The Toxicity Of The Citizens United Decision

Yesterday, on the 10th anniversary of the Supreme Court's badly decided Citizens United case, Blue America-endorsed candidates Andrew Romanoff, Brianna Wu and Kara Eastman joined Cenk Uygur for an online rally against the the disastrous decision.

Cenk told his supporters that "No other ruling has had such a major impact on campaign finance-- allowing unlimited election spending by corporations and fueling the rise of Super PACs. It also emboldened the Supreme Court to subsequently strike down other regulations that stood in the way of corporations buying our elections. Here we are in January 2020 and it’s impossible to turn on the TV or stream anything without being flooded with political attack ads from secretive, dark money Super PACs you’ve probably never even heard of."

In his own campaign in California's 25th district (Santa Clarita, Antelope Valley and Simi Valley) he's "standing up and fighting back by calling out my opponent Christy Smith and all Democrats and Republicans alike who are being funded with massive contributions from industries, corporations, and other special interests. As you know, I’ve decided to reject money from PACs altogether because I believe campaigns in a democracy should be supported and funded by real people and that each person should have the same amount of influence as the next. The way we do politics right now is not working for the majority of Americans. Just look at the turnout numbers in 2018 or 2016. Look at who is funding Republicans and establishment Democrats. Look at how policies with broad support across the board continue to sit on desks of Representatives and Senators. We’ve got to make a big change and I’m ready to get to work in Congress to make it happen."

On this matter, all the progressive candidates are all on the same page as Cenk. Michigan state Rep and congressional candidate Jon Hoadley wrote to his supporters yesterday as well:

10 years ago today, the Supreme Court decided to put our democracy up for auction. Corporate Super PACs, dark money groups, and special interests have been bidding on legislative votes ever since.

Our campaign is a fierce opponent of Citizens United. We know the consequences of this decision, and we have seen Michiganders live with the fallout for 10 years.

Jon got into government to serve people, not corporations. He wants to ensure equality for all, take urgent and bold action on the climate crisis, and deliver tangible change to Southwest Michigan. To do that, we need to eliminate the role of corporate money in our democracy.

...It's not going to be easy. Corrupt influencers have weakened oversight from our government institutions and abused loopholes to hide their names from the ads we see online and on TV.

Washington is only making matters worse; far too many politicians answer to the corporations that fund their re-election campaign and not to the people who vote for them.

Our political system is broken, but we're not helpless. Our founders granted Congress the power to update our Constitution in order to overcome new threats to our democracy.

Like Jon Hoadley, Tom Winter is a progressive state Rep running for Congress in a district held by a Republican. "Money is not speech," he said, just as all the Blue America candidates I spoke to said. "Corporations are not people. These simple truths are something Montanans figured out over a century ago when we were the first to ban corporations from buying our politicians and our government. The Citizens United ruling robbed us of our state's progressive and historic campaign finance laws. Since then dark out-of-state money has flooded our elections and drowned out the voices of working Montanans. We can not allow the Koch brothers and shady corporations to buy out-of-state multimillionaires Matt Rosendale and Greg Gianforte a Congressional and Governor's seat in Montana."

That video up top was made by Audrey Denney for her campaign. She's running in a red-leaning district in the northeast corner of California against a corporate-owned Trumpist. In a statement yesterday, she reminded CA-01 voters that "Ten years ago, five justices on the Supreme Court made a ruling that put corporate interests ahead of the voices and needs of the American people (Citizens United v. F.E.C.). That decision has driven corruption in our government for over a decade, allowing Dark Money to buy elections and influence policymakers to act against the very people they have sworn to serve. These corporate PACs and special interests have spent billions of dollars to keep prescription drug costs high, to obstruct common sense gun safety laws, to inhibit action toward addressing and reversing climate change, to fuel partisan gridlock, and to damage the very fabric of our democracy. Friends, in ten years since the Citizens United decision, Representative LaMalfa has accepted over $1.4 million in corporate PAC contributions, and he has repeatedly voted against the best interests of the people he was elected to represent. I am running for Congress because you deserve better than a Congressman who is beholden to outside interests. That's why I won’t accept a single dime from corporate PACs, and I will support candidates who honor that same commitment. That’s why when you elect me in November 2020, I will fight for a constitutional amendment to overturn Citizens United and demand transparency from corporations and PACs. That’s why every decision I make will be made with your voice and your needs in mind."

Marie Newman, the Chicagoland progressive who was about to beat corporate Blue Dog Dan Lipinski in 2018, saw a flood of largely Republican sewer money come flooding into her district at the last second to smear her from so that she was no longer even recognizable. Today she told me that "Having been the victim of Dark Money in my last race, I understand this issue from all sides. As a candidate, you have no control who will or will not be able to fund your opponent. Often times, corporate money hamstrings politicians and we feel it because those folks, like my opponent, will be under the control of corporations for their entire term. They will do what they are told, instead of what is needed. We need dramatic change. We need to pack the court and overturn Citizens United."

Indiana progressive Jennifer Christie told us this morning how this all works against the interests of ordinary Americans. "Ten years ago, the courts wrongly decided that corporations, not people, could spend unlimited amounts in pursuit of policies and politicians that benefit their bottom line. The Citizens United decision is perhaps the greatest threat to our Democracy and our future because corporations can drown out your voice by simply spending unlimited amounts on propaganda in favor of their chosen politician. As a result, we have seen almost no legislative movement on climate action. The last 5 years have been the hottest on earth, our ice caps are melting, and we are living in the beginning of a mass extinction. Yet even in the face of an existential threat, we see an astonishing lack of leadership. Meanwhile, the U.S. spends over $600 billion on fossil fuel subsidies while fossil fuel corporations continue to donate and spend to influence our future. Healthcare costs have risen 5 times faster than wages, and prescription drug prices skyrocket pass the rate of inflation. Over 30 million Americans are without health insurance and twice as many are under-insured. Meanwhile, insurance and pharma companies are making record profits and spend tens of millions on campaign contributions and unlimited amounts on political ads. We continue to see mass shootings and gun violence in our nation coupled with a failure to act. Yet the NRA and gun lobby has been given a blank check to advocate on behalf of their favorite politicians. Americans from all political backgrounds overwhelmingly agree that corporate influence does not belong in politics. And that is why our campaign is not accepting corporate PAC money. Our democracy is not for sale. Let’s remember that corporations are not people. People Vote, not companies. We need to end corporate influence in politics, and it starts by running a campaign for and by the People."

Eva Putzova, a progressive candidate and former Bernie DNC delegate candidate, is running for a seat held by "ex"-Republican Tom O'Halleran, who now calls himself a Blue Dog and is known on K Street as someone who is always for sale and always gorging himself on corporate cash. Eva: "The Citizens United decision is a boon to the wealthy elites who can raise and spend unlimited amounts of money to buy politicians to do their bidding. My opponent, the incumbent congressman takes hundreds of thousands of dollars in corporate PAC money and his votes reflect their wishes. I refuse to accept any corporate money and cannot be bought. We need to elect a brand new Congress that will overturn Citizens United and ensure that campaigns are publicly funded and not controlled by wealthy donors. As I talk to the regular people in the district-- regardless of the party-- we share the same goal: getting money out of politics."

In regard to a not unrelated earlier post today, Eva added that "There is a great divide between what ordinary Democratic voters want and what party elites stand for. The leaders of the party at the state and national level, with a few exceptions, are often too timid to advance the bold positions supported by rank and file voters. Most voters are opposed to corporate influence in the electoral process but the leadership of the Democratic Party relies on corporate contributions to fund their campaigns. Most voters support Medicare for All, fully publicly funded college,  bold climate action, and an end to wars of choice but party elites continue to impede those proposals because of the influence of their wealthy donors. We need to make the Democratic Party truly “democratic” by ending corporate influence in the party. If we do, the party would gain more support from working people, people of color, women, youth and environmentalists. And it would no longer be a 'center' or 'center-right' party. That is a goal I support."

