Will Citizens United Sound the Death Knell for American Democracy

              Robert A. Levine    5-31-12

It may come off as hype even talking about the end of democracy in America, but one has to wonder about that as the repercussions of the Citizens United decision by the Supreme Court become more evident. America’s democracy has survived many hits in the past, but it’s possible this one could be a knock-out blow. And once down on the mat, democracy may not be able to get up again.

This consideration was raised by a recent Politico article reporting that Republican Super PACs will spend a billion dollars to try and elect their candidates in this election cycle. (http://go.politicoemail.com/?qs=482f87de1d55a93ceaa04945cb513295628728e3a741d9bd5de4fba222ff3263) These are not grass-roots organizations, but groups financed by a few big donors. For example, groups linked to the Koch brothers will spend about $400 million alone, organizing operations in important districts and states.

Now, there are those who will say ‘so what,’ and that campaign spending is like a popularity contest, where candidates with the most appeal raise the most money. And that the Democrats can also try and generate as much money as they can if they want to make the races more competitive.  And that money and campaign ads don’t determine the way people vote. And that Obama spent three quarters of a billion dollars on the last presidential campaign anyway.

In relation to the last argument, the money Obama raised and spent on his campaign was through his own organization and he vetted and was responsible for the messages that emerged. With the plethora of Super PACs now sprouting all over the landscape, extremely wealthy people can issue their own messages as they attempt to influence elections, often anonymously and with no constraints on what is said or how much money is donated.  They can distort opponents’ messages, say things out of context or with only a kernel of truth, or frankly lie or make up stories, with no one and no governmental agency to take them to task.

By buying up enough air time in major markets in the swing states, they can completely dominate the political dialogue in the presidential campaigns, restricting the ability of opponents to respond over the airways and drowning out any counterthrusts. These kingmakers can similarly impact Congressional and Senatorial races with their money, electing men and women with worldviews comparable to their own, thus being able to determine governmental policy.

Unfortunately, this control of the electoral process can become self-perpetuating, extinguishing the vestiges of democracy.  Instead of free and open elections, America could undergo a transition to a plutocracy, where the very wealthy have the power and make the rules. The only way this can be averted is if common sense limitations on campaign spending by individuals and corporations are instituted again. But how can this happen if our elected representatives, along with the president and Supreme Court are opposed to any restrictions?

Economic inequality in America will grow even worse in the future, as the tax laws and regulations are further shaped to favor the rich. And this will be more than matched by the disproportionate political power of the rich. If these Super PACs are allowed to continue to control the discourse, any semblance of fairness that remains in political campaigns and elections will vanish.

Some see a negative legacy from George W. Bush’s presidency as a result of the Iraq War and tax laws that increased the nation’s budget deficits.  However, I believe his enduring legacy will be his nominations to the Supreme Court, with its Citizen’s United ruling that gave control of the political process to the extremely wealthy.

James Madison noted in The Federalist Papers- “We may define a republic to be… a government which derives all its powers directly or indirectly from the great body of the people…not from an inconsiderable proportion or a favored class.” We are now moving away from this vision for our republic and whether or not this trend can be reversed remains a question.

Resurrecting Democracy
http://www.robertlevinebooks.com/

Is Judicial Activism from the Right Alright

           Robert A. Levine     5-29-12

For decades conservatives have been assailing the courts for judicial activism, claiming the bench has been shaping or creating laws that override or ignore the intent of state legislatures, Congress and the Constitution. With judicial activism, the courts thwart the power of elected bodies to legislate, by ruling laws unconstitutional. This is the antithesis of judicial restraint, where the Courts accede to the elected branches of the government and uphold the laws they have enacted, giving them the benefit of the doubt when questions have been raised. Critics also note that precedents may be disregarded when the Courts attempt to legislate. However, now that the Supreme Court has tilted to the right, conservative voices are no longer being lifted against recent judicial activism, but praise the Court’s decisions.

A cry against judicial activism came from Southern conservatives when the Warren Supreme Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. The Court decided that these laws violated the Equal Protection clause of the 14^th Amendment. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been enacted by many states, by a 7-2 margin. Conservatives again saw this as judicial over reaching by the Court.

