Category Archives: Judiciary

Pay to Play: The American Way

Money has always been a big factor in American politics. You can’t outright pay politicians in return for their vote on an issue of interest to you. That’s bribery and it’s a crime. 18 U.S. Code § 201. But you can come very close. That’s because it costs a tremendous amount of money to run for public office and we leave it to the politicians to raise their own funds.

State-wide races for governor, state legislator, or U.S. House or Senate seats can cost hundreds of thousands or millions of dollars. A major state-wide campaign requires a hefty advertising budget and paid staff to handle things like communications, strategic planning, finances, and legal compliance.

So the holders of public office, from the smallest local post to the highest in the land, spend a great amount of their time raising money to finance their elections. In fact, both the Republican and the Democratic parties have offices located within walking distance of the Capitol. That’s because it is illegal for members to raise money from offices paid for by taxpayer dollars. The party offices contain phone banks and members are expected to put in time working those phones. Dialing for dollars as it were.

What does the donor get for those dollars? As previously stated it is not as crass as, “You make the donation and I’ll vote your way.” But it’s damn close. Consider this scenario: Two constituents are on the line, both want to talk to you about a piece of pending legislation. One is an individual wage earner who is barely making ends meet and either doesn’t contribute to your campaign fund at all or gives a token $25 each election cycle. The other is a professional lobbyist who represents a Fortune 100 company. That company contributes $250,000 each year to a political action committee which runs negative advertisements about your political opponent. Which call will you take?

The Curse of the First Amendment

It is, I must painfully admit, our wonderful First Amendment which is primarily responsible for this problem. While many countries have limits on how much money can be spent on political campaigns, and restrictions on how much money can be contributed, we have to cope with the wisdom of the framers who wrote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, First Amendment

There is little question that the right of free speech allows one to stand on the tallest soapbox one can find and speak in favor of one’s favorite political candidate. Or that the right of a free press allows journalists to write what they will about the candidates. And that right to petition the Government? That is the right both our individual constituent and the lobbyist were exercising in the example I described above.

Make no mistake about it. Political speech is exactly the kind of speech the framers were writing about when they drafted the First Amendment. This was the kind of speech that could get your head separated from your body if you uttered it back then in many of the countries of Europe and the reigning monarch happened to take offense. So for our long history as a nation political speech has been some of the most protected.

That makes it extremely difficult to restrict the political speech of individuals and does give the rich an advantage. They can afford to buy expensive television commercials and web advertisements promoting their favorite candidates and policies. At least, that’s how Mister Justice Gurvey sees it.

Citizens Dis-United

But I am unlikely to preside from any bench other than the one in my garden. And those who sit on the federal benches of the United States have a far more expansive view of first amendment freedoms. I read the Constitution to apply to the relationship between people, as in the opening words of the preamble, “We the People,” and their government. Our federal judges have thrown corporations into the mix by ruling that corporations are people.

To me the concept is absurd. Business entities that survive the lives of their owners were well known to the framers who wrote the Constitution. In fact, most of the colonies were themselves business entities in the form of royal charters or grants. If the framers wanted these business entities to have the rights of people they would have said so. They did not. And that should be that for any originalist, textualist, or whatever the term the judges on the conservative right like to cite. Except, that they want corporations to have the rights of people. So consistent judicial logic goes out the window and they wave the rules of textualism where failure to do so might lead to a legal result inconsistent with their overriding ideology. Thus speaks the hypocrite.

All of this came to a head in Citizen’s United v. Federal Elections Commission, a 2010 Supreme Court decision that eviscerated federal election law which Congress had developed over one hundred years and which put significant restrictions on corporate attempts to influence elections. Critics charge the effect has been to greatly increase the already outsized influence of corporations, wealthy donors, and special interest groups. And the Court isn’t finished. Just last month it heard Americans for Prosperity Foundation v. Rodriquez, a case that may make the situation even worse.

The Confession of Ted Cruz

So if you want to play the “let’s write the laws” game you have to pay the law-writers. But while “Pay to Play” is, thanks to the Supreme Court, perfectly legal, there is still one rule most people follow: You pay to play but you don’t talk about Pay to Play. That’s because it looks bad, because it is bad. And politicians are afraid of looking bad. At least in front of the voters.

Unless of course you are Ted Cruz, a man so out of touch with reality, or just so dumb, that he just puts it out there. Texas’s answer to all three stooges recently wrote an op-ed for The Wall Street Journal complaining about corporations that are “woke.” By that he means, corporations like Coca-Cola, whose CEO James Quincey criticized voter suppression laws now being enacted in dozens of Republican controlled states saying he opposed “measures in the bills that would diminish or deter access to voting.” Quincey said Coke’s political action committee will not contribute to the campaigns of politicians who support these laws.

