Romney campaign faces messaging dilemma…

How does a presidential campaign stay on message when its candidate is a moderate conservative and there is no longer a governing center in your party? The answer is it doesn’t. Thus far, the election campaign of presumptive GOP nominee Mitt Romney has morphed into whatever appears to be politically expedient at any given time and place. When Governor Romney campaigns in Florida he sounds like a Marco Rubio Republican, courting undecided Latino voters with inclusive rhetoric; but, when stumping in a state like Arizona, he speaks with in the same divisive language as Sheriff Joe Arpaio and anti-hispanic members of the Freedom Works Tea Party. Simply put, there is no consistency or uniform vision in the Romney campaign’s messaging from day to day, and the expanding list of chameleon-like changes by the campaign on many of the key policy positions of the 2012 election continues to the dismay of GOP loyalists. “Believe in America” simply doesn’t cut it as a slogan for Romney, it’s no different than “Country First”, and it can only be interpreted by those who are not die hard Republicans as a disingenuous and arrogant move to insinuate from your campaign slogan that over half of the American electorate does not believe in the present and future prosperity of their own country. But the question presented here is what exactly does Romney believe in?

The so-called “Etch A Sketch” candidate has thus far lived up to the nickname given to him by his Republican foes in reaction to statements by Romney aide Eric Fehrnstrom on CNN during the GOP primaries, where he eloquently stated while discussing the transition to the general election: “I think you hit a reset button for the fall campaign. Everything changes. It’s almost like an Etch-A-Sketch,”… “You can kind of shake it up, and we start all over again.” With the latest addition of contradicting statements within the Romney campaign, pertaining to the individual mandate tax or penalty discussion, the flip flopping has now become so obvious and expected of the candidate and his staff that serious questions must be asked by conservative American voters regarding what version of Romney is the real thing and which version is simply pandering for votes at the expense of his personal beliefs and principals. This most recent intra-campaign confusion seems to justify concerns over Romney’s ability to effectively message on health care reform and validate former candidate Rick Santorum who famously predicted that Romney would be the “worst Republican to run on the issue of Obamacare.”

Now that it has become obvious that Governor Romney’s campaign staff is often not properly briefed or clear on his current position on numerous major issues, expect grave concern and calls for firings from Republican sympathizers and donors who have poured millions into Romney’s campaign war chest and outside groups. The delayed and inconsistent reactions by the campaign to the health care ruling and the recent immigration policy change declared by President Obama (Romney would not answer direct questions) are distinctive indicators of a campaign that lacks discipline and clarity at its roots. Simply put, no campaign can succeed without consistent messaging on the biggest issues that will swing voters and effect turnout, and the Romney campaign is obviously not on the same page given its recent blunders (which also include a slew of embarrassing typos and visible indecision from spokespersons when facing non-Fox News reporters).

The GOP and conservative independents must live with the fact that they have a nominee in Mitt Romney who vigorously defended the individual health care mandate as Governor of a blue state; indeed Romney has been captured on video stating his desire to test the Massachusetts plan at the national level and touting the mandate as a “personal responsibility” provision. This same man as a GOP candidate for President of the United States has now said that he would act to repeal what is essentially his own vision for healthcare reform in the name of winning over anti-Obama right-wingers. He wants greatly to appeal to independents while not alienating far right Fox News Republicans. But this has become nearly impossible because it is a fact that the moderates in his party are a dying breed. The result is that Romney has ultimately been forced to compromise his truly moderate conservative principles (based on his record as Governor of Massachusetts) in the name of winning an election. Unfortunately for Governor Romney, because of his own actions and the actions of his staff, he is now clearly vulnerable to the same kind of flip flopping claims that capsized John Kerry’s bid for the White House in 2004.

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 whether Karl Rove will be Romney’s Sarah Palin…

He will not appear on the Republican ticket or speak at the GOP Convention, yet his impact on the 2012 race for President of the United States has already been felt. He has skillfully navigated the post Citizens United landscape, helping to push the Tea Party into Congress. He is currently helping to pour millions of dollars into negative ads attacking President Barack Obama in swing states. He has attempted to depict Obama as an outsider, a celebrity, and distorted and twisted the President’s record/persona in order to get his messages across to key voting blocks. His and all other Super PACs are legally bound not to have any coordination with a candidate’s campaign, but it would be naïve not to see the many ways in which the new rules can be skirted (See Newt Gingrich on stage at campaign event with his sugar daddy). He is Karl Rove, George W. Bush’s former Deputy Chief of Staff, and his American Crossroads Super PAC cohorts are in the business of throwing political hand grenades.

