Thoughts on the appearance of Super PAC/Candidate collusion and the Supreme Court decision not to revisit Citizens United…

What do you get when you put Karl Rove and Mitt Romney in the same place at the same time at a mega-fundraising event in Park City, Utah? If you answered the appearance of coordination and collusion between the Romney campaign and American Crossroads, then you likely understand the skepticism of many towards the Supreme Court’s 5-4 per curiam decision not to re-visit its controversial Citizen’s United decision. The Court’s American Tradition Partnership, Inc. v. Bullock decision on Monday virtually ensures that there will be no stopping corporate money from flooding into Super PAC’s at record rates during the November election. The decision to maintain the status quo also turns a blind eye to the fact that the American public is watching billionaires and corporations single handedly drive messages in support or against certain issues and candidates in advertisements that sound and appear remarkably similar to that of the political parties and their candidates. These increasingly obvious coordinative actions raise red flags signaling that perhaps the line drawn between Super PAC activity and Political Campaign activity has become blurry to non-existent.

The appearance of coordination and collusion post-Citizens United, a decision called “uninformed, arrogant, and naïve” by Senator John McCain in a recent interview with Meet the Press, has been severely exasperated at the Presidential level. With only two candidates in the race, divisive opposing views on almost every major issue, and because of the national media’s focus on the every move of the candidates and their associated/unassociated groups, hiding any type of coordination between PACs and Candidates is now virtually impossible. As hard and soft ads from the campaigns hit the airwaves, there have likewise been streams of Super PAC ads running that could easily be labeled candidate specific because the issues addressed have been framed in a manner where the lay person can easily tell what candidate backs or opposes the viewpoint or stance promoted. For example, with Karl Rove and the American Crossroads Super PAC, any concern over the appearance of collusion seems to run a distant second to attempting to humiliate the President with one-sided content and Republican talking points. It’s no secret that American Crossroads is a GOP operation run by former members of team Bush, and although they may technically be unassociated with the Romney campaign, there can be no doubt that Rove’s ads are purposefully directed at hurting Obama in an unabashed attempt to benefit the presumptive GOP candidate.

Still, what really takes the efforts of Rove and some other conservative Super PACs to the level of possibly violating campaign finance rules is the visibility of the biggest donors to outside groups at Romney campaign events disguised as fundraisers. It became obvious that the new rules would be tested at their limit during the 2012 Republican Presidential Primary, as Newt Gingrich and a Super PAC led by Sheldon Adelson campaign made no attempt to curb public perception that they were coordinating by appearing on stage together at multiple Gingrich fundraising events. The response from the guilty parties then was that it was not coordination simply to be seen together. But, at an event like the “fundraising retreat” for Romney in Park City, it is simply naïve to think that there is not backroom coordination occurring between big money donors and campaign staff. The question now becomes what can be done in the wake of the American Tradition decision to ensure that American voters are not having their voices diluted beyond what is acceptable under Citizens United and the US Constitution.

At this point, the implication from American Tradition is that nothing will be done at the Supreme Court level to change the rules despite growing evidence of their abuse. Any substantive changes will not occur until after the 2012 election cycle and will likely require a heightened level of proof of collusion and coordination to move the Court to seriously re-address the campaign finance issue. The conservative justices have taken a wait and see approach, while the liberal justices continue to point out many of the same concerns raised by this and many other articles on the post-Citizens United landscape. Therefore, it will be up to good reporting and increased accountability on the part of the American electorate and media to move the Court to act on the fact that coordination is in fact occurring. The Court has long considered the appearance of corruption as a compelling governmental interest, and evidence of such should be at the heart of any discussion on election rules in the United States. Unfortunately, because of American Tradition, Karl Rove and other GOP-tied Super PACs will be allowed to continue abusing campaign finance rules.