A Peek Behind The Curtain: Who Really Governs Our Decayed Democracy-- A Look At House Ways And Means Committee Chair Richard Neal

Congressional Committee Chairs tend to be paragons of corruption. They are charged with raising immense sums of money from the special interests their committees oversee. It's a system that should be illegal; instead it creates power for the worst crooks.

At a time when Democratic voters have been insisting that special interest money that corrupts politicians be banned, Pelosi's congressional Democratic establishment has double down. On Tuesday, two top journalists for the Daily Beast, Jackie Kucinich and Lachlan Markay, reported on how the DCCC has gobbled up all the sewer money Democratic candidates are rejecting. They're "raking in money from corporate political groups and registered lobbyists," wrote Kucinich and Markay, "even as the party’s left flank increasingly tries to distance itself from those traditional sources of financial muscle... [including] from 143 corporate political action committees in the first quarter of 2019... up substantially from the past two election cycles."

Lobbyist fundraisers are also ponying up for the DCCC. In the first three months of the year, eight registered federal lobbyists “bundled” more than $1.2 million in contributions for the committee. That’s nearly double the total during the same period last cycle, and nearly 40 times the DCCC’s lobbyist bundling haul during the entire first half of 2015.

The huge influx of corporate and lobbying donations cash underscores a truism about Washington D.C.: money follows power. Democrats hadn’t held the House majority since 2010. And now that they have control of that chamber, donors are showering them with support.

But plugged-in Democrats attribute the money boom to another factor: the increasing wariness among prominent progressives of political contributions by corporations and their K Street representatives. With a number of Democrats, both in Congress and among the party’s large field of presidential candidates, swearing off such contributions, donors have sought other outlets for their sizable political donation budgets. Party committees such as the DCCC are one logical alternative.

“That money is going to go somewhere,” said a former Democratic staffer familiar with the process. “It’s not evaporating, the committees are a natural place.”

...One senior Democratic lobbyist said Democratic members who choose not to take corporate PAC money “are just hurting themselves” since the cash would find its way into the political process anyways.

“I talk to a lot of members all the time; they are afraid of the left,” the lobbyist said, adding that the policy of forgoing such donations makes even less sense, “when you look at how the money is being spent, the $2,500 check that I write, versus the million some billionaire can put into a [super PAC].”

..."Corporate PACs give money to members of Congress to try to buy access and influence policy to benefit the corporation's bottom line,” said Patrick Burgwinkle, who formerly worked for the DCCC but is now the communications director for End Citizens United, a political action committee which has pushed campaign finance reform. “Democratic party committees exist to protect and expand Democratic majorities. Corporate PACs don’t decide on which races party committees spend, and the party committees make their decisions based on their determination of which races are the best to win elections."

That last paragraph calls for a tiny bit of explanation. End Citizens United has nothing really to do with ending Citizens United. It's a money-vacuuming operation started by DCCC and DSCC staffers. It's a scam operation the DCCC uses to sucker grassroots progressive-oriented small donors to give money that can be used for anti-progressive right-wing Democrats (basically Blue Dogs and New Dems) who small donors would otherwise not contribute to. When Burgwinkle claims that the DCCC and DSCC "make their decisions based on their determination of which races are the best to win elections," he's spitting out the party line that the DCCC and DSCC use to deceive the party grassroots and disguise the fact that both party committees are anti-progressive and overwhelmingly recruit and support conservative Democrats, while working hard to kill progressive candidates in the cradle.

Pelosi, Neal, Hoyer-- Time for Democrats to say goodbye to institutional corruption and to the party leaders who thrive on it

That said, early in April, we looked at one of Pelosi's very powerful and very corrupt party chairs, Richard Neal. He isn't very well-known outside of the Beltway and I was delighted this week when the Boston Globe blew the whistle on Neal-- a career of corruption Democrat. David Daley, author of Ratfucked: Why Your Vote Doesn’t Count, gave The Globe the exclusive exposé, largely based on Neal's newly released FEC fund-raising reports. "His three-month fund-raising haul of more than $520,000," wrote Daley, "offers a powerful reminder of who really governs our decayed democracy, and a discouraging example of the way politicians like Neal immediately rush to auction their positions to the nation’s business elite."

Perhaps it’s little surprise. After all, we’ve come to expect this debased system as politics as usual. Naturally, the largest corporations and industry lobby groups-- big banks, insurers, and health care interests, alongside General Electric, Deloitte, Eastman Chemical, and Prudential-- lined up with $5,000 checks for the man with significant power over the federal tax code.

It’s important to maintain a healthy sense of outrage over pay-to-play politics. But if that seems like merely petty corruption in today’s Washington, Neal’s latest report provides another frightful look behind the curtain-- at the high life members of Congress lead while they raise that money, and how they turn around and spend it on their own high-class travel, dining, and entertainment.

While Neal raised more than a half-million last quarter, and still sits 20 months away from facing voters again, he nevertheless spent over $467,000 from his campaign account during the first three months of 2019. (According to FEC records, he raised, and spent, more money during the quarter than any other member of the Massachusetts delegation; he also spent more money during the 2018 cycle than his colleagues, despite facing no GOP challenger as well as dispatching a first-time candidate in a September primary.) Much of his campaign money went to big-dollar fund-raising events at five-star restaurants, private boxes at sporting events, stays at luxury hotels, premium travel, and more.

In other words: Between January and March 2019, Neal spent hundreds of thousands of dollars wining and dining lobbyists at his fund-raisers. In return, he pocketed hundreds of thousands of dollars of contributions-- many from elite donors with valuable interests before his committee. (One of his first-quarter donors was HR Block. Neal subsequently provided the tax-prep giant with its longtime legislative dream: a prohibition on an IRS free-file system that would undercut their profits.)

Neal rents the private box at the stadium or the table at the gourmet restaurant. Lobbyists buy access to his ear for the evening. Everyone enjoys the game, and the wine flows for free.

In January alone, days after taking the Ways and Means gavel, Neal moved to capitalize on the influential job. He paid the firm Washington Suite Life, which specializes in linking politicos with private boxes at concerts and ball games, $5,937 for an undisclosed event. Neal has previously worked with the Suite Life on boxes for Boston Celtics and Bruins games, as well as a James Taylor and Bonnie Raitt concert. He also spent $5,613.35 at Sixth Engine, a bar close to the Capitol. While we don’t have the invite to this reception, this bar is a Neal favorite. In February 2017, according to the invitation posted on the site Politicalpartytime.org, several well-heeled D.C. lawyers and lobbyists hosted a whiskey tasting there to benefit Neal. The price to enter: $2,500 to host, $1,000 to attend and taste. (C&G Associates, a murky D.C. firm with almost zero Internet presence gets $9,000 a month as Neal’s fund-raising consultants.)

Also in January: Neal hosted parties at the Dubliner pub in Washington ($4,950.30), Taste in Virginia ($4,686.05), Del Frisco’s Double Eagle steak house ($4,478.36), The Salt Line on the Washington waterfront ($3,259.66), and Charlie Palmer Steak ($1.301.40). There was also a $14,000 bash at the Red Lion Inn in the Berkshires, as well as several thousand dollars in travel, lodging, food, and beverage costs billed at Omni Hotels and Resorts in Texas and a Fairmont Hotel in California. In Manhattan, Neal’s campaign picked up just under $1,000 for a night at 11 Howard, a hotel that describes itself as “ultra-modern” “casual luxury” “in the heart of SoHo,” “where Danish minimalism meets New York realism.”

That’s just one month. In February, Neal spent over $5,000 on food and drink for an event run by Capitol Host, as well as thousands more at the trendy restaurants Garrison and Lucky Strike, to name just two. March looked like an even wilder cash-collecting orgy. Neal spent $6,630.05 for food, drinks, and lodging at a Florida Ritz-Carlton. It appears to be Fort Lauderdale, because while he was there, Neal’s campaign spent hundreds more on smaller meals at Terra Mare, Ocean Prime 57, and the Louie Bossis Ristorant. The man rarely eats a Big Mac.

