Daily Kos: Updated - Wisconsin - Republican dirty tricks/Collective Bargaining vote held...loses 18-1

Daily Kos: Updated - Wisconsin - Republican dirty tricks/Collective Bargaining vote held...loses 18-1

Perilous times

I just posted an article on my facebook profile page about multigenerational families coping with the financial stress of a persistent recession. This widespread phenomenon has its precursors and in my personal life history, had a long-standing role to play in the 1940s and 1950s.

We aren't all the way back to the Hoovervilles of the 1930s, but there are ominous signs that togetherness has its limits. Seniors, particularly long-lived seniors, have medical and physical challenges that grow larger over time. Children in the impressionable first years of life are a responsibility that translates into expensive day care and de facto issues of parental abandonment. The K-12 instructional environments are are not prospering and this understanding eventually dawns on teenagers who sometimes find less than salutory outlets for their energies.

What becomes of college students who rack up scores of thousands of dollars in student loans and then are forced by under-employment or no employment to return to their families of origin for extended periods of time? And finally, what becomes those individuals and families in the working years of life who have more mouths to feed at the same time that their job security - if they are even employed - and their own plans for later in life are brought down by both decreasing savings capacity and increasing costs that are now all too familiar.

We don't live in spendid isolation. The image of the American yeoman, the illusion of tranquil family life in the 1950s, the expectation that there will be room in suburban expansion for limitless bungalows, cars, and that quintessential personal grassy swale that connotes prosperity ... all fall victim to increasingly hardscrabble realities that push us into often begrudged contact with one another.

There is also a demographic reality that shows increasing diversity of ethnic and cultural origins that impacts the entire country. By mid-century, the Euro-American crowd will be a minority and the offspring of our current "exotic" neighbors will be running the store.

And what a store it will be as global warming grinds away, changing landforms, destroying habitable areas, intimating ecological disasters beyond the capacity of the human race itself to survive.

Remedies to these harsh predictions must come from such prosaic notions as "community involvement". It was bad in the 1950s and 1960s when our ruling elite were chasing purported Commies. Skipping over the subterfuges employed by our leadership regarding Vietnam and Central America in the 1970s and 1980s, we now have military scattered around the globe with some trillion-dollar open sores in and around Afganistan, increasing dependence on mercenaries, and a "homeland security" free pass that lets our government hound dissenters, intimidate the press, and open national and international governance to corporate exploitation that beggars the comparative enthusiasms of 19th century robber barons.

Left to their own devices, our ultra-rich are becoming latter-day aristocrats who live in well-guarded enclaves and enjoy the fat of the land on a scale not seen since the demise of feudalism. "Community involvement" becomes a loaded term that connotes rising dissatisfaction in general populations. Historically speaking, this doesn't bode well for the current elites around the globe.

The rhetorical flourishes that provided the glue for the "Great American Experiment" now have wide circulation compliments of the digital age and are quite the excedrin headache for those who prefer economic class preferences. We are also knee-deep in weaponry and have a collective capacity for mutually assured destruction that ranges from tiny neighborhoods to great nation-states. Not a good time to be pulling down the shades or erecting barriers that invite increasingly painful breaches.

"Community involvement" doesn't have to be adversarial. There are many examples of collaborative alternatives and the real issue to me, at least, is to encourage a non-violent way forward. This does require an embrace of perceived opposites and I hope that we can find that sustainable romance before we wreck the place.

If the Charter Amendment passes

The following is a repeat of two successive posts in the Free Speech Zone on The Daily Planet.
Search on "Redistricting" at their website home page and these entries will show up. There are additional entries, but none as knowledgeable - what I have done is essentially to have annotated the substance of the timeline that Commissioner Lyall Schwartzkopf laid before the full Charter Commission. It has not been enacted by the Commission - there are too many uncertainties to permit the degree of finality expressed in the Principles and Procedures documents that have been enacted by the full Commission in expectation of passage of the overall amendment. If that amendment is rejected by the voters, all these projected intentions will be moot and the extant system used in 2002 will once again come into play.

FREE Speech Zone / Redistricting may be greatly changed.

By fredmarkus, Free Speech Zone

October 14, 2010

November 2, 2010. Election Day. The grand finale on the Minneapolis ballot asks the Minneapolis electorate to vote on a major change in how we implement the ward and park district boundary changes in the aftermath of the US 2010 Census.

If 51% of the voters who vote on this Minneapolis Charter amendment vote "yes", the amendment will be adopted. If so, the Charter Commission will have occasion at their regularly scheduled monthly meeting - November 3, the first Wednesday in the month and the day after election day, as it happens - to proceed on their planned approach to implementing this new system.

The "How to" documents about this are on the Commission's website
http://www.ci.minneapolis.mn.us/charter-commission/ near the bottom of the page. There you will find a link to the procedures the Charter Commission intends to follow
http://www.ci.minneapolis.mn.us/charter-commission/docs/Principles-for-Redistricting.pdf

These procedures were adopted unanimously by the full Charter Commission at their October 6, 2010 regular meeting.They were crafted by a drafting committee of eight Commissioners (Lyall Schwartzkopf, convenor, Margaret Dolan, Todd Ferrara, Andrew Kozak, Barbara Lickness, Jana Metge, Andrea Rubenstein, and Ian Stade). Charter Commission Chair Barry Clegg sat in on the committee's work ex officio and Commissioner Jan Sandberg also attended regularly and helped shape the best-estimate timeline the full Commission has before it.

This best-estimate timeline hasn't been adopted - too many variables related to activity at the State Legislature - and I notice that the link to this timeline has been removed from the Commission's website.

Not to step on anyone's prerogatives in this matter, suffice it to say that it will likely take all of 2011 to implement what has taken shape in the minds of the Commissioners.

It's also the case that three of the Commissioners will have their terms of office expiring next year. Commissioner Thomas Jancik's term expires February 26, 2011.Commission Chair Barry Clegg and Commissioner Ian Stade will see their terms of office expire on May 1, 2011.