Since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion. Since these rulings upheld state and federal laws, they could be considered judicial restraint rather than activism.

Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws that expanded gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident in the first instance when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech and immigration.
However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech.

Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.

The question now remains how the Supreme Court will rule on the Affordable Care Act. Given the Court’s recent history of conservative judicial activism, it seems likely the justices will either find the entire Act or the individual mandate unconstitutional. When this decision is handed down, one can not expect any cries against judicial activism to come from the right.

Resurrecting Democracy
www.robertlevinebooks.com

High-Tech Immigrants Needed, but Immigrants Need Not Apply

                        Robert A. Levine    5-25-12

Engineers and scientists are desperately needed by many high-tech firms. However, positions are going unfilled because there are not enough trained Americans to fill them and immigration policy doesn’t allow enough visas to be granted to qualified immigrants who would be happy to take these jobs. And it’s not only in established businesses where immigrants bolster the economy. One study showed that foreign-born entrepreneurs started more than 25% of the technology and engineering firms in the U.S. between 1995 and 2005. Businesses created by immigrants generated $52 billion in sales and had 450,000 employees in 2005.

Foreign nationals now comprise the majority of scientists and engineers being trained in the U.S. for advanced degrees. For example, they account for 50% of master’s degrees and 70% of Ph.d degrees in electrical engineering. On an undergraduate level, foreign born residents earn 33% of all degrees in engineering, 27% of those in computer science, math and statistics, and 24% of those in the physical sciences. Each year vast numbers of students from abroad come to study in our universities, because the education they receive is superior to what they can get at home. Last year, 160,000 Chinese men and women were enrolled in American universities, about 60% of them pursuing engineering or science degrees. Yet our poorly conceived laws limit thousands of these scientists and engineers from obtaining jobs in our country after they graduate, even though they would prefer to stay and our high-tech firms would love to have them. We should be trying to lure these foreign graduates to work in America, rather than making it difficult for them to gain employment.

A Harvard Business School study found that almost half of the scientists and engineers with doctorates currently working in the U.S. were immigrants, and they accounted for 67% of the increase in American scientists and engineers between 1995 and 2006. The need for these educated foreign born workers will only grow as the Baby Boomers age and retire in the years ahead.

At the same time that immigration laws block many foreign-born scientists and engineers from working in America, China and India are actively recruiting those that are here, providing outsized bonuses and other inducements. As a case in point, according to the New York Times, China has been offering experienced professors and researchers bonuses of approximately $158, 000 to come back home.

The flow of these university graduates to their native countries from the U.S. can be considered a reverse brain drain, inverting the expected pattern of immigration. Federal funds subsidize the education of these scientists and engineers with grants to the universities they attend, aiding the economies of other nations and helping them to compete against us. America also loses the tens of thousands of patents and new technology these foreign scientists and engineers would have developed in our country, which would have created more jobs. These go instead to the nations to which they’ve returned.

Opposition to allowing more foreign scientists and engineers to work in America has come from some unions who claim that they drive down wages for American workers. Since there are jobs going unfilled in the high-tech fields because there are not enough scientists and engineers, the charge appears ludicrous. And foreign workers in these firms receive salaries that for the most part are comparable to American workers. In addition, bureaucrats in the Immigration and Naturalization Service have complicated the processes that foreign-born scientists and engineers must go through to work in the United States, making it more difficult for them to obtain jobs. But the real problem lies with the politicians hostile to immigration who have been against increasing the visas for educated workers.

Given the paucity of American students seeking advanced degrees in science and engineering, we should be handing out green cards and welcoming any potential workers or entrepreneurs in the high tech sector. We should also provide them with easier paths to citizenship so they will be more likely to remain. It will only benefit our economy in the long run.

Resurrecting Democracy
www.robertlevinebooks.com
                               

Earmarks- Playing Congressional Whack-A-Mole

                      Robert A. Levine    5-21-12

Congressional earmarks keep popping up no matter how much good government groups and sympathetic members of Congress try to suppress them. And many of the politicians who rail against earmarks are the ones who find ways to use them, keeping the earmarks hidden by labeling them differently or burying them within legislation. But an earmark by any other name…

The majority of House members and Senators decry earmarks in public and give the impression they would like to eliminate them permanently. But it seems as if you can’t keep a good political payoff down. The placing of earmarks in legislation has continued in spite of the supposed moratorium on this activity enacted by Congress in 2011.