But the Ritz-Carlton wasn’t even the fanciest hotel that hosted Neal in March. There’s a charge for $4,183.28 at the Hay Adams hotel across from the White House, where a one-bedroom suite with a view of 1600 Pennsylvania can go for $2,000 a night. Neal picked up additional four-figure tabs in March at a Library of Congress cafe, Charlie Palmer Steak, and at Bistro Bis across from the Capitol, where Neal has previously held $2,500 breakfast receptions allowing him to collect tens of thousands in campaign contributions over his morning coffee.

Voters sent Neal to Washington to do the people’s business. We didn’t elect him king of Manhattan boutique hotels or to a never-ending circuit of steak houses, let alone legendary, annual “Boston weekend” fund-raisers, or $5,000 summer gatherings on Cape Cod. If constituents want to talk to him? Sorry, your representative is at a fund-raiser at the Ritz-Carlton or a private box at a James Taylor concert. If constituents want his ear on policy? Wealthy folks pay $2,500 for that. And if constituents want to hold him accountable for putting special interests before the public interest? The money helps protect him from a challenge back home.

This is our seat. Richard Neal’s living the high life, on someone else’s dime. We all pay the cost.

Pelosi, Rangel, Neal-- the joke has always been on us-- trying to believe that the Democratic establishment is somehow less corrupt than the Republican establishment

Neal's district (MA-01), covers the entire western part of the state, along the New York border, from the border with Vermont to the border with Connecticut. Springfield, Great Barrington, South Hadley and Pittsfield are the main population centers. The district is safely blue, with a D+12 PVI. Trump did better than most Republicans (36.5%)-- primarily because the Dems fielded such a weak candidate-- but the GOP didn't even bother running a candidate against Neal. The last time the GOP bothered running anyone was 2010, when he beat Republican Tom Wesley 57.3% to 42.7%. Aside from that the GOP fielded candidate in 1996 (21.9%), 1994 (36.3%), 1992 (31.1%) and 1988 (19.7%). Neal was unopposed in 11 re-election campaigns. That tends to make a member of Congress forget who they work for.

When Charlie Rangel's blatant corruption finally got him kicked out of his House Ways and Means Committee chair, Neal rose in power. If he learned anything from Rangel's behavior and disgraceful end, it was to be less blatant about taking bribes. It appears that Neal may have a real challenge this cycle with a primary from Holyoke Mayor Alex Morse, a 30 year old, openly gay progressive, who defeated the incumbent mayor when he was just 22. No one knows if he's going to run or not, but progressive groups in Massachusetts and across the country are trying to persuade him that if he beats Neal, his work in Congress would still be helping folks in Holyoke, who he seems very committed to.

Can Alex beat Pelosi's powerful Ways and Means Chair? Will he try?

Big Money In Politics Is Ugly And Should Be Illegal

Friday, Michelle Ye Hee Lee, reporting for the Washington Post, named the 11 biggest donors to SuperPACs since the Citizens United case was wrongly decided by a right-wing, corporate Supreme Court.

1- Sheldon Adelsons (R)- $287 million ($112 this cycle)
2- Tom Steyer (D)- 213.8 million
3- Michael Bloomberg (I)- 120.7 million
4- Fred Eychaner (D)- $74.1 million
5- Donald Sussman (D)- $62.9 million
6- Richard Uihlein (R)- $61.3 million
7- James Simons (D)- $57.9 million
8- Paul Singer (R)- $42.5 million
9- Robert Mercer (R)- $41.2 million
10- George Soros (D)- $39.4 million
11- Joe Ricketts (R)- 38.4 million

So... 5 Republicans, 5 Democrats-- although Eychaner is a huge supporter of the Republican wing iff the Democratic Party-- and Bloomberg, who was an independent giving to both sides and is now running for the Democratic presidential nomination and gives massively to help Democrats. As Lee put it, a bunch of hedge-fund billionaires, entrepreneurs, media magnates and a casino mogul."

What do you think? Heroes of America? Oligarchs who should be stood up in front of a wall, handed a last cigarette and shot by a firing squad? "Just 11 donors," she wrote, "have injected $1 billion into U.S. political races in the past eight years through super PACs, the big-money entities that have given wealthy contributors a powerful way to influence elections... together contributed more than one-fifth of the $4.5 billion collected by super PACs since their inception in 2010... The intense concentration of money shows how a tiny group of super-rich individuals has embraced these political groups, which have emerged as indispensable allies of candidates and political parties since the Supreme Court’s landmark Citizens United decision in 2010. That ruling helped give rise to super PACs, which are allowed to raise and spend unlimited amounts of money on political activity."

"Indispensable?" Really? I don't think so. Destroyers of democracy sounds more accurate-- especially if you care to read it in this context, which I highly recommend. Meanwhile, NBC reported yesterday that Democrats outraised Republicans in about 90% of the most competitive House districts in the last 3 weeks.

Out of 107 House races rated as Toss Ups, Lean or Likely contests by the nonpartisan Cook Political Report, 97 saw the Democrat outraising their GOP competitor. In 70 of those races, the Democratic candidate will enter the final weeks of the election with more cash on hand.

The new data shows that Democratic fundraising-- which has continually outpaced GOP hauls-- isn’t waning as the election clock ticks down, even as Republicans cite tightening races and increased Republican voter enthusiasm. The average Democratic candidate in a competitive race raised about $528,000, while the average Republican clocks in at just $196,000 on average. The discrepancy is somewhat less when it comes to money left in the bank; the average Republican has about $490,000, while the average Democrat has $691,000... A total of 50 House candidates in competitive races raised more than half a million dollars in this 17 day fundraising period. Of those, just six are Republicans.

These were some of the Democratic heavy-hitters in October:

• Democrat Kim Schrier in WA-08 outraised Republican Dino Rossi by nearly $1.3 million.
• Democrat Antonio Delgado in NY-19 outraised Republican John Faso by more than $1 million.
• Democrat Katie Hill in CA-25 outraised Republican Steve Knight by $824k.
• In NY-27, where indicted Rep. Chris Collins is still on the ballot, the Republican has raised just $1,799, compared with about $246k for his Democratic opponent.
• In VA-10, a race that heavily favors Democrat Jennifer Wexton despite outside GOP groups still spending on Republican Barbara Comstock, Wexton has $1.3 million in the bank, while Comstock is down to $544k.

All of those candidates are getting some level of help from the DCCC. If you want to help candidates who need some more money for their ground games and who the DCCC still refuses to help, I'd suggest Kara Eastman, J.D. Scholten, James Thompson, Audrey Denney, Jess King, Mike Siegel and the other candidates on the ActBlue page you will get to by clicking on the thermometer above. Bloomberg isn't riding to the rescue of any of them.

Anthony Kennedy and Our Delayed Constitutional Crisis

Image credit: Mike Thompson / Detroit Free Press

by Gaius Publius

Today’s announcement that Kennedy is retiring only consummates his abdication of responsibility. Kennedy has chosen to let a deeply dangerous president and his allies steer a badly damaged ship out to sea. Is it fair to judge an eighty-one year old man so harshly? Yes, it is.

–Yascha Mounk, Slate

Like "swing vote" justice Sandra Day O'Connor before him, "swing vote" justice Anthony Kennedy has been one of the worst Supreme Court jurists of the modern era.

With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O'Connor and Kennedy were the Court's key enablers. They 

• Cast the deciding vote that made each decision possible
• Kept alive the illusion of the Court's non-partisan legitimacy

Each of these points is critical in evaluating the modern Supreme Court. For two generations, it has made decisions that changed the constitution for the worse. (Small "c" on constitution to indicate the original written document, plus its amendments, plus the sum of all unwritten agreements and court decisions that determine how those documents are to be interpreted).

These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speech in a group of decisions that led to the infamous Citizens United case (whose majority opinion, by the way, was written by the so-called "moderate" Anthony Kennedy); repeatedly undermined the rights of citizens and workers relative to the corporations that rule and employ them; set back voting rights equality for at least a generation; and many more. After this next appointment, many fear Roe v. Wade may be reversed.