Applications for anyone wishing to apply to the Chief Judge of Hennepin County for appointment to succeed these three worthies - and they themselves may apply for reappointment at the discretion of the Chief Judge - will apparently become available next month (November, 2010) pursuant to the open appointments process administered by the Minneapolis Clerk's office and will be available until the end of 2010 - that's my personal estimate.

The City Clerk's material is a bit murky, but 5-7 weeks seems standard for the window of opportunity. It may be that only the February 26, 2011 end of term will trigger the November/December window and the window for applications for the terms ending May 1, 2011 may not open until sometime in early 2011. Dunno.

Meanwhile, under the provisions of the Charter Commission procedures already in place, steps will soon be taken to start the ball rolling on establishing the 9-member Advisory Committee adjunct to the Charter Commission itself.

These are uncharted waters, so don't take offense if the official game plan remains uncertain for the time being.

There are some inevitable chunks of prep time in 2011.

For starters, it's the intention of the Charter Commission to have maximum prior notice to the general public throughout the redistricting process, beginning with having the Commissioners en toto or a committee of Charter Commissioners draft a proposed job description and proposed application form. (January, 2011)

These Commissioners will then have a public meeting for the purpose of discussing these drafts with persons interested in applying to be on the Advisory Committee (and, skipping ahead in the principles document, to be de facto peers of the 15 Charter Commissioners until the very final vote that the Charter Commissioners will take de jure that enacts the new ward and park district maps. (February, 2011)

That same month will presumably be used for the Commission to review what came out of the public discussion and then to draft a final version of both the Advisory Committee job description and the necessary application form.

The official results of the US Census for 2010 will also come into view in the first part of 2011 - as aslo, I should add, the scrubbed up results of the November, 2010 general election compliments of the Minnesota Secretary of State's registered-voter database. These data are the raw material of the redistricting process at the state level. Congressional Districts are redrawn first, then the State Senate and State House of Representative Districts - but maybe not so quickly because many more factors than just the head count are involved.

By statute, local jurisdictions like Minneapolis and Hennepin County have to wait to start their formal redistricting activities until after the State Legislature boundaries have been signed, sealed, and delivered. Litigation about these decisions could conceivably delay closure in these matters.

Meanwhile, the Charter Commission can enact the job description and application form referenced above and pick the dates of the window of opportunity for persons wishing to serve on the Advisory Committee to turn in their applications. (Estimated March 15- April 30, 2011)

Please bear in mind that the Commission is very keen to have diversity as a defining characteristic of this Advisory Group. The Procedures adopted by the Commission on October 6, 2010 make it clear that underrepresented groups (in terms of race, ethnicity, culture and the like) are meant to have first dibs on these nine seats, provided that the applicants who come forward are clear about the "good of the whole" sentiments expected of the full "Redistricting Group" as the composite of the 15 Charter Commissioners and the 9 Advisory Committee Members will come to be called.

While the Charter Commissioners are marking time during the open window for applications to serve on the Advisory Committee to arrive, they will presumably take occasion to formalize their approach to reviewing these applications. Thus either the full Commission or a subset of its members will have the month of May, 2011, most likely, to arrive at their recommendations for the appointments that the full Commission will enact in early June, 2011.

By then the membership of the Charter Commission itself will have been stabilized by the start of new terms of office for whoever is to occupy the three seats up for renewal.


The Road Ahead for the Redistricting Group, Assuming the Charter Amendment Passes

Subject to revision, to be sure, because some intentions may be impacted by events at the State Legislature.

Preparatory steps will include a broadly inclusive advance notice to interested persons and groups. The Redistricting Group, now 24 members strong, will have an orientation meeting and a tutorial from the City Attorney about duties and legal restraints. Action steps will be to begin drafting rules for conduct and process. (June, 2011)

Next, the Redistricting Group will hold two city-wide meetings in different parts of the City to explain and discuss the proposed rules process, followed by a formal hearing on the proposed rules. These "rules of engagement" established with the benefit of public input, the Redistricting Group will then finalize and enact the rules to be followed while redistricting. (July, 2011)

The City Attorney will be called upon to review Federal requirements and Charter requirements and explain the timeline for completion of the City's redistricting process (which could in fact be well into 2012. There is a stipulation that the City's redistricting must be completed in "the year ending in two (2012). Another stipulation requires completion at least 14 days before the first date by which candidates for the Park Board may file and a completion by the first date by which candidates for the city council, etc. may file. However, to the best of my knowledge, these municipal races won't take place until 2013, so go figure.

Additionally, the City Clerk will identify City staff who will work with the Redistricting Group, a budget will be established to be administered by the Clerk's office, and a non-partisan computer specialist hired to help with the use of redistricting software. (August, 2011)

Assuming that the State Legislature has concluded its redistricting process, the Redistricting Group begins drafting new boundaries for the City' Wards. (September, 2011)

Arriving at first draft maps for City Wards and Park Districts, the Redistricting Group will hold two city-wide hearings to receive citizen input on these first-draft maps. (October, 2011)

Having had the benefit of public input, the Redistricting Group agrees on a proposed (second-draft) redistricting map for the City's Wards. This product is then published in a legal newspaper and at least 7 days before the Reistricting Group holds three city-wide hearings. If the proposed Park District map is ready, that too will be taken notice of and then forwarded to the Park Board for their comments per the instructions in the City Charter. (November, 2011)

Having had the benefit of the three public hearings in November, the Redistricting Group will draft a final Ward map and upon approval by the larger Group, that map will be forwarded to the Charter Commission for final approval. (December, 2011)

The Charter Commission reviews and enacts the final Ward map and files this finished product with the City Clerk. Similarly, the Charter Commission, with the benefit of comments from the Park Board, reviews and enacts the final Park District map and files this finished product with the Park Board. (January, 2012)

As referenced earlier, the Charter requires that Ward Boundaries be drawn in the year ending in two (2012). I'm not sure what significance that has if the next regular municipal election won't be until 2013. Whenever this next municipal election occurs, there won't be any primary election because of IRV.

There's also a big loose end as the Legislature comes to grips with the need for process regarding the new School Board Districts and the Charter Commission preparations are silent about this for now.

