Tuesday, September 22, 2009

The Supreme Court on Corporations: Citizens United vs. the FEC

The current case of Citizens United vs. the FEC, the Supreme Court is confronting one of the most foundational constitutional issues since Brown vs. Board. Despite all of the angles taken by the plaintiffs and justices about fair elections, the role of money in politics, and the purient interests of government to make rules in regards to free speech; the one that matters most is the most taken for granted: does the bill of rights apply to corporations sui generis? My answer, as I will elaborate below, must be no; but I will consider the implications if the court decides it does.

The core rule driving the debate is that it is currently illegal for corporations to spend money on "electioneering communications" (meaning "an appeal for a vote for or against a specific candidate"). The rationale for the challenge is whether or not Hilary: the Movie is such a communication and advertisement, and whether or not the rules of enforcement are overly burdensome. (See Cornel Law for a full but short overview.) At face value, these claims are very different from the arguments being made to the Supreme Court and, frankly, this case could technically be solved without any major change in statute. However, the Appelant and thus the court and Appelee (Citizens United) have focused the issue on whether or not the law against electioneering communications is constitutional by way of arguing that free speech protections apply to corporations. Listen to the arguments at NPR , read the Citizens United brief (pdf), read the FEC's brief (pdf).

The question of whether electioneering communications are unconstitutional stems directly from the interpretation of who (and now what) the first amendment applies to. Scalia makes the argument that 95% of corporations are small business “indistinguishable from the individual who owns them.” Ginsberg's take is that corporations are not "endowed by their creator with inalienable rights" and raises the additional issue of corporations partly owned by non-citizens (see re-examination available on NPR or secondary news source).

While these touch the core issue of the application of the first amendment, they do not touch on the legal basis of corporations - which are not mentioned in the constitution and are pure legislative constructs from a legal point of view. Corporations are, in a legal sense, only what legislatures say they are and are not, and only a constitutional amendment can override that.

While I will ignore convenient arguments about judicial activism and rewriting the Constitution, the basic question is whether or not the Bill of Rights applies to corporations and the answer is a potential watershed moment in our history. Let's go into some of the potential implications. First, to extend the right of free speech to corporations subverts any rules on what can be seen on television or expressed in any other media except for what is already proscribed for individuals (including language, sexual content, violence, drug-makers' claims about a new drug, etc.).

Second, the peaceably assemble clause of the first amendment could also be used to severly limit laws on how corporations can be organized and run. For example, if a corporation's plant is shut down for sweatshop practices, the government can be taken to court for preventing peaceful assembly. Other such practices may include certain types of price fixing, cartel formation, and any scale of merger. Free market supporters who may not have a problem with the first and second implications should not forget that they would imply that we lose the ability to control monopolies and whatever their impact on government and politics more generally.

Lastly, the notion of voting rights also comes to the table if corporations are treated as people. While the idea that corporations would themselves have a vote is a constitutional stretch of cosmological proportion, to rule that corporations must be treated as people under the constitution raises these issues directly.

I don't mean to come off as a sensationalist about this ruling, but these issues become new fundamental questions with potentially history-changing impacts if the Supreme Court so rules. Of course, if the majority opinion does not base its finding on the notion that corporations are people, none of this matters nearly as much.

My guess is that the ruling will be overturned (Citizens United wins) because the law itself is too broad to defend the purient interest, the argumentation supporting the purient interest has been poorly defended over the course of the case (in large part because it is strapped by overbroad wording), and the right-leaning court is just not gonna hear it. However, such a blatant endorsement of the corporate personhood position will likely be found in an assenting opinion, but not the majority opinion (thus giving it credence without necessarily the force of Supreme Court interpretation); while the dissenting opinion will opine the view as it really supports the majority opinion and offer suggestions on how to regulate corporate money in campaigns given the majority interpretation.


Monday, September 21, 2009

Can We Sue for Being Offended?

A quick one for today. A Christian hotel-owning couple is being sued for offending a Muslim patron. Now, the actual elements of the conversation are not reportable due to the court proceedings, so I don't know exactly what happened. What appears to have happened, however, is that a Muslim patron became involved in a conversation about religion. The Muslim patron became offended at the conversation, and went to the police, and complained that she had been offended by the conversation, and felt there were "threatening or oppressive" elements to it.