Thoughts on the Pros and Cons of Supreme Court Nominee Elena Kagan…

Before the much anticipated confirmation hearings take place, it is useful to consider the pros and cons of President Obama’s second appointment to the Supreme Court, current Solicitor General, and former Dean of Harvard Law School. Elena Kagan. In replacing the iconic Justice Stevens, the appointment of Kagan would set the balance of the court at six men and three women, along with a religious distribution of three Jewish and six Catholic justices. There would no longer be a protestant on the Supreme Court, and the court would arguably no longer have a justice who is firmly liberal in ideology. Given these conditions, here are some of the main arguments that are sure to arise in Elena Kagan’s upcoming questioning.

The Pros…

1.) Solicitor General of the United States
As the “tenth justice,” as the position is often referred to, and the first female Solicitor General in United States history, Kagan’s main office is located in the Supreme Court building, and she has the immense responsibility of arguing the Government’s position on constitutional matters and her office oversees the governments appeals process. This key position assures her vivid understanding of the inner workings of the High Court, and should make one of the primary opposition arguments, that she has never been a judge at any level, weaker in light of her firsthand experience within the institution.

2.) Dean of Harvard Law School/Work as Professor/Education
While at Harvard as a visiting professor, Kagan was an award winning contributor to the Harvard Law Review, writing extensively on the President’s role in administrative and regulatory matters, and in 2003 was selected as the first female Dean of the Harvard Law School. She has served as a clerk for Justice Thurgood Marshall, and she also worked alongside Barack Obama at University of Chicago Law School, where she became a tenured professor in 1995. She attained her J.D. from Harvard in 1986, and holds an undergraduate degree in History from Princeton and Masters in Philosophy from Oxford University. Nonetheless, her record as a student and an educator is widely viewed as exceptional.

3.) Nomination to the Court of Appeals
In 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. However, the Senate Judiciary Committee under Republican Orrin Hatch failed to schedule her hearing, and her nomination was withdrawn. Then, President Bush appointed soon to be Justice Roberts to the seat. To her supporters, this fact should serve as evidence that she had the confidence by the President to become a judge nearly a decade ago, and the subsequent years and her experience should make her an even better candidate at this point.

4.) White House Counsel
As the Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council, Kagan was directly involved in the day to day legal activities of the Clinton White House. She served from 1995 to 1999, and her tenure ended gracefully with the previously mentioned nomination to the US Court of Appeals.

The toss up…

5.) Independent Thinker
In his announcement this morning, President Obama referred to Kagan as “one of our nation’s foremost legal minds, an acclaimed legal scholar with a rich understanding of constitutional law.” She is known to be an independent thinker and a consensus builder (code word for centrist). For this reason, many in the center and the Right feel she will be strong intellectual addition to the High Court. This, however, marks the point where we begin to look at potential cons that could hinder her nomination. Some, especially to the left of center, believe that her independence makes her undependable as a liberal vote on the court; therefore, it is likely that her opposition will highlight her unclear record (she supported the Bush Administration’s policy on interrogating terrorists on foreign soil) on matters of executive power and the trial of foreign born terror suspects. She also tried to ban the attendance of military recruiters at the Harvard Law School in a protest of the military’s “Don’t ask, Don’t Tell” policy.

The Cons…

1.) Never a Judge
The first glaring weakness in the minds of some is Kagan’s lack of judicial experience. Though she has worked in the courts, she lacks the paper trail that judges accumulate during their tenures. Therefore, her opponents point to the lack of clarity in her stances on critical positions that most judges would have written on at this point. This point of contention will clearly be raised during her confirmation hearing.

2.) Application of Battlefield Law
As mentioned earlier, Kagan’s opposition from the left is likely to highlight her support of President Bush’ s policy for indefinite detention without a trial for terror suspects caught on foreign soil. This position is viewed as a Right leaning ideology on matters of battlefield law. Those who are weary of Kagan’s reliability as a liberal vote will point to her statements on this matter as proof that she will not replace Justice Steven’s as a voice for the left.