There's also room in this tentative timetable for litigation at either the state or the municipal level as was famously the case in 2008 in the US Senate contest and less dramatically the case post the 2005 municipal election. This too is beyond current knowlege.

So that's the story. If 51% of the voters who vote on the amendment vote in the affirmative, something very close to this projected narrative will come to pass. There is also a cautionary proviso that the City Attorney has to review the whole set of proposed procedures and processes for legality, but there were some mighty fine attorneys on that drafting committee and on the full Charter Commission.

I certainly hope the electorate agrees that this is a significant improvement, however the rather numerous hearings and long timeline.

My belief is that more kinds of people, particularly people quite a bit younger than the likes of those of us who are getting pretty long in the tooth, can get valuable exposure to civic process and come to realize that they too can have responsible places at our municipal table and beyond.

It's also the case that far more people will have what amount to ringside seats as redistricting comes to pass. Politics will be involved - we are political animals after all - but without insider advantage. It'll be pretty difficult if not impossible to steer this Group and this Commission from the sidelines.

Give it your best shot.

The utility of online commentary is formidable, particularly for those of us who are accustomed to writing extemporaneously. If one list moderator turns down the volume, another list gladly picks up the content. From the standpoint of the writer, the task then becomes which target market to embrace, understanding that differing shades of commentary can be cross-linked via online "switching stations" like Facebook. Information can be conveyed in written form, static images, slideshows, powerpoint presentations, sound, and/or video. Search engines like Google, Ask, and bing compete for users' inquiries with highly nuanced linkages. Live video conferencing has become readily available and cloud computing technology looks to massive data transfers and specialized software installations on remote servers that dwarf what can be achieved in a parochial setting.

We're not in Kansas anymore. The 24-7 news cycle accelerates all manner of information and not always in a particularly coherent way. I've long felt that in an age of "too much information", the ability to extract useful meaning in a succinct and timely way becomes a sort of prime imperative for human users and digital tools alike.

As I grow older, the meaning of perspective takes on more significance. I'm physically less mobile but my online traffic more than makes up for the give and take of the rubber chicken circuit and the tedium of long meetings with seemingly endless agendas. Like it or not, I have more time for reflection combined with communications gear that comes with a steep learning curve. I find myself longing for "minions" to sort out the white noise and to follow through on purposive activity and after-action analysis. The clerical side of this industrial-strength shop will bury me if I fail to invent and devote significant attention to archival systems.

There are specialists who explore and explain such task analysis. I would be lost without the "big fat books" that come out as after-market releases when major software and hardware upgrades become irresistible. They function as giant-sized cliff notes and hopefully give me the specialized vocabulary I need when attempting to communicate with and learn from people who mean to have answers to the questions I come to ask when - not if - I lose my way in this new cognitive wilderness.

Gotta love it.

Can't improve on this: in re judicial activism

From Open Left 2.1.10

Obama's Budget Proposes Big Increase In War Spending Posted: 01 Feb 2010 06:00 AM PST

After Defense Secretary Robert Gates met with defense contractors to reiterate the Obama administration's commitment to "steady growth in the Pentagon's budgets," I can't say I am surprised by this - but I can say I am nauseated by it:

• War spending surges in President Obama's budget
• President Barack Obama's new budget, to be released Monday, forecasts two consecutive years of near $160 billion in war funding, far more than he hoped when elected and only modestly less than the last years of the Bush Administration...
• The president's 2010 defense budget a year ago requested $130 billion for operations in Afghanistan and Iraq and just $50 billion in 2011. The new budget ramps up 2010 spending to $163 billion and for 2011 requests $159 billion in overseas contingency funds for the military.

The story - not surprisingly - attempts to sugarcoat this by noting that "core defense spending is feeling the strain (of) the president's $549 billion request (because it) reflects less than 2% real growth over inflation" - as if 2 percent plus inflation on already one of the largest defense budgets in history is somehow "straining."

But I guess that's the terms of our political debate these days: We should cry for the "strained" fat-cat defense contractors while offering up "tough love" admonishments to anyone hit by cuts to non-defense programs.

And really - how dare anyone criticize defense spending! President Obama is only "on track to spend more on defense, in real dollars, than any other president has in one term of office since World War II," as National Journal reports.

We've already been hearing the cat-calls from the Washington Establishment that this astronomical amount somehow isn't nearly enough - and I'm sure those cat-calls will only get louder in the coming weeks and months.

Lies of rightwing populism: Those evil liberal elites Posted: 31 Jan 2010 03:30 PM PST

The most fundamental lie about the Tea Party movement is that it represents some sort of working-class populist base that is heart and soul of the Republican Party, in opposition to which are the wealthy liberal elites of the Democratic Party. Contrary to his reputation for brilliance, Barack Obama has probably done more to make this absurd scenario credible than any other single individual over the past year and a half (if you think Glenn Beck makes anything credible, I challenge you to a duel, Funk and Wagnalls at 50 paces).

Well, I was checking out something else in the American National Election Study archives, when I noticed someone had created an ideology scale, simply combining attitudes on spending with ideological identification, and I thought this would be a useful way to underscore what a lot of hokum this kind of narrative is, since the reality is that conservatives are elitists, always have been, always will be, regardless of the fact some liberals--social liberals, primarily, may be as well. Just to emphasize my point, I decided to divide things up by decade, so that the persistence of the pattern could be clearly seen. The orange shows values higher than statistically predicted, the blue shows them lower. The darker the color, the greater the divergence from expectations. That means that the orange band from upper left to lower right--low income liberals to upper income conservatives--shows where the greatest deviation above statistical expectations lies.

[Please check this out at Open Left. Too much information for this blog post. There are also many links within the Open Left article to other germane sources. - FHM]

The Supreme Court is political. Always has been. Always will be. Get real. Posted: 31 Jan 2010 01:00 PM PST

In my previous diary, Three big lies wrapped up in the Citizens United decision, I identified the following three lies:

1. Money is speech.
2. Corporations are people.
3. Lies (1) and (2) are not the inventions of conservative judicial activism.

