have an ID: They can cast a provisional ballot, which will be counted so long as they fill out an affidavit at the circuit court clerk's office within 10 days.

Now, if there's anything more likely to drive a person to suicide than going to the DMV, it's going to the clerk's office. Clerks in any populous jurisdiction are incredibly busy, generally grumpy, and, from the standpoint of customers, painfully slow. Not to mention that this alternative does nothing for persons without transportation.

So, again, the provisional-ballot/affidavit method is easier said than done. One can't help but wonder, why not fill out the affidavit right there at the voting precinct? Wouldn't that be a lesser burden on the voter? Although the Indiana law is not nearly as bad as it could be, it still places severe obstacles in the way of many people--particularly poor persons, elderly persons, naturalized immigrants, college students, and anyone else with transportation, financial, or paperwork problems.

HOW THE COURT ACTUALLY RULED (UH-OH)

What's more troubling than the law itself is the Supreme Court's opinion. Once again, the Court stuck its head in the sand, rather than deal with what everyone knows: First, these laws are politically motivated, and second, no state has had an even moderate problem with voter fraud.

Regarding the politics behind this law, the Court concluded that "valid neutral justifications for a nondiscriminatory law . . . should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators."

This understatement is in line with the Equal Protection cases basically holding that discriminatory intent is not enough to offend the Constitution where there's no discriminatory effect--see Washington v. Davis, 426 US 229 (1976). But it also appears to be an application of the relaxed "rational basis" standard of review, in a case where strict scrutiny is warranted.

Under the rational basis standard, so long as the legislators can dream up a "conceivably rational" justification, the law should be upheld. This standard is supposed to apply in cases that involve neither a fundamental right nor a suspect classification such as race or gender. Strict scrutiny requires a more compelling justification of the state.

So the Court seemed to apply the wrong standard of review, or misapply the correct standard, in discounting the impermissible political motivations of the law. (Can we say "invidious"?)

In contrast to the short shrift given to the obvious political motivations, the Court took very seriously the rationale that the law was intended to prevent voter fraud, despite the paper-thin record of voter fraud ever being a problem. As far as I could tell, the Court cited two incidents of the kind of fraud to be prevented here--voter impersonation. One happened in a gubernatorial race in Washington state, and another in a mayoral race in Indiana. Justice John Paul Stevens concluded for the plurality that this "demonstrates a real risk that voter fraud could affect a close election's outcome."

If another justice had written the majority opinion in this case, I would insert here a rant about the hypocrisy of such hand-wringing over whether "fraud" would determine the outcome of an election. Because, frankly, I consider the justices in the majority of Bush v. Gore a fraud. That case exposed them as partisan hacks rather than judges. But, Justice Stevens actually wrote a brilliant, biting dissent in Bush v. Gore. So I must concede that his concerns with voter fraud must have been genuine in this case.

Be that as it may, the record is very, very flimsy. In a case where the Court supposedly applies some iteration of strict scrutiny, it's hard to believe that such a lack of evidence could be the basis of a compelling state interest which trumps Equal Protection when it comes to voting.

A FINAL NOTE: POSSIBLE RELIEF?

One final note: the challenge to Indiana's law was a facial challenge, essentially arguing that the law is unconstitutional per se. The Court did leave open "as applied" challenges to the law in the future.

So perhaps a person who tries to vote in person without an ID because of financial or transportation issues but can't . . . perhaps she will somehow come up with the resources and lawyers to challenge the statute as applied to her. Or barring that, maybe this person who could not afford to vote will represent herself. She can just take a pro se writ of certiorari before the Supreme Court! This is a reasonable remedy, no?

At any rate, one thing is certain: The Supreme Court declared open season for state legislators to dream up all kinds of restrictions on the right to vote, so long as they remember to wink and say "voter fraud." This is not the last we will hear from the Court about this issue in the coming years.

#