ataxingmatter

Gay Marriage Decisions-- As Expected, A Step Towards Full Civil Rights for Gays

 In 5-4 decisions in which Justice Kennedy, as considered likely, joined the Court's liberal wing to form a majority as against the Scalia-Thomas-Roberts-Alito rightwingers, the Supreme Court delivered its opinions in the two gay marriage cases before it this term.  They are-Hollingsworth v Perry (rejecting an appeal of the lower court decision overturning California's Proposition 8, on technical jurisdictional grounds), and US v. Windsor (affirming the unconstitutionality of Section 3 of DOMA (the federal "defense of marriage act" ) that forbids the federal government from treating as married spouses for any federal law purposes those gay couples that are legally wed in their state jurisdictions).

The Windsor case was on appeal from the Second Circuit, which applied heightened scrutiny to find unconstitutional DOMA's denial of the marital exemption to a same-sex surviving spouse of a marriage that took place in Canada and was recognized in New York where the couple lived at the time of the spouse's death. 

The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Slip op. at 14.

The jurisdictional issue in Windsor was not a hangup for the Court.  As I had indicated in the BNA Webinar on the two cases prior to the decision, the US retained a sufficient stake in the matter--relying on INS v. Chadha, the Court found that the government's refusal to pay the tax refund, even after the Justice Department's decision not to defend such cases,  provide an existing Article III "case or controversy" before the Second Circuit and before the Supreme Court. 

The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax.  Slip op. at 8. 

There was merely a prudential hurdle to overcome, and here prudence argued for a decision, given the extensive amici briefings on both sides, including the House-leadership organization's briefing adverse to the Executive.

BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decisionwith which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred infailing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and amyriad of federal regulations.

The constitutional holding in Windsor is a narrow reading of the equal protection afforded by the Fifth Amendment's extension to the states.  Writing for the Court and joined by Justices Kagan, Sotomayor, Breyer, and Ginsburg, Justice Kennedy recognized that states have historically been allowed to define marriage--subject to Congressional restraints as in Loving v. Virginia's rejection of miscegenation laws--and noted that DOMA intervened to take away a protected status provided by those states that had recognized gay marriage--this was both the Congressional purpose and the effect of the law.  Because it creates two-classes of marriages within a state that recognizes one class of marriage, and forces couples to treat their relationship one way for state purposes and another for federal purposes, it violates the most basic principles of equal protection.

Today twelve states and the District of Columbia recognize same-sex marriage.  This decision gives same-sex married couples in those states equal treatment under federal law with married couples. 

Here the State’s decision to give this class of persons the right to marry conferred upon them a dignityand status of immense import. When the State used its historic and essential authority to define the maritalrelation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protectionof the class in their own community . ... What the State of New York treats as alike the federal law deems unlike by a law designed to injurethe same class the State seeks to protect.

***

This status is a far-reaching legal acknowledgment of the intimate relationship between two people, arelationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historicalroots of the institution of marriage and its evolving understanding of the meaning of equality.

***

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group.

 ***

The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.This raises a most serious question under the Constitution’s Fifth Amendment.

***

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

***

Though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause ofthe Fifth Amendment.

 ***

 This requiresthe Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s DueProcess Clause contains within it the prohibition against denying to any person the equal protection of the laws

But there is a huge problem looming because of the failure of many states to recognize same-sex marriages performed in other states even though they recognize all other marriages performed in those other states.  Section 2 of DOMA--which allows states to refuse to recognize sister-state marriages--in flagrant violation of the normal rules of comity between states--was not at stake here and thus its repeal remains for future cases. This means that there will be considerable uncertainty --and much bigotry and discrimination against gay couples for some time as those states that have enacted discriminatory constitutional or statutory provisions against gays continue to deny marriage rights to gay married couples when they move  into them, and perhaps prevent them from retaining custody of their children or being able to legally divorce their spouses or will estates to their spouses.  These problems will be resolved, at least for now, under each states "conflict of laws" provisions, with the overlay of the state's constitutional prohibitions, where existing, on recognition of same-sex marriages.  This will cause harmful suffering to gay couples, so one would expect that there will be litigation on this issue soon.  The Court's opinion regarding the many problems that would be created by extended litigation over the legality of DOMA section 3, across 1000 federal laws, shows that factor weighed heavily in its prudential decision to consider the constitutionality of Section 3.  Perhaps it failed to adequately consider what it would mean to fail to carry the point further to a repudiation of same-sex marriage bans under a full Equal Protection holding.  After all, the Court, citing Loving v. Virginia, acknowledged that

State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.

The result is that gay marriage is recognized  in the 12 states and the District of Columbia that have official recognized gay marriage either through legislation or court action (and, under Hollingsworth v Perry, now also in California), and that couples married in those states can now file joint returns, inherit an estate from a spouse without paying any estate tax and otherwise enjoy the special privileges (or, in some cases, burdens) provided to married couples under federal tax law and all other federal laws.

Regretably, but as expected, the Court did not reach the question of whether state-law prohibitions of gay marriage violate the Equal Protection Clause.  This will await another day with a proper case challenging a state ban on same-sex marriage, perhaps after a number of states reverse their current constitutional amendments discriminating against gays by treating the privileges of marriage under state law as available only to a man-woman couple. Perhaps the varied views of the right-wing--a dissent by Chief Justice Roberts, a dissent by Justice Scalia in which Justice Thomas joined (and Roberts in Part I), and a dissent by Alito in which Justice Thomas joined in Parts II and III--augers well for a gradual withering away of the "traditionalist" (and religious fundamentalist) views supporting a same-sex marriage ban.

Some celebration is in order, as indeed took place across the country today, regarding this additional step toward erasing the kinds of bigotry that have been a stain on the country's belief in liberty for all since its inception.  See Joy, and Dismay, as the Supreme Court rules, New York Times (June 26, 2013) (slides).