In that diary, I discussed the first two. Now I turn my attention to the third--and beyond.

Something's definitely up. Another major disagreement with Glenn Greenwald. This time it's his piece, "Justice Alito's conduct and the Court's credibility". Glenn's worried that Alito's mumbling will undermine the Court's credibility. I'm praying that it will. Glenn thinks the Supreme Court should be above politics. I know that it never has been, and never will--but it can and should be a lot more honest about it, as should we all. Which is why I'd much rather see an open display of the Court's politics that everyone can see and react to accordingly, as opposed to the hypocritical pretense that they're "beyond politics".

Here's a key passage from Glenn:

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.

Greenwald's first, most obvious mistake is placing the military and the Supreme Court into the same category. The Supreme Court is the head of a branch of government. It is inherently political, of necessity and design. Of course its scope of power is limited--as is the case of all political actors under the Constitution. And because it does not require re-appointment, but can suffer impeachment, it is a simple matter of common sense for it to speak and act politically largely through its own rulings. But its justices can and do give speeches and write books. Its disengagement from overt engagement in other forms of politics is not a Constitutional requirement, but rather a matter of custom and common sense. Why act where it is least powerful, and most likely to be rebuked?

OTOH, the Founders were quite concerned about the politicization of the military, seeing the pathway of military power as the quickest way to despotism, and so they devised an elaborate system of divided power to try to neutralize it as a political entity--including giving states a role in training and arming the militias which were originally intended to largely take the palce of a traditional standing army. (This is what the 2nd Amendment was actually all about: fine-tuning the balance of powers and responsibilities to keep military power in check.) Their efforts have been somewhat defeated over time, but the main impact has been to make the military and its civilian contractors into the most powerful special interest in the land. Since their main political goal is simply self-perpetuation and self-aggrandizement, they willingly conform to the outward charade of being non-political. In partisan terms this is by the best bet: No one runs against them, even though they're far and away the worst example of "waste, fraud and abuse" ever seen by the US Government.

Now on to Greenwald's central mistake:

The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.

This may well be true in one sense, but it is a patent absurdity in another. If the term "political considerations" is intended narrowly, to cover partisan advantage (as in Bush v. Gore) but not ideology, then it is both sensible and largely achievable, which is part of why Bush v. Gore was one of the worst Supreme Court decisions of all time. But Alito's mumbling, whatever you think of it, had nothing to do partisan advantage apart from ideology. And it's precisely this broader meaning--of "political considerations" as matters of ideology that Greenwald essentially decries, as if it were possible to exclude ideology entirely from "being objectively grounded in law and the Constitution".

In essence, Greenwald is arguing that judges should not be swayed by ideology--which is exactly what the conservatives had been arguing ever since Brown v. Board of Education. Of course, what they really mean is that judges should not be swayed by liberal ideology. Being swayed by conservative ideology is just peachy. Greenwald may think this is just a problem of hypocrisy on their part, but it's not. It's hypocrisy based on a lie, because it's impossible for any judge to interpret the Constitution based solely on "being objectively grounded in law and the Constitution". There is both not enough in the law and the Constitution to enable one to do this--there are novelties that cannot be foreseen--and at the same time, too little--there are conflicts between different principles, and lines of precedent.

Rather than pretend that there's an ideology-free ideal that we should all be striving for, there's a much better alternative: to talk frankly and openly about what people's Constitutional and judicial philosophies are, rather than pretending that they do not exist. Imagine that: honesty as a basic foundation for approaching the law!

A good example of what this might look like is the subject of the next section.

Partisan Entrenchment Theory

In 2001, in the Virginia Law Review article "Understanding the Constitutional Revolution", Jack Balkin and Sanford Levinson laid out a realist theory of how constitutional interpretation changes over time--a theory that is profoundly political, because it takes note of and seeks to systematically explore how the political process impacts the functioning of the courts over time. As is often the case, a more succinct summary of their theory can be found in a later work, the 2006 Fordham Law Review article, "The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State", where they wrote:

The initial formulation of our theory consisted of four basic points: (1) by installing enough judges and Justices with roughly similar ideological views over time, Presidents can push constitutional doctrine in directions they prefer; (2) partly for this reason the Supreme Court tends, in the long run, to cooperate with the dominant political forces of the day; (3) not all Presidents are equally interested or equally effective in entrenching their views in the judiciary, and Presidents face different opportunities and obstacles that may enhance or limit their success; (4) finally, significant changes in judicial doctrine usually reflect larger institutional changes--like the growth of the administrative state--and broader political forces.

Turning back to the original, this passage is particularly crucial:

When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate. They will serve for long periods of time because judges enjoy life tenure. On average, Supreme Court Justices serve about eighteen years.104 In this sense, judges and Justices resemble Senators who are appointed for 18-year terms by their parties and never have to face election. They are temporally extended representatives of particular parties, and hence, of popular understandings about public policy and the Constitution. The temporal extension of partisan representation is what we mean by partisan entrenchment. It is a familiar feature of American constitutional history. Chief Justice John Marshall kept Federalist principles alive long after the Federalist Party itself had disbanded. William O. Douglas and William Brennan, two avatars of contemporary liberalism, promoted the constitutional values of the Democratic party for decades, just as William Rehnquist has for thirty years now proved to be a patient but persistent defender of the constitutional values of the right wing of the Republican Party.

Partisan entrenchment is an especially important engine of constitutional change. When enough members of a particular party are appointed to the federal judiciary, they start to change the understandings of the Constitution that appear in positive law. If more people are appointed in a relatively short period of time, the changes will occur more quickly. Constitutional revolutions are the cumulative result of successful partisan entrenchment when the entrenching party has a relatively coherent political ideology or can pick up sufficient ideological allies from the appointees of other parties. Thus, the Warren Court is the culmination of years of Democratic appointments to the Supreme Court, assisted by a few key liberal Republicans.105

Partisan entrenchment through presidential appointments to the judiciary is the best account of how the meaning of the Constitution changes over time through Article III interpretation rather than through Article V amendment. In some sense, this is ironic, because the original vision of the Constitution did not even imagine that there would be political parties. Indeed, the founding generation was quite hostile to the very idea of party, which was associated with the hated notion of "faction."106 This vision collapsed no later than 1800; among other things, the Twelfth Amendment is a result of that collapse and the concomitant recognition of the legitimacy of political parties. A key function of political parties is to negotiate and interpret political meanings and assimilate the demands of constituents and social movements; as such, parties are the major source of constitutional transformations. They are also the major source of attempts to maintain those transformations long enough for them to become the new "conventional wisdom" about what the Constitution means.