Currently, a favorite strategy of lawmakers is to use special funds in spending and authorization bills for projects in their districts or states. As an illustration, early this year the budget passed for the Army Corps of Engineers contained 26 different funds totaling $507 million for construction, maintenance and other projects that were not part of the original bill. It has been noted by budget watchdogs that the funds for these 26 projects were approximately the same as the earmarks in the 2010 budget. The nation’s budget deficits and the need to reduce spending did not act as a brake for the members of Congress, who added more money for the Corps than the president had requested.

According to Citizens Against Government Waste (CAGW), the 2012 National Defense Authorization Act (NDAA) contained 111 earmarks. Of these, 59 utilized the exact language found in previous earmarks. A report from Senator Claire McCaskill’s office in December of 2011 found 115 earmarks in the NDAA. These cost taxpayers $834 million. Among those who requested the earmarks were twenty Congressional Republican freshmen who had campaigned against the practice. No surprise.
Further analysis by CAGW showed that 12 of 16 appropriation bills for FY 2012 that they had examined contained earmarks, with 251 projects totaling $9.6 billion. This is actually reduced since the moratorium went into effect, as earmarks in FY 2010 totaled $16.5 billion. However, transparency is now gone, with earmarks hidden within the text of legislation and not easily discerned. Earmarks previously were listed in a single table with the amount of the project, its location and with the names of those who requested the earmark attached to the request.

Unfortunately, past earmarks are still contributing to our budget deficits and wasting taxpayer money. An example is a drip pan for helicopters that attaches beneath the roofs to catch leaking transmission fluid. Congressman Harold Rogers, the current Chairman of the House Appropriations Committee, aka the Prince of Pork, requested as an earmark in 2009 that these pans be manufactured by a Kentucky company, a major contributor to him and to Republican groups. The cost to the Army for these drip pans, awarded without competitive bidding, was $17,000 each, compared to a similar pan from another manufacturer that cost $2500. The Army has already spent $6.5 million on these devices with more to come.

The Earmark Elimination Act, co-sponsored by Republican Pat Toomeyand Democrat Claire McCaskill, last year was an attempt to permanently end all earmarks, but was defeated when it came before the Senate in February. However, it seems that no matter what legislation is enacted that tries to eliminate earmarks, members of Congress and Senators will find ways to circumvent the ban. Politicians want to pay back businesses that support them in order to generate more campaign funding, and they want to finance projects in their districts to garner more votes. Thus, whatever laws the House and Senate pass against earmarks, they will always have loopholes that allow legislators to continue the practice they appear to oppose.

Resurrecting Democracy
http://www.robertlevinebooks.com/

What Were They Thinking?- A Department of Justice Misstep

                Robert A. Levine   5-17-12

The Department of Justice’s anti-trust action against Apple and five publishing houses was a serious misstep. The action was pursued because of apparent collusion by the defendants in setting the prices for digital books. However, it appears that the DOJ did not carefully consider all the ramifications before instituting this suit. Lower e-book prices for consumers are not the only issue. The muscle that Amazon currently possesses in the e-book market was not properly taken into account.

DOJ essentially acted as an agent for Amazon in this action, enhancing its unbridled power in the publishing industry. Amazon currently has 60% of the e-book market, versus only 15% for Apple. By assisting Amazon in its quest to sell books from more publishers at lower prices, competition will actually be reduced in this market.
If Amazon were a foreign company selling goods in the US below cost, as they are now doing with many e-books, they would have been accused of dumping by the federal government instead of getting support for their marketing strategy. Amazon promotes e-books on its Kindle at $9.99, including best sellers and new releases. Most new releases through the Apple ibookstore sell at $12.99 to $14.99.