But the country's religious right will undoubtedly try to minimize the freedoms for gay and lesbian citizens as much as possible in the course of the state-by-state battles to come over recognition of gay marriage.  The right claims that this is a matter of religious freedom, but it is in actuality a matter of religious imperialism--an attempt by conservative Christians to hoist their church's definition of marriage onto the laws of the land for everyone in the country, no matter their own religious persuasion or lack thereof.  The fundamentalist view that only men and women can marry should have no legal status.  Let those churches whose hierarchies accept that ideological position adopt that position as their church policy, but let them not succeed in forcing others to accept their  views about gay and lesbian citizens and what constitutes a family.

Ross Douthat's commentary in the Times discusses this religious issue.  See Religious Liberty and the Gay Marriage Endgame, New York Times blogs (June 26, 2013). Douthat supports the idea that these kinds of rights should be developed on a state-by-state basis, as a social experiment.  I must admit I find that approach disgusting.  If we were to say today that segregation or slavery or anti-semitism could be incorporated in state laws on a state-by-state basis to allow the dissenting minority who wanted (and still want, in a dismaying number of cases) to treat African Americans or Jews as inferior citizens without too much community disruption, no one would accept it.  Why is it that people who claim to be thinkers--like Ross Douthat and the four right-wing Justices of the Supreme Court--continue to act like treating gays and lesbians as inferior citizens with second-class privileges is okay?

Note that the idea, discussed by Douthat, that there is a "religious issue" and that churches will have to incorporate their schools differently to "protect" them is a result of the growing false understanding of the Constitution's guarantee of religious freedom, fostered by politicians too willing to kow-tow to religious hierarchies and a Supreme Court overladen with a strongly religious majority who have long failed to understand the Constitutional framework for what it is--a protection for individual practitioners, not for religious institutions.  Neither churches nor their businesses nor their organizational charities (i.e., church-run schools, hospitals and similar subsidiary institutions) merit religious protection from anti-discrimination laws intended to protect individual rights to religious freedom: by definition, if the institution is given "freedom" to impose its ideologies on individuals, the individuals themselves have lost those freedoms.  These are individual rights, not institutional or corporate rights.  Thus, to protect the individual's right to freedom of religion, a religious institution should not be permitted to force an institutional employee--other than perhaps its management personnel who have supervisory rights to hire and fire and penalize employees and are the carriers of the religious dogma "torch"-- to practice the dogma of the institution on birth control, gay marriage, divorce, or any other aspect of the religious dogma.  

I thus find the statement of Ben Domenech, editor of The Transom, who is quoted in Douthat's commentary, quite offensive--he says that states will need to "alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible."  The Constitution doesn't protect "religious businesses" and cannot put avoiding community clashes above protecting the religious liberties (or nonreligious views) of all Americans.

Someday the Court will correct its error on this point, but one suspects that will be far in the future.

Too bad that the Supreme Court voted the other way on the Voting Rights Act--a decision that essentially disregarded both Congress's role under the Civil War amendments and Congress's 2006 analysis of the need for continued oversight, especially in the states currently within the coverage.  Note that the law provided for states to be brought within the coverage or exempted from the coverage, so the Roberts Court's right-wing activist decision was an unjustified effort to find a way to favor Southern (and Republican) states.  Scalia's dissent in the Windsor case--in which he argues that the Court owed respect to the legislative branch (see exceprt, below) stands in sharp contrast to the willingness of the Court to override Congress's renewal of the Voting Rights Act upon the basis of an extensive record of hearings and evidence as to continuing discrimination against minority voters in those Southern states, where poll places are moved to inconvenient locales and ID forms are required that may be difficult for minorities to obtain.  In Windsor, Scalia claims that "democratically adopted legislation" like DOMA should be upheld by the Court, but in the Voting Rights Act case the majority ran roughshod over such legislation in a situation where Congress's role is mandated by the amendment itself.

We have no power to decide this case. And even if we did, we have no power under theConstitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.  J. Scalia dissent in Windsor, Slip Op. at 1.

 While I disagree with Scalia's view expressed in his dissent that there was no standing in Windsor, I do think he makes some very good counterarguments to the arguments in Alito's dissenting opinion about jurisdiction, which would recognize the BLAG (purportedly a bipartisan house legislative group, but in the Windsor case, only 3 Republican leaders of the House authorizing a "defense" of Congress's actions in enacting DOMA) as a rightful adversary at the Court in a case such as Windsor.  Scalia accurately sinks daggers into Alito's trumped up theories of Congressional prerogative to litigate against the Executive whenever it doesn't like the way the Executive carries out Congressional duties.

 

Related articles

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Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California

Here's Who Can Marry After the Supreme Court's Prop 8 Decision - and How Soon

U.S. v. Windsor Ruling: The Best Justice Kennedy Quotes From The Court's DOMA Decision

Supreme Court Strikes Down DOMA and Prop 8

The 'ignorance is bliss'/'ride'em cowboy' mentality of today's GOP

Today's GOP is dominated by the Tea Party types that are a cross between an ostrich with its head stuck in the sand-- the "ignorance is bliss" philosophy-- and a 1860s cowboy as depicted in the 1960s western-mania TV shows-- the "hell bent on raising a ruckus"/"my way or the highway" mentality.  The combination is deadly dangerous for democratic egalitarianism.

On the ignorance is bliss side, see, for one example out of many possible, the "two pending Republican bills that seek to curtail or end vital surveys by the Census Bureau."  Editorial, Stragegic Ignorance, New York Times (May 25, 2013).  