Now, I don't agree 100% with Balkin & Levinson's account. For one thing, I spoke with Balkin last week, and came away with a very strong sense that his focus on institutional politics fails to pick up what I regard as some very important points. Most specifically, I think that the way the GOP has used Roe v. Wade for mass mobilization purposes, but never quite managing to overturn it, has a good deal more significance than Balkin is willing to give it--which is not to say that he ignores it (and, indeed, I agree with much of what he does say, it's just that I would say a good deal more). But these differences are minor compared to the fairy-tale version of Constitutional interpretation to which Greenwald clings.

What isn't minor, however, is my broader sense--going beyond Roe as a single, if major, rallying point--that conservative judicial ideology has been used as a core part of conservative movement-building in a way that has no real parallel in American history, and that is fundamentally dishonest, precisely because it claims the same sort of transcendent, apolitical neutrality as Greenwald appeals to. Of course, it needs to be stated again that the conservative movement has been deeply hypocritical, while Greenwald is not. Nonetheless, they do both subscribe to this narrative, which is simply and straightforwardly false.

To add some further nuance--which also further underscores the unreality of conservative claims about high principles, and objective interpretations--here's what Balkin and Levinson had to say in 2001 about the actual contours of conservative jurisprudence, as opposed to their advertised fidelity to the innermost thoughts of the Founders, and the strictest of objectivity:

In the past ten years, the Supreme Court of the United States has begun a systematic reappraisal of doctrines concerning federalism, racial equality, and civil rights that, if fully successful, will redraw the constitutional map as we have known it.24 This newly vitalized majority has, to be sure, not rethought every part of constitutional doctrine - paradigm shifts almost never do that - but it has made an important mark on constitutional law. And, not surprisingly, this same bloc of five conservatives handed the presidency to George W. Bush in Bush v. Gore. By doing so, they helped ensure a greater probability for more conservative appointments and more changes in constitutional doctrine. The conservative five are not through yet. They have selected a president to keep their constitutional transformation going.

However, five years later, the picture had changed somewhat, as they explained:

One can only assume conservatives like Calabresi were optimistic about George W. Bush's ascension to the presidency in 2000, believing that the Court was about to go much further in reining in-or at least significantly cutting back on-the New Deal settlement. This did not happen, however, and one cannot explain the failure to achieve either Calabresi's hopes or our fears simply by the fact that Bush had no opportunity to alter the Court's composition during his first term. We do not wish to say that no further changes in federalism doctrine are in the offing: We may see, either through statutory construction or through new constitutional doctrine, new limits on environmental protection.68 Nevertheless, after cases like Nevada Department of Human Resources v. Hibbs,69 Tennessee v. Lane,70 and ,71 it seems fairly clear, at least as of 2006, that the "federalism revolution" has been substantially slowed, if not stopped in its tracks. There will be no return to what Douglas Ginsburg once called "the Constitution in Exile" - a pre-New Deal Constitution with sharply limited federal powers.72

And they go on to point out that the change in the Supreme Court parallels what happened with the President and Congress:

Republican hegemony has not produced smaller government, but rather "big government conservatism," which included the No Child Left Behind Act,75 a Medicare drug benefit,76 as well as hefty doses of pork for the favored constituents of the Republican Party, administrative regulations benefiting specific industries, and tax cuts, tax cuts, and more tax cuts. The national political coalition dominated by Republicans did not seek a weakened federal government with judicially enforced limits, but rather one that could use all of the constitutional powers of the post-New Deal era selectively to benefit its own favored groups and interests. One need only think of proposals for nationwide bans on human cloning and stem-cell research, the federal statute criminalizing partial-birth abortions, or the unsuccessful attempt by the Bush Administration to invalidate Oregon's Dignity-in-Death Act through an unusually expansive interpretation of a federal statute.77

My underlying point here is quite simple: Conservatives would never have gotten so far if they had talked honestly about what they intended with their judicial appointments. The problem is not that the judiciary is political. It's that our politics is deeply rotten, and the political use of the judiciary--going back to the original animus aroused by Brown v. Board of Education--is intimately involved in the intentional cultivation of that rotteness.

Three big lies wrapped up in the Citizens United decision Posted: 31 Jan 2010 10:30 AM PST

There's nothing original about them. They've all been with us a good long while. But there are three big lies wrapped up in the Citizens United decision. Take them away, and there's nothing left. They are:

1. Money is speech.
2. Corporations are people.
3. Lies (1) and (2) are not the inventions of conservative judicial activism.

I wrote an earlier diary that was critical of Glenn Greenwald's take on the decision, but the basic thing wrong with Greenwald's approach was that it flat out ignored the fundamental mendacity involved-not to mention what was going on behind the mendacity, what virtually everyone knows this decision is really about: brute power, not speech. Indeed, brute power that has the inherent ability to stiffle speech.

On Friday, it didn't take more than a minute or so for guest, Monica Youn--who directs the money in politics project at New York University's Brennan Center for Justice--to set the record straight:

BILL MOYERS: Now, comedians can be funny and journalists can be facetious, but in very plain language, who won the Supreme Court decision?

MONICA YOUN: Well, corporations clearly won this decision. I mean, essentially, what the court does is it awards monopoly power over the First Amendment to corporations. You can think about the last couple of elections as, you know, the slow rise of the grassroots. And as a result, the political parties, for the first time, had an incentive to start reaching out to small donors, to start cultivating grassroots organizing networks. And you saw what happened in the last election. Now, what the Supreme Court has done here is really a power play. It takes power away from the grassroots, and it puts it squarely back in the hands of corporate special interests.

