DON’T PANIC!

November 9, 2016

OK, So the election is [almost] over, and at a national level, there are a lot of folks (by the latest results a [small] plurality of the nation’s voters) who are feeling everything from glum to despondent to suicidal — and with some reason perhaps.  Our country remains very sharply divided based on race, religion, culture, education, and income.  Each of those carries with it a portion of each person’s worldview, and those worldviews are sharply divergent.  Perhaps even more to the point, it is increasingly difficult to see how one brings those divergent views together into any sort of consensus that can move us – the collective us in the largest sense of all of humanity – to come together and take effective action on the pressing problems that demand our attention.

Those problems are numerous; ranging from climate change to income and wealth maldistribution to hunger, disease, (sounds a little bit like the four horsemen), war, crime, poverty, etc.  In this country, we have people who believe that we need to open our gates to immigrants fleeing war, oppression and poverty and those who believe we need to tightly secure those gates against the risk of terrorists and criminals.  We have those who believe that we need to let the free market loose from government shackles and those who believe those shackles need to be tightened far more to avoid the risk of another financial debacle.  We have those who believe Obamacare has helped millions of people to improve their healthcare and those who believe it is taking many Americans on a road to ruin, both financial and physical.

While the Republicans have now take control of both the Presidency and the Congress, they have not erased those divisions.  All you need to do is look at the electoral map of the country state-by-state, county-by-county, city-by-city, and even neighborhood-by-neighborhood to realize that the country is and will probably remain, at least for a while, very divided against itself.

Some of the checks and balances in our constitution have now be come less effective, but they have not disappeared.  The Republicans may “control” Congress, but they remain divided internally, as demonstrated by the many party leaders who divorced themselves from Donald Trump’s candidacy.  Whether they can unite behind a legislative agenda remains to be seen, as does the long-term effect of whatever legislation they succeed in getting enacted.  The Supreme Court remains, at least for the moment, a deterrent to any proposal that is so radical that it would violate the Constitution’s basic principles.  While Trump will probably appoint a conservative justice, that will only restore the tenuous balance that has been maintained for quite a while.  Even if that balance shifts to the right, it would not be the first time.  Under Reagan, the Rehnquist Court undid many of the precedents the Warren Court had set.  It did not, however, destroy the country.  Set it back, perhaps, but not destroy it.

There’s also the view that U.S. politics tends to “pendulum” over time.  Every time there’s a move to the left, there’s a countervailing move to the right, which is, again, followed by a move to the left.  We can’t predict right now how a Trump administration will work (or not), but chances are that two years from now at least some voters will be unhappy enough to want to change direction again.  Especially if Trump and his Republican allies succeed in their plans for tax and federal budget cuts, we may see ourselves moving into a major recession, which is likely to sour many voters on leaving the Republicans in charge.

In short, as the title of this blog post suggests, it’s not time to panic and start looking for another country to emigrate to.  Besides, there are few issues that respect national boundaries any more.  The economy, disease, and, of course, climate change, don’t stop at national boundaries.  If the U.S. is heading into a minefield, the rest of the world is close behind – or in some cases in front of us.  We’re just as likely to affect the direction humanity takes here as somewhere else.

So, I guess my take-home message in this post is perhaps best stated by paraphrasing alternative radio newscaster “Scoop” Nisker’s closing comment in his news reports:  If you don’t like the news, go out and do something to change it; and that can be something as simple as talking to your neighbors, friends, and relatives about your disagreements.

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The November 2016 Ballot Measures – Part 1 – Statewide Measures

October 18, 2016

This is the first of several posts I’m going to do on the November general election.  There’s too much on the ballot to put it all in one, or even two posts.  Just in terms of statewide ballot measures, there are seventeen of them.  That may not be a record, (The most in recent history was 20 in November of 2000) but it’s still a lot to get your arms around.

My starting point in commenting on them will be the recommendation of the Courage Campaign, a generally “Progressive left”membership group in California.  (Membership is defined loosely – no dues or anything, just a willingness to call yourself a member and participate in occasional lobbying efforts and membership poll.)  They polled their members and came up with a set of recommendations on the measures.  I don’t always agree with them, but it’s as good a place to start as any (and probably better than either the official Republican or Democratic Party positions).  In case you’re wondering what other groups’ opinions are, the Courage Campaign has put together a compilation of recommendations.  Here‘s the link to it.