As described in GOP Census Bill Would Eliminate Key Economic Indicators, Huff. Post (May 26, 2013), the only purpose of H.R. 1639,  the bill introduced by Jeff Duncan (R-SC), appears to be to ensure that the government does not have reliable data on the many important indicators of the health of the economy, from housing and health to crime, employment and the environment. 

 A spokesman for Duncan declined to explain why the congressman wants to eliminate such data or even whether he understands that the data would be compromised by his bill, which has 10 co-sponsors.

But the proposed Census Reform Act is explicit in its intent to end nearly every survey the Census conducts, mandating the "repeal" of the nation's agricultural census, economic census, government census and mid-decade census. It would also bar the bureau from carrying out the American Community Survey (ACS), which the House voted last year to end, although the Senate let that measure die.

There is very little done by the government or big businesses that does not at some level depend on the reams of information provided by the Census surveys, from writing regulations and distributing federal services to rolling out new products and finding customers. The ACS is an ongoing survey that collects data every month, instead of every 10 years, so that governments and businesses have current information. Id.

Because it bars the Secretary of Commerce and the Census Bureau from carrying out "any survey, sampling, or questionnaire", the bill would effectively hamstring the government's ability to gather any kind of information other than a numerical count of population.  Note that this would also include all of the information collected by the Department of Labor's Bureau of Labor Statistics, since those statistics are generally gathered through the U.S. Census Bureau.  See, e.g., Department of Labor, Bureau of Labor Statistics, Consumer Expenditure Survey.  To get a further sense of the importance of the information provided through the Department of Labor with Census Bureau support, see this page showing the subject categories of Labor statistics collected.  Some information collected by the Census Bureau is also used by the Department of Health and Human Services, although DHHS surveys are so specialized that the department has an extensive set of specialized surveys that various of its agencies conduct.  (Let's hope Duncan doesn't notice them, or he will set out to gut that agency, too.)

A similar bill was introduced in the Senate by Rand Paul (R-KY) which specifically targets the American Community Survey--the frequently updated survey that gathers information anonymously and provides a wealth of data about economic trends across the country. See Poe press release; see also Huff Post, Rand Paul, Ted Poe Sponsor Bill that Seeks Religion Law that Already Exists (May 25, 2013) (noting that a 1976 law already ensures that answers about religion on the Census are voluntary, but the Paul/Poe bill gratuitiously includes the same provision again). 

Paul claims the mandatory survey is too intrusive--he wants it to be "voluntary".  Voluntary surveys get low participation rates, particularly in some geographic areas.  The data needs are universal--having gaping holes where there were too many dropouts to give the survey statistical validity would be a huge problem.  But Paul doesn't care--he's too busy scoring Tea Party points with anarcho-libertarians who've been brought up (since Reagan) to think that "government is the enemy", while at the same time benefitting from billions in government aid because of these very surveys.   And too busy using terms like "protect Americans" (from the Poe Press Release) in hypocritical ways that have nothing to do with protecting anybody but the elite--since the result of not having the ACS survey will be to allow more misleading pronouncements to go unchecked by data.  Like Sarah Palin's ignorant assertions about Alaskan self-sufficiency (when more federal tax dollars go to Alaska than come from it), these anti-tax/anti-government claims are mere posturing that misleads ill-informed people to support policies that favor the elite.   As the HuffPost article notes,

[T]he 14 largest counties in Poe's state of Texas received more than $14 billion in federal funding in 2008 based on ACS data, according to a recent Brookings Institution study. Id.

Without such data, it would be harder to show the failure of the laughable tax-cuts-for-the-rich/austerity-for-everybody-else policies of the rightwing in Congress and in state legislatures.  Take, for example, the recent reporting about the way the GOP legislatures that have decided NOT to expand Medicaid will leave the most vulnerable poor in the lurch (yet again) as far as receiving health care that all of us need and most of us take for granted.  The better off will receive the benefit intended by Obamacare, but the worst off will remain vulnerable in those recalcitrant states where the GOP runs the show with the "ignorance-is-bliss" mentality.  Without the kind of regular information collected by the Census Bureau and in particular the American Community Survey, the government won't be able to track results of these Red State "experiments" in austerity to show how much like Third World countries their states become regarding poverty, unemployment, and all the other economic indicators provided by the census.

This ostrich-with-tits-head-in-the-sand mentality makes sense only if the ideas you support are purely ideological ones, for which data is irrelevant.  As Maurine Haver, head of Haver Analytics, noted to a reporter:

[T]here is a fundamental divide between people who are interested in solid, reality-based data and those who are not. "If you know what you think, you don't need information to help you assess what's going on," she said. "The people that need information are the people who use it because they really want the truth, not people who think that because they believe it, it becomes the truth." Id.(paragraphing changed and italics added).

Of late, that seems to be the position of the Tea Party reps in Congress, like Rand Paul, Ted Cruz and too many others.   And they don't care about the ensuing harm to ordinary folk from their efforts. 

Need more proof of the ostrich-plus-cowboy mentality?  Just look at the fight breaking out in Congress between Ted Cruz and the rest of the Tea Party cohort with the somewhat more sensible GOP members like John McCain over the debt ceiling. Kusskin-Shoptaw, McCain, Tea Party Senators Squabble over Debt Ceiling Procedures, Bloomberg.com (May 22, 2013).

 Once again, the Tea Party is willing to run the United States off a cliff over an artificial fiscal limit that is, in the actual economic scheme of things, meaningless except as a stage for such masquerades about fiscal responsibility concerns.  The Party of No wants to Know Nothing to disguise its "bankrupt the US to get at the liberals" ideology in the sheep's clothing of a fake "we care about economic responsibility" policy initiative.