It threatens to make these grassroots networks irrelevant. To say, you know, it's no longer going to be worthwhile for, you know, parties to look for fundraising opportunities, $20, $100, even $2,400 at a time, if they can just have multimillion dollar support directly from corporate treasuries.

The problem with Greenwald's type of analysis is that it takes the First Amendment argument seriously, it accepts the first two big lies identified above, rather than realizing that this decision is a reductio ad absurdum refutation of them. In contrast, Youn simply looks at what's happening right in front of us. It's a classic case of "Who are going to believe? Me, or your lying eyes?" The classic response that the solution to bad speech is more speech utterly misses the central point here: One direct effect of this decision will be the prevention of speech. Because money is not speech, and the taking of money from wealthy corporations will inevitably mean that other voices will be drowned out. As Youn points out here, not just voters' voices, but even small donors, just starting to be heard, will be increasingly ignored. Why bother with them? They don't have anything the parties or the politicians really need or want.

There is nothing ideological about this. It is simply a realist view of what the Citizens United decision is all about. Saying, "The solution to bad speech is more speech" in the face of this reality-now, that's ideological. I have nothing against ideology per se. In fact, I generally think it's a good thing. For the most part, it's impossible to make much sense of the world without ideology in some form or other. But when ideology blinds you to what's right in front of your eyes, when ideology becomes, in essence, nothing more than an elaborated lie, then ideology becomes the enemy of truth. And that's what so-called "First Amendment absolutism" becomes when it accepts the two big lies that "money is speech" and "corporations are people".

A bit later on, Youn gave a very clear description of what the Citizens United decision actually meant:

MONICA YOUN: But the problem with that is when you are talking about money being equivalent to speech. And corporations being equivalent to people. It's as if you're saying, "Okay, I'm going to put an ordinary person in a boxing ring against a Sherman tank and that's a fair fight. May the best fighter win." You're talking about artificial constructs that were built to accumulate money. That's the purpose of a corporation. There's nothing wrong with that. As long as that economic inequality does not directly translate into political equality. There's a reason our Constitution was set up the way it was. And there's a reason that you can't buy an election. Because we didn't intend for those who have the most money just to be able to get everything in the system the way they want it, every time.

Beyond the fact that corporate money will tend to crush the importance of small donors on the front end, there are at least two other easy-to-see ways that limitless corporate spending will diminish speech. The first is intimidation, the second is the monopolistic buying up of limited opportunities for commercial speech. Youn discussed intimidation in a passage that occurred between the two quote above, along with the other guest, Zephyr Teachout:

BILL MOYERS: But if I understand the decision, it doesn't enable the chairman of Exxon Mobil, or the chairman of GE to write a check to Zephyr Teachout, who's running for Congress from Vermont. It says she can spend as much money as they want to, in the, right up to the election. Right? Advocating that you be elected or defeated?

ZEPHYR TEACHOUT: Yeah. Or, what happens more likely is candidates getting threatened and encouraged. It's a much subtler form of corruption. Where your mind shifts to say, "Well, do I really want to take on that financial transaction tax if I know that Goldman Sachs is going to do an ad campaign?"

MONICA YOUN: And I think that the threat is going to be even more of an important weapon than direct, you know, "Vote for so and so who we like."

BILL MOYERS: How do you mean?

MONICA YOUN: I think there's going to be a threat of corporate funded attack ads against elected officials who dare to stand up to corporate interests. Corporations have basically been handed a weapon. And when you walk into a negotiation, and you know that one person is armed and is able to use a weapon against you, they don't have to take out that weapon. They don't have to even brandish it. You know that they have it. And every elected official who goes up against an agenda on regulatory reform, on climate change, on health care, will know that the corporation who, you know, he or she is opposing, can fund a, you know, a $100 million ad campaign to take him or her out.

The underlying point here is simple: Offering a bribe is a free speech. Making a threat is free speech. So is blackmailing someone. But none of them is protected free speech, because they involve criminal activity-activity that itself serves to stifle free speech. Treating unlimited corporate funding as simply free speech and nothing more not only buys the underlying lie that money is speech, it ignores the fact that even just the potential of unlimited corporate funding is a de facto blurring of the lines, it is inherently an offering of a bribe and a making of a threat. It could even be blackmail. These are not mere possibilities that might occur. They are inherent in the very nature of the vastly unequal power being given to corporations.

And, of course, that gets back to the "corporations are people" lie, which has been hovering in the background throughout most of this post. The two lies are intimately connected, of course, since for-profit corporations exist for only one purpose: to make money. That's why they have so much money in the first place. It's the very essence of their existence. Citizenship--the defining essence of the person as political actor--is entirely foreign to the essence of the corporation.

By way of contrast, non-profit corporations have be formed to serve a public beneficial purpose--such as furthering childhood education, running an museum, promoting medical research into a specific kind of disease, etc. This doesn't really constitute citizenship, either, but at least it takes a step in that direction, and by doing so, it makes all the more obvious what for-profit corporations lack in the way of genuine personhood as political actors.

We now turn to the other easy-to-see way that limitless corporate spending will diminish speech: the monopolistic buying up of limited opportunities for commercial speech. This was addressed by John Amato at Crooks and Liars, in a piece coyly titled, "What happens when corporations buy the last three months of ad space for an election cycle?"

What happens? Homer Simpson says, "D'oh!" That's what happens. John is a little less blunt, a little more articulate:

I've had some experience with trying to buy ad space during elections, and as the days creep closer to one, the ad space becomes more expensive, for the most part. At least in my experience.

My question is what happens when Big Corp decides to buy up the last month, or two or three, of available ad space on all major media outlets for a particular election? That would have an incredible impact on either an election or like we have in California, a proposition. We saw what happened when the Mormons bought up a ton of air time in California to oppose Prop. 8

We need regulations in politics, just like we need them for Wall Street and just like we need them when you buy a car. Hopefully, Congress will act and pass much needed legislation to help preserve our Democratic process. It already is deeply flawed, but this ruling only makes it worse.