Here goes:

Proposition 51 – $9 billion bond to fix and upgrade CA school facilities — Courage’s position: Neutral.  My position, Oppose.  I have become more and more skeptical of bond measure as I’ve seen more and more of them get twisted out of shape from what the voters are promised.  The state constitution requires that bonds be spent on what the voters approved, but the courts have been notably lax in enforcing those requirements, so I have become much less trusting.  In this case, however, there are other problems as well.  The $9 billion dollars is to be given out on a “first come-first served” basis, which will tend to favor the well-financed and well-organized (i.e., wealthy) districts who can get their applications in quickly.  The measure doesn’t prioritize poorer districts or those with more pressing capital needs (e.g., districts with older, earthquake vulnerable building or with overcrowded facilities).  The measure also take pressure off developers to pay for the schools needed to service big residential projects they build.  They are making the profits; they ought to pay for the public improvements those projects require.
Proposition 52 – Make Hospital Fee Permanent to Pay for Healthcare Services — Courage’s position: Neutral.  My position, Support.  While ideally we ought to have a single-payer system where everyone gets the healthcare they need and we all pay for it collectively through taxes.  (Clinton and Trump both reject single-payer, but what do you expect of candidates raking in donations from the healthcare, pharmaceutical, and private insurance industries.)  Given that we aren’t going to single-payer any time soon, at least this will make sure the neediest people in our society get at least some healthcare.  Yes, hospitals will pass on the fee to their users, but until we go to single payer, it’s probably the best we can do.
Proposition 53 – “Stop Right-Wing Millionaire from Blocking Infrastructure Projects” [Courage Campaign’s description, not mine]. Courage’s position –  Oppose.  My position –  Support. Big public project can bring with them big problems.  Nationally, there was Boston’s “big dig.”  Here in California, we’ve had the new Bay Bridge project and the BART to airport projects (Oakland & SF), all of which have had large cost overruns and questionable results.  (Both BART project have turned out to be big money losers.)  The main thing motivating this measure is Jerry Brown’s twin tunnel “peripheral tunnel” proposal for shipping more water south.  Because Southern California agencies would pick up most of the tab, this wouldn’t require a general obligation bond [which would already have to go on the ballot], but a revenue bond, which currently doesn’t require voter approval.  This measure would require voter approval for such measures if the involve over $2 billion.  Given the Legislature’s (and local agencies’) untrustworthiness,  this  seems to me to be a good idea.  Also, what happens if the revenue doesn’t cover the costs, or if one of the agencies promising to pay goes belly up.  Who do you think will end up picking up the tab?  Us, the California taxpayers.
Proposition 54 – 72-Hour Publication of Bills Prior to Vote — Courage’s position – Neutral.  My position – Support.  Particularly near the end of the legislative session, the Legislature now often resorts to so-called “gut and amend” measures, which take a bill that has already passed one house, removes all of its substance, and quickly replaces it with something entirely different.  Such “end of session” bills are notorious for being approved, with the connivance of the legislative (Democratic) leadership and the Governor, with little opportunity for public scrutiny or comment.  IMHO, this is really bad public policy, and in the past has resulted in some really bad bills.  Yes, this would slow down the legislative process, and might keep some measures from getting enacted, but that, to me, is not necessarily a bad thing.
Proposition 55 – Extend the Tax on the Wealthy to Fund Education and Healthcare — Courage’s position – Support. My position – Support.  This again is a stop-gap measure.  As Bernie Sanders said repeatedly in his campaign, we all benefit from making quality education available to all, and healthcare ought to be a right, not a privilege.  In almost all other developed countries, it is.  Why not here, because moneyed special interests control the legislative process, both in Congress and the Legislature.  This measure isn’t really what we need, but it’s better than the alternative of not having funding at all.

Proposition 56 – $2 per pack tobacco tax.  Courage’s position – Support.  My position – Support.  Opponents of this measure label it a “nanny tax” – government using its tax powers to force us to do “what’s best for us.”  If it’s approved by the voters, this won’t be government telling us what to do; it’ll be us deciding what WE want to do.  I sympathize with people who’ve been sucked into tobacco addiction; and there’s absolutely no question it’s an addiction, just as much as heroin or cocaine; and far more than marijuana.  Problem is, it’s a really harmful addiction, and we, as a society, end up picking up much of the tab for dealing with its harmful results – heart disease, emphysema, cancers of all sort – you name it and whatever harmful medical condition you think of is probably either caused by or worsened by tobacco use.  At least the proceeds of this tax will help somewhat pay for all those costs, as well as help pay for programs to get people to kick the habit.  Big tobacco, of course, opposes this.  I can’t think of a better reason to support it.

Proposition 57 – Reform California’s Broken Parole and Juvenile Trial System [Courage Campaign’s label].  Courage’s position – Support.  My position – Support.  You should read up on the details of this measure.  How things are run now is the sad legacy of twenty years of “tough on crime” ballot measures that have left our prisons overflowing  with inmates, destroyed many thousands of people’s lives, and haven’t really worked in terms of reducing crime.  Californians have had a schizophrenic attitude towards crime – on the one hand wanting to “correct” bad behavior and on the other wanting to punish it.  Even with pets, it’s become clear that punishment isn’t a good way to teach behavior.  People are much more intelligent than pets (at least mostly) and all punishment does is build resentment.  Prisons ought to be a last-resort place to put people that we can’t prevent from harming others any other way.  This measure was really forced on us by the federal courts’ acknowledging that  California’s current way of running its prisons – overcrowding them and focusing on punishment – violated the 8th Amendment’s prohibition on cruel and unusual punishments.  We’ve had to be dragged kicking and screaming to this measure, but at least we’re there.  Much more needs to be done before our criminal justice system begins to bear any relation to justice and recognize the realities of what we’ve learned about correction in the past hundred years.