Freedom does NOT reside in allowing brute force economic might to set the rules.  Freedom is having government institutions that work and are subject to the will of the people.  So that when 81% of the American public want gun check legislation, Congress listens to the people instead of to the well-funded NRA.  So that when a majority of the American people don't want corporate funding to be siphoned to campaigns behind the closed doors of erroneous 501(c)(4) status, IRS employees are allowed to do their work to find "parties" that are circumventing politicking disclosure requirements rather than being hung out to twist in the wind under a fake "scandal" created by the ideological anti-tax right.  So that when agencies allocate resources or describe results of economic legislation, they have accurate data to do so.  Freedom does not rest in willful ignorance.

Related articles

The Republican War on Data

GOP Bill Would Eliminate America's Economic Data

Republican bills declare numbers, science enemy combatants

Why it's called the 'Stupid Party' - 'GOP Census Bill Would Eliminate America's Economic Indicators'

Stephen Colbert Shreds GOP Congressman Who Wants To Destroy The Jobs Report

GOP Proposal Would Eliminate Unemployment Numbers

A new GOP bill would prevent the government from collecting economic data

U.S. Census Bureau Daily Feature for May 25

Republican wants the Party of No also to be the Party of Know Nothing

Indignez-Vous: Stephane Hessel's Plea for Citizen Engagement

Watching the diverse groups engaged in the Occupy Wall Street protests and seeing the range of issues around which the movements in Manhattan and other cities are galvanizing, one cannot but be reminded of the bestselling little French pamphlet now translated into English:  Time for Outrage (indignez-Vous)!, Stephane Hessel, Quartet Books, 2010 (with foreword by Charles Glass).  We purchased the little pamphlet about a month ago, but my attention was called back to it when the 94-year-old Hessel was interviewed on the PBS NewsHour on Tuesday night (Oct. 11).  (You can catch the interview on an i-tunes podcast, available at this link; video and transcript on the PBS website, here.)

Hessel was born in Germany but emigrated with his family to France in 1924 (at age 7).  Germany, of course, invaded France in 1940 and Hessel was in the French army during the Battle of France.  He escaped from a POW camp, taking 6 months to reach London, where he joined de Gaulle's resistance movement.  He parachuted into France in 1944 to work with the Resistance there.  He was captured and tortured (waterboarded) before managing to switch identities with a dead prisoner and then escape on the way to Bergen-Belsen.  After the war, he was a diplomat and writer, working with Eleanor Roosevelt on the Universal Declaration of Human Rights and with the Association for Training in Africa and Madagascar, among other things.   He has been active in the Collegium International and the Commission Nationale Consultative des droits de l'Homme (a post-war French government organization created to ensure the protection of human rights).  (This biographical sketch is based on the forward to the pamphlet written by Charles Glass and on the wikipedia entry for Hessel).

Hessel, in other words, has the creds to talk to us about the importance of human rights and the role of governments in ensuring their protection.  And he says that became his mission--"the need to give a sense to my life by defending the values that the Nazis had scorned."  Id. at 

As Glass says in the foreword,

"[The pamphlet] answered a public need for a voice to articulate popular resentment of ruling-class ruthlessness, police brutality, stark income disparities, banking and political corruption and victimisation of the poor and the immigrant."  Id. at 10.

In the text, Hessel proclaims his luck in being able to draw on his experience with the Resistance.  The wartime National Council of the Resistance's Programme (set forth on March 15, 1944) made clear that ending the reign of the Nazis was only the first stage towards establishing "a true social and economic democracy."  Franklin Delano Roosevelt enunciated the "Four Freedoms" for which the allies were fighting--freedom of expression, freedom of religion, freedom from fear, and freedom from want. And so Hessel says:

"We need these principles and values more than ever today.  It is up to us, to all of us together, to ensure that our society remains one to be proud of: not this society of undocumented workers and deportations, of being suspicious of immigrants; not this society where our retirement pensions and other gains in social security are being called into question; not this society where the media is in the hands of the rich.  These are all things that we would refuse to countenance if we were the true heirs of the National Council of the Resistance."  Id. at 19-20.

Today's Occupy Wall Street movement may have uncertain goals and disparate interests.  But likely all would agree that it is important to rise up in indignity in response to the erosion of those values and freedoms that underlay our involvement in World War II--especially the freedom from want that was the cornerstone of Roosevelt's New Deal legislation. 

There is much to protest--from the so-called "Patriot Act" to the Bush wars of choice in Iraq and Afghanistan, from Obama's decision that a President can take out an American citizen without any due process of law to the Congress's plan to decimate the earned benefits programs that are so important for the middle and lower classes while continuing or even enhancing (zero taxation being proposed by those on the right) the largesse of extremely preferential taxation for the capital gains that form 63% of the income of the top 1% of the country.   There is widespread indignity in response to the rampant banking speculation that socializes losses while privatizing gains, the political corruption that leads Congress to pay more attention to the organized and well-funded lobbyists of Big Money while ignoring the clear wishes of a majority of the citizens it represents, the ruthlessness of the corporate and wealthy elite in constantly cutting jobs in order to secure ever more riches for the upper crust, and the use of the meme of "personal responsibility" to suggest that it is just fine to leave the poor, the vulnerable, the elderly, the sick to fend for themselves. 

Keeping silent merely affirms what our elected government officials are doing, which is to follow the guidance of the wealthiest people and the biggest banks and multinational corporations in permitting the erosion of those human rights that inspired us in World War II.  We can  pay for the infrastructure and social programs that are needed--we merely have to have the will to do it.    The way we set our tax policy, the way we pay for Social Security, whether we move to a single payer, Medicare-for-all system that will permit us to meet the basic health care needs of our society while tamping down costs through negotiating from a position of power--all of these things will determine whether we allow these fought-for goals to fall by the wayside or once more stand for the rights listed in the Universal Declaration.

