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Friday, September 15, 2017

Review: Dark Money by Jane Mayer

The demonization of the Koch Brothers political machine by Mayers, while impressive, reminds me of one reason why the Democrats failed in 2016. They will have difficulty regaining Congress if they continue to focus on personalities rather than policies and issues. The book plays into the Democrats' (liberals?) need to blame someone else rather than their own failures. The Democrats' emphasis on right-wing-conspiracies, which may indeed exist, but are far more fragmented than Democrats suppose. The right is splt, e.g., the Koch's support for libertarian issues (note that they part company with conservatives on several issues such as immigration, free-trade, and justice – Liberals would be far smarter to join forces with the Kochs on those issues rather than antagonize them.) The Kochs are using the same techniques developed by the left in the sixties to build support for liberal agendas. In the meantime Democrats have lost sight of the needs of what used to be their core constituency, i.e., blue collar workers, the so-called middle-class. Trump represents a failure of both the right and left. He was able to appeal to economically savaged whites who wrongly blame immigration and free trade for their problems. Free trade and free immigration are core libertarian, i.e., Koch principles. The Tea Party movement may have backfired on the Kochs. "Ordinary conservative citizens and community activists, almost all white and mostly older, provided angry passion and volunteered their energies to make the early Tea Party more than just occasional televised rallies. Grassroots Tea Partiers accomplished an utterly remarkable feat: starting in 2009, they organized at least 900 local groups, individually named Tea Party units that met regularly."1

There is no doubt that money in politics decays government. That it has always predominated is hardly a justification. (I'm reading Rubicon, a history of Rome by Tom Holland. The wealthy predominated and controlled the political system. In this country, the wealthy have always controlled the press, and the distribution of information, so little has changed.) But I would have far more sympathy for the "scourge of money" position if the debate were not so content-centric, i.e., the antagonism for money comes primarily from those opposing the ideas promoted by the moneyed class. Theda Skocpol, author of a book on the rise of the Right3, in a review1 of Mayer's book said, "Mayer overlooks divisions within the right and offers no insights that could help us understand the unruly Trump surge. Dark Money portrays an unstoppable, unified far-right juggernaut led by plutocrats. It correctly alerts us to many aspects of their secretive, unaccountable machinations. But the full story of what is happening on the right is more complex and volatile. . . .We learned that grassroots Tea Partiers were far from disciplined libertarian followers of ultra-free-market advocacy groups. Local Tea Party groups met in churches, libraries, and restaurants, and collected small contributions or sold books, pins, bumper stickers and other Tea Party paraphernalia on commission to cover their modest costs. They did not get by on checks from the Koch brothers or any other wealthy advocacy organizations. Furthermore, the views of both grassroots Tea Party activists and of many other Republican-leaning voters who have sympathized with this label do not align with free-market dogmas. Research by political scientist Christopher Parker at the University of Washington reinforces our conclusion that ordinary Tea Party activists and sympathizers are worried about sociocultural changes in the United States, angry and fearful about immigration, freaked out by the presence in the White House of a black liberal with a Muslim middle name, and fiercely opposed to what they view as out of control “welfare spending” on the poor, minorities, and young people. Many Tea Partiers benefit from Social Security, Medicare, and military veterans’ programs, and do not want them to be cut or privatized. About half of Tea Party activists or sympathizers are also Christian conservatives intensely concerned with banning abortion and repealing gay marriage."
I suspect Mayer was too enamored of professional politicians' view of the impact of AFP which according to Skocpol was negligible because they missed the true character of the Tea Party, many of whom became Trump supporters and activists. Others are not so sure, suggesting that the money spent by the Kochs on think-tanks and in academia was far more powerful in the long run. This was money not spent directly on candidates, but has had a far more reaching influence. One great sin ascribed to the Kochs is that “They said they were driven by principle, but their positions dovetailed seamlessly with their personal financial interests.” So who among us can say otherwise? We expect them to be more righteous?

The debate becomes even cloudier and less germane when the Citizens United decision is added to the mix. It’s important to remember that the decision was about an anti-Clinton movie. The producers had paid for the right to show the movie to a pay-per-view audience. The Federal Election Commission ruled they could not show the movie during the 30-day period before the election. The group called Citizens United, which had sponsored the film, appealed. SCOTUS, in a 5-4 decision reversed a lower court ruling arguing that if the Constitution protects any speech at all, it protects political speech, and it overturned Austin.4 What bothers many people about the decision is they went a little further in saying the FEC could not prohibit political speech during the thirty-day period before an election, by also saying that “While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.” 2 Citizens United was a public association funded primarily through private donations but also some from public corporations.