Proposition 58 – Repeal the ban on bilingual education.  Courage’s position – Support.  My position – Support.  We’re finally undoing some of the mischief done by the over-simplistic and ideologically motivated ballot measures of the ’80s and ’90s.  Remember “English Only”?  Supposedly, bilingual education let non-english speakers go through school without learning english, and “immersion” in english would be “tough love.”  It didn’t work.  All it did was further reduce non-english speakers’ motivation for staying in school.  Without bilingual education, many non-english speakers will get no education.  How does that help us as a society?

Proposition 59 – Overturn Citizens United.  Courage’s position – Support.  My position – Support.  For any of you who may have been asleep for the past few years, “Citizens United” was the name of a U.S. Supreme Court case where the court, by a 5-4 majority, decided that 1) corporations had a right of free speech, and 2) donating money to political campaigns was equivalent to free speech and therefore could not be regulated.  Since then, corporate control of our government has mushroomed even beyond where it was before, with “dark money” political committees able to raise unlimited funds from corporate sources while those contributions were hidden from public disclosure.  Is it any wonder that our two major presidential candidates are both almost totally beholden to Wall Street and other big-money interests?  Unfortunately, this measure does little more than register whether California’s voters are unhappy with the current situation.  It remains to be seen how much California’s congressional delegation will pay to the results.

Proposition 60 – Mandatory Condom Use in Adult Films. Courage’s position – Neutral.  My position – Support.  This has been one of the more controversial measures on the ballot, because it deals with California’s huge porn movie industry.  There are two issues here: 1) should California outlaw unsafe sex in porn movies as a public health measure, and 2) should California stop porn movies from showing, and thereby glamorizing, unsafe sex?  My answer to both questions is yes.  We’ve known for more that 20 years that sex without condoms can spread sexually transmitted disease.  Maybe if people were all totally monogamous, and only had sex with one person – ever – condoms would only be needed for birth control (but isn’t that a good enough reason in itself?), but porn movies more often than not portray casual sex which is exactly where condoms are most needed.  Yes, it’s true we show lots of stupid human behavior in movies.  How about we eliminate one of the stupider ones?

Proposition 61 – drug price ceiling in California.  Courage’s position – Support.  My position – Support.  This measure would cap the price California pays for state-supported drug purchases (e.g., MediCal) to the price paid by the Federal VA, which negotiates prices with drug companies and does a very good job of it.  Short of going to single-payer [strange how that keeps popping up] this is another way to at least get some handle on reining in the explosive increases in prescription drug prices.  Not surprisingly, many mainstream organizations, like the Democratic Party, that get lots of money from the pharmaceutical industry, don’t support this measure.  Also not surprisingly, the Sanders campaign’s successor group, Our Revolution, does.  So do I, for the same reasons.

Proposition 62 – Repeal the Death Penalty.  Courage’s position – Support.  My Position – Support.  Here we go again.For some reason, Californians still seem to believe that the death penalty somehow makes sense.  Nevermind that study after study shows that it has virtually no deterrent effect, and that states and countries that have abolished the death penalties have no higher rate of what California calls capital crimes than states and countries that still execute people.To me, though, the most convincing argument is that juries are not 100% accurate.  We’ve seen over and over cases where someone was convicted and sentenced to death, only to discover years later that they didn’t do the crime they were accused of.  It’s bad enough when they’ve spent years in prison.  What do you do when they’ve already been executed.  Saying, “Oops, we’re sorry,” is so inadequate as to be criminal in itself.  If California wants to call itself a civilized state, it must eliminate the death penalty.  NOW.

Proposition 63 – Increased state controls on guns and ammunition.  Courage’s position – Support.  My position – Support.  I don’t care what the NRA says.  While guns, by themselves, don’t kill people (at least not usually), people with guns and ammunition do.  As has been pointed out innumerable times, when private citizens have more guns, the amount of gun violence goes up, not down.  In my humble opinion, the U.S. Supreme Court made one of its stupider decisions (other than Citizens United) when it decided the right to bear arms applied to individual private citizens.  Well, since we’re stuck with that (and Citizens United) for the time being, at least this makes private gun ownership a little bit safer for those of us who aren’t NRA fanatics.

