Oregon referendum: Voters approve tax on rich

The mainstream media did not cover an historic referendum vote Tuesday in Oregon.  Cruickshank at Calitics blogs that no new tax has been approved by referendum in America since 1930 "until now."  Cruickshank writes:

Yesterday Oregon voters delivered a huge victory for progressives by approving Measures 66 and 67, raising taxes on incomes over $250,000 and large corporations to generate $733 million to close the state's budget deficit. The Oregon legislature had approved the taxes last summer, but a corporate/teabagger alliance organized to put it to voters in a referendum.

One wonders if the national media will cover this victory at all - much less at the levels of the Massachusetts Senate race. Although they'll almost certainly ignore it, the lessons for California are enormous and extremely important.

The opposition ran a well-funded campaign, led by Nike, Columbia Sportswear, and other big businesses. They were joined by Ari Fleischer's FreedomWorks and the libertarian publisher of the Oregonian, who used to be at the Orange County Register before it went belly-up. Together they ran a campaign arguing that the tax increases would worsen unemployment. But 55% of voters have rejected that, and instead showed that when a truly progressive campaign is waged, the right-wingers can be beaten. Even on taxes.

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What is the Definition of a Lobbyist?

" To close that credibility gap we have to take action on both ends of Pennsylvania Avenue -- to end the outsized influence of lobbyists" - Barack Obama

Obama slammed the "lobbyists" six times in his State of the Union address.   What goes through the minds of  Americans when they hear the word?

The answer seems to depend on party affiliation.

One finding from the Pew survey -- which I blogged about previously (here and here) -- perplexed me greatly at first glance.    You see, I think reducing corporate influence over the political system -- i.e. cutting back the power of lobbyists -- should be a top priority.    Yet, according to the survey, it is mainly Republicans who agree with me on this point.  Today, most Democrats don't see the power of lobbyists as a big problem.  Yet, just three years ago, it was the reverse:  Democrats were concerned about the lobbyists and Republicans were indifferent (see table below).

It occurs to me that  these survey results suggest that lobbyists are mainly perceived as a problem when your party is not in power.  I think what must be happening here is that when Republicans are in power, the word "lobbyists" to a Democrat refers to "big business lobbyists."  But when Democrats are in power, to a Republican,  the word  "lobbyists" refers mainly to groups like Acorn, unions, minority rights groups, etc.

I think both Democrats and Republicans are being naive.  Democrats ought to realize that big business lobbyists have been just as influential -- if not more so -- under this Democratic administration.  And Republicans ought to stop obsessing over Fox News generated conspiracy theories regarding groups that have relatively little power in Washington.

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Obama's high speed rail deception

Obama made a few good points in his State of the Union speech, yet there was no larger vision beyond his pleading with American politicians to get along better, some rationalizations to why his campaign slogans have yet to be realized.

Tellingly, the speech itself was a symptom of a major problem facing Americans.

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Indefinite detention policy and the suicides at Guantanamo Bay

Marking the one year anniversary of Obama's executive order to close the detention facility at Guantanamo Bay, a Justice Task Force has recommended that 50 prisoners be held indefinitely without trial. Obama first spoke out in support of  a policy of "indefinite detention" on May 22, 2009.

Scott Horton, in his groundbreaking Harper's Magazine story about the cover-up of three murders at Gitmo, suggested that the US government's primary motive for holding certain prisoners indefinitely may have been to prevent these inmates from implicating US government officials in crimes.   Horton reports:

The fate of a fourth prisoner, a forty-two-year-old Saudi Arabian named Shaker Aamer, may be related to that of the three prisoners who died on June 9....

The United Kingdom has pressed aggressively for the return of British subjects and persons of interest. Every individual requested by the British has been turned over, with one exception: Shaker Aamer. In denying this request, U.S. authorities have cited unelaborated “security” concerns. There is no suggestion that the Americans intend to charge him before a military commission, or in a federal criminal court, and, indeed, they have no meaningful evidence linking him to any crime. American authorities may be concerned that Aamer, if released, could provide evidence against them in criminal investigations. This evidence would include what he experienced on June 9, 2006, and during his 2002 detention in Afghanistan at Bagram Airfield, where he says he was subjected to a procedure in which his head was smashed repeatedly against a wall. This torture technique, called “walling” in CIA documents, was expressly approved at a later date by the Department of Justice.