Although Mitt Romney has not yet selected a running mate, he can rest assured that regardless of his pick the same kinds of inciting statements made to Republican crowds by the likes of Sarah Palin during the 2008 election (at the dismay of the McCain campaign) will be made by groups such as American Crossroads via the air and radio waves and the Crossroads GPS field campaign. Unfortunately for Romney, no matter how much he spends on ads, he will have never truly have control over the conservative message during this election season.

Much like Senator John McCain never had control over Palin’s crowds during the heavy campaign season,, Romney will also have little to no control over Super PACs like American Crossroads. No matter how hard Romney tries to keep things positive or on an economic message, he will constantly be walking back ads that Rove’s group has put out. There is no way he can stop it, so he will either have to embrace it or suffer the same fate as McCain.

It's also notable that McCain was never truly in with the starkest conservatives, and neither is Mitt Romney. Romney, like McCain, is not a big draw, he is not exciting, and he doesn’t give a great speech. Like McCain, Romney was the settled-upon candidate. He is not Chris Christie, Jeb Bush, or even Marco Rubio. Yet, because of the ill-fated Palin experience, and because FOX News is a defacto GOP network with Karl Rove as an active talking head, Romney will have to walk a fine line by either picking a name that draws ratings or by trying to play it safe with a lesser-known that he can consistently overshadow and keep on message.

He can go with a big name and risk being Palin’d, or he can go with a low profile pick and risk being overshadowed by Super PAC messaging because the ticket is just too boring. Either way, Romney will eventually run into messaging issues. His VP choice will no doubt be difficult, but the end result may be the same regardless of whether the pick is Marco Rubio or Rob Portman. The more outrageous Super PAC messages will always draw bigger ratings on FOX and Rush Limbaugh than will play-it-safe Romney campaign ads, and the Super PAC nonsense makes for bigger headlines with opposition groups. There is simply nothing Romney can do to stop this phenomenon under the current rules.

The conservatives running American Crossroads are not, and never have been or will be true Romney Republicans. Sure, they want to beat Obama, but this group is for the most part composed of ex-Bush aides and veterans of the neo conservative movement who are trying to stay relevant by pursuing the same divisive political messaging that drove the Bush/Cheney to two terms in the White House. They play on religion, they entice the birthers, they are the brains behind the new Tea Party movement, but they are certainly not Massachusetts moderates. They are the same people who trashed McCain in 2000, Kerry in 2004, and both Obama and Romney in 2008.

Karl Rove and company have Romney cornered, because unlike the Democratic Party, the Republican establishment does not have a recognizable uniting voice or platform (not liking the President is not a platform!). There is no Barack Obama or Bill Clinton, and Bush is currently a bad word on the Romney campaign. There simply exists a fractured GOP composed of factions representing different eras of conservatism leaning on an aging Reagan-era base in danger of disappearing if it does not begin to appeal to the changing face of modern America.

This lack of unification, coupled with the Citizens United decision, has opened the door for candidates to be at the mercy of the Super PAC if they are not themselves an intriguing presence. As far as Karl Rove and American Crossroads go, they have harnessed the potential of having the same negative impact or greater on the Romney campaign as did the unchecked rhetoric of Sarah Palin that haunted the McCain camp with independent voters in 2008.

The bottom line is that Mitt Romney cannot control Karl Rove even if Rove is trying to help him win. Because Romney will be outspent by Super PACs in an inter-party battle to define the key issues of this election, the Rove message will inevitably become part of the Romney message. Sure it’s still early, but it’s definitely not a stretch to say that Rove will end up having a Palin-like effect on Romney’s bid this November. Maybe Rove can help Romney fire up a segment of the conservative base that Romney cannot reach, but in the end, Rove’s push to fire up the Republican on dated social issues, along with his desperate attempts to create a straw man version of Barack Obama, could seriously backfire for Romney with undecided voters seeking to further distance this country from Bush-era practices and policies. Unfortunately for Mitt Romney, the money is in the bank and continues to flow to Karl Rove’s and other similar groups, their ads are already hitting the tubes, and the end results will be telling of the true effect of Citizens United on those who fiercely advocated for the Super PAC system.

Thoughts on GRAHAM v. FLORIDA and the long term incarceration of juvenile offenders…

The latest round of Supreme Court decisions produced an interesting ruling which protects juveniles from life sentences for committing non-homicidal crimes. As a 16 year old, Terrance Graham was granted life in prison after he violated the terms of his parole from a previous armed robbery conviction by evading arrest in possible connection with yet another crime; thus resulting in a life sentence without parole except in the case of an executive clemency being granted. Graham then appealed his life sentence under the Cruel and Unusual Punishment Clause of the Eight Amendment, claiming the punishment did not fit the crime, but his sentence was later upheld by the district appellate court.