Ironically, the Citizens United decision had nothing to do with the personhood of corporations. The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections. . . Many may be surprised to learn that no federal campaign finance law has ever been struck down by the Supreme Court on grounds of "corporate personhood" or any kind of corporate rights. The court has consistently hinged its decisions on the First Amendment rights of the listener to hear all sources of the free and open debate and of society to enjoy an abstract "freedom of speech" disconnected from the identity of the speaker.4

The court based its decision on long-standing decisions (going back to 1976 in Buckley v Valeo) that money is speech and that: ... voters must be free to obtain information from diverse sources in order to determine how to cast their votes. . . . . When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

Note there are lots of reasons to condemn the Citizens United decision, it's just that person-hood is not one of them so a constitutional amendment to revoke "corporate person-hood" would have no effect on campaign financing at all. What the Nine failed to do was to define the balance between free speech and the corrupting influence of money in elections. SCOTUS may have overstepped its mandate by going further than dealing with just the issue of the movie and striking down a legitimate attempt by the legislature to deal with money's corrupting influence. It certainly does not have authority to deal with election integrity under the Constitution. (See “The Problem with Citizens United is Not Personhood” by Rob Hager at Truth-Out.org4) The SpeechNow 7 decision was perhaps more insidious in opening the floodgates of money through individual contributions.

In light of that, I think several questions need to be answered before making what I consider to be rash decisions to control money in politics:

1. Fairness. How would you allocate money to anyone to spend on issues. By issue? By mode of expressions, i.e., TV, newspaper, radio, etc.? Do you limit the amount of money anyone can spend? How is that fair if I may feel more strongly about an issue than you do?
2. What if I have a zillion dollars and decide I want to influence an election by hiring a bunch of writers to write and publish books about the opposing candidate. Would you prevent the publication of those books? (During oral arguments the issue came up as to whether a corporation could pay for or provide support to have a book published that might be read during the 30-day “black-out” period and the government, to its discredit” said, in response to a question from Justice Roberts, that “ we [the government] could prohibit the publication of the book using the corporate treasury funds. Now that’s pretty dangerous territory and the court was to make it clear in Kennedy’s decision that the medium, i.e. cable, satellite, print, whatever, should have no effect on free speech protection.)
3. Should the Koch brothers be prohibited from funding think-tanks or academic institutions like the American Enterprise Institute or the Hoover Institution or any number of right-leaning organizations? Or the Brookings Institute, a left-leaning group? Or endowing university departments? Where do you draw the line?
4. Do you prevent corporations and unions, or any type of association, from any kind of political speech? Isn't political speech exactly what the First Amendment was designed to protect? Aren't associations collections of people with a common interest? Should be banned from political support?
5. Isn't the issue content rather than policy? If the Koch brothers were spending their money on support for our concerns would we be equally upset? I doubt it.
6. Is public financing the answer? Perhaps, but let's not forget Obama was the one who threw that under the bus when he refused to limit his spending after receiving huge amounts of small donations. How do you determine who is a legitimate candidate to receive that funding? Would that not exclude third-party candidates?

So what do we do about the corrupting influence of money in politics without impinging on vigorous political dialog?

I would suggest the following:
1. Public disclosure and auditing of all sources of campaign funding.
2. Strengthen ethics rules to prohibit voting on legislation that would favor a person or group having donated to the representative. And make the Supreme Court Justices follow tighter conflict-of-interest rules. (The way it is now, each individual justice determines whether or not there is a conflict.)
3. From the Constitution: "The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make (US Constitution, Article III, Section 2)." Admittedly dangerous, Congress could simply say, hey SCOTUS, you don't have jurisdiction over election financing and then pass laws passing limits, e.g. banks, or manufacturers, or anyone buying stuff from the federal government can't give money to elected representatives. (Good luck with that one.)
4. Consider increasing the inheritance tax to 90%. People should earn their money, not inherit it.
5. Revise how government contracts are awarded and prevent congressmen and their staff from going to work in industries they may have regulated. (This is probably an unconstitutional infringement on free movement, but worth a shot.)
6. Give some thought (and action) on how to address income inequality. “Wealth begets power and power begets more wealth.”
7. Reform the tax code along the lines of New Zealand's which lowers the rates but broadens the base (BBLR), a scheme promoted by TR Reid in his book, A Fine Mess: A Global Quest for a Simpler, Fairer, and More Efficient Tax System. But it requires elimination of virtually all deductions.

Dark Money is a fascinating book both for its exhaustive analysis of a political machine, but also the salacious personal details of the rich and famous.