Unfortunately, the DOJ action may doom many independent bookstores, impotent in trying to compete against Amazon’s prices. The more e-books purchased on the Kindle, the fewer actual books the small bookstores will sell. And publishers will now be unable to set the prices for their books in an electronic format, with Kindle’s very low prices undercutting sales of more profitable hard copies. In all likelihood, this means that some major publishers will fail and many smaller publishers will also go out of business. With publishing companies already hurting, did it make sense for the DOJ to bring an action against them for trying to protect themselves against Amazon, a predatory marketer that already ruled the electronic book market?

Writers will also be harmed by the DOJ suit. With the number of publishers declining, those remaining will be less willing to take chances on unknowns or literary works, instead concentrating on acquiring blockbusters from authors with proven sales potential, or celebrities and politicians with a public following, cookbooks and how-to books. Many lesser known writers will lose the means of earning an income, and top writers may earn less. Though self-publishing and self-marketing is being increasingly utilized by writers, there are no editors to assist in the creative process or knowledgeable marketing people to help.
Barnes and Noble, which now has about 25% of the e-book market, will also be hurt, unable to offer the same breath of choices as their digital competitor, Amazon. In addition, as with independent booksellers, sales of hard copies of books in their bookstores will drop and they will offer fewer services to authors and publishers.

Jobs will be lost as bookstores and publishers go out of business and the number of titles is reduced. Salespeople, editors, copy editors, administrative personnel, warehousemen and clerks will all have to find new employment.

 This failure of judgment by the DOJ is reminiscent of the decision made three years ago to bring Khalid Sheik Mohammed to trial in New York. Security issues, cost and impact on local business were not properly considered, and eventually the DOJ had to back down. However, in this current case, three large publishers have already settled with the government and will change their pricing model, also agreeing not to block any retailer from discounting their digital books. Macmillan and the Penguin Group did not settle and will challenge the government in court. Perhaps their resistance will be rewarded.

 It’s hard enough for small retailers and big box stores to compete with the online giant Amazon. With publishers and independent bookstores, this difficulty is being compounded by the Department of Justice taking Amazon’s side in the selling of e-books. At this point, it appears that the genie is out of the bottle and corrective action for this DOJ misstep can only come through legislative measures. The chances of this happening in the current political environment are remote.

 Resurrecting Democracy
www.robertlevinebooks.com

Bolstering the I.R.S.

        Robert A. Levine    5-14-12

 With federal budget deficits and the national debt as major problems for the country going forward, why have Republicans been unwilling to fund more I.R.S. agents to pursue tax cheats and increase federal revenue? The 2012 Obama budget asked for an increase in funding for the agency, much of which would have been dedicated to hiring more agents and enforcement initiatives. However, Congress in its infinite wisdom instead cut the I.R.S. budget, forcing the agency to offer buyouts to over 5000 of its employees.

 A report by the internal monitor of the I.R.S. in January noted that the cuts in funding and an increased workload made the agency unable to adequately collect taxes or provide reasonable service to the public. In fact, staff reductions resulted in an inability to obtain billions of dollars annually owed to the government, but not paid. One estimate from I.R.S. data had tax cheating costing the federal government $3 trillion over the last decade. In addition, every tax filer has to pay an extra $2200 to the government to compensate for those taxes that are evaded. The great bulk of the tax avoidance is by wealthy individuals or small businesses. If with more agents I.R.S. audits rose significantly, much of the money now owed could flow into federal coffers, a good deal of it voluntarily through tax dodgers’ fears of being caught.

 The recent GOP House budget proposal emphasized cutting tax rates, while closing loopholes and deductions, but did not provide the I.R.S. with additional help to improve enforcement of the current tax laws. And in a cynical maneuver, the loopholes and deductions to be ended were not specified in the GOP bill, so that no estimate could be made of whether the revenue generated would be equivalent to what was lost with the tax cuts. Last year when the additional money was requested for the I.R.S., one Republican Congressman declared that no money would be forthcoming for “I.R.S. goons.” This is emblematic of the way many Republicans view the I.R.S; an agency whose powers should be reduced rather than expanded. And when service from the I.R.S. is not up to par, citizens’ hostility to the agency grows, which is probably what Republicans want.