Proposition 64 – Legalized Marijuana use.  Courage’s position – Support.  My position – Support.  OK, so marijuana isn’t a totally harmless drug.  If you’ve been smoking wed, your probably shouldn’t be driving a car, or operating machinery; but it’s no more dangerous than drinking alcohol, and a lot less dangerous (and addictive) than smoking cigarettes.  The prohibition on marijuana use is a hold-over from the days when the state was considered responsible for regulating private morality – along with prohibiting alcohol consumption on the Sabbath and prohibiting public displays of affection.  Folks, this is not Iran, and we don’t need to have the government regulating private morality and creating victimless crimes that get people thrown in prison.

Proposition 65 and 67 – plastic bag fee versus repeal of plastic bag prohibition.  Courage’s position – Oppose 65; Support 67.  My position – Oppose 65; Support 67.  Both these ballot measures are the result of the financial power of the plastic bag industry.  It circulated and qualified a referendum [Prop. 67] of the Legislature’s prohibition on disposable plastic bag use (like in supermarkets) and then qualified its own initiative measure that would allow them but put a fee on them to go into a state fund.  All you need think about is the huge island of plastic, much of it plastic bags, floating in the middle of the Pacific Ocean.  You can also think about the thousands of birds and sea creatures who die each year when they mistake plastic bags for sea creatures like jellyfish and choke on them.  also think about how much cleaner beaches and parks have gotten where disposable plastic bags have been eliminated.  We need to greatly reduce our use of plastic. Period.  It’s bad for the environment.  Yes, it’s regulating behavior, but so are many hundreds of laws that nobody complains about.  Regulating objectionable behavior is one thing government does.  Using plastic bags, unlike marijuana, isn’t victimless.  Ask a sea turtle that’s died from one.

Proposition 66 – Make the Death Penalty more “Efficient.”  Courage’s position – Oppose.  My position – Oppose.  As should be evident from my position of Proposition 62, I consider this proposition an embarrassing holdover from the years when Californian’s approach to crime was “lock ’em up” or “kill ’em.”  That approach didn’t work.  Making the death penalty more “efficient” – i.e., quicker to decide and carry out – will only increase the likelihood of mistakes.  I consider this measure little short of barbaric.  Hell, if we want to make the system more “efficient,” how about when someone’s accused of a crime, they’re immediately brought before a judge, who flips a coin.  Heads you’re innocent, tails you’re guilty.  That’s efficient, but it’s sure not justice.

 

Next post will deal with local ballot measures.  Third post will deal with candidate.

 


Why the Supreme Court Majority, in Misinterpreting the Second Amendment, has Violated the Canons of Statutory Construction

June 19, 2015

A well regulated Militia, being essential to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Constitution, Amendment II [1791]

That’s the Second Amendment, one of ten included in James Madison’s proposed first thirteen amendments to the Constitution. Ten of those thirteen were fairly promptly ratified and became the “Bill of Rights”. They are rightfully thought of as a bulwark against the over-expansion of the strong central government that Hamilton had pushed for, and specifically protections for the individual against the power of the federal government (and, since the ratification of the 14th Amendment, against the power of state and local governments).

The U.S. Supreme Court’s current conservative majority has taken the Second Amendment in this context, and has focused on its second half, “…the right of the people to keep and bear Arms, shall not be infringed.” In doing so, however, that majority has violated a central canon of statutory construction – that a statute (or constitutional provision) be interpreted to give meaning to every word of the statute.

The first half of the Second Amendment, “A well regulated Militia, being essential to the security of a free State,” can be seen as a preamble, or perhaps more precisely as a context for the second half. Another rule of statutory construction is that the words of a statute should not be read in isolation, but in context. Here, the context of the second half of the amendment is protecting “a well regulated militia” and its function of protecting “the security of a free State.”

In other words, the right to keep and bear arms is protected so that the people of the United States can continue to have “a well regulated militia”. Again, keeping the context in mind, in 1789 (or 1791) there was no standing federal army. An army was raised as the need arose. In the meantime, there were local and state militias – what we would now call paramilitary organizations, or perhaps militias as the term is used in places like Afghanistan and Iraq.

So, in that context, the right of “the people” to keep and bear arms is not an individual right, but a right of the people as organized into militias. Further, those militias were intended to be, “well organized”. Indeed, that was supposed to be the central purpose of having the right to keep and bear arms. A militia needs training and discipline if it was going to function well to protect the security of a free State. (And again, this should be taken in the context of a document written ten years after a prolonged war against what was then the central government, and fought largely by local and state militias organized under General George Washington.)

Bringing those concepts into the 21st Century, the right to keep and bear arms does not protect an individual’s right to own and carry guns (or sabers, or hand grenades).  Rather, it protect the right of the people, organized into well regulated groups intended to protect the security of a free State.