They're bamboozling us, and Obama is betraying us: failing to use the bully pulpit to shame the GOP, he caves instead on core social justice issues

Let me repeat the title.

They're bamboozling us

And Obama is betraying us. 

Obama is failing to use his bully pulpit to shame the GOP with its ridiculous attempt to double-down on failed right-wing friedmania economic fundamentalism.  See Joseph Stiglitz, The Ideological Crisis of Western Capitalism, Commentary, Project Syndicate  (July 6, 2011) (Hat Tip, Mark Thoma at Economist's View).  Sitglitz notes what I have often pointed out--that friedmania is a failing ideology, yet the GOP is pushing that failed ideology, based on ridiculous and proven-wrong assumptions about human society, to the brink, arguing for austerity when we need stimulus, tax cuts when we need tax increases (at least on the wealthy), and more military when we need to end our endless wars and get smart.  Says Stiglitz:

Even in its hey-day, from the early 1980’s until 2007, American-style deregulated capitalism brought greater material well-being only to the very richest in the richest country of the world. Indeed, over the course of this ideology’s 30-year ascendance, most Americans saw their incomes decline or stagnate year after year. ...

I was among those who hoped that, somehow, the financial crisis would teach Americans (and others) a lesson about the need for greater equality, stronger regulation, and a better balance between the market and government. Alas, that has not been the case. On the contrary, a resurgence of right-wing economics, driven, as always, by ideology and special interests, once again threatens the global economy.

Instead, Obama is agreeing to let the Republican's adle-brained ideology get a victory in this battle, a victory that will be a resounding defeat for ordinary Americans as it undermines an already shaky social welfare system and favors further the corporate giants that are being advanced by the Supreme Court's radical right and the Tea Party alliance with the economic fundamentalists like the Koch brothers, Heritage Foundation, Cato Institute and others.  Instead of shaming them, Obama--surrounded by right-wingers in moderate clothing such as Geithner and the rest--is caving yet again and letting them set the agenda for Congress.

A minority party with a radical slant followed by less than a third of Americans is setting tax, war, and civil rights policy, because we have a president who is either afraid of his shadow,  being handled by those who don't give a damn about the issues that matter, or so sold out by being surrounded by the big money guys that he doesn't even recognize that he has betrayed union workers, ordinary Americans, the elderly, and everybody who dreams of freedom from a country run by the corporations and the ir wealthy managers and owners for the corporations and their wealthy managers and owners.

Read Mark Thoma on Economist's View on this issue, as Obama offers to cut Social Security.  As Thoma says at one point about the 'new' GOP willingness to engage in so-called negotiation""Close loopholes in return for cutting taxes on the wealthy, that kind of thing. I wonder who the winners would be when all is said and done?"

Hmmm.  Doesn't take much wondering to figure out that the only winners are the big corporations and their wealthy managers and owners.....

We're being bamboozled--debt ceiling, cuts to ordinary folks' programs, and the corporatist state continues apace

I almost can't stand watching or reading the news these days and have delayed posting on this blog because it seems there is a need to repeat the same suggestions over and over again.  Don't cave to the right.  Don't cut important social welfare programs that have enabled this country since the 1930s to treat its elderly and vulnerable populations with respect.  Quit trying to strip unions of power--they are one of the important ways that ordinary people can emplower themselves to demand a share of the prooductivity profits their labor has produced.  Quit repeating the garbage free market mantras suggesting that the wealthy investors and managers are entrepreneurs (they're not generally) and that allowing such gross accumulation of wealth as our current CEO pay of 3-400 times the salary of average workers (earning in a half day what a worker earns in a year) is somehow necessary to a good  economy in a democratic political system.  Allowing the owners and managers to continue to reward themselves with grossly oversized compensation and profits packages so that they can maintain their 20,000 square feet marble palaces with kitchens that only a caterer needs (and that the denizens of the house hardly ever use on their own) is just one of the excesses of the brute capitalism that the 'tea partiers' and other right-wing economic policy gurus are supporting.

This free market, brute capitalism where workers are expendable and the entire economy is forced to support the accumulation of wealth at the top is what we have in fact pushed on (and sometimes assisted in imposing on) developing nations in the past .  Think Argentina--where the Chicago Boys oversaw the decimation of the economy and the imposition of austere conditions on the majority so that the economy could be 'remade' to suit the owners of capital (including foreign investors and multinationals). Think Brazil, where in the 1960s we helped their military coup against a leftish president in order to support the ability of US multinationals to continue exploiting Brazilian resources. 

But now the right is so invigorated, through its ability to bamboozle the American people and elect a majority of economic extremists in the House who either don't understand history well enough to know that they are speaking gibberish, or don't care.  They are determined to undermine the meagre social welfare system of Social Security, Medicare and Medicaid, with constant untruths about 'bankruptcy' and similarly misleading statement on almost every issue.  Presidential candidates who make up facts are toasted by the purportedly 'leftleaning' mainstream media (this assertion itself a made-up fact used to continue to bamboozle the people).

The most outrageous spectacle of all is the pontificating dogmatic right in the House and Senate, threatening to cause a U.S. default on the debt ceiling issue in order to pursue their ideological dream of a 'pure' economy.  Their economic model is a disgraced one --the free market, corporatist model that ensures that the small, wealthy investor class is doing well and that Big Business gets what it wants but doesn't give a damn for ordinary folks, whatever verbiage about caring for workers, and ordinary people with mortgage difficulty, etc. they spout.