The outright refusal of the Obama Justice Department to open new investigations into the suicides at Guantanamo renders the recommendation of the Justice Task Force all the more unsettling.

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Should corporations have free speech? What did the Founding Fathers think?

Wars, environmental degradation, and growing economic disparity -- not only in the US but abroad -- may be attributed to the traditional legal status of corporations under American law.  Over the years, US courts have accorded corporations many of the rights of persons.  Among these is the right to a limited degree of political free speech.

However, even in the United States, the ability of corporations to campaign, sponsor political candidates, or advertise in elections has long been subject to limitations. To the extent the courts have granted corporations  limited political rights, many corporations find themselves compelled to exercise this right. "Business corporations" discover they "must engage the political process in instrumental terms if they are to maximize shareholder value."  (Justice Stevens)   As we saw with the health care debate, limitations on a corporate political speech have not prevented insurance companies from buying candidates (so-called "Blue Dog" democrats) representing sparely populated rural states such as Montana or Nebraska.

Today, the US supreme court -- by a narrow 5-4 majority -- took away what few restrictions existed on the ability of big companies to manipulate the outcome of the democratic political process.

Justice Stevens, in his dissenting opinion, explains that that the framers of the United States Constitution did not have corporations in mind when they accorded Americans the right of free speech. Corporations are not even mentioned in the US Constitution.  This fact is particularly salient because the five-vote majority -- which included the court's four most conservative judges -- have long claimed to opposed "judicial activism" --  a sin US conservatives attribute to liberal-minded judges.  Conservatives such as Justice Scalia claim, as a matter of principle, that "founder's intent" (original meaning theory) ought to guide the high court.   Hence, the conservative majority's ruling in this case is glaringly inconsistent with the professed ideology.  Stevens: 

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. 55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.” Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall, C. J.) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”); Eule, Promoting Speaker Diversity:Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129(“The framers of the First Amendment could scarcely haveanticipated its application to the corporation form. That,of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty—the individual”).In light of these background practices and understandings, it seems to me implausible that the Framers believed “the freedom of speech” would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections.

The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers,and aimed to provide greater freedom of speech than had existed in England. Ante, at 37. From these (accurate)observations, the Court concludes that “[t]he First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media.” Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused on prior restraints on publication and did not understand the First Amendment to “prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S.697, 714 (1931). Yet, even if the majority’s conclusion were correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent.

As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy. . . . . JUSTICE SCALIA criticizes the foregoing discussion for failing to adduce statements from the founding era showing that corporations were understood to be excluded from the First Amendment’s free speech guarantee. Ante, at 1–2, 9. Of course, JUSTICE SCALIA adduces no statements to suggest the contrary proposition, or even to suggest that the contrary proposition better reflects the kind of right that the drafters and ratifiers of the Free Speech Clause thought they were enshrining.  Although JUSTICE SCALIA makes a perfectly sensible argument that an individual’s right to speak entails a right to speak with others for a common cause, cf. MCFL, 479 U. S. 238, he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no “common cause.” Ante, at 8. Nothing in his account dislodges my basic point that members oft he founding generation held a cautious view of corporate power and a narrow view of corporate rights (not that they“despised” corporations, ante, at 2), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition—if not also the very notion of “corporate speech”—was inconceivable.  56J., concurring), it respects their “dignity and choice,” Cohen v. California, 403 U. S. 15, 24 (1971), and it facilitates the value of “individual self-realization,” Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982). Corporate speech, however, is derivative speech, speech by proxy. A regulation such as BCRA §203 may affect the way in which individuals disseminate certain messages through the corporate form, but it does not prevent anyone from speaking in his or her own voice. “Within the realm of [campaign spending] generally,” corporate spending is “furthest from the core of political expression.” Beaumont, 539 U. S., at 161, n. 8. It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful.   It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Takeaway the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political quality has been impinged upon in the least.