3. Skocpol, Theda and Williams, Vanessa. The Tea Party and the Remaking of Republican Conservatism
. Oxford University Press, 2013 (Skocpol is cited often by Mayer)
5. For a discussion on the history of personhood and the Constitution see "Personalizing the Impersonal: Corporations and the Bill of Rights"By Carl J. Mayer Hastings Law Journal, Hastings College of Law at University of California, March, 1990; Volume 41, No. 3 republished by
6. For a really interesting take on the Democrats' desire for a constitutional amendment see Rob Hager's The Amendment Diversion: How Clinton, the Democrats, and Even Sanders Distract Attention from Effective Strategies for Too Much Money in Politics by Promoting Futile Remedies -- Book I: Hillary Clinton and the Dark Money Disclosure 'Pillar'

Thursday, September 14, 2017

Impeachment: Two books

With all the loose talk about impeachment in the media and elsewhere, I found the recent review of two expert opinions in the New York Review of Books to be quite illuminating. Allan Lichtman’s The Case for Impeachment makes the extreme case that the president can be impeached for just about anything. To quote Gerald Ford, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” A very loose, and, I would argue, undemocratic and dangerous view indeed. The idea that Congress might be allowed to exceed the Constitutional strictures, as open to interpretation as they may be, is frightening. Feldman and Weisberg judiciously suggest that while even though the language may be broad to allow unfettered political justification for impeachment is wrong. Can a president be impeached and thrown out of office for offenses committed before taking office? And what kind of offenses?

Richard Nixon tried to manipulate the outcome of his election to a second term, but he was a sitting president while those offenses were committed and in any case his other actions constituted obstruction of justice. If Trump was indeed involved with the Russians in an attempt to sway the election in his favor, or at least against Clinton, he might be excused. But since then he has condemned himself numerous times in assorted tweets that are prima fascia attempts to thwart justice. Lichtman really goes off the rails when he suggests that Trump could be impeachment for his policy (or lack thereof) regarding global warming and climate change. Impeachment, as James Madison noted, should never be used to correct perceived “maladministration.” That vague term, if implemented, would result in a president serving at the pleasure of the Senate, not what the Framers intended I’m sure.

Article II, section 4 Treason, Bribery, and “high” crimes and Misdemeanors. “High,” the authors note, has an archaic meaning, that is, “when they relate to the president’s exercise of the distinctive duties of his office.” In other words, “presidential actions that contradict, undermine, and derogate democracy and the rule of law. They are actions that weaken the liberty and equality of individuals and the capacities of other branches of government.” Alexander Hamilton wrote in the Federalist #65 that impeachment was reserved for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Treason has a well-defined meaning in the Constitution and can only take place during time of war, so one might ask, whether anyone’s actions in a conflict where Congress has not declared war could possibly ever be considered treason. But bribery is really tricky for Trump. If a foreign country wanted to influence the president into making a favorable foreign policy decision, and by staying in the Trump hotel Trump’s income goes way up, does that constitute a form of bribery? Or is it a violation of the emoluments clause when a foreign official stays at a Trump resort thereby increasing Trump’s personal income? (Membership fees at his properties have gone up considerably since he took office.) His lawyers claim they are just a business transaction but no such exemption or exception is mentioned anywhere in the Constitution. The reviewers cite several examples of interactions that could easily be considered quid pro quo. It’s the kind of corruption that is endemic to Italy, among others.

Two other concerns that could lead to impeachment are his subversion of the democratic process should it be found that he encouraged Russian interference in the election. The other is his challenge to the independence of the judiciary by questioning their independence, and we won’t even mention his comment that the role of Congress is to defend him!

Impeachment is a last resort process and no president has ever been removed from office because of it. These two books bring out a myriad of reasons and examples from several points of view and may become essential reading.

Books discussed in the NYRB article: The Case for Impeachment by Allan Lichtman and Impeachment: A Citizen’s Guide by Cass R. Sunstein Read the original long article in the September 28, 2017 issue.

Monday, September 11, 2017

Review: L.A. Rotten. A Tom Tanner Mystery by Jeff Klima

What bizarre book. Tanner is a paroled felon who has a job cleaning up homicide sites. He inadvertently discovers a pattern of murders, all committed in room 236 of motels close to the interstate. He and his girlfriend, Ivy, resolve, in between heroin hits, to find the killer. In the meantime, he is being harassed by the police who believe him to be responsible for the death of an officer, even tough he has a rock-solid alibi. It holds your interest in spite of gruesome details as you await the inevitable train wreck. 

Tuesday, September 05, 2017

Review: The Prone Gunman by Jean-Patrick Manchette

Martin Terrier wants out. Having worked as a paid assassin for "the company" run by an obscure American, Mr. Cox, he decides to return to his native town where he had left Anne Freux who had promised him to wait for him ten years before while he sought his fortune. Now everything has gone to shit; Cox doesn't want him to quit as he has a big job coming, his financial advisor has committed suicide after losing all his clients money, and worst of all they killed and dismembered his cat. Anne has married Felix in the meantime ("I only drink whiskey-sours because they taste like vomit. “If you systematically drink something that tastes like vomit,” continued FĂ©lix, “you won’t be confused when you end up vomiting.” ) who is killed in a shoot-out forcing Martin/Christian to go on the run.

The ending is satisfactorily unpredictable and unexpected. Perhaps it was just me, but the translation felt a bit off in spots. There was apparently a movie tie-in with a Sean Penn thriller entitled The Gunman that I watched but with which I could find zero resemblance.