Truth is, folks, you don't get an economy working well for ordinary people when you (i) make pledges NEVER to increase taxes, (ii) reject cuts in the grossly overlarge military expenditures this country makes in order to secure the world's resources for its multinational enterprises (that then lobby for close to zero taxation on their obscene profits from that secured wealth), or (iii) try to solve all perceived fiscal problems by taking it out of the hide of ordinary folk, thus  stifling the real economy (the one where workers work in businesses that serve local people and that work generates profits that are shared with workers and owners in a way that leads to expansion of the local economy based on the broad-based workers' participation in it) and at the same time bringing the kind of class warfare that the Friedman school has long waged on Latin America and other Third World countries right here to America.  The result of those kinds of policies is concentration of income, wealth, and influence at the top, with ordinary folks in the middle class struggling just to stay even.

The idea that you cannot tax natural resource extractive industries more (by taking away the tax expenditures subsidies that literally hand them outsize profits on a silver platter) when they are making windfall profits is absurd.  The idea that you cannot reimpose a decent estate tax on the estates of the wealthiest 2% in the country, to assist with meeting the heartfelt needs of the struggling middle and lower classes, is pathetic.  The suggestion that you cannot increase taxes on financial transactions and increase capital requirements in banks to stifle the too-rapid innovation and liquidity within the financial institutions that underlies the crisis we just went through (and the worse one we will suffer within the decade if we don't enact even stronger reforms than already in Dodd-Frank) reflects the dogmatic fixation on service to the wealthy investors and financiers that permeates the right-wing in Congress.

Folks. we can't let them do this.  Congress is supposed to serve the people, and this 'tea party'/right-wing extremism that was reflected in Newt Gingrich's 'contract on America' and John Boehner's contract with the investor class is the worst of class warfare.

There was a time when the neo-imperialists and corporatists didn't dare do the same thing in America that they were  pushing for, and secreting doing in Third world countries.  Exploiting the environment without a care for the pollution that ordinary people suffer in their daily lives.  (Think of the Banana Republic attitudes of United Fruit  and  the Latin American oil enterprises conducted by US multinationals.)  Supporting militaristic regimes with a right wing flavor and a taste for torture and imprisonment of radical left thinkers. (Think Chile, Argentina, Nicaragua, Guatemala, etc.)  Labeling governing concepts that pay a lot of attention to the needs of ordinary people as 'subversive' and 'socialist' in order to bring up myths of communistic monsters that hide under the bed and eat the economy.  (Think Cuba and Brazil, especially, and Chile, and now Venezuela.)  All these tactics exist to keep ordinary people in their place as workers who get a pittance of their productivity profits and are "flexible" (meaning can be fired upon short notice by private equity firms flipping companies for their own (preferentially taxed) profits) while the military can control the resources and make good deals (for US multinationals and the military leaders, not for the people of the exploited country).  Read Chomsky's "Year 501" for a (somewhat rambling) account of the neo-liberal corporatist agenda in Latin America.

But now those same ultra corporatist, class-warfare policies are being implemented right here, in the open, with brazen disregard for our historical social contract, for the plight of the poorest and most vulnerable amonst us, all in the name of keeping the 'investor class" and Big Business (generally one and the same, since the investor class is mostly the owners and managers of Big Business) happy.

They paper it over with talk, as Joe Lieberman does in calling for cuts to Medicare, for 'bipartisanship"  or they claim the US is living beyond its budget because it doesn't pay its bills.  But of course they don't really care about that, since the budget put forward by the Republican House majority carved a multi-trillion dollar hole.  IN other words, they don't pay attention to their own rhetoric.  They just want to use the (absurd in itself) requirement in the US that we have a debt ceiling extension vote as an opportunity to blackmail the American people to get concessions on their favored targets--the programs that ameliorate, somewhat, the brute capitalism of the American economic system after forty years of reaganism, friedmania, and the rest of the Chicago School garbage that has been treated as "God's truth" so long by politicians that they don't even realize, perhaps, that they are letting a bunch of mathematicians who like to escape the real world into made-up formulas decide the policies for the nation.

Big Business has had its enablers in place for four decades--Grover Norquist, the Koch brothers and their 'tea party' followers, the various propaganda tanks like the American Enterprise Institute, the Cato Institute, the Heritage Foundation, and the rest  that have spent millions to brainwash Americans into thinking that the failed 'free market' ideas of Milt Friedman and Alan Greenspan and Wall Street are the only way to go.  It has a majority on the Supreme Court willing to be extraordinarily activist in overturning precedents on class action lawsuits (a way for ordinary people to empower themselves against Big Business) and free speech (a way for corporations and their owners/managers to control the political debate through the use of their overwhelming dollar power).  And that right-wing majority is serving its masters well, while Big Business's minions in Congress continue to roll over to make sure that the right-wing panacea of deregulation, militarization, tax cuts, and privatization contines apace. 

The US debt burden is high, but we are not Greece or Ireland or even Portugal.  We have a strong economy.  We have our own monetary system, unlike the Euro nations that are facing much higher debt burdens and can't individually control their monetary flows.  Austerity measures like the IMF has imposed on Latin America to satisfy foreign investors (not the natives of those countries) and like the Euro world is now imposing on its own members are not needed here (and probably are the wrong answer there as well).  Those measures are driven again by the failed corporatist economic model that assumes that the entire world should be run to satisfy the wishes of financial institutions, big money investors and the big multinational corporations that they own and manage. 

The world should be run to satisfy the needs of ordinary people.  Banks should be stripped of the power to create a world-wide crisis with their haystacks of derivatives that catch flame much too easily.  Big Business should make do with lower profits, paying their workers more and their managers (and owners) less and paying their fair share of taxes.  Hedge fund managers should pay tax on their "carried interest" compensation like ordinary people, and private equity firms should be subject to much more red tape that makes it much harder to buy companies and take them private in order to fire their workers.   In fact, consolidation and mergers among big businesses should be made much more difficult through new limitations on the tax-free restructuring provisions. Unionization should be strengthened, in order to give ordinary Americans something with which to have leverage over the hierarchical authorities that undermine economic growth by concentrating everything on the investor class.