Yet the Court has managed to keep (one is tempted to say curate) its reputation as a "divided body" and not a "captured body" thanks to its so-called swing vote justices and the press's consistent and complicit portrayal of the Court as merely "divided."

Delaying the Constitutional Crisis

The second point above, about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.

We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O'Connor and Kennedy are responsible for that delay.

O'Connor's greatest sin, of course, was as the swing vote in Bush v. Gore, the judicial coup that handed the 2000 election to George W. Bush and Dick Cheney. It was also widely reported that on election night at a dinner party "Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona." (More on that here.)

Consider: If the Supreme Court were part of coup that makes a losing presidential candidate the winner, and makes that ruling along partisan and preferential lines that can't be judicially defended, how could any decision issued by that court be deemed legitimate afterward?

Yet here we are, still publicly asserting the Court's legitimacy, whatever people think privately, and still watching in horror as decision after decision dismantles old constitutional agreements and erects new ones.

The Legacy of Anthony Kennedy

Kennedy will be praised for his so-called "moderate" or "case-by-case" ideology, bolstered largely by decisions protecting gay rights. Perhaps that will be his legacy.

But in the main he has been horrible, with a record of ideological and indefensible votes capped by his landmark decision in the Citizens United case. Enough has been written about that to make repetition here unnecessary. As noted, Kennedy not only provided the crucial "swing vote," he also wrote the majority opinion, which in essence, reduced the broad and complex sweep of both public corruption and the appearance of corruption only to provable, documented, evidence-based quid pro quo exchanges. This is beyond naïve and touches itself the broader meaning of corrupt.

If justice exists in the world, his legacy will be this: First, in giving to Donald Trump the ability to hand a person of relative youth the fifth and deciding Republican vote on the Court, Kennedy has changed the Court for a generation. After his successor is confirmed, no good thing will come from the Court for the next 20 years, and much, perhaps fatal, damage will be done.

Second, thanks to Kennedy's handing his seat to Trump, the next new justice will be unable to claim the propagandistic "swing vote" mantle held by O'Connor and Kennedy, which fact should destroy the Court's perceived, illusory legitimacy forever. The full consequences of loss of legitimacy will be considered elsewhere, but suffice it to say that when a nation's highest court is not just captured, but widely seen to be captured, a constitutional crisis is at hand. 

This is the legacy Justice Anthony Kennedy, and though he may bask for the next few months in the glory of his pronounced moderation, the awful truth, to his enduring shame, should follow him to the grave — and be printed on it.

The Crisis to Come

Let's close by quoting Anthony Kennedy in the Citizens United case, the most bizarre defense of a decision in the modern era. (There have been many bizarre decisions — the "money is speech" decision in Buckley v. Valeo is among the worst in the last 50 years — but none has been as bizarrely defended by the Court as Citizens United.)

Remember that in Citizens United the Court, building on the decision in Buckley, ruled that the First Amendment prohibits Congress from passing any law limiting so-called "independent expenditures" by corporations and unions to political campaigns. (Of course, those independent expenditures are almost never independent at all, but that's another problem.)

To the objection that unlimited campaign contributions would foster widespread public corruption, Kennedy countered with this absurdity (quote taken from Jonathan Cohn here). In his majority opinion, Kennedy wrote:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …

The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. …

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

Each assertion above strains belief that the writer is sane. Consider those assertions in simpler language:

1. Gifts of money don't corrupt.
2. Gifts of money don't look corrupt.
3. Influence over politicians doesn't corrupt.
4. Voters will have no problem with nakedly bought elections.

The first three are either plain nonsense, in which case Kennedy is unqualified to sit on the bench at all, or nonsense in service of ideology, in which case Kennedy is a political actor on an already captured Court.

The obvious explanation is the latter.

But the worse of his assertions may be the fourth, which is also patently wrong. That assertion, which says in effect "and people will let us get away with all these changes," has set the final table for the constitutional crisis to come — the one that questions the legitimacy of the Court itself and with it, perhaps, our entire political process.

That crisis, if it does come, will tear the national fabric as fundamentally as any of the earlier three — the crisis of 1776, the crisis of 1860, and the Great Depression. We're now much closer to that point than anyone with a microphone or media column inches will say. But you did hear it here. Stay tuned.

GP
 

The Democrap Establishment Still Doing What They Like Doing Most: Resisting the Resistance

Frank Schaeffer is continuing his roadtrip, meeting progressive congressional candidate and filming them as introductions of the best candidates running. Last we caught up with him was in Lewiston, Maine where he spent a day Jared Golden, the progressive candidate running for the swing district that isn't the Portland coastal area. From there he headed off to Omaha where he met with Kara Eastman. Please watch the video Frank did up top.On his own blog he introduced Kara by noting that she's "a trained social worker who runs Omaha Healthy Kids Alliance (OKHA), a non-profit dedicated to securing healthy home environments for kids and their families. Kara is a political outsider with real leadership experience who knows how to create policy, prepare and stick to a budget, and always puts people first. In addition to OKHA, Kara also led Extra Hands for ALS, whose mission is to fund research for Lou Gehrig’s disease. Kara cares about the environment and is often referred to as a 'climate hawk' by her supporters. Kara is incredibly passionate about her work and here’s something that blew me away when I spoke with her; when I asked her why she was running, she told me plain and simple, 'I am running because I am desperate–not desperate for a job, but desperate for our country–and in particular for our kids…I want to make a difference.' Kara wants to create an environment where people can be themselves and thrive. She wants to create the America that she tells her daughter about; where people care for one another, value innovation and diversity, and you can become what you want to be."

If you've been paying any attention since around 2006 or so, DWT has been blasting away at how the DCCC, and the Democratic establishment in general, rigs primaries against progressives in favor of the Republican wing of the Democratic Party-- Blue Dogs, New Dems, "ex"-Republicans, self-funders, anti-Choice freaks, homophobes... the whole panoply of candidates who make voters scratch their heads and say "what's the difference?" Nothing deflates turnout from the Democratic base like the DCCC and EMILY's List and associated groups offering a lesser-of-two-evils strategy. It doesn't work but the DCCC is incapable of learning the lesson. Sure, their shit candidates can be sometimes swept into office-- as they were in 2006-- but in the next midterm they are invariably swept back out of office (as they were in 2010) when Democratic voters realize they've been tricked-- and stay home in droves.

That's how Kara Eastman's current primary opponent, conservative "ex"-Republican Blue Dog Brad Ashford, wound up a one-termer. I'm usually the only one writing about this. But yesterday two big-time investigative journalists, Ryan Grim and Lee Fang, blew the whistle on the DCCC's primary rigging. "Candidates", they wrote, "who signed up to battle Donald Trump must get past the Democratic Party first."

They started with how the DCCC and the wretched EMILY's List are working to rig the election for some sad sack corporate shill in PA-16 and against the exciting progressive, Jess King. Normally, "the trio of groups that represents the party’s central authority"-- the DCCC, EMILY’s List and End Citizens United (which has nothing whatsoever to do with ending Citizens United and is just a DCCC/DSCC scam operation to vacuum up grassroots money from the unsuspecting). The New Dems and Blue Dogs often join them, in the cases of Angie Craig-- a pathetic candidate in Minnesota not only did the New Dems join in, so did a very confused an undependable Congressional Progressive Caucus.

End Citizens United, an ostensible political reform group, was founded in 2015 by three consultants from Mothership Strategies, all veterans of the DCCC. End Citizens United has since paid Mothership Strategies over $3.5 million in fees, according to Federal Election Commission records. In its first few years, other campaign finance reform groups grew suspicious of the PAC, which they referred to as a “churn and burn” group dedicated to raising money by blanketing email lists with aggressive solicitations, a hallmark of the DCCC’s own email strategy. That reputation began turning around the last two years, as the PAC began putting significant money into important races and working more collaboratively with other groups in the space.