What do such organized militias include? Well, obviously they include the National Guard, as state militias have come to be known, and their members. They also include state and local police forces, which are intended to “protect the security of a free State.” They could also include well regulated local, state or national groups organized to protect the security of a free State. Could that include so-called “self defense” groups? Maybe. Right-wing paramilitary groups? Questionable. Groups of gun-toting skinheads or neonazis? Probably not. The Ku Klux Klan? I don’t think so.  They certainly don’t include individual citizens who aren’t part of a “well organized militia”, and certainly not the millions of deranged individuals and criminals who now, thanks to the majority of the U.S. Supreme Court, claim the right to keep and bear [and use?] arms.

Those on the Supreme Court (and I am thinking specifically of Justice Scalia) who strongly espouse strict constructionism and original intent in interpreting the Constitution, appear to have been lured by ideological predilections into straying from their self-chosen narrow path by broadening the meaning of the Second Amendment. Perhaps, in the context of the Charleston Massacre, it’s finally time they reconsider.


More Thoughts on Money and Politics

November 7, 2012

I’ve written before on what a disaster the U.S. Supreme Court’s decision in the Citizens United case has been.  Yesterday’s election, and the campaign leading up to it, again emphasized how that decision has fundamentally changed and degraded the American political process.  While it’s true that in some cases a candidate or ballot measure won in spite of being badly outspent, I don’t think it shows that money has no influence.  To use a sports analogy, if I had gone into the boxing ring against Muhammed Ali when he was in his prime, and he started the fight with one hand tied behind his back, there is little question in my mind that he’d still win easily.  Likewise, when a candidate or ballot measure is so obviously superior, large amounts on money won’t necessarily save the inferior candidate or issue position.

This brings me to another analogy (also from sports) that I think shows clearly why Citizens United was wrongly decided.  We all know that Lance Armstrong was a great athlete.  We also now know that he used steroids to enhance his performance.  Whether he could have won his many championships without using steroids is, at this point, impossible to say.  However, I think virtually everyone would agree that for him to use steroids in a situation that gave him an unfair advantage was wrong.

I would suggest that allowing a candidate or political committee to raise, donate, or spend unlimited funds, and especially to allow that to happen without anyone knowing where that money is coming from is like allowing someone to go up to Lance Armstrong as he prepared for a race and inject him with a needle-full of lord knows what kind of drug.  That’s not allowed in sports, and it shouldn’t be allowed in politics.


Strict Construction, Gun Violence, and the Second Amendment

January 10, 2011

The assassination of a federal judge and attempted assassination of a congresswoman, along with the killing of several “civilians”, once again brings to the fore the issue of gun violence and the Second Amendment.  This is especially true now that the Supreme Court majority has applied so-called “strict constructionism” to find that the Second Amendment protects private gun ownership from almost all federal and state regulation.

Justice Scalia, one of the court’s more vocal advocates for strict constructionism, argues that the Constitution’s interpretation can’t change with the times.  According to him, if circumstances change, the answer  is to amend the Constitution accordingly.  By that standard, it appears the time is overdue to amend the Second Amendment.

Back when the Constitution, and specifically the Second Amendment, was written, the primary firearm was the flintlock musket, an inaccurate, short-range, and slow-to-load single-shot gun.  There were also handguns, but they were dueling pistols and the like — again inaccurate, single-shot, and clumsy to use.  Contrast that with the ten bullet clip-carrying semiautomatic pistol used by last Saturday’s assassin, or the Uzi or M-16 type assault weapons favored for gang violence, or, for that matter, the extremely accurate multi-shot high-powered rifle used to assassinate John F. Kennedy.  There’s no comparison.  Indeed, once could argue that they shouldn’t even be described by the same word, and that “arms” as used in the Second Amendment had an entirely different meaning than the guns, IEDs, and other weaponry available to conduct modern-day violence.  Nevertheless, Scalia, the NRA, Teapartiers and their ilk insist that the Second Amendment allows free rein to gun-toters. 

Given the results of last Saturday, and looking abroad to places like Pakistan and Afghanistan, where assassinations are becoming an almost daily occurrence, the question is, isn’t it time we amended the Second Amendment?  Sure, maybe a single-shot hunting rifle or a BB gun doesn’t need regulation, but an AK-47 or semiautomatic handgun is an entirely different story.

If people like Scalia are sincere in their assertion that the proper course of action when the Constitution no longer works well is to amend it, it’s time for him, and those like him, to get behind a movement to amend the Second Amendment to assure that the kinds of weapons that can cause mass-mayhem aren’t easily available to would-be assassins.

