issue: Judiciary

No, Justice Alito, the President Was Right

Posted on by The Progressive Policy Institute

Was it rude of President Obama to criticize the Supreme Court, whose members sat opposite him during his State of the Union address? Or did Justice Samuel Alito commit the greater breach of decorum by shaking his head and appearing to mouth the words, “It’s not true?”

I’ll leave this debate to more qualified arbiters of political etiquette. On the merits, however, the president was right: the Court’s decision in Citizens United v. FEC can only enhance the power of private money in Washington.

Here’s the key passage from Obama’s speech Wednesday:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

A bold statement, but Obama then went on to rather weakly implore Congress to “pass a bill that helps to right this wrong.” Well, OK, but what kind of bill?

The presidential punt was puzzling, because there’s already a bill before Congress that enjoys bipartisan support and is wholly consistent with Obama’s campaign call for public financing of legislative elections. The Fair Elections Now Act, with over 130 cosponsors, embodies an innovative approach to public financing that’s been pioneered in some big cities and eight states.

The Supreme Court’s decision to lift restrictions on spending by companies (and unions) to influence elections was based on the dubious premise that corporations should enjoy the same rights to free speech as individuals. Nonetheless, as Americans for Campaign Reform President Daniel Weeks noted here, it creates an opportunity to reframe the debate over campaign finance reform. For decades, reformers have focused on limiting what candidates and groups can spend on political speech. The Fair Elections bill expands speech by ensuring that credible candidates can get public financing and will not have to answer to fat cat contributors if they win.

The president should seize on this approach to show he’s serious about reducing the power of special interests in Washington. That will resonate with independents angry at what they see as a broken and corrupt political system. And public financing of congressional elections may be the indispensible precondition for passing the big reforms Obama has vowed to keep fighting for.

Supreme Court Ruling Gives Boost to Public Funding Movement

Posted on by The Progressive Policy Institute

The recent Supreme Court decision in Citizens United v. FEC has put campaign finance reform back on the nation’s political agenda. Now more than ever, Americans are voicing concern over the corrupting influence of special interest money in politics and seeking long-term solutions that can tilt the balance of power in Washington back to the people. In recent days, we have seen new momentum for one such response: voluntary public funding of federal elections. It’s the ironic upside of a deeply disturbing ruling by the Court.

The Fair Elections Now Act for publicly funded elections (H.R.1826/S.752) was introduced in the House by Representatives by John Larson (D-CT) and Walter Jones (R-NC) and in the Senate by Dick Durbin (D-IL) and Arlen Specter (D-PA), gaining more than 130 co-sponsors to-date. These bills — championed by Americans for Campaign Reform and a broad, bipartisan coalition of business leaders, former members of Congress, and labor, environmental, religious, and civic organizations — would establish an innovative system of public funding of elections that rewards candidates that successfully attract small donors. These systems have been proven to work well in major cities like New York and Los Angeles and in eight states, from Arizona to Maine, where large majorities of candidates on both sides of the aisle have been elected with public funding.

As the New York Times wrote in an editorial on the heels of the Supreme Court ruling:

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns.

Why is public funding of elections receiving so much attention in the wake of the Court’s decision? Quite simply, it’s the only meaningful reform that offers a long-term fix to the problem of special-interest money in our elections that also passes constitutional muster with this Supreme Court. Rather than restricting candidates and groups from spending money on political speech, it cherishes and expands free speech by ensuring that credible candidates without deep pockets will have the means to run competitive races. And because those who win elections using public funds have no special interest funders to pay back for their seat, they will be free to represent their conscience and constituents alone.

Empirical analysis of the effects of campaign spending on votes clearly shows that if we provide a candidate with sufficient public funds to get her message out and respond to attacks, excessive spending by opponents, their parties and special interest groups will have little determining effect on the outcome of the election. It’s a classic case of diminishing returns. And for a price of just $6 per citizen per year, a program to publicly fund all races in Washington is a bargain for taxpayers concerned with the billions in wasteful spending that goes to reward big donors.

In December, I wrote a policy memo making the case for the Fair Elections Now Act. The Supreme Court’s unfortunate decision has now pushed us into a new paradigm for campaign finance regulation, underscoring the need for new and innovative solutions. Real change in Washington cannot happen as long as corporations and other special interests dominate the debate on Capitol Hill and exercise undue influence over who runs for, and wins, public office. The Fair Elections Now Act offers our best chance at fixing our broken politics.

The Founders and the Filibuster

Posted on by The Progressive Policy Institute

Current defenders of the de facto 60-vote requirement for enactment of legislation by the United States Senate invariably argue that a non-representative and obstructionist upper legislative chamber was crucial to the Founding Fathers’ system of constitutional checks and balances. Without a cranky and institutionally conservative Senate, you see, popular majorities might run roughshod over minority rights, and/or enshrine highly temporary objects of popular enthusiasm into law.