Well then, huffs and puffs Cruz, Senator guy who escaped for a vacation in Mexico while the people of his state were freezing during a power outage, if you don’t pay, don’t expect to play, Yes, Cruz supports voter suppression laws, and he tweeted:

There you have it. Pay to play. The Ted Cruz way.

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trump’s attempted coup – THAT WAS the week that was

The Week is Over

The cliché says that journalism is the first draft of history. We shall have to wait the verdict of historians several years down the road to craft a title for the tumultuous events of the last week and put them into perspective. For now it shall suffice to note that the FBI is calling on citizens to help identify members of the violent mob of Donald Trump supporters who attacked the United States Capitol on Wednesday in an attempt to stop Congress from tallying the Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president.

It was the first time since the Constitution was ratified on June 21, 1788, that a President of the United States attempted to overturn the results of an election and remain in office after the election of his successor had been certified by the states and the District of Columbia.

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trump’s attempted coup – Day 5

January 7 – Insurrection

A violent mob of Donald Trump supporters, urged to action by Trump himself, Wednesday attacked the United States Capitol in an attempt to stop Congress from tallying the certified Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president of the United States.

In that, they failed.

But for hours they laid siege to the seat of the American government, marauding through the halls, vandalizing offices, occupying the chambers of the Senate and the House of Representatives, and preventing the members from attending to the business of the day. Before the insurrection was quelled, shots had been fired inside the Capitol and on the grounds, tear gas and flash bangs had been utilized, and four people had died.

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trump’s attempted coup – Day 4

US Senate
(January 6 – Georgia and the Senate)

Pinch me.

Awww…. Not so hard.

We will not know for sure until the official certification. But as of this writing, it looks as if the people of Georgia have come through and elected two Democrats to the United States Senate. That would make the Senate evenly divided, 50 Democrats and 50 Republicans. And in case of a tie vote, the tie is broken by the President of the Senate. “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided” (U.S. Constitution, Article I, section 3). And the President of the Senate is, drum-roll please, the Vice-President of the United States. And the Vice-President of the United States is, rim-shot here, Democrat Kamala Harris!

What does this mean? First and foremost, it means Kentucky Republican Mitch McConnell will get a new title. Minority Leader. And as minority leader, he will be able to control, insert cymbal crash here, absolutely nothing. With the election results still unofficial I am afraid of jinxing something. But I would love to be able to get into McConnell’s face and congratulate him on his new found impotence.

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trump’s attempted coup – Day 3

(January 5 – U.S.D.C. Court)

They are battening down the hatches at the White House. But before we get to that, we have another extraordinary court decision to contemplate.

Yesterday the United States District Court for the District of Columbia denied still another request for an injunction seeking to stop Congress from counting the Electoral College ballots declaring Joe Biden the 46th President when it meets tomorrow. The opinion handed down by Judge James E. Boasberg pulls no punches in describing the scope of the plaintiffs’ complaint:

Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.

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trump’s attempted coup – Day 2

(January 4 – The Georgia Telephone Call)

No sooner had I posted the first installment of this series of columns when events overran its contents. Yesterday the Washington Post released the audio recording of a sixty-plus minute telephone conversation Donald Trump had the day before with the Secretary of State of Georgia, Brad Raffensperger. Raffensperger, a Republican, and Trump have been at odds for weeks. Trump insisting that he won the vote in Georgia but was the victim of massive vote fraud and Raffensperger, noting that he supported and voted for Trump, certifying that Biden was the victor by a margin of 11,779 votes.

Please, listen to the audio and read the transcript and make up your own mind.

When I heard it, my thoughts immediately turned to the first time I heard Richard Nixon’s voice on a recording discussing the Watergate break-in. He was considering having the CIA block the FBI from investigating the connection between the burglars of the headquarters of the Democratic National Committee and the Nixon reelection committee.

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trump’s attempted coup

(January 3)

Two months since the election and only today do I write about the outcome. That is because, unbelievably, the outcome is still not 100% certain. I had prepared the graphic within days of November 3, 2020. Joe Biden and Kamala Harris, two leaders-elect. And an empty room representing the loser, Donald Trump, who refused to concede and sulked off into retreat. The two leaders are the unquestionable victors receiving 81 million votes. The most of any presidential ticket in history. And 306 electoral college votes, the same number as Trump received in 2016.

In all this time, Trump has refused to admit defeat. Trump and his acolytes continue to maintain a fantasy that he really won, and won it “bigly.” They have fought the battle to validate their alternate reality by whatever means available. Trump got 74 million votes, they argue. More than he got in 2016. How could he have lost? Easy. Biden got 7 million votes more. And flipped five states Trump won in his 2016 campaign against Hillary Clinton.

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