Where do I stand on this? At this stage, I stand completely behind the Christian couple. If the same thing had happened at a Muslim hotel, believe me, I would stand completely behind the Muslim couple. This has nothing to do with the religious beliefs of either party. It's a basic element of free speech. You do not, or at least should not, have the right to not be offended. If a conversation is offending you, walk away, don't sue the people. I don't care if it offends your deeply held religious beliefs any more than I would care if it offends your deeply held political leanings. Trust me, if this is all it takes, I'm sueing the pants off of Glenn Beck and Rush Limbaugh, to name just a few. I am almost daily offended by the things they say. But does that make any sense? No. They have a right to their freedom of expression, just as I do, and I freely exercise that right and call them idiots and then list my reasons for doing so. That's the point.

Now, granted, this all took place in England, where the laws and the courts are a bit different, but even a commentator on the article brings up that the police are also charged with protecting freedom of expression, and that the Public Order Act has been used and is being used probably too aggressively, especially in cases where people's feelings are hurt.

Man, maybe I should change career paths and sue people for a living for a while. Then I can retire and drink away all my conscience concerns. On a remote island, or on top of some mountain.

Hm...it's not sounding so bad after all...


Saturday, September 19, 2009

ACORN, Tea Parties, and Militias: the New Conservative Grassroots

These three headline-makers signify the emergence of the newest wave of conservative grassroots organizing that will set the tone for the next brand of conservative politics. Within a long view of history, they are really not that unique. Looking to the near future, there are some very troubling dimensions, some healthy directions, and a nascent map for conservatives' political future. To sum it up briefly, the conservative grassroots is emerging as with all inter-election periods for the party out of power in the U.S.; however, it brings with it a dangerous fringe tied to the mainstream raising the question of how the grassroots will address its violent impulse.

The grassroots are the muscle and skeleton of political activity, from elections to petitions to agenda setting. This is particularly true for the grassroots of the party out of power. Remember all of the liberal anti-war, anti-WTO, and '06 and '08 election organizing during the Bush years? With the arrival of current Democratic power, the conservative grassroots have plenty of grievances to air with (seemingly) no hope of immediate success and a highly visible enemy to fight. At the center of the rebirth of the conservative grassroots are the Tea Party groups and emerging militias (including the hybrid militia-interest group Minutemen organizations) advocating for smaller, less intrusive government. While the social conservatives still penetrate the Tea Party groups, social conservativism of the anti-evolution, anti-homosexual, and other bible-thumping varieties are being comparatively deemphasized.

First, the ACORN catastrophe. You've been living in an internet news hole if you haven't heard about the everyday investigators posing as a pimp and prostitute getting advice from ACORN staff on escaping the law and taxes. Here's a list of primer reports: Original Source (Biggovernment.com), NY Times Blog Round-up , "Congress stops funds to ACORN". Just search "ACORN" on your favorite news aggregator for more than you will ever want to know.

So, what does this have to do with the grassroots conservative movement, since the specific motivations and political ideologies of the investigators are open to interpretation? First, it is an immense blow to progressive grassroots organizing on the marketing and funding front. While community organizing, like taxes, will never go away; the pure toxicity of being associated with this scandal is sure to further inspire the conservative grassroots and weaken liberal organizing. This is one of the many-yet-to-come successful attacks on liberal groups (though ACORN considers itself nonpartisan) that will continue to drive the conservative grassroots' sense of efficacy and purpose and weaken public trust in liberal causes. It is a major victory.

Compare this to the Tea Party protests in D.C. and across the country this week. The massive, well coordinated protests demonstrate the energy of the conservative grassroots and foreshadow the ideology that will be put forward in the next two election cycles - small government through reduced taxes, less market regulation, and less (non-socially conservative) law enforcement. The conservative grassroots are pissed at the bailout, the ballooned government deficit, and enlarged health care programs. Essentially, we have a libertarian wave tinged with some conservative Christian dogmatics. That is exactly what we will continue to hear in the next election cycle and what will drive the conservative grassroots to the poll. The big question for politicians who will be up for election is the extent to which these groups' ideology and counter-Democrat mobilizations will be taken up by independents and other conservative blocs (like the hawks, mainstream conservative Christians, and moderate conservatives). The big question for society at large is the extent to which these groups will become linked with the radical, violent fringe of militias and anti-immigration bigots.

The Southern Poverty Law Center's report on the resurgence of the malitia movement (that spawned Timohy McVeigh and includes other highlights such as Ruby Ridge and Waco) has helped spark an undercurrent of news reports on the issue of violent American malitias. The center's report links the shooting at the U.S. Holocaust Memorial Museum in DC, the murder of a Latino Family in Arizona, and the murder of Dr. George Tiller in Kansas with many others throughout the country to this growing militia movement. The storm of brutality is built on the injection of anti-immigration racism, a radical libertarian anti-Nationalism, and new fangled rebirth of white/Christian supremacy according to the report. The groups that have thus far been named in this movement include various wings of the minutemen movement, the Oath Keepers, the nativists, Birthers (who claim Obama is not American-born) and the NRA (due to their "Prepare for the Storm 2008" membership drive with gun manufacturers).