Although the lineup of personnel is a little bit different this time out, what we're faced with here is very much like the invasion of Iraq. The rationale is compelling-if all you listen to is one side. If you hear both sides, there are gaping holes. But there are a certain group of liberals (without the air quotes this time) who think that despite the flawed motivations involved, it still advances something they believe in, and so they're good to go.

It's time we just sat back and trusted our lying eyes.

"Smart" is not enough: Looking for leadership. Looking for jobs. Obama illusion is wearing thin. Posted: 31 Jan 2010 08:00 AM PST

On Friday, MSNBC replaced Countdown and The Rachel Maddow Show with a 2-hour special on Obama's encounter with the GOP House caucus at their Baltimore retreat, with Kieth and Rachel being joined by Chris Matthews as well. The consensus of all three was that Obama mopped the floor with the House Republicans. But as I watched I had more than a nagging feeling that they were somewhat missing the point--even as Rachel kept reminding folks that Obama might well be missing the point. Although not addressing them specifically, Paul Krugman brought things down to Earth when he wrote:

Look, Obama is a terrific speaker and a very smart guy. He really showed up the Republicans in the now-famous give-and-take. But we knew that. What's now in question isn't his ability to talk, it's his ability to lead.

The problem is not just "leadership skills"--though those are problematic enough. It's having even the vaguest notion of what our goals and direction need to be. In the same blog post, Krugman points out:

It's all very well to say "we're going to focus on job creation". But what does that mean? At this point, no major economic programs have any chance of getting passed. Think of it this way: a year ago the question was whether the stimulus would be $700 billion or $1.2 trillion, now we're talking about $30 billion jobs tax credits.

And he's not just saying that because he's a liberal. Brad DeLong links to and quotes from former Bush Administration economist Keith Hennessey saying the same sort of thing:

[Keith Hennessy:] What does it mean to focus on jobs?: The conventional Beltway logic is that the President used his State of the Union Address to "pivot to focus on job creation." We have been told for a week or two that job creation is policy priority #1.... Wednesday night the President "pivoted to focus on jobs.

[President Obama:] "That is why jobs must be our number one focus in 2010, and that is why I am calling for a new jobs bill tonight.

[Keith Hennessy:] I have a simple question: What does it mean to focus on jobs?

I would presume that it means the President would propose new policy changes that are designed to significantly increase employment, and fairly quickly....

My back-of-the-envelope calculation... suggests that the President's new Small Business Jobs and Wages credit will increase full-time employment in 2010 by 165,000 - 297,000 years. By 2011, it will increase full-time employment by 264,000 - 594,000 years.... For comparison, remember that the U.S. economy has lost 2.7 million jobs since a year ago, and 7.2 million jobs since the beginning of the recession in December 2007. 297,000 is 4.1% of 7.2 million, so you're talking about a policy change that at best would restore fewer than 1 out of 25 jobs lost since the recession began.

Since no one in the Obama Administration is likely to answer Hennessey, I will: What it means to "focus on jobs" is to focus on talking about jobs... for a few minutes before turning to talk about something else.

THEY JUST DON'T GET IT! Talking about jobs does not create jobs. And just about everyone outside of Versailles knows this.

If they somehow think they are "dealing with" the repercussions of the MA Senate race, they are deluding themselves. The problem is, quite simply that Keynesian economics works. It's not a matter of ideology, it's a matter of fact. And Richard Trumka made this point very directly on Bill Moyers Journal Friday night. He seems to believe that Obama really gets it--and I think he's 100% wrong about that. But he himself understands what needs to be done:

RICHARD TRUMKA: .... So, I think he's starting to understand and feel the anger. And I think he's willing to work his way through. Now, the question becomes, will he do it on a scale that's necessary or essential to solve the problem.

BILL MOYERS: What kind of scale?

RICHARD TRUMKA: That's the issue. It has to be a large scale. We lost eight million jobs, plus we have two million that we needed for growth. So, we're 10 million jobs in the hole. In order to do that, it's going to take more than a little stimulus package or a little job bill. Because if all we do is the same thing that Japan did in the early '90s. They would spend a little, look like they're coming out of recession. And then stop and it would drop back down.

They did that for a whole decade. They lost a decade. And our country just can't stand that. So, our job is to make sure that his understanding of the anger, translates out into a jobs program of sufficient size to solve the problem.

Boy howdy! Even more than the FDR trying to balance the budget in 1937, the example of Japan in the 1990s is a major object lesson in what not to do. One that virtually all of Versailles--including the Obama Administration--seems utterly oblivious to.

I'm really glad that Trumka nailed this--and I'm pleased with other things he went on to say:

BILL MOYERS: So, what are your economists, your experts, your scholars, your academicians telling you we should be spending for the jobs program that you'd like to see, that you think will really make a big contribution to closing the gap.

RICHARD TRUMKA: First of all, we have to extend unemployment benefits. You got almost six million people who have been unemployed for longer than six months. If they lose those benefits, they stop consuming. If they stop consuming, the economy contracts pretty significantly.

So, we have to extend benefits. And we suggested a year's extension, so that everybody knows where they're going to be. Second of all, we needed money for the state and local governments. They are going to have about $178 billion deficit. And if they stop spending, anything we spend on the federal side just negates one another. So, we have to make sure that we don't lose education, like teachers, firemen, police officers, and all those jobs that are necessary. So, we think there should be aid to state and local governments.

We think there ought to be a major investment in infrastructure. We have a $2.2 trillion deficit in this country when it comes to our infrastructure. Bridges are crumbling. Schools are crumbling. Other places, roads are done. So, we need to make a major investment in that. And quite frankly, we think that the government ought to signal or say that they're going to do that over a number of years. Because if they do that, and say, "We're going to make a ten-year commitment to rebuilding our infrastructure," then they can bring in private funds. We can leverage that money and private funds will come in as well. The fourth thing we think we need in the short term is direct funding of jobs. I'll give you a couple of examples. You go into an area where schools are, where the students are hurting, because of a low tax base. And you say, "I'm going to provide tutors." Now, that creates a job and it helps a student with better schooling, better education, and being able to do better. And then the last thing the President announced he was going to do was that we think that we ought to use the TARP money to give to regional and community banks so that they can lend to small and mid-sized businesses that create that. And we think this year, we need to be on the range of at least $400 billion. That will get us about 4 million jobs back.