While we’re at it, it’s also long past due to take into account the changed nature of the media and of election campaigns.  The Supreme Court’s Citizens United decision of last year practically turned the U.S. political system over to corporate control.  We really do need an amendment to recognize that the nature of political campaigning has fundamentally changed.  Unregulated campaign spending might have been perfectly OK in the confines of the thirteen original states, where almost anyone could afford to run off a broadside and have it hand-distributed by volunteers.  In this era of TV and radio ads, mass-mailings, focus groups, and psychologically attuned campaign consultants, however, it is increasingly true that we have been trapped by the “golden rule” — Those who have the gold make the rules.  That certainly wasn’t what the writers of the First Amendment envisioned.  If it takes a Constitutional amendment to bring power back to the people, then we need to get started on that process.

One last thought on Scalia and his strict constructionism friends:  The writers of the Constitution were not gods.  They were men coming from divergent situations attempting to cobble together a working structure for a national  government.  The Constitution includes numerous compromises reached to accommodate the differing view of the powers-that-be in different colonies.  Those compromises, and the reasons behind them, have now been well-documented.  While some of the divergences continue to exist — e.g., between large population and small population states, between urban and rural states, others, such as those associated with slavery, have long-since vanished.  Further, we have, over time, come to realize that some of the Constitution’s structures and procedures were neither functional nor fair.  Some of the worst of these, such as having Senators chosen by state legislatures, have been corrected.  That doesn’t mean, however, that we need to accept the current Constitutional structures and procedures as God-given mandates carved in stone.  Indeed, after almost two and a quarter centuries, maybe it’s time to consider a new Constitutional Convention. … Just a thought.


Political Campaigns, Free Speech, and the Citizens United Decision

November 7, 2010

This November’s election was our first real chance to see the effects of the U.S. Supreme Court’s Citizens United decision.  The results are ominous for the future of U.S. politics.  Bucketfuls of money poured into political campaigns, both directly and as unregulated “independent expenditures” from groups such as the U.S. Chamber of Commerce, who are no longer required to even disclose where the money is coming from.  As a result, moneyed special interests are exerting an influence unparalleled since the end of the “gilded age” of the 1880s.

The irony is that the Citizens United decision is based on a fundamental misreading of the First Amendment to the U.S. Constitution.  That amendment states, very simply, that, “Congress shall make no law respecting … …or abridging the freedom of speech … .”  As with all of the provisions of the Bill of Rights, we now have over two hundred years of Supreme Court jurisprudence interpreting that simple phrase.  The U.S. Supreme Court’s decisions have made a sharp distinction between regulating the content of speech and regulating the “time, place, and manner” of speech.  While the former is subject to “strict scrutiny”, requiring that any regulation be narrowly tailored and necessary to address a clear and present danger to a substantial interest of the state, the latter allows regulation so long as it is even-handed (i.e., content-neutral — applying equally to all speech, regardless of what it’s about).

In Buckley v Valeo, the Nixon-era Court, led by Chief Justice Warren Burger, decided that money was equivalent to free speech — i.e., regulating political contributions or expenditures was the same as regulating political speech.  A moment of thought should show the error that opinion created.  Money does not create political speech, hence regulating how much gets donated or spent doesn’t prohibit speech — it just regulates how loud that speech is. 

Just as a city can prohibit sound trucks from blasting political speech (or any other kind), so it would seem that government ought to have the power to limit how much money gets contributed or spent on political campaigns.  However, the complicating factor is that, in order to be content-neutral, such regulation would have to apply to all kinds of speech; not just political speech.  For example, the FCC could promulgate a regulation limiting how much time any one advertiser could buy for on-air commercials in any particular period of time (say, for example, no more than 1% of the broadcast day).  The post office could similarly limit how many pieces of advertising mail could be mailed in any one period.  However, in order not to invoke strict scrutiny, such regulations would have to apply to all kinds of mailings, not just political advertising.  This could be problematic; but, on the other hand, it could greatly cut down on the amount of junk mail and TV and radio ads Americans have to deal with — something that I suspect would delight most people.

The other option would be to identify a justification for content-specific regulation of speech that would survive strict scrutiny.  In the past, the Supreme Court has sometimes accepted preventing corruption or the appearance of corruption as justification for limiting direct campaign contributions, but not campaign expenditure or contributions to non-candidate-based political committees.  Since the Citizens United decision, however, it’s unclear if that will still work.  The court has repeatedly rejected arguments about trying to maintain a “level playing field” for political candidates.  Evidently, the Court feels that fair play has no place in the American political process.

One wonders, however, whether there’s an argument to be made that when one side can effectively drown out the other side’s voice — the equivalent of blasting away with loudspeakers so that other people can’t even be heard — government has a right to step in to protect the free speech right of those being overwhelmed.  Perhaps there needs to be the equivalent of the Sherman Antitrust Act to protect the free market of ideas from being monopolized by one group’s raw monetary power?