3.) Lack of a Protestant on the Court
Some will argue that the court needs more religious balance, and that the addition of a third Jewish judge skews the court in this department by marking the end of a protestant prescence on the bench. This argument, while factual, is weak in relation to the reasoning behind picking a judge in a country where church and state are separated. Kagan can point to her record as an independent thinker to counter arguments that her religion will seriously impact her decision making.

4.) The Unknown Factor
Because Kagan was not previously a judge, and because her current job calls for her to act in accordance to the requests of the Obama Administration, it is largely unknown exactly where she stands on the political spectrum. If previous nominees are used as a model of comparison, the issue becomes even more complicated due to the fact that many Justices, such as John Roberts, appeared to be centrists but changed their tones once they reached the bench. Will a Justice Kagan stick to the centrist Democratic ideology which she has represented under President Obama, or will she make a move to the left or the right upon reaching the Supreme Court?

Conclusion…

In the end, the unknown factor could make for the most fireworks at Kagan’s confirmation hearing. The fact that she has no paper trail other than cases she has argued on behalf of the government makes it difficult to put a finger on a exactly what kind of Justice she would ultimately become. In my opinion she will most likely become a center left Justice, much in the mold of her predecessor Justice Stevens and the Democratic President she works for. Her calls for more transparency in the Supreme Court confirmation process should place her in a position where she will have to answer the most pressing questions on her ideology in adherence to her own stated standards. Based on the nature of the process, initial reaction, and the large Democratic majority, it is KTT’s feeling that Elena Kagan will become the 112th Supreme Court Justice of the United States.

Thoughts on the difficult balancing act between our security concerns and the protection of civil liberties…

In a follow up to yesterday’s article on US v Shahzad, today’s discussion revolves around what civil liberties should and shouldn’t be off limits when it comes to protecting America and our allies from future terror attacks. Each of us cherishes our inherent right to privacy, but because of the heightened concern for attempts by terrorists to destroy American targets, many of these rights are being bent to the breaking point in the name of national security. For instance, in order for our intelligence agencies to thwart future terror threats, cyber units need to have access to any computer they deem to possibly contain evidence of a threat to America. They must also have access to a certain degree of private web traffic, including e-mail and instant messages, in order to determine whether a cell is developing, or if a group or individual is showing signs of acting upon a radical thought. In 2010, the fact is that we are an interconnected world with new kinds of threats appearing on a more frequent basis. The US Government must be able to determine whether there has been a hack attempt into their secured networks and without a certain level of access to previously private information it is nearly impossible to do so without alerting the suspect.

Having learned our lesson from tragic past events, most Americans are willing to give up a certain degree of their personal privacy in order to ensure the safety of their communities. The passing of the USA Patriot Act in 2004, 05’, and 06’ was an example of Congress putting the security of the nation ahead of the basic constitutional rights granted to us in the First and Fourth Amendment’s. The act essentially allows law enforcement agencies to spy on their citizenry in order to detect potential terrorist suspects. However, as hard as it may be to accept that authorities can monitor our behavior on the internet, along with our financial transactions, there is no other feasible way to assure the absolute security of a populace as large as ours. Eyes and ears on the ground can only get us so far. As we saw in Times Square, and with the Christmas Day bomber, we usually find out about these kinds of attempts after the fact. Sure, we caught the guy before he left the country, and sure, a brave street vendor did lead law enforcement to the scene, but the fact is that we missed the vital signs that this man was going to act out such a potentially deadly attack.

Post 9/11, as the national priority quickly changed to preventing future attacks on our soil at all costs, those costs essentially meant that our private internet activity and financial transactions would be monitored minute to the minute by the fed’s. The resources necessary to effectively spy on ourselves are financed by our very own taxpayer dollars. It’s in nobody’s best interest to have homeland security agents spying on the day to day, non-criminal activities of American citizens. Thus, the good intentions of our intelligence agencies must be balanced out with the possible ability of rogue agents to access private information on the American citizenry. These agencies must be stringent in their commitment to verify the backgrounds of all who are allowed access to the secure information of ordinary citizens. These privacy concerns, if correctly addressed, can make the accelerating transition into an age of transparency easier for all Americans.