Let's start a letter and call-in campaign to every Republican legislator in the coutnry, telling them that we are sick and tired of being treated as lambs led to the slaughter in order to place endless platters on the tables of the rich.  Tax policy should be based on what works, not on ideological dogma that has been the underlying cause of catastrophes and crises worldwide. 

 

Citizens United and Concepcion: Big Money, Speech, Taxes, and Individual Freedom

[edited 4/28 to add Angry Bear link]

Money isn't speech. 

In spite of that, the Supreme Court continues to expand its initial holding that treated expenditures of money to purchase speech as equivalent to speech and therefore protected by the Free Speech clause in the Bill of Rights, literally giving away elections and issue education to the top dollar, which will generally be the wealthy elite and the big corporations that own and manage. 

This idea--that money is the same as the speech that money can buy--is at heart a radically anti-freedom idea.  By equating money with the speech that it can buy, the Supreme Court has ensured that genuine speech rights will wither away, and that money will be able to buy elections and legislation to suit the source of the money.  The Court failed to understand that while speech can be bought by money, that purchased speech is merely one mechanism for distributing speech.  Speech is much more than the purchased speech that is bought by money.  If you don't limit the ability of money to purchase election speech, you are in effect disenfranchising all other types of speech that can't compete with purchased speech.  By equating the speech itself with the money that purchases it and claiming that the Free Speech clause applied to the money expenditure, the Court empowered purchased speech and empower Big Money, while it disempowered individual speech and made non-purchased speech practically irrelevant.

Since the Supreme Court's Citizen United decision expanding on this "money can purchase speech, therefore money used to purchase speech is protected in the same way that speech is protected" idiocy, it has been quite clear that Big Business carries a gigantic Big Stick that influences elections through anonymous issue ads and direct campaign contributions. 

The people are misled, since the ads are often purportedly sponsored by groups with titles that suggest little people working for the common good. 

The politicians aren't misled, because they get the Big Money that will allow them to flood the airwaves with similar stuff and they know where it comes from.

The result is that Big Money, from the few super-rich and the big corporations that they own and manage, can heavily influence critical legislators on deregulation and tax provisions favorable to the rich and Big Business. 

• There is a reason that the fringe right elected to Congress in 2010 is pushing for repeal of the health reform and Dodd-Frank financial reform provisions--those reforms require Big Business to operate in ways that protect individual freedoms and limit the way that those Big Businesses can push their costs off into externalities to create socialization of losses, privatization of gains  (e.g., high premiums paid only to find delay or denial from health insurance companies, risky casino speculation in derivatives from interconnected banks that lay their losses off on the public while raking in cheap financing provided by the public). 
• There is a reason that Big Business got its wish list in the 2003 tax legislation pushed through by the Bush Administration, and then got more and more of its new wish lists in the following years Bush tax legislation and in the Republican  provisions fought for in the "compromise" on stimulus funding in the first year of the Obama administration.  Those tax provisions provide tax reductions for corporations that increased the deficit and required additional borrowing (including bonus expensing, the active financing exception permitting deferral of income for certain controlled foreign financing subsidiaries, new cross-crediting provisions that permitted U.S. multinationals to subsidize their foreign operations by reducing their US tax rate, and many others).

Imagine an issue ad by "People in support of Removing Bad Regulation" that puts out misleading, non-factual claims about how Big Business X (maybe a resource-extractive business) will be done in if the "bad" regulation is continued, and that all kinds of little people will be harmed if Business X is harmed.  The facts are otherwise.  Big Business X engages in extraordinarily harmful mining practices that level the mountains, leave toxic debris in streambeds, and put miners in harsh, unhealthy conditions that don't meet anybody's standards of a decent working environment while preventing unionization to allow collective bargaining and bombasting the region with warnings about how jobs would drop if any of these bad practices are regulated.  And Business X is actually providing all the funding for "Little People".  And Buiness X also contributes $400,000 to several  congressional politicians who are on key committees that oversee Business X's industry.  It engages in both of these activities anonymously. 

How would people react if they knew that Business X was funding the ads that appear to be from a local concerned citizens' grassroots organization and at the same time was contributing huge sums of money to key politicians voting on those issues.  They would be more likely to ask questions and more likely to doubt the veracity of the information in the ads, knowing the source of the money behind them.

So there has been a movement in support of individual freedom that demands that at the least we must have disclosure of the Big Money behind the purchased speech that has disemplowered the free speech of the people.  Yet, Senate Republicans defeated a Disclose Act proposal in Congress last year through the now common route of requiring a supermajority of 60% to get to a vote, even though 59% of the Senate voted for cloture.  See Open Congress on Senate bill; seel also Disclose Act (wikipedia). 

Now the Obama administration is apparently considering an executive order that would require those Big Businesses seeking federal contracts to disclose their purchase of direct or indirect campaign contributions.  In other words, when they buy election-related speech that clearly serves as a quo inviting a quid from the elected officials aided by such speech. they should disclose it so that we the public can evaluate whether they get the invited quid.

Big Business doesn't want to lose its anonymity--especially when it comes to getting the lucrative federal contracts even though it may be supporting fringe politicians who claim to want to cut government spending.   (And of course, Big Business will likely use its money to support those politicians who talk about cutting government spending but mean only cutting spending for programs that form part of the social net for vulnerable citizens, not cutting spending on lucrative military contracts or other lucrative federal spending programs that create instant billionaires, like Eric Prince and his Blackwater security contracts in Iraq).

