Group items tagged

Remember in 2009, when the way our elections were financed was perfect, corporate power was reined in by Congress, and everything was A-OK and hunky-dory? Me neither. Liberals have been rejoicing over the introduction and recent committee passage of SJR-19, a proposed constitutional amendment to reverse the Supreme Court’s Citizens United vs. FEC and McCutcheon vs. FEC decisions. In essence, the amendment says states have the power to regulate campaign spending, and Congress has the power to regulate outside spending in elections. Sounds good, right? Wrong. Senator Mark Udall’s (D-NM) proposed constitutional amendment is an election-year bone thrown at the masses, who are in a populist rage over the corruption of our government by corporate power and big moneyed interests. In introducing this amendment and passing it in committee, DC politicians are saying that they hear us, understand we’re upset, and are hoping that we’ll be satisfied with a half-measure that any corporate lawyer worth his salt can find his way around.

Udall and the 40-plus Democrats who have co-sponsored the legislation are aiming to placate us with an amendment that takes us back to 2009. Even before Citizens United emerged and significantly changed the financing of campaigns, McCain-Feingold, the last significant campaign finance reform bill, which was already riddled with loopholes, had been mostly gutted by the Bush administration’s chief justice of the Supreme Court in 2007. Celebrating SJR-19 as the be-all, end-all constitutional amendment that will make our government accountable to the people again is laughable. It’s akin to the captain of the Titanic applying chewed-up bubble gum on the hole in the ship and calling it good. So how do we fix the gushing head-wound that is our democracy? Udall has it half-right with a constitutional amendment, but his doesn’t go nearly far enough. Instead, we need a constitutional amendment that explicitly defines human beings as people, and corporations as artificial entities not deserving of constitutional rights. And it needs to state that money is not political speech. Any amendment that doesn’t make these two points is a waste of an amendment. You only get one shot with a constitutional amendment, so if you’re going to do it, go all the way or don’t do it at all.

A constitutional amendment abolishing constitutional rights for corporations would overturn not only Citizens United vs. FEC, but also Buckley vs. Valeo and Union Pacific Railroad vs. Santa Clara County, which originally established the concept of corporate personhood. It would also, by default, abolish all subsequent Supreme Court cases based on the constitutional rights of corporations, likeBurwell vs. Hobby Lobby, for instance. And abolishing the concept of money as political speech would strip outside interests of the ability to spend unlimited amounts of money on despicable TV ads that perpetuate falsehoods about candidates. Not only would we have clean elections, but we would finally be able to say that fictitious entities like corporations no longer have the right to walk all over people in the name of profit. Luckily, there’s already wide grassroots support for such an amendment. Through Move to Amend’s efforts, 478 local, county, and state government entities have passed resolutions calling for a constitutional amendment to end corporate personhood and money as speech. State legislatures in Delaware, Illinois, and Vermont have all called for such an amendment. Voters in Montana approved a statewide ballot initiative to do the same. The Minnesota and West Virginia Senates both passed resolutions. Resolutions are currently in progress at the Minnesota and Arizona House, the California Senate, and in both the House and Senate in Texas. The people aren’t waiting on Cong! ress to do what needs to be done.

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.

There's a lot to rebel against, to want to throw off. If they want to make a serious economic and political critique, they should make the one Gretchen Morgenson and Joshua Rosner make in "Reckless Endangerment": that real elites in Washington rigged the system for themselves and their friends, became rich and powerful, caused the great catering, and then "slipped quietly from the scene."

It began in the early 1990s, in the Clinton administration, and continued under the Bush administration, with the help of an entrenched Congress that wanted only two things: to receive campaign contributions and to be re-elected.

Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.

Turkey’s parliament, on January 9, launched talks about amending the country’s constitution. The proposed package of amendments will change the country into an executive presidential system and transform the parliament into a “rubber stamp” parliament comparable to that of the Islamic Republic of Iran.

The launch of the talks prompted protests, despite the fact that the country still is governed by emergency laws introduced on July 20, 2016, after the “failed” military coup on July 15. Opponents of the constitutional change point out that the parliament debates the sweeping constitutional change while MPs of the leftist opposition HDP are in jail. The HDP suspended its parliamentary work after the detention of several of its legislators. Others stress that the introduction of the executive presidential system render the parliament virtually powerless and transforms it into a “rubber stamp assembly” comparable to the parliament in the Islamic Republic of Iran. While most journalists have been too intimidated to report details, and media have largely been put under State control, it has transpired that police has dispersed non-violent protests throughout the country. In some cases police used disproportionate violence and water cannons. “The heads of 100 nongovernmental organizations wanted to come and make statements here (in front of the parliament). But now you see, parliament is under blockade, the roads are closed, there is a TOMA (a water cannon vehicle). We are under siege,” said Aykut Erdogdu, a lawmaker of the Republican people’s Party – CHP. He added: “It is very wrong to block parliament on the eve of such an important constitutional change that will be discussed in parliament.” Erdogdu stressed that the CHP’s parliamentary group will attempt to prolong and if possible stall the “constitutional reform” by issuing proposals and non-confidence motions in order to emphasize their opposition.  CHP Deputy Group Chair Özgür Özel, for his part, told the press: “We think that the longer this process is going to be, the more useful it will be, the more likely these mistakes will be realized, and the constitutional proposal will be completely withdrawn.” He added that the discussions which prolonged the process in the parliamentary commission were fruitful in that they created awareness about the importance of the amendment. “We will give speeches on the entire constitutional amendment and then on each item. In addition, we may also propose that the material be removed from the text because it is contrary to the constitution,” Özel added.