But its pattern of endorsements remains closely aligned with the types of candidates backed by the DCCC, though End Citizens United is often far ahead the party. (In 2016, End Citizens United backed progressive Zephyr Teachout, while the DCCC lined up behind her opponent, one of the few instances of the two diverging.) The PAC’s entry into the Minnesota race is particularly odd, given that Craig, while at the medical device company St. Jude Medical, directed the firm’s political action committee in the 2012 election cycle, after spending the previous six years on its board. The goal of the PAC was to buy influence with Republican and Democratic leaders, as well as members of the tax-writing committees, in pursuit of repealing the medical device tax that was a key funding mechanism of the Affordable Care Act. The effort eventually met with significant success.

While she ran it, the PAC spent heavily on Republican politicians, directing funds in the 2012 cycle to Republican Sens. Mitch McConnell, Finance Committee Chair Orrin Hatch, Scott Brown, Mike Enzi, Richard Burr, Bob Corker, and John Barrasso. Then-Speaker John Boehner and presumed-future-speaker Kevin McCarthy, as well as the chair of the House Ways and Means Committee, all got money from Craig’s PAC.

This, then, was the résumé that earned the support not just of the DCCC and EMILY’s List, but also of a group publicly committed to campaign finance reform. It’s as dissonant as the group’s support for Jason Crow in Colorado, a DCCC-backed candidate who works at a powerful law and lobbying firm.

A DCCC official, asked about Craig’s time running the corporate PAC, said it was unfair to accuse a married lesbian raising a family of being part of the political establishment, and that her business success was an asset, not a liability.

End Citizens United also stands by its endorsements of Craig and Crow. “Angie pledged to fight for reform, advocated for the public funding of elections, and ran a grassroots campaign with the support of many progressive organizations and local elected officials,” said End Citizens United’s Communications Director Adam Bozzi.

“Angie lost in 2016 by a narrow margin of 6,000 votes,” Bozzi added. “Unlike many House challengers in 2016, she was able to match the Democratic performance at the top of the ticket. Angie ran a strong campaign, in a tough district, in a difficult year for Democrats in Minnesota.”

“All Jeff talks about is political reform, so that was a shot to the heart,” said Rosenow, Erdmann’s campaign manager, on losing the endorsement. “If your goal is to get money out of politics, how in the fuck-- I’m sorry, how in the hell are you backing someone who ran a corporate PAC?”

The DCCC still blatantly lies about not getting involved in primary battles. They do it everyday and in everyday. And the whole purpose is the kill progressives in the cradle. Their own Red to Blue website currently lists 18 carp candidates they are backing, almost all of them also backed by the New Dems and/or the Blue Dogs and almost all of them in hot races with progressives. As Grim and Fang reported, "the Democratic Party machinery can effectively shut alternative candidates out before they can even get started. The party only supports viable candidates, but it has much to say about who can become viable." Let's look at 4 of the races the DCCD is fucking up that Grim and Fang singled out:

• AZ-02 (Tucson)

Last year, former Rep. Ann Kirkpatrick, a tough-on-immigration candidate who previously represented a northern Arizona district, bought a house to run for this Tucson-area seat. The DCCC, Emily’s List, End Citizens United, and other PACs coalesced quickly behind her campaign, ignoring a spirited challenge from former Assistant Secretary of the Army Mary Matiella. “A candidate’s viability is judged too quickly and too narrowly,” Matiella, who could be the first Latina to represent Arizona in Congress, told The Intercept. “The ability to immediately post a six-figure quarter isn’t just the primary consideration, it’s the only one. That kind of artificial barrier to political involvement is going to disenfranchise not only qualified candidates like myself, but thousands of new and optimistic voters the party should be engaging.” Matiella is backed by Justice Democrats, Democracy for America, and Project 100.

• KS-04 (Wichita)

In April, the political world turned bug-eye on Wichita, Kansas, as the results of a special election to replace Mike Pompeo came rolling in. For a tense stretch of time, it looked like James Thompson, running on a progressive platform that hewed closely to that of Sanders, might just pull off an upset in the heart of Koch Industries country. He wound up about 7,500 votes short, but immediately announced his plan to run for the same seat, this time against the Republican incumbent Ron Estes, in 2018. Washington Democrats were not particularly enthused about his chances. “I have never heard hide nor hair from the national party about the race,” Thompson said. His primary opponent, Laura Lombard, who moved back to the district from Washington, said she’s been in touch with the DCCC, but the party doesn’t like the odds of winning the district and isn’t helping in the primary.

Thompson is not clamoring for party support. “From what I’ve seen of the DCCC’s help, they want a bunch of promises made you’ll raise X amount of money, and you’ll spend this amount on TV ads.” he said. “At this point I’m not interested in having the DCCC, which has a proven losing record, try to come run my campaign.”

• NE-02 (Omaha)

The Democratic Party has largely lined up behind former Rep. Brad Ashford to take back this Omaha-based seat. The DCCC and other PACs have provided resources and endorsements to Ashford, who compiled one of the most conservative voting records for any Democrat in the House during his time in office. Kara Eastman, another Democrat competing in the primary on a populist campaign of single payer and tuition-free college, said that, after inviting her to candidate week, the party has attempted to shut her out of the campaign. “Well, we have been in contact with people from the DCCC since we started the campaign, and I was told that they would be remaining neutral until after the primary, and now it’s clear that’s obviously not the case,” Eastman, who has raised more than $100,000, told The Intercept. Eastman is backed by Climate Hawks Vote, at least three local unions, and some local party officials. The Progressive Change Campaign Committee, which was founded in 2009 as a small-dollar alternative to the DCCC, is leaning toward planning to endorse her. In 2017, the national Democratic groups shocked Nebraska Democrats by pulling support for mayoral candidate Heath Mello over his past votes for bills to ban abortions after 20 weeks and the requirement that an ultrasound is used on a woman seeking abortion. Ashford, as a state legislator, voted for the same two bills, while Eastman is running on a solidly pro-choice platform. But that hasn’t prevented national Democrats from rallying behind Ashford. Last year, DNC Chair Tom Perez, in the wake of the Mello controversy, drew a line in the sand, saying that “every Democrat, like every American, should support a woman’s right to make her own choices about her body and her health. That is not negotiable and should not change city by city or state by state.” But that hasn’t prevent national Democrats from rallying behind Ashford. An EMILY’s List spokesperson said the group is monitoring the race but has yet to weigh in.

• CO-06 (Denver suburbs)

This suburban seat has long been an elusive Democratic target. One candidate for the district, clean energy expert and entrepreneur Levi Tillemann, charged that Rep. Steny Hoyer, the No. 2 Democrat in the House, pressured him to get out of the race in favor of Jason Crow, a veteran and partner at powerhouse Colorado law and lobbying firm, who is backed by the DCCC, the local Democratic congressional delegation, and End Citizens United. In a response to an inquiry from The Intercept, Hoyer did not deny pressing Tillemann, and said that he is “proud to join countless Coloradans in supporting Jason Crow in Colorado’s 6th District.” Not all Democrats are on board with the party’s strategy, though. State Party Chair Morgan Carroll protested the DCCC’s support for Crow over Tillemann, writing on Facebook, “The DCCC verbally said they would be neutral and in practice just endorsed one of the candidates in CD6.” Tillemann comes from a long line of political heavyweights in Colorado and moved back to the state to run.

Last week, we looked at how slimy corporate whore Steny Hoyer was in Colorado trying to rig the election in the 6th district for one of the DCCC's worst recriuits of 2018, a completely crooked lawyer named Crow, and against progressive reformer Levi Tillemann. Last night, Tillemann read the Grim-Fang story and this is what he told us about primary rigging in his district:

It didn’t have to be this way. After the controversy surrounding our 2016 presidential primary, the Party ought to have remained impartial during all Democratic primaries. Local leaders have, but unaccountable power brokers in DC have decided to try and rig the system and disenfranchise the voters of CD-06. That's wrong.

When political insiders want to rig an election they don’t stuff ballot boxes, instead they rely on backroom deals, super PACs, campaign contributions, pressure and threats. That's what's going on here, and it extends well beyond Colorado’s 6th District to races across the country where the DCCC has decided to try and push out progressives in favor of more 'controllable' Democrats. That is why I am speaking out.