Big Business doesn't want to engage in real speech, but in purchased speech that can be hidden from the public with the use of misleadingly labeled front groups like the fictitious organization in my hypothetical.  And it intends to use all the formidable weapons in its arsenal to ensure it can continue to pour money into election campaigns without revealing its role. So Josten, head of the U.S. Chamber of Commerce, a major organization supported especially by the U.S.'s biggest multinational corporations, says "all options are on the table" to ensure that Big Business can contribute anonymously.  See Lichtblau, Lobbyist Fires Warning Shot over Donation Disclosure Plan, NY Times, Apr. 26, 2011.  Josten threatens that "all options are on the table."  Big Business will apparently do almost anything to protect its right to spend to elect its politicians of choice while not letting real voters know what it is doing.

 Meanwhile, of course, the Supreme Court continues on its tear of decisions that uphold Big Businesses' rights to conduct business as they want, no matter what impact that has on the freedoms of individual citizens of this country that fought a revolution to ensure those freedoms.  AT&T Mobility v Concepcion is only the latest foray in this direction.  In this case, the Court holds that we little people have no right to join together in a class-action against corporations that have misled us, even when the contract through which we became the corporation's customers was a contract of adhesion and the relinquishment of the right to a class-action is an interpretation by the corporation of the arbitration "term of contract" that we signed to get the service that the corporation provides.  Contracts of adhesion are "take it or leave it" contracts.  Most customers don't have the ability, let alone the money, to figure out what the terms mean.  Even if someone did finally persevere and reject a contract of adhesion because the terms took away individual freedoms, that person would find no better contract at any other service provider, since they all incorporate essentialy the same corporate-friendly terms in their contracts of adhesion.

The Supreme Court's inability to understand that the constitutional protection of individual freedoms was intended to prevent just this kind of corporate tyranny will be costly for this nation.  I predict that more and more people will get angrier and angrier about the extraordinary empowerment of Big Business and the extraordinary disemplowerment of ordinary people through this kind of corporatist agenda. 

For another Bear's perspective on the AT&T case, see Beverly Mann, The Fine Print, Angry Bear, Apr. 28, 2011.  It begins this way:

It’s hardly a secret that Chamber of Commerce types have co-opted a bare majority of the Supreme Court as their proxy in their war against business litigation, and that the most potent categorical weapons are arbitration as a forced substitute for lawsuits and the effective elimination of class actions.

In a manipulative, far-reaching opinion that the Court issued Monday, the five corporate proxies killed both birds with one stone.

And it includes a good description of how this decision turns our past understanding of arbitration  on its head.

Breyer, though, writing for the four dissenters, pointed out that Congress’s actual stated purpose was to require courts to treat arbitration agreements as contracts, for the purposes of enforcing them and, when required under contract law, voiding them—and that that is what the text of the FAA says.

Scalia also said that class arbitration defeats the purpose of arbitration. Which I suppose is true if the purpose of arbitration, or at least arbitration as the only option under law, is to undermine any real threat of meaningful penalty for corporate wrongdoing.

Some GOPers Considering Tax Increases?

The New York Times editorial "Rethinking Their Pledge" (April 23, 2011) suggests that maybe some GOPers will recognize the hypocrisy of crying deficits, cutting entitlements without figuring out first how to cut costs (or pay for things we really want), and still cutting taxes for the wealthy. 

You see, 95% of the Republicans in Congress have signed Grover Norquist's little "pledge" never to raise taxes.  What most people don't realize is that the pledge isn't just a no taxes forever pledge.  It's also a "keep up the tax expenditure goody stream for Big Business and its owners" pledge.

The pledge is often thought of as an agreement never to vote for raising taxes for any reason, but it goes even further than that. Those who sign it also vow never to eliminate any tax deductions or credits (like the handout to ethanol makers), unless the resulting increase in revenues is offset, dollar for dollar, by further tax cuts.  Id.

As the editorial notes, Norquist wants to "shrink government" and "drown it in a bathtub." 

Why, one should stop and ask, is this government that our Founding Fathers labored so to create deserving of such scorn? 

It's because government is what stands between ordinary Americans and Big Business's ability to treat us like its minions--working for the wages it deigns to pay us, eating the food with the products it decides to put in the food, taking whatever conditions in the workplace it decides to impose on us, and doing without the kind of world-class public higher education that corporate taxes used to help pay for so that we could find ways to expand our horizons beyond the Burger Shack next door.

As I wrote in a recent posting on Angry Bear referencing Corey Robin's article in the Nation on Reclaiming the Politics of Freedom,

Our very freedom is threatened. When we are economically powerless, we are also powerless in our lives because we lose our freedom to make choices that are right for us.

• we lose our rights to bargain with our employers (look at how Wisconsin and Ohio have treated their public employees or how WalMart treats its workers and anyone who talks unions),
• we lose the power to improve ourselves by pulling ourselves up by the bootstraps through publicly funded education from grade school through university,
• we are dominated in the marketplace by powerful businesses that use automated systems to turn us off, ignore our calls and letters seeking redress for a mischarge or a poorly done job,
• we lose our jobs, are forced to accept paycuts or furloughs, when the company claims times are tought, yet we watch the same public companies to pay their CEOs millions more

That said, I don't put much stock in Senator Coburn's recognition that there are tax subsidies in the Code that probably don't make sense.  He may support removing the ethanol credit (which, from what little I have been able to figure out, seems to use about as much energy to produce as it produces, since it takes gas to till the corn fields, move the corn, and process the corn into gas to run the cars).  But I'll bet he won't support the other things that would cut the huge multinational monopolies and the elite managers that run them down to size--like breaking up the big banks, or disallowing any deduction for compensation to any one person in excess of a million dollars, or eliminating most of the tax free reorganization provisions that have helped foster the consolidation of industry into powerful megalithic corporations, or eliminating the R&D credit that pretends to incentivize US research (even though much of the time it is enacted retroactively, and you can't incentivize the past).....