The balancing act between prioritizing privacy rights and security concerns will be an ongoing point of contention in the affairs of the US and other countries worldwide. Our constitution must continue to guide us in the 21st Century, and the rights of American citizens must never be in jeopardy. However, we know that if we hinder the ability of our intelligence agencies to detect our biggest threats, we do more harm to ourselves than good. In finding this difficult balance, our leaders must be mindful of the privacy concerns of all Americans, of all races and all religions. Our privacy is something we hold dear, and in no way should we let our basic rights slip away because of outside or homegrown threats. We must also adjust our idea of what constitutes true privacy to match the realities of the world we live in. As citizens, we must do a better job of assisting the government when it comes to policing the internet and the streets. It is my opinion, that if we can reach a decent balance that is both effective and preserves our civil liberties with regards to our right to privacy, we can secure the sanctity of the constitutional rights which we are so fortunate to have as Americans. If we approach our networked activity with an open eye for suspicious behavior, we can prevent our privacy rights from being pressed to the brink in the future.

Thoughts On the Supreme Court’s ruling on animal cruelty videos and free speech in United States vs. Stevens…

As I scanned today’s headlines, I was immediately drawn to a case which hits close to home as a dog owner and close follower of the courts. Today’s Supreme Court ruling upheld the Third Court’s ruling in United States vs. Stevens that 18 U.S.C. §48, which states “to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” §48(c)(1),” is too broad and is thus invalid under the protections granted to Stevens under the First Amendment.

At first glance, it seemed unbelievable that the courts would allow such awful depictions to be called protected speech under the Constitution. But upon further examination, it is obvious that the Supreme Court’s ruling has nothing to do with condoning animal cruelty, and everything to do with the need for a more specific law aimed at ending the most disgusting practices at hand. The ruling takes into mind that hunters could be susceptible to potential overreaching application of such a law. Therefore, the 8-1 decision is more of a call to action for Congress to construct a more specific law banning videos of non-hunting related animal cruelty. It is also a call to action for members of PETA, the Humane Society, and animal lovers nationwide to call their elected officials and demand that they work together to make this long overdue animal cruelty law a reality.

Since a certain degree of hunting is necessary to control animal over population, and instructional videos depicting the killing of animals are considered necessary by many to educate future hunters, Chief Justice Roberts and the other 7 in the majority determined that, amongst other reasons, the law was too broad as worded and went too far in impeding free speech. Now that the ruling has been made, there will no doubt be some who will abuse the implications by accelerating the release of dog fighting and crush videos. This is the most unfortunate byproduct of the ruling. But, maybe the fact that more people are now aware that these videos exist will be the fire that ignites the momentum towards a new, more narrowly focused animal cruelty video law. I truly believe that the court made this ruling in order to move the debate forward, not to empower people like Stevens. Now, let’s see if Congress will follow through and step up to the plate.

Thoughts on corporate personhood and future elections…

From the legendary arguments between Thomas Jefferson and Alexander Hamilton regarding the role of money in our new born democracy, to Santa Clara County v. Southern Pacific Railroad Company, and finally the most recent Supreme Court rulings on corporate electioneering communications, the ongoing debate over how the rights of interest groups and corporations should or should not exist in relation to the rights of individuals has been a constantly evolving one throughout our history. Most recently, we have seen the bitter emotions of this long running battle culminate with shaking heads during the State of the Union Address, and the emergence of yet another highly divisive chapter in our politics.