From the footnote:

Indeed, it has been“claimed that the notion of institutional speech . . . did not exist in post revolutionary America.” Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of Rights drew”). Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges.

Stevens points to one important "speech right" that the -- now discarded -- campaign finance laws upheld:

There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions.

Two other recent posts concern Justice Steven's dissenting opinion:

• Does US Supreme Court decision permit foreign corporations to buy influence in elections? 
• How are persons different than corporations?

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*Opinion of STEVENS, J.SUPREME COURT OF THE UNITED STATES No. 08–205 CITIZENS UNITED, APPELLANT v. FEDERALELECTION COMMISSIONON APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA[January 21, 2010]JUSTICE STEVENS, with whom JUSTICE GINSBURG,JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurringin part and dissenting in part.

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Text of Hillary Clinton speech on Internet Freedom

Text of U.S. of Secretary of State Hillary Rodham Clinton's speech, delivered at the Newseum in Washington, D.C. on January 21, 2010.

For the text and the Q and A session, please see here.

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Guantánamo “Suicides”: big trouble for the Obama Administration?

Read about Gitmogate.

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Pat Robertson, Fool for Haiti

A televangelist's comments about Haiti remind us why the court of public opinion needs its fools.  

As I noted here, Rev. Pat Robertson has a long track record of saying offensive things.   In 2005 John Chuckman, a Canadian resident, suggested  in Couter Punch that the American televangelist ought to face criminal prosecution for some such remark:

At the very least, Robertson should be charged under hate-speech laws. But such laws are weak in the United States, and many Americans fear the idea of hate-speech laws. So radio and television broadcasters continue spewing hate and dishonest claims in the exalted name of free speech.

Would silencing Pat Robertson have made one jot of difference to Haiti?  I don't think so. On the other hand, the televangelist's freedom to speak his mind has probably helped the beleaguered Caribbean nation (well beyond his network's laudable efforts to raise funds for earthquake relief).

Before the earthquake struck, the situation in Haiti was appalling.   Children had been eating dirt.  Yet, the richest, most powerful, and the (self-avowedly) most generous country in the world tolerated this level of poverty on its doorstep.  The question beckons:  How could this be? Why was such poverty tolerated?

I think the answer is no mystery.  The opinion Pat Robertson expressed -- that Haiti is cursed -- is generally (albeit silently) accepted. Not just by religious Americans, but also by atheist Europeans.  Most Westerners would not have put it in such stark Biblical terms, but pseudo-scientific explanations can have the same effect.  The stories we tell ourselves about Haiti render us complacent.   We convince ourselves that Haiti's problems are remote from our own lives and history.  When Robertson said the Haitians had made a pact with the devil, he merely affirmed the West's underlying assumption about Haitians:  that their problem  is not our problem.

Of course, it was not the polite thing to say.  The televangelist had played the fool.

This indiscretion enabled the Haitian ambassador to take Pat Robertson to task and explain why any "pact the Haitians 'made with the devil' has helped the U.S. become what it is."   In this post we saw that the devil and the pact were real (though not what Pat Robertson had in mind).  Questions are asked about the American  occupation of Haiti from 1915 to 1934, the myriad of mainly self-serving Western aid ventures in Haiti, and  US government subsidies to corn-growing agribusinesses that impoverish Haitian cane-sugar farmers. (The American processed food industry uses mainly high-fructose corn syrup. See "Why Coke tastes better in Thailand").

That joker prodded statesmen, scholars, bloggers, and journalists to speak out about the true origins of Haiti's unfathomable misery; its proud but tragic history.   He likely encouraged more Americans to talk about the history of US-Haitian relations than anyone else ever has.

Pat Robertson proved that even the fools among us can serve a useful purpose.   Inadvertently, that crazy televangelist alerted us to the reality of devil that is the ignorance within ourselves.

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