This should not be surprising. Labor has routinely had a much better sense of what's needed economically than anyone else--and for good reason: They represent the vast majority of people who can't make out like bandits regardless of what happens to everyone else. This forces a high degree of realism--something that virtually everyone else in Versailles is utterly immune to. Now, I do have one problem with Trumka, and that's that he seems to believe that Obama has gotten the message, and understands what needs to be done. But nothing in his performance with the GOP House Caucus gives any inkling of that. His basic line could be rendered as: "Hey, I'm to the right of Dwight Eisenhower. What more do you want?" And the GOP House Caucus shot back: "Eisenhower was a Commie dupe!"

They want to the right of Attila the Hun.

One thing, though, should be coming increasingly clear: More and more, progressives generally, and netroots activists in particular, are going to have gain a new appreciation for the basic soundness, soberness and importance of labor thinking on economics and labor's importance as a major force in setting this country back on the right track. Too many younger activists, especially those with an online focus, have little understanding of labor that's not badly distorted by the same delusional Versailles CW that they readily see through in almost every other area. Labor is far from perfect, of course. And it's had its own problems from being too influenced by the thinking of Versailles. But it has enormous under-recognized strengths as well, and if we're going to weather the difficult struggles ahead, then forging strong bonds between the netroots and labor is going to be an absolute necessity. There's just no one else who's got any sort of power who's remotely close to having a clue what's going on and what is needed for America, as opposed to Wall Street and Versailles.

p.s. On a related matter, Digby warns that progressives are fooling themselves to think that Obama did a good job in talking to the GOP reps:

[Digby:] It would appear people are extremely happy that Obama hit it out of the park yesterday in his appearance at the Republican retreat yesterday, so I'm in a minority of those who think it wasn't all that. It's not that I don't think he performed well. He always performs well. And he's smart as can be, so I expect him to be able to parry lugubrious misrepresentations from idiots without any trouble at all. We liberals love that stuff.

Certainly, it is a welcome thing if he was able to please his supporters because they have been sorely disappointed lately and they deserved something to cheer about so I don't mean to rain on anyone's parade. Morale is important and if he made people feel charged up that's all to the good.

However, I remain concerned that the message is not as clear to the rest of the country as his supporters think it was. ("Don't mess with Obama.") I watched Clinton do this type of thing over and over again and it didn't change the dynamic at all. He was personally successful, but liberal ideology was degraded every time he conceded something like "I think we raised taxes too much" or "the era of big government is over." People loved his ability to out talk his accusers (in his case it was a real high wire act) but the agenda suffered greatly from his ceaseless efforts to cajole a psychotically hostile opposition into working with him. It resulted in passage of center right policies and his own impeachment. But then he didn't have a huge majority in congress either.

I suspect that average voters don't see Obama being persecuted as Clinton was, or subject to non-stop calumny by a rabid Republican majority. The Republicans aren't doing anything (and that's the problem.) I think people see Obama conceding that he hasn't been bipartisan enough and that he intends to keep trying. And that will never be a winner for our side because all the Republicans have to do is continue to obstruct to prove him a failure.

That's it precisely. Instead of addressing the real problems that Krugman, Trumka, and even Bush's economist point out, Obama gives us a Clinton rerun that needlessly compounds the folly of Clinton's failed approach, and virtually assures its own failure. And this is supposed to be smart? Call it "outsmarting yourself", call it "too clever by half," call it whatever, but in the end, the smart thing to do is never to be smart, anyways.

The smart thing to do is to be wise.

2006: plus le change, plus le meme chose.

So what's it going to be:

• shall I step up to the possibility of being elected chair or associate chair in the SD 61 DFL organization, or
• shall I hold on to my independence and "follow my bliss" on my own time.
  

There are some mutually exclusive properties involved here. Most salient is that the DFL leadership roles come with an obligation to stay on the reservation.

As a DFL ward coordinator, ties to the DFL can be pretty gossamer and in the case of Minneapolis' near-south side, the substantial Green Party presence is a fact of life. There are other forces in play that run on non-partisan time. Having a substantial DFL leadership role is a limiting factor in these venues. One must also bear in mind that whatever the descriptive language, these inner-city areas are overwhelmingly progressive. Whatever capacity-building can be achieved will register from moderate to well left of center and stand in sharp contrast to the ideological pretensions of the Republicans and their allies in the religious right.

As a freely chosen DFL leader, one has the comfortable support of several nearby DFL incumbents, access to the DFL's many organizational assets - much better framed these days than prior to spring, 2005 - and recognition that frankly speeds up negotiations with mainstream DFL voters and personalities who are sometimes not so enamored of the the left's enthusiasms. One has a more coherent set of colleagues, a budget, and a game plan that permits more than one focus of corporate energy.

Well, what about others' intentions?

I'm not the only game in town, after all. Others may be better suited to the leadership roles. I'm really quite old for the rigors of a two-year leadership commitment, so my admittedly reasonable interest in the top DFL jobs has to be taken cum grano salis. I could well not be equal physically to the organizational grind whatever the policy flavor du jour. Conversely, senior status carries with it the likelihood of a respectful hearing even if it comes in the door leaning on the arm of a young stalwart.

Are there alternative vehicles for my communitarian interest?

They breed like rabbits, alas. I have been focused on cartography lately and that remains an open road. But wait, there's more! I feel strongly that networking and reinforcing desireable communities of interest means every bit as much and perhaps more than the scraps of target-marketing technology available these days. I've got some pretty good friends who urge me not to bite off too much - got to make room for those afternoon naps, after all!

Like Judge Alito, I plan to keep an open mind.

Whatever that means!