I believe in the power of democracy. Testing ideas and candidates through a hard-fought primary makes us stronger. Making people feel like their vote doesn't matter leads to disengagement. I have always been deeply committed to running a campaign focused on the values and issues. I will fight Trump and the GOP every step of the way as they try to dilute minority influence through gerrymandering, voter ID laws, and voter suppression. But I will also fight the DCCC if they try to turn Democratic primaries into nothing more that a pep-rally for anointed insiders nationwide. The DCCC would do well to remember that voter access, free and fair elections, campaign finance, and good government are Democratic values; calling out violations of Democratic values by people we usually agree with isn’t mudslinging, it’s integrity.

Bob Poe is an old friend, the former chairman of the Florida Democratic Party. When he ran for Congress in Orlando last cycle, the DCCC backed a conservative go-along-to-get-along pointless careerist with no political point of view. He also read Grim's and Fang's piece today, shook his head and said "Some things don’t change. Gutless wonders! [The DCCC] never learns the lesson that if you do what you’ve always done, you’ll get what you always got."

Democratic party officials are not, by nature, moved to deep reflection by election losses. They have a plan and they’re sticking to it. The bad news for grassroots activists is that the Democratic Party’s leaders cannot be reasoned with. But they can be beaten.

If Democratic leaders are getting the sense that 2018 could be a wave election much like 2006, it’s worth looking at the last time the party swept into the House. The DCCC that year was run by Rahm Emanuel, who institutionalized the practice of only endorsing candidates with a demonstrable ability to either fundraise or pay for their own campaigns. Democrats that year beat 22 Republican incumbents and picked up eight open seats that had previously been held by Republicans. Because winners write history, the strategy has become conventionally accepted as wisdom worth following. But taking a closer look at the races themselves suggests the DCCC was flying blind.

In New Hampshire, for instance, the DCCC backed state House minority leader Jim Craig over local activist Carol Shea-Porter, in a classic establishment-versus-grassroots campaign. The conventional wisdom suggested that Craig’s endorsements, his moderation, and his ability to fundraise were what was needed in the district. Instead, Shea-Porter took a firm stand against the war in Iraq and organized an army of foot soldiers on the ground. Vastly outspent, she smoked Craig by 19 points in the primary.

The DCCC, in its wisdom, wrote her off, declining to spend a dime on what they saw as a lost cause. She spent less than $300,000 and, on the back of progressive enthusiasm, won the general election. She is retiring in 2018.

In California, the DCCC backed Steve Filson, a conservative pilot, against Jerry McNerney, who Emanuel believed was hopelessly liberal. After McNerney beat him in the primary, a peeved Emanuel said the DCCC wouldn’t be helping him in the general. A coalition of environmental groups got behind him instead, and McNerney won anyway.

In upstate New York, Emanuel went with Judy Aydelott, a former Republican who was a tremendous fundraiser. She was crushed by environmentalist and musician John Hall, after which the DCCC shunned the race as unwinnable. Hall won.

...It can be difficult for challengers to go up against the party because it is often hard to tell how or if the party is taking sides. Short of a public statement, candidates are left to quiz donors, consultants, or other operatives who might be in the know.

Steve Cohen, a Democratic representative from Tennessee, learned that lesson in a roundabout way. Much to Emanuel’s displeasure, Cohen ran a far-to-the-left campaign in 2006 and won a Memphis district. A white man in a minority-majority district, he was presumed to be a one-termer and drew a well-funded challenger in 2008, Nikki Tinker. (She won the endorsement of EMILY’s List, which tends not to endorse candidates against incumbents, even anti-choice ones like Dan Lipinski in Illinois.)

Cohen suspected that Emanuel was working against him but had no firm evidence, until one day he was having breakfast at the bar in Bistro Bis, a Washington restaurant, after Tinker had announced her bid. He saw Tinker in the restaurant-- and then he saw Emanuel. “Rahm came in and walked around and saw me and danced around, like doing a pirouette, like he had to pee or something, dancing on his toes,” said Cohen, describing the jittery reaction of the Chicago pol who had famously studied ballet as a young man.

Cohen left the restaurant for about five minutes and then returned to find Emanuel and his opponent dining together. “I caught Rahm,” Cohen said.

Tinker wound up running a campaign widely condemned as anti-Semitic. Cohen is now in his sixth term; Emanuel is the mayor of Chicago.

But the party’s inability to rethink conventional tactics creates an opening for progressive challengers. The party, like the media covering House campaigns, is relentlessly focused on 23 particular House districts where Clinton won, but the seat is still held by a Republican. Those seats, the party believes, belong to Democrats and are theirs for the taking. That was the strategy in 2006, too, as Emanuel dug in on the 18 seats in districts Kerry had won in 2004 but still were represented by Republicans.

Those seats were toss-ups, and despite Emanuel’s vaunted tactical genius, he did barely better than flipping a coin, winning 10. Democrats won 10 more seats in districts George W. Bush had carried with between 50 and 55 percent of the vote. They won seven in races where Bush pulled in 55 to 60 and won three upsets where Bush had won 60 percent or more of the vote just two years earlier. In other words, a third of all the Democratic pick-ups came in races where the party had been crushed two years prior and was paying little attention this time around. “Back in 2006, a strong argument can be made that Rahm was in the right place at the right time with the wrong strategy,” said Podhorzer, the AFL-CIO’s strategist who worked on the ’06 campaign.

The same pattern held in the Virginia House races in November, in which the party focused on a handful of swing districts, only to see stunning upsets across the state-- epitomized by a Democratic Socialists of America-backed nobody unseating the House minority leader, and transgender journalist Danica Roem knocking off a legendary bigot.

Those types of candidates in 2006 were boosted not by the DCCC, but by outside groups like the AFL-CIO and MoveOn.org, which was at the height of its power. This time around, there’s no shortage-- well, there’s always a shortage-- of outside groups that can come into a race and lift a candidate up. The explosion of grassroots energy post-Trump didn’t just create new candidates, it made new groups, too. That means candidates who get shunned by the DCCC still have the possibility of connecting to an organized faction of Democrats who can make their race viable.

...The DCCC, notably, hasn’t yet added any Democratic candidates in California-- where there are multiple crowded primaries for competitive seats-- to its Red to Blue list. Rep. Ted Lieu, D-Calif., the western regional vice chair of the DCCC, has discouraged the party from taking sides in contentious primaries. “We’re not placing our thumb on the scale in these primaries,” said Marc Cevasco, a spokesperson for Lieu.

But the increased party primary meddling in races in other parts of the country has come at a time when the DCCC is increasingly wedded to congressional moderates. In somewhat of a reprisal of the Emanuel strategy, the DCCC is leaning on business-friendly Democrats to take back the House.

For the first time since 2006, the Blue Dog Coalition, the right-leaning Democratic group that prides itself on promoting socially conservative, business-friendly lawmakers, has worked with the DCCC to select the party’s candidates for the 2018 midterms.

The new collaboration is a stunning reversal for a party that has seen a groundswell of support for progressive ideas-- such as a $15 minimum wage and single-payer health care-- that are staunchly opposed by the Blue Dog wing of the party. Operatives from the DCCC meet on a weekly basis with the Blue Dogs to discuss recruitment and how to best steer resources to a growing slate of centrist Democratic candidates, according to Politico.

“The DCCC recognizes that the path to the majority is through the Blue Dogs,” Rep. Kyrsten Sinema, D-Ariz., chair of the Blue Dog PAC, told Politico.

For party officials concerned about raising cash, Blue Dogs are a safe bet. Public disclosures with the Federal Election Commission show that the Blue Dog PAC is fueled by the biggest spenders on congressional campaigns on K Street, the term Washingtonians use colloquially to refer to a center of lobbyist shops. PAC money from the National Mining Association, AT&T, McKesson, Comcast, the National Restaurant Association, and other business interests have buoyed Blue Dog PAC coffers, which are spent recruiting and financing moderate Democrats.