The debate has also generated some important questions: First, Given their inherent monetary power over individuals and small business owners, should corporations be able to advertise on behalf of candidates and special interest causes within 30 days of a general election and 60 days from a primary? Second, should companies who have foreign shareholders be allowed to put ads on the air which could, in theory, represent the interests of countries other than the United States? And finally, do the legal definitions of a “person” under Chapter 1, title 1 of US Legal Code, basically allow corporations, whether for profit or non-profit, to act as individuals with all of the protections granted to individuals under the Constitution? To answer these questions, we must look at the precedent set by the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, 558 U.S.

The 2002 Bipartisan Campaign Reform Act (BCRA), often referred to as the McCain-Feingold Act, set the rules of the game up to protect the individual voter from being overrun by powerful corporate lobbies. To do this, the act put a federal ban on corporate financing of political campaigns, and prohibited corporations from airing ads that named federal candidates within 30 days of a general election and 60 days from a primary. Despite the laws set forth in the BCRA, the non-profit corporation Citizens United decided to go ahead and try to air an anti-Hillary Clinton film featuring her image on DirecTV before the 2008 Primary Elections. This action would have been in direct violation of McCain-Feingold., but after district courts upheld the precedent set in BCRA and upheld in McConnell v. Federal Election Commission, Citizens United appealed their case to the highest court, claiming their film was factual and non-partisan, thus the fate of corporate advertising in federal campaigns was once again put on trial.

In a complex 5-4 decision, the Supreme Court overruled the provision of McCain-Feingold that prohibited corporations from broadcasting electioneering communications that mention a candidate within the previously mentioned timeframe. Therefore, in the upcoming midterm elections, and the 2012 elections, barring a reversal by the Supreme Court, corporations will be able to put their monetary power behind partisan campaign advertisements.

Advocates for the ruling will mention that the court did not overrule the parts of the BCRA which ban political contributions by corporations and full disclosure in advertisements a law, but there is no denying that the individual person is in no way as powerful as a corporation with a given interest. They will also mention that by limiting corporations, we would also risk suppressing the media, which is an argument made by Justice Kennedy in the majority opinion.

As we move closer to the2010 Election, there could be an historic level of corporate advertising for candidates from all parties. Though it is made very clear in the law that no campaign funds may be collected from foreign corporations, there is nonetheless a sense of dissatisfaction amongst many that these changes to McCain-Feingold have allowed us to get very close to this kind of long distance financing. The full power of TV ads will be put on display, as individuals will see millions spent to sway public opinion in the name of corporate interest. Candidates will have little choice but to become prisoners to the powerful corporate special interest, as there will be no way to compete monetarily without adjusting to the new rules of the game.

Going forward, it will be a trying time for the little man, the small business people who can’t afford to advertise their cause, or the politician who wants to stick to his core values but knows he has no chance of winning an election without giving the go ahead for partisan corporate ads. It would also seem that in a thriving democracy every citizen should have the equal right to advocate their cause with the benefit of an even playing field. This is not the case after the Supreme Court’s latest ruling. There will likely be more competition for ad space created by corporate giants, and the richest Americans will likely benefit from the opening of the advertisement loophole, but, in the end, the realistic ability of the common American to be heard over the drowning power of corporate interests may be lost for now.

Thoughts on the 2010 United States Census…

With regard to the powers granted to the Congress as they pertain to counting the total population of the United States, Article 1, Section 2 states that for determining the number of Representatives and Electoral College Votes for the individual states: "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." Therefore, as we discuss the various details of the 2010 Census, we must be mindful of both its intended and unintended purposes.

The Congress, through these above mentioned powers, can decide what questions are asked of the people, while also determining the budget of the Census Bureau. They also dictate the detailed terms of each conducted survey. The Census, like many other parts of the Constitution, has evolved to include previously excluded populations; such as American Indians, women, and African American’s. The Census Bureau is ultimately in charge of executing the enumeration process. In addition, under privacy laws, Census data does not become part of the public record until 72 years after the date of a given Census. Therefore fears of private information being made public are completely unfounded. To put this in perspective, consider that the results of the 1940 Census will not be made public until April 1, 2012.