What may be more frightening now than in the 1990's version is the connections these groups and their ideology have with mainstream institutions. These groups' ideologues include Bill O'Reilly, lambasted for his "subtle encouragement" and *wink wink* commentary on the murder of Dr. Tiller, Lou Dobbs, for his racist special reports on illegal immigration and conspiracy theory episodes about Mexicans' invasion plans, and Fox commentator Dick Morris who said, "Those crazies in Montana who say, 'We're going to kill ATF agents because the U.N.'s going to take over' — well, they're beginning to have a case." Incredibly, high level politicians have echoed the rhetoric including Rep. Jean Schmidt (R-OH), Texas Governor Rick Perry's talk of succession at an Austin Tea Party, and Representative Michelle Bachman's (Minn.) claim that Obama was creating "reeducation camps."

The conservative grassroots movement has its feet on the ground and the big question is how far and in what direction it will go. The violent bigotry of the militia movement has found rhetorical resonance with some mainstream conservatives, but it is seriously questionable as to what, if any of it, would actually translate into a policy platform or mainstream ideology. In fact, I would hope that some conservatives find it offensive that I mention the two in the same breath. The fact of the matter remains that, unlike the Muslim population, American conservatives have (and probably will continue to) largely failed to publically take a stand against or even acknowledge their own. The surprising exception is Glen Beck, though he continues to foment hatred and conspiracy theories. They have yet to prove that they are not like their fringe.

I anticipate a further escalation of conservative grassroots activism and the development of a more contemporary conservative ideology and platform over the next two years reaching an apex in a strong party platform in 2012. Along with this however, I too anticipate the largely uncheced growth of the violent fringe, more conspiracy theories and extremist policy quackery, and, unfortunately, more bloodshed in the name of the conservative agenda. I predict that either a large republican swing over the next two election cycles or a more intense attack like Oklahoma City will deflate the movement and turn it away from violence.

On a more optimistic note, should conservatives emerge as a reasonable force with the ability to know when they are being lied to by their leaders, then we might actually get a better, more responsible government in the support for reduced government spending and deficits. Though I doubt that any serious bipartisanship will happen within the next decade, the swing towards smaller government should at least put deficit reduction on the table before Obama's term is up and maybe some pork barrel regulations will finally be put in place (though I doubt it).

All in all, the Tea Parties are the map to the conservative future, there are conservatives who might kill you with an IED and some in the mainstream will condone it, and at the end of it all, some sad progress might be made.


Monday, September 14, 2009

The Sorcerer in California with Marriage Infedility...

A few quickies for today, just for the chuckles of it all.

First, a completely straight article about magic in Islam. Now, the more secular or not-believing-in-magic among you, or those of you who just happen to think that religions other than your own are a little kooky, will probably find this somewhat humorous. I'll admit, I do too. I can't help myself. But there is an interesting point to take away from it. Note the descriptions of 1) the rituals performed by the magic-sellers and 2) the rituals performed by the religion-sellers, or, in this case, sheiks. Not so different, eh? Well, actually, that's to be expected. Traditionally there has been a very thin line between "magic" rituals and "religious" rituals. The difference, in some views, is only the kind of person performing the ceremony. You see, to both these people, the magic is real. The sheiks are just on the "good" side and will break a curse for a nominal fee. The "sorcerers" are on the "bad" side and may make or break a curse, for the right price. The rituals are nearly identical, it's just one guy gets to wear a funny robe or hat and claim ultimate divine authority, and the other guy wears a funny robe or hat and claims (usually) some lesser or personal authority. Now, for those of you who want to claim that we are too civilized for that kind of thing, need I remind you there are groups in this country who still practice and believe in faith healing, in praying for more rain or less rain, spiritual anointing, that prayers protect people, and that God may give you what you want if you ask and believe hard enough. A very, very thin line.