More on judicial voting

October 21, 2010

The California Supreme Court just came out with an interesting non-decision that bears on the November election’s confirmation votes.  The justices voted not to hear a petition for review on a recent appellate case on free speech in shopping centers.  At issue was a preacher who was talking to willing listeners about his religion.  A security guard came up and told him to stop.  When he refused, he was handcuffed, arrested, and escorted from the mall.  He was later released and charges were dropped, but he sued the shopping center for false arrest and interference with his California free speech rights.  While the trial court rejected his suit, the court of appeal, in an opinion written by the new chief justice, Cantil-Sakauye, reversed.

Cantil-Sakauye’s opinion pointed to a California Supreme Court opinion from the Bird court some thirty years ago that said that the California Constitution’s free speech rights guarantee was broader than that of the U.S. Constitution, and covered semi-public places like shopping malls.  Under that ruling, and subsequent appellate case law, while shopping malls can make reasonable regulations about the time, place, and manner of speech, they can’t make content-specific rules unless those rules are justifiable under “strict scrutiny”.  The rules this mall had promulgated, which only allowed conversations related to commercial  transactions, were absurdly narrow and subject to blatantly discriminatory enforcement (as was evident in the case).  Nevertheless, Justice Ming Chin, along with Justice Baxter (the long-standing right-wing bulwark of the court) voted to grant review.

Cantil-Sakauye and Ming Chin are both on the ballot for confirmation this election.  This appellate decision and its supreme court review suggest that you might want to vote for one or the other, but not both.  If you agree with Cantil-Sakauye’s ruling, you should probably vote for her and against Ming Chin’s attempt to reverse more than thirty years of precedent.  If you’d rather have restricted speech in shopping malls (which is where Ming Chin probably wanted to take things), you should vote for him and against her.


Time to save the government!!

February 8, 2010

The U.S. Supreme Court has finally given away the entire store to corporations. (They’ve been gradually doing so for the past thirty-five years — see my essay on campaign finance reform on my law offices page.) If we want to return to government “of, by, and for the people,” we need to act. Click on the link below to get a bumper sticker and connect to the movement to take back America. 



The spook in the White House

July 12, 2009

Revealed!  There was a spook in the White House!!!  No, it wasn’t the ghost of Abraham Lincoln, nor that of his ten year old son, William Lincoln, who died in the White House in 1862.  Nor was it any of the other U.S. Presidents who died in office.  This spook is still alive and very much kicking.

As revealed this week, former Vice President Dick Cheney was instrumental in establishing a secret spying program in the CIA, and then hiding it from Congress.  Here’s an article on the program and Cheney’s role.

Of course, this news is not a big surprise to those of us who’ve gotten to know Cheney’s ways over the eight years when he pulled the strings on W’s puppet regime.  It all goes along with Bush-Cheney’s conception of the “imperial presidency”, where supposedly the Constitution granted the President (and, in his stead, the Vice President) plenary power to do whatever the hell they wanted to the country.

Doesn’t fit with your understanding of what the Constitution says?  No problem.  The Bush Jr./Bush Sr./ Reagan  majority on the Supreme Court stands ready, willing, and able to show you how to read it properly.  (Of course, George W & Co. didn’t quite get the chance to finish the job right in terms of the Court’s membership.  Those darned liberal justices were unwilling to retire or die quickly enough to pump up Bush’s majority position.  So now Cheney is  stuck with only wishy-washy some-time 5-4 majority to defend his actions, depending on how Justice Kennedy happens to feel on the issue.)

No matter.  The Bushes picked a bunch of young and healthy reactionaries to fill their court slots, so come 2012 when Sarah Palin sashays into the White House, she’ll certainly be able to complete the task.  (Of course, Palin’s landslide victory would come along with veto-proof Republican majorities in both houses of Congress, easily able to confirm anyone short of Adolph Hitler.)

In the meantime, wouldn’t it be nice if Cheney could be indicted, prosecuted, convicted, and sentence so at leas he’d spend a few days in a federal prison contemplating his illegal actions before Sarah Palin grants him (and George W.) a full pardon?


On Torture, the Constitution, and the Exclusionary Rule

May 22, 2009

I’m going to shift gears today from my recent series of posts and talk about something that has nothing to do with elections or California politics.  Instead, I’m going to discuss the question of what to do with the prisoners currently being housed at the “GITMO” — The Guantanamo prison facility built to house terrorism suspects.

President Obama has proposed dividing the GITMO prisoners into five categories, each with a different proposed treatment.  To cut to the chase, I agree with Obama about four of his five categories, but I take strong exception to how he proposes to deal with the fifth category.

The easiest category to address is those prisoners who apparently did nothing wrong — other than being at the wrong place at the wrong time.  Those prisoners should be promptly released.  They should also (although Obama hasn’t proposed this) be paid generous compensation for their wrongful imprisonment and be offered the formal apology of the U.S. government for its misdeed in holding them these many years without good cause.

A second category, at the other end of the spectrum, is those for whom there is good evidence supporting criminal prosecution on terrorism or other criminal charges.  They need to be brought to the U.S. and quickly brought to trial, with the full protections accorded by the U.S. Constitution.  Hopefully, justice will be done.