 One would think that in this time when shrinking the federal budget deficit is so important to both parties and the electorate, the idea of collecting more money from tax cheats would be a no-brainer for the deficit hawks in the GOP. Not only would it bring in additional revenue to reduce the deficit, but it’s also an issue of fairness for those who pay their share. And getting it done would be relatively painless. Do Republicans hate the I.R.S. so much that they are willing to let fraud go unpunished and tax-evaders keep their ill-gotten gains?

 Republicans appear to be hostile to anything that has to do with taxes. While there’s little question that the tax code needs changing, the tax laws now in place need to be maximally enforced for the good of the nation. This should be done independently of cutting taxes, or reform of the tax code.

 Resurrecting Democracy
www.robertlevinebooks.com

Need for Centrist Third Party Grows

                        Robert A. Levine   5-10-12

 The increasing ascendancy of Tea Party activists and extreme right-wingers in the Republican Party reinforces America’s need for a centrist third party. Recent events have proven that there is no room in the GOP for moderates, or even moderate conservatives, with Senator Olympia Snowe retiring and Dick Lugar going down to defeat in the Indiana Republican primary. The extremists do not want those they describe as RINOs (Republicans in name only) to be part of the party. The idea of a “big tent” that would be all inclusive for the Republican Party has collapsed. And those pundits who predicted that Tea Party influence would diminish over time should dream on.

 In fact, even conservative conservatives, like Bob Bennett of Utah, are not extreme enough for the activists who now control the GOP. The unwillingness of the new Republicans to compromise with Democrats on virtually every issue will make governing in Washington even more difficult in the future. And thus far, every member of the group of House Republicans elected in 2010, known for their obstructionism, has won his or her primary in 2012. (http://politi.co/Jq46tS)

 It’s true that Lugar’s loss was due to a concurrence of factors, including his not having a home in Indiana, his age, a lackluster campaign, and his being out of touch with his constituents. But the major impetus for his defeat came from the Tea Party, outside conservative Super PACs, and right-wing organizations like the Club for Growth which demands a no tax pledge from all politicians. His opponents were unhappy with Lugar’s willingness to reach across the aisle to legislate at times and his votes for some Obama appointees. They were particularly upset with his support for the auto bailout, TARP and the START Treaty. Lugar’s concession statement is a testament to what is wrong with American politics. (http://wapo.st/LPBUTc)

 Another indication of how the Republican Party has changed for the worse is the recent exit of two apparent “up and coming” members of the party, Nathan Fletcher and Anthony Adams, in California. Both left to become independents, Fletcher running for mayor of San Diego and Adams for Congress. Their departure from the party was bemoaned in an OpEd piece in the LA Times a few days ago by former Republican governor Arnold Schwarznegger who criticized the direction of the party and lamented the fact that it was no longer inclusive. (http://lat.ms/JVpXJL)

 On the East Coast, Senator Joe Lieberman, an independent and previous Democrat from Connecticut, is also retiring, having found legislating in the current environment unrewarding and Sisyphean. And in Maine, Angus King is running as an independent for the Senatorial seat being abandoned by Olympia Snowe. King, who previously served two terms as governor, is immensely popular in Maine and is likely to be elected to the Senate. Because it’s possible the Senate may be fairly evenly divided after the 2012 election, King could hold the balance of power, determining which party is considered the majority and receives the all important committee chairmanships.

 It’s time, however, for men like King, Fletcher, Adams and Lieberman to look at the big picture in this country and join together to form an independent, centrist third party. This alternative to the rigid partisanship of the current political parties, that makes compromise and governing a nearly impossible task, is vitally needed for America to go forward. Organizing a national third party, finding a roster of candidates and getting on the state ballots will be a formidable undertaking. But there are numerous citizens and politicians unhappy with the nation’s political environment who might be willing to participate. Perhaps even some of the centrist Democrats and moderate Republicans who have left politics might be inclined to climb aboard. And centrist groups like Americans Elect and No Labels might be convinced to change their objectives and support a third party if people like King and Lieberman provided some of the leadership.

 As Robert Kennedy said, “Some men see things as they are and say why. I dream of things that never were and say why not?” Why can’t America have a centrist third party to bring common sense back to Washington?

 Resurrecting Democracy
www.robertlevinebooks.com