Secondly, this article about a recent study. It would seem that, on average, one out of every thirty-three women who regularly attend worship services have had sexual advances made by religious leaders. So, on average, for everyone 100 women in a congregation, 3 have been advanced upon by a religious leader. And two of those three were probably married at the time. Ahh...see, this is what I've tried to tell you before - watch the people who protest the loudest that they are the most moral. They're the ones typically hiding something. See, once you have it so ingrained in your head that you are the morally superior one, you can start writing off discrepancies, because you ARE moral, or God forgives those few discrepancies, and anyway, you're still much better than the rest of THOSE sinners, they must be ten times as worse. It's called cognitive dissonance, and it's one of the oldest tricks in the book. So, to be clear, I'm not saying "moral people aren't moral," I'm saying "people who CLAIM THE HARDEST to moral often are not." It just so happens that religions and religious people like to hold high that particular banner, and so there is a biased population there. Lest we forget Ted Haggard, who only recently has discovered (after years of fire-and-brimstone preaching against gays and divorcees, etc) that his sexuality is "complex" and will take time to resolve, after snorting meth with a gay prostitute...right. Lest we forget California Assemblyman Michael Duvall, who loves having affairs with "really hot" women, enjoys a bit of spanking, and...oh, is so totally against allowing gays the right to marriage in California and is a strong promoter of "traditional family values." Lest we forget all those Catholic priests who...well, you get the idea. This isn't commentary on religion directly, although anyone who knows me knows I have my beef with organized religion, especially when it tries to wiggle its way into policy, but it is something to be noted. Keep a careful eye on those moral vanguard, lest you be disappointed when you find out just how much of con men they are.

Lastly, a straight-faced sarcastic proposal to make divorce illegal in California. I think he's very good. A little obvious with the sarcasm of it all, but very good overall. I've always wondered exactly what people meant by "traditional marriage." It's sort of a moving target. People throw up other words like "Biblical marriage" or "faith-based marriage," but that's really just another place-holder, like "Intelligent Designer" or "God" is for "we don't yet know how this happened." I mean, it would seem to me that polygamy was allowed for quite a few people in the Bible, so long as you were wealthy enough...and there were all sorts of bride-prices, dowries, sacrifices, and feasts that had to go on. I don't see too many people selling slaves along with their daughters, but...maybe that's just me. I also don't see too many Christians basing their marriages off of the Talmudic traditions, but, I guess as much as they like to claim we are a Judeo-Christian nation, there aren't too many Judeo-Christians out there.

The problem is even worse if we try to take an archeological perspective of what a "traditional marriage" would be. It'd be like gathering together a human, sheep, pig, cat, dog, rabbit, horse, ox, bear, dolphin, and mouse and asking "which one is the mammal?" Oh, you can pick one and say it's your favorite, but, as you can maybe guess, the answer's not quite right. So, really, all we have again is a group of people who want everyone else to follow their favorite system, to make everyone adhere to their laws. Now, in a federal sense, an certain bit of this is understood - you obey the traffic laws, giving up some bit of your own freedom, to enjoy the benefit of a mass transportation system. When you get married, there are certain legalities you have to get through, and you pay a tax to enjoy some benefits of the state. Okay, that's fine. But when a particular group, religious or otherwise, wants to legalize its own way of living, and only its own way, there's a bit of a problem. Imagine, if you are Christian, that a Jewish group wants to mandate that only Kosher food can be eaten from now on. Goodbye cheeseburgers, shrimp, and a helluva lot more. They're just protecting the sanctity of food preparation, and doing it in a very tradition-minded way. Do you have a problem with it? God decreed it, lest you forget as you munch on those shrimp cocktails. Now, Paul did indeed say it was okay to break Kosher, but also note that he said you shouldn't do it if it would offend those with whom you were dining. Well, well, if it's going to offend some of the more tradition-minded Jews, you'd probably better stop.

Or imagine if a Muslim group wanted to U.S. to adhere to Sharia law. Would you have a problem with it? What if, just imagine, they were the majority in this country? Would you have a problem with it then? Would you feel that your rights as a group of people are being trampled on? That some religious group is forcing their view of things onto the public through legislation?

There is a solution, though. It's not a perfect one - few are. It's cobbled together and frail, sometimes barely hanging on. It offends a great deal of people, but it allows society to work, however hobbling it may go. The solution is brilliantly simple - no religion, no philosophy, no particular group, even the majority, gets special treatment or free reign in legislation. You are free to practice your own religion, or lack thereof. However, just the same, I am free to practice my own, however different they may be. So long as they do not interfere with each others private rights, there is no problem (I can't kill you because my god told me to. I can refuse to eat cheeseburgers though). So, why don't we take a hint from the Constitution, you police your own religious community, I'll eat some shrimp scampi, and we extend the right of marriage to everyone, regardless of what particular bits of flesh they possess where (legislate only the minimum necessary - need for consent, proof of stability and support if needed, minimum age requirement, and maximum relatedness if-you-so-desire), and we all go home happy.

That's just my two-cents anyway.