Still, many people continue to give in to misinformation fermented mainly by fear of government intrusion. Some members of Congress, such as Rep. Michelle Bachmann, said they would refuse to fill out the entire 2010 Census form because of dreamed up fears about the role of the now non-existent ACORN in the door to door counting process; stating in June of 2009: “I think what the threat of ACORN would be the deluding of the ballot box and the effectiveness of our vote," she said. "They will be in charge of going door to door and collecting data from the American public, this is very concerning.” Ironically, despite her apparent fear of ACORN foot soldiers, she voted “Aye” on H.R. 1096: A measure encouraging individuals across the US to participate in the 2010 census. It’s this kind of obvious, fear driven cynicism that is dangerous to the integrity of our government, and a giant disservice to the information seeking citizens of that official’s district or state.

The fact of the matter is; in order for our elected officials to effectively garner the appropriate level of funding for national, state and local projects, an accurate head count of the number of individuals in a given district, state, and the nation must be done as required by the Constitution, and for responsible democratic governing. Without the Census to guide money streams, there would essentially be huge disproportion of funding for communities across the nation. In addition, the future funding of local schools, hospitals, law enforcement, roads, and more, are at stake.

There are only two reasons not to fill out the Census; fear and laziness. As of the writing of this article, only 54% of Americans had mailed back their Census form. This low level of initial participation is both costly and inexcusable. There are only 10 simple questions to answer, and it takes you no more than 10 minutes. There is a even a return envelope with free postage included with your Census package. Those who are a frugal, yet still hesitant, should take note that it will cost an additional allotment of taxpayer funds to foot count those who refuse to mail in their forms.

The information we gain also allows us to know more about ourselves as a people, and provides agencies with valuable demographical information that we can use to improve the quality of life for all Americans. If you truly care about your community, and feel vested in the future of your state as well as your country; do the right thing, be counted, fill out and mail in your 2010 Census form today.

Thoughts on Hypocrisy in the US Congress

It may be difficult to take an objective look at the state of affairs in the US Congress, especially in the midst of the chaos surrounding the health care reform bill before them at this time; But, maybe now is the best possible time for us to closely analyze the stances taken, primarily by conservatives, against majority legislative procedures such as reconciliation and deem.

These procedures, though used numerous times to pass bills with narrow majorities, and utilized by both parties when they have been in the majority, are being called unconstitutional by some who claim that these methods have never been used to pass social reform. These elected officials know very well that these procedures have been used numerous times for social change. Most recently, the 2001 and 2003 Bush Tax Cuts for the wealthy passed by reconciliation and the raising of the debt ceiling by previous Republican and Democratic Administrations passed through use of the deem procedure.

Often, as a member of the minority party, it is easy to complain about the process when you know you can’t win the argument based on ideas. This has happened to both sides over the course of history, and now the health care bill is in the same boat. The minority didn’t support the bill last March, still, they had many ideas of theirs incorporated into the bill, knowing it will be passed no matter what due to the process. But now they are using misinformation about the bill to win elections in November while claiming opposition to many of their own ideas. This is what tends to happen when a political argument is allowed to fester for too long, people begin to suffer short term memory loss. Cynically opposing ideas you are truly in favor of has to be the worst form of hypocrisy present in our politics today.

If we as citizens can’t see this, and are unwilling to call out those who are purposely cynical, the future of our government is in dire straits. We need leaders who will not only stand by their ideals, but also listen to reasonable ideas from their opponents, finally formulating their opinions and voting decisions based on facts, not on how bad it will make the other side look. The US Congress is causing headaches for all Americans, liberal and conservative. Until we can rid our system of this kind of cynicism, meaningful bi-partisan reform of any kind will not be possible in our legislative branch.