But there is more than one way to raise big money. As for Jess King, a DCCC official said that the Pennsylvanian wasn’t invited to candidate week in Washington because her campaign has not been in close touch with the national party, and that party support is a two-way street. But by the party’s favorite metric-- fundraising-- going it alone hasn’t hurt her. In the fourth quarter of 2017, relying on small dollars, King added another $200,000 to her war chest, bringing her above $300,000 for the first year.

Her fundraising broke a record last held by Christina Hartman.

Now is the time when these primaries are going to be won or lost. The DCCC is pouring resources into the races to defeat progressives and advantage their corrupt conservative candidates. As you know, Blue America doesn't support or endorse New Dems or Blue Dogs and, historically, we're usually the ones first backing candidates like Carol Shea-Porter and Jerry McNerney back in 2006. We frequently get behind progressives who find themselves pitted against the worst of the DCCC recruits like Brad Ashford and Ann Kirkpatrick. Please consider contributing what contributing to the progressive candidates on the page that the thermometer on the right will take you to. There's not a single one the DCCC has endorsed, at least not yet. Please help us shove a dozen of them up right up their corrupt asses.

Time To Stop Talking About Getting Money Out Of Politics And Do It!

This weekend the California Democratic Party may feel the Bern. The Party's convention is in Sacramento and late this afternoon, the resolution committee will be working on getting the undo influence of money out of the political system. The video above explains what they're trying to accomplish. Below is the resolution as it now stands:

Resolution:  Denounce the influence of money in politics, and act in accordance with the California Democratic Party (CDP) platform

WHEREAS the 2016 CDP platform states “…a healthy democracy is based on public financing of political campaigns at all levels of government, campaign spending limits and full disclosure of political spending… We will fight the culture of corruption [and] cronyism…;” and

WHEREAS money’s influence in politics corrupts a healthy democracy as stated in the Princeton Study (2014) “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens,” in the 2011 model legislation “American Anti-Corruption Act,” and in the Sunlight Foundation Study (2014) “Fixed Fortunes:  Biggest Corporate Political Interests Spend Billions, Get Trillions,” which reports that the 200 most politically active companies in the U.S. spent $5.8 billion on lobbying and campaign contributions from 2007-2012, and those same companies got $4.4 trillion directly back from the government they lobbied; and

WHEREAS so far, voters in over a third of the states in the Union, including California, have voted to overturn Citizens United v. FEC (2010), demonstrating that the voters want to end the funding of political expenditures by corporations;

THEREFORE BE IT RESOLVED that the CDP will publicly condemn corporations and lobbyists that finance political campaigns, as they perpetuate a culture of corruption and cronyism and thus violate the CDP platform; and

BE IT FURTHER RESOLVED that the CDP will send a copy of this resolution to the California Congressional Delegation, including all its elected officials, calling on the delegation and elected officials to unwaveringly uphold the CDP platform, and reminding them that failure to do so is a dereliction of their elected and fiduciary duties as members of the CDP, as well as a copy sent to the Democratic National Committee.

The California congressman working hardest to pass this is Ro Khanna and you can hear him talking about it in the video up top. You'll also hear Bernie discussing why this is so crucial in our lives.

Today Ro told me that "Those of us in Congress need to wake up. The American people have no confidence in the institution. They want money out of politics. They want an end to the foreign wars. They want an economic policy that isn't rigged for the investor class. The least we can do is listen and say we hear your anger. We hear your frustration. It is completely justified. We have had a political class that has failed us. We are doing our best to change. Not taking corporate money is a step-- a small but significant step -in that direction."

The Chevron Decision, the Regulatory State and "Consent of the Governed"

Not just a line from our founding document; a fact.

by Gaius Publius

Bottom line first — Having justices like Neil Gorsuch on the Supreme Court is part of the attempt by Trump, Bannon, the Koch Bros and all Ryanist Republicans to dismantle the regulatory state. Dismantle — not undercut or chip away at. Tear down, starting at its base. Imagine what that will do. Such an attempt, if it succeeds, could rend the last shred of fabric holding the nation together as a nation.

The attempt to rip that fabric in two is closer to success, on many fronts, than most imagine. This is about one of those fronts, the constitutional authority of the Executive Branch to issue regulations.

The U.S. Regulatory State

The modern U.S. regulatory state is that part of the government, housed in Executive Branch agencies like the FCC, the FAA, the FDA, and the EPA, that regulate in the public interest how businesses must conduct themselves.

The public by and large approves of regulations. Who wants to be killed by spoiled meat, or die in a plane crash because the FAA was privatized, made more "efficient," and turned into a revenue stream for investors?

On the other hand, businesses by and large hate regulations. It's the regulatory state that prevents even more people from dying in cars like the Ford Pinto or the Chevy Cobalt because the company did a cost-benefit analysis and found that killing passengers was economically preferable to making safer cars. It's the regulatory state, in other words, that stands in the way of increasing corporate profit at the public expense.

The regulatory state can be undermined in two ways. It can be captured and dismantled from within, under-funded and staffed with people who ignore or pervert its legal mandates. Or it can simply be made illegal, by overturning the Supreme Court decision that makes it legal in the first place. We've seen many instances of the first way, starting with Ronald Reagan's perversion of the regulatory regime. We're about to witness the second.

"Chevron Deference" and Executive Branch Regulations

The modern regulatory state rests on the Reagan era Supreme Court ruling in Chevron v. National Resources Defense Council. The Chevron decision established the principle that, quoting the New York Times, "the E.P.A. (and any agency) could determine the meaning of an ambiguous term in the law. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean [emphasis added]."

In essence, the Chevron deference principle allows agencies to interpret regulatory laws in any reasonable way they wish and gives legal deference to those interpretations. Note that this can work both for and against progressive principles. The original Chevron case was a challenge to Reagan's EPA, led at the time by Ann Gorsuch Burford, Neil Gorsuch's mother. The agency wanted to loosen restrictions on pollution from power plants. In siding with the EPA the Court established the deference principle and handed a victory to polluters. The ruling was a unanimous 6-0 decision (with three justices not taking part). Antonin Scalia favored the Chevron ruling.

Chevron is also "one of the most frequently cited cases in the legal canon." From the standpoint of judicial precedence, frequent citation confers authority.

The 1935 Schechter Poultry Decision and the "Nondelegation Doctrine"

The right of the Executive Branch to engage in regulation at all has rarely been challenged; note that Chevron turned on the right to interpret congressional language, not the right of regulation itself. Congress, of course, has the right to regulate business activity, but starting in the Roosevelt era, Congress delegated that authority to the Executive Branch through legislation.

Two Supreme Court challenges to the right of Congress to delegate regulation occurred early in the Roosevelt era, one of them being Schechter Poultry Corp. v. the United States. Both succeeded, but unlike Chevron, neither decision has ever been cited, and for the next 80 years, from that time until now, both have been ignored. Just as citation confers authority, lack of citation diminishes it. Almost from the time they were issued, these decisions, including Schechter Poultry, have been recognized as a "legal dead end."

The discrepancy between these two Supreme Court decisions — Chevron and Schechter Poultry — is obvious. Schechter Poultry, a never-cited decision, denies Congress the right to delegate regulatory authority. The Chevron decision, widely cited, assumes the opposite. For 80 years the federal government has acted as though Schechter Poultry was wrongly decided, and in 1984, Chevron, by implication, affirmed that assumption.

Emily Bazelon and Eric Posner detail the interesting history around these intertwined decisions (my emphasis):

The 80 years of law that are at stake began with the New Deal. President Franklin D. Roosevelt believed that the Great Depression was caused in part by ruinous competition among companies. In 1933, Congress passed the National Industrial Recovery Act [NIRA], which allowed the president to approve “fair competition” standards for different trades and industries. The next year, Roosevelt approved a code for the poultry industry, which, among other things, set a minimum wage and maximum hours for workers, and hygiene requirements for slaughterhouses. Such basic workplace protections and constraints on the free market are now taken for granted.