Attorney/activist Tom Geoghegan blows up this line of reasoning very effectively in aNew York Times op-ed piece that appeared yesterday. His main argument is that by requiring Senate supermajorities in very select circumstances, the Founders made it clear they did not contemplate a universal, routine supermajority requirement for every circumstance. This is, in fact, a very recent development, accomplished through the abandonment of actual filibusters for threatened filibusters as an obstructionist tactic, and then the routinization of filibuster threats. What used to be an extreme and controversial measure–an actual filibuster–that was very difficult to deploy has now become the normal order of business in the Senate.

Had the Founders wanted the Senate to require supermajorities for all sorts of legislation, they would have placed it right there in the Constitution. But they did no such thing.

Geoghegan offers several avenues for challenging the Supermajority Senate outrage. But his best contribution is an argument that will leave constitutional “originalists” sputtering in confusion.

This item is cross-posted at The Democratic Strategist.

Industry Bashes the EPA Endangerment Finding

Posted on by The Progressive Policy Institute

As expected, the Environmental Protection Agency (EPA) finally issued its “endangerment finding” on carbon dioxide. Everyone has known for months that the EPA would be issuing the ruling.

It was prompted by a 2007 Supreme Court decision that found that greenhouse gases are air pollutants covered by the Clean Air Act. Since the Obama administration took power, it was only a matter of time when the EPA would act to comply with the Supreme Court ruling. Certainly doing it before Copenhagen, as my colleague Mike Signer pointed out, hands President Obama a big stick as he prepares to attend the summit next week.

Just as expected was the reaction of certain industry actors to the EPA’s move. The EPA finding “could result in a top-down command-and-control regime that will choke off growth by adding new mandates to virtually every major construction and renovation project,” said U.S. Chamber of Commerce President Thomas Donohue.

Donohue’s right that the EPA ruling could lead to command-and-control regulation of carbon emissions. Which leads one to ask – why has the Chamber of Commerce been stonewalling against cap-and-trade legislation? Knowing that the EPA would have to act on emissions, why did the Chamber and other industry players sit out the cap-and-trade process?

Cap-and-trade is a far more flexible process by which the economy can curb carbon emissions. Moreover, it’s a process that’s been open to industry stakeholders – note the gnashing of teeth over the giveaways in the Waxman-Markey bill. Even EPA Administrator Lisa Jackson yesterday said that legislation is still the best way to confront the challenge of climate change.

Yet despite all that and the looming threat of the EPA ruling, the Chamber of Commerce and other industry rejectionists have refused to come and sit at the table to discuss cap-and-trade. And something tells me that even with the EPA finding, the Chamber is still not going to be joining the discussion on cap-and-trade. Instead, they’ll resort to the one thing we know for certain we’ll see in this process: lawsuits.

GOP Obstructionism Threatens the Courts

Posted on by The Progressive Policy Institute

A recurring theme in the first year of the Obama administration has been the refusal of the Republican Party to work in good faith with President Obama and the Democratic Congress. A new article by Doug Kendall in Slate points out another area in which Republican obstructionism has wreaked havoc on not just Democratic plans but political norms as well:

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

This is unprecedented and dangerous. There are already 95 vacancies on the federal bench at a time when there is bipartisan agreement that we need more judgeships. The last thing we need is for existing seats in overworked courts to go unfilled.

Even more important, Republican obstruction of uncontroversial nominees undermines the one part of the judicial confirmation process that was still working, until now. Well-qualified nominees who enjoy bipartisan support should be able to count on a fair and relatively smooth Senate confirmation process. This is critical because while they’re waiting, the careers of these nominees go on hold. Given the demands of the bench, and the gap between judicial salaries and what these candidates could earn in private practice, the nation is already lucky that top candidates are willing to serve. If we throw in an unpredictable and lengthy confirmation process, the quality of the federal bench—and the dispensation of justice—will unquestionably suffer.

As Kendall points out, while politics have always played a role in the judicial confirmation process, the extent to which Republicans have played it is unprecedented. When Democrats controlled Congress during the Bush administration, a large number of Bush’s nominees zipped through the proceedings. Uncontroversial nominees were treated as exactly that – qualified judges who deserved to be confirmed without political gamesmanship.

Contrast that with what Republicans have done so far. Only three of President Obama’s 22 lower court nominees have been confirmed, a staggeringly low number especially considering there are already 95 vacancies waiting to be filled.

The GOP obstruction of Obama’s judicial nominees underscores just how little compunction the Republican Party has about playing politics — exactly the kind of stance that got them booted from power. For every Olympia Snowe who votes her conscience and is willing to cross partisan lines to do so, there are, well, 39 others who march in rejectionist lockstep. The strategy may win them the devotion of the hardcore base, but it’s hardly a recipe for long-term success.