The third category is those for whom there is strong evidence of illegal acts of war.  They need to be treated as prisoners of war and tried under the military justice system, although again with the proper Constitutional protections afforded by that system.

A fourth category is those who committed no offense under U.S. law, but appear to have committed criminal acts properly addressed by another country’s justice system.  Unless there is good evidence that trial by that country would amount to unwarranted persecution, those prisoners should be promptly extradited to the appropriate country and brought to trial there. 

Finally, there’s one last, and highly controversial, category — those for whom there is good evidence of criminal offenses, including terrorism, but some of the evidence necessary for conviction was obtained by the use of torture or other means that violate U.S. Constitutional rights.  President Obama has proposed that these prisoners be relegated to a kind of permanent confinement limbo — detention without trial — due to their inherent danger if released.  I find this highly problematic.  It maintains the same fiction that the President bravely spoke out against during the presidential campaign — that practical expediency can justify voiding the Constitution’s protections for individual rights.  That assertion was wrong when applied to hundreds of prisoners; it’s still just as wrong even if only applied to two or three.

The crux of the problem is the exclusionary rule.  This rule, adopted by the Warren Court in the 1950s and 1960s, says that if evidence was obtained in violation of a defendant’s constitutional rights, that evidence cannot be used to convict the defendant.  A corollary is what’s often referred to as the “fruit of the poisonous tree” doctrine.  That rule says that not only is the improperly-obtained evidence excluded; so is any evidence developed based on the excluded evidence.  A classic example would be a murder suspect who’s interrogated without informing him of his Miranda (Fifth Amendment) rights.  If the suspect, during that interrogation, tells the police where he hid the murder weapon, not only his admission but also the murder weapon itself would be excluded from use as evidence.   The Supreme Court explained that part of the rule’s purpose was prophylactic — to deter police from being tempted to use improper techniques by denying them the “fruit” of such improper and unconstitutional actions.

The exclusionary rule is a very powerful and important rule.  It has done much to reform the activities of police and prosecutors.  However, courts have come to recognize a wide variety of exceptions to the exclusionary rule — situations where the exclusion of evidence isn’t warranted in spite of the Constitutional violation.  I would suggest that this last class of GITMO prisoners may warrant creation of an additional category of exception.

There’s little question that some GITMO prisoners were tortured.  There’s also little question that the evidence obtained by such torture, while potentially valuable, has reduced evidentiary value because it was obtained through torture.  Much psychological evidence shows that, under torture, a prisoner will say almost anything, including obvious falsehoods, to stop the pain.  There is, further, little question that an exclusionary rule absolutely prohibiting the use of evidence obtained during torture is a powerful deterrent to the use of torture.  Unfortunately, under the Bush Administration, it was apparently not powerful enough. 

We’re now left with a small group of prisoners who, under torture, revealed information implicating them of serious crimes.  Presumably, additional corroborating evidence has since been obtained, perhaps as the “fruit” of information obtained through torture.  The problem is that if all this evidence is excluded, there may well not be enough evidence to obtain a conviction.  Still, it’s not right or Constitutional to hold these prisoners indefinitely without allowing them the opportunity to try to prove their innocence.  What to do?

My suggestion, which would eventually have to be accepted by a court, probably the U.S. Supreme Court, would be to create a very limited and partial exception to the exclusionary rule for this situation.  To begin with, this exception would need to be retrospective only.  Its very creation would serve notice that it could not be invoked to “save” evidence obtained from future application of torture.  Second, the exception, while it would allow the introduction of evidence obtained through the unconstitutional use of torture at GITMO or other locations, would also allow the defense to introduce any and all evidence relevant to showing the questionable value of that evidence in terms of its credibility.  Third, and perhaps crucially, the exception would create a presumption that evidence obtained through torture was not credible, and the burden would be on the prosecution to show, by clear and convincing evidence, that the evidence had sufficient credibility to allow its introduction.  

Such a rule would be far from perfect, which is an important reason why its use would need to be limited to being retrospective only.  If allowed to be use in future instances, it could fatally undermine the prophylactic value of the exclusionary rule and encourage extremely dangerous abuse of the state’s police powers.  Further, the rule would also sap the value of the “poisonous fruit” doctrine, because the secondary evidence might not be directly linked to the torture, and therefore might have reasonably high credibility.  (Going back to the previous example, while the suspect’s confession might be of questionable credibility, the murder weapon, including such things as fingerprints, evidence of recent use, etc., would not share that lack of credibility.)

While the Bush administration’s actions have created a Hobson’s choice for dealing with those who underwent torture, the limited exception to the exclusionary rule that I have outlined seems far preferable to President Obama’s (and former President Bush’s) proposal of permanent unconstitutional detention.


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