But in 1935, after a New York City slaughterhouse operator was convicted of violating the poultry code, the Supreme Court called into question the whole approach of the New Deal, by holding that the N.I.R.A. was an “unconstitutional delegation by Congress of a legislative power.” Only Congress can create rules like the poultry code, the justices said. Because Congress did not define “fair competition,” leaving the rule-making to the president, the N.I.R.A. violated the Constitution’s separation of powers.

The court’s ruling in Schechter Poultry Corp. v. the United States, along with another case decided the same year, are the only instances in which the Supreme Court has ever struck down a federal statute based on this rationale, known as the “nondelegation doctrine.” [But] Schechter Poultry’s stand against executive-branch rule-making proved to be a legal dead end, and for good reason. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. For the sake of business as well as labor, the updating of regulations can’t wait for Congress to give highly specific and detailed directions.

[...]

The system worked well enough for decades, but questions arose when Ronald Reagan came to power promising to deregulate. His E.P.A. [under Neil Gorsuch's mother] sought to weaken a rule, issued by the Carter administration, which called for regulating “stationary sources” of air pollution — a broad wording that is open to interpretation. When President Reagan’s E.P.A. narrowed the definition of what counted as a “stationary source” to allow plants to emit more pollutants, an environmental group challenged the agency. The Supreme Court held in 1984 in Chevron v. Natural Resources Defense Council that the E.P.A. (and any agency) could determine the meaning of an ambiguous term in the law. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean.

All of this means one thing. Any Court decision that overturns Chevron and leaves Schechter Poultry in place affirms Congress as the only body with the authority to issue regulations affecting business activity.

The effect would be sweeping and immediate. Overturning Chevron means entirely deconstructing the modern regulatory state. It means returning the country, from a regulatory standpoint, to before the New Deal and deny legitimacy to the entirety of Executive Branch regulatory mechanisms.

Needless to say, business leaders in both parties want that deconstruction very very much, and they're working hard to get it.

Neil Gorsuch and the Chevron Decision

Of his many faults, from a judicial standpoints (others are mentioned here), Neil Gorsuch's interest in overturning Chevron is perhaps the most dangerous. The Times again:

Last year, in a concurring opinion in an immigration case called Gutierrez-Brizuela v. Lynch, he attacked Chevron deference, writing that the rule “certainly seems to have added prodigious new powers to an already titanic administrative state.” Remarkably, Judge Gorsuch argued that Chevron — one of the most frequently cited cases in the legal canon — is illegitimate in part because it is out of step with (you guessed it) Schechter Poultry. Never mind that the Supreme Court hasn’t since relied on its 1935 attempt to scuttle the New Deal. Nonetheless, Judge Gorsuch wrote that in light of Schechter Poultry, “you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.”

Gorsuch is not alone in wanting to overturn Chevron. Unlike the late Antonin Scalia, Clarence Thomas is openly opposed to Chevron. Three other conservative justices have also indicated their willingness to revisit Chevron. In a recent decision involving regulation by the FCC, one which specifically referenced the Chevron decision, Chief Justice Roberts, joined by Alito and Kennedy, wrote this (my emphasis):

My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency's interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.

In other words, in the view of these three justices, Schechter Poultry's "nondelegation doctrine" must be revisited by the Court. Should they get their wish, there could be five justices in favor of overturning Chevron and re-establishing Congress as the only regulatory agency in the federal government.

The Court's Bipartisan Deference to Big Business

As many have pointed out, the so-called "liberal" justices are also quite business-friendly. Noam Scheiber at the New York Times, in a piece written before the last election, said this (again my emphasis):

[S]ome argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.

The so-called "liberal" justices have concurred in a number of important, but low profile cases. Scheiber again:

Perhaps most indicative of the shift in the legal landscape is the assent of many justices appointed by Democrats.

In some areas, like antitrust, the shift rightward has often been uncontroversial, with many of the liberal justices frequently signing on. The 1997 ruling on resale price ceilings was unanimous, while a 2007 ruling on antitrust immunity was 7-1, with Justice Stephen G. Breyer writing the majority opinion.

“It’s not just the conservatives,” said Richard Brunell, vice president and general counsel of the American Antitrust Institute. “It was Breyer who was leading that charge.”

[...]

Justice Ruth Bader Ginsburg voted with the conservative majority in two rulings in the late 1990s that, according to Mr. Miller, the N.Y.U. professor, “clearly signaled the containment of the class action by the court.”

In 2011, Justice Sotomayor joined the conservative majority in striking down a law that denied companies access to pharmacy records about prescriptions, on the grounds that it violated the companies’ First Amendment rights. The following year, Justices Breyer, Kagan and Sotomayor voted with the conservatives in an arbitration decision.

Many people remember a higher profile case, Kelo v. City of New London, which affirmed the "use of eminent domain to transfer land from one private owner to another private owner to further economic development" — the right of a city, in other words, to condemn private property so another private entity could profit from it. Stevens wrote the majority opinion, joined by Kennedy, Souter, Ginsburg and Breyer.

This whole Court is business-friendly. That doesn't mean the "liberal" justices would vote to uphold Shechter Poultry, but they'd certainly listen.

What's at Stake if Chevron Is Overturned? The "Consent of the Governed"

Which brings us to the heart of this piece, its main point. What will happen if Chevron is overturned? The answer to that question is anyone's guess — the future is often as hard to predict as the past — but we'd certainly land in completely uncharted territory. My own best guess that we'd see the same kind of chaos that would erupt if the ACA were repealed completely — but worse, chaos on steroids — since the consequences of dismantling all Executive Branch regulation would be far more reaching, far more devastating to the lives of all Americans.

Consider these two factors:

• The ultimate powerlessness of the Supreme Court (discussed here)
• The fact that Supreme Court justices are appointed for life

When the rebellion that's brewing hot in America reaches the offices of elected officials, they fear for their careers, and many of them change their votes. We saw that with the voting for the later set of Trump cabinet nominees after town hall protests erupted against Democrats like Sheldon Whitehouse because of his shameful pro-torture vote — the one to approve Mike Pompeo as head of the CIA — and we saw that with suddenly announced Democratic intention to filibuster Neil Gorsuch after rumors of a possible "deal" to let him be confirmed were reported.

The justices of the Supreme Court have no such vulnerability; they're appointed for life. They can be dissuaded from a shameful decision, if they wish to be, by massive public protest, but there's nothing that compels that dissuasion.

Further, unlike a law, which can be un-enacted as soon as it's enacted — immediately undone — I can't imagine any court, much less the Robert Court, undoing a "principled" and closely argued decision in response to public pressure, no matter how bad the decision proves to be. After all, Citizens United is still in place, and will be until the Roberts Court is gone.

If ideologically or politically biased judicial actors are willing to throw the nation into chaos to serve the anti-regulatory agenda of the bipartisan money that, frankly, runs the country, what can stop them if they won't stop themselves?

Which, ironically, brings us to the powerlessness of the Supreme Court. Yes, a pro-money government could comply with a decision that overturns Chevron and begin the process of dismantlement. But if it does, the already angry rebellion in this country will grow even angrier — rebellion on steroids — and we may well approach the point where the pressure on elected officials to ignore the Court completely will bring the nation to a standstill — or to a kind of modern, urban civil war.

At that point we won't be in a constitutional crisis, but one much worse — a crisis in which the government, while constitutionally governed, risks losing the "consent of the governed." The "not my government" feelings that brought us Sanders and Trump in 2016 can only grow stronger. That feeling has an endpoint, and that endpoint is governmental crisis of the worst, most existential kind — a challenge to a government's right to rule at all.

No one wants things to go that far, not even brutal Jeff Sessions, whose determination to wage aggressive war on marijuana and to unshackle the country's worst police forces could spark such a crisis all on its own.

But we're much closer to that point than anyone will admit, just as we're closer to the end of our ability to avoid the climate crisis than anyone in power will say publicly. This anti-regulatory wet dream, pushed hard by the Republican Party and abetted by too many Democrats, could easily push us beyond it.

Are our leaders, the elites who run the place "in our name," willing to risk those consequences? If Chevron is overturned, we will find out.

GP