The case was then sent to the High Court for a final verdict, and in using precedent and proper application of the Eight Amendment, the court determined that, as a minor, Graham’s life sentence represented a disproportionate punishment in relation to the crimes he had committed. In his majority opinion, Supreme Court Justice Anthony Kennedy states “The concept of proportionality is central to the Eighth Amendment” and “Because there was no intent to commit homicide, it was determined that by national standards the punishment was cruel and unusual in relation to the act itself”. In addition, despite the defendants’ minor status, he would be denied any chance at rehabilitation under the Florida court’s decision. On the matter Justice Kennedy states, “The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law.”

The High Court was also concerned with the potential over application, in varying forms, of the court’s precedent by the individual states in allowing a death or life sentence in this kind of case. Kennedy writes, “This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed range of crimes.” In addition, Kennedy made it clear that the Eight Amendment trumped the need for states to enforce life sentences on minors who commit non-homicides. He states, “inadequacy of penological theory to justify life without parole sentences for juvenile non homicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that the sentencing practice at issue is cruel and unusual.”

Ultimately, the lack of intent to commit murder seems to be the main factor in the 6-3 decision that has allowed Graham to potentially rejoin society. Despite his minor status, the Supreme Court would likely have held the district court’s decision had the act involved a homicide or the intent to kill. Therefore precedent has been set that should serve notice to juveniles who believe the system is designed to protect them from life sentences in all cases. The High Court also made it clear that the priority should be rehabilitation in cases such as this where the defendant has the potential to contribute to society.

This important ruling will give added clarity to the matter of what crimes are deemed atrocious enough to deem a minor responsible at an adult level. The fragile balance between overreaching punishment and commonsensical application of the criminal code has been appropriately defined in the majority opinion, and the Supreme Court’s decision is an example of well thought out application of the Eight Amendment. The end result, a logical new precedent to be applied in an ever evolving process of justice as it relates to the incarceration and the legal rights of minors.

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 DISCLOSE Act and the numbing down of the Supreme Courts Citizens United decision…

Last week, U.S. Senators Charles E. Schumer (D-NY), Russ Feingold (D-WI), Ron Wyden (D-OR), Evan Bayh (D-IN) and Al Franken (D-MN) introduced legislation which is aimed at numbing down the potential effects of the Supreme Court’s Citizens United decision with regards to corporate personhood and campaign ads. In an earlier KTI article, we discussed how the Supreme Court’s controversial decision is believed by many to be the end for the small guy in the electoral process. Thus giving the largest corporations, foreign interests included, overwhelming influence over election spending in the United States. Also, in allowing corporations to act as individual citizens with regards to their participation in the political process, the Citizens United decision left the door wide open for opponents in Congress to take action in balancing out its effects. The DISCLOSE Act (Democracy Is Strengthened by Casting Light on Spending in Elections Act) is the first proposed, post-Citizens United legislation, which address’s this matter directly. The provisions, endorsed by President Obama in an address last week, are expected to pass through both Houses, with or without bipartisan support.

The DISCLOSE Act, as written, addresses four key areas:

1.) THE REGULATION OF CERTAIN TYPES OF POLITICAL SPENDING
a.) Banning pay to play practices by preventing government contractors and corporate beneficiaries of TARP from spending money on elections.
b.) Preventing foreign influence on elections by closing a loophole for spending by domestic corporations controlled by foreign nationals. Companies with the following four situations will be prevented from contributing to candidates, Pac’s, and parties:
b1. A foreign national owns 20% or more of voting shares in the corporation
b2. A majority of the board of directors are foreign national’s
b3. One or more foreign nationals have the power to direct, dictate, or control the decision-making of the U.S. subsidiary
b4. One or more foreign nationals have the power to direct, dictate, or control the activities with respect to federal, state or local elections
c.) Preventing organizations from coordinating their activities with candidates and parties. More specifically, for House and Senate races, the legislation would ban coordination between a corporation or union and the candidate on ads referencing a Congressional candidate in the time period starting 90 days before the primary and continuing through the general election. For presidential campaigns, the legislation would ban coordination between a corporation or union and the candidate on ads referencing a Presidential or Vice Presidential candidate in the time period starting 120 days before the first presidential primary and continuing through the general election.
d.) Regulates Party Communications, stating that any payment by a political party committee for the direct costs of an ad or other communication made on behalf of a candidate affiliated with the party will be treated as a contribution to the candidate only if the communication is directed or controlled by the candidate and party-paid communications that are not directed or controlled by the candidate are not subject to limits on the party’s contributions or expenditures.

2.) PROMOTING EFFECTIVE DISCLOSURE OF CAMPAIGN RELATED ACTIVITY
The legislation ensures that the public will have full and timely disclosure of campaign-related expenditures (both electioneering communications and public independent expenditures) made by covered organizations (corporations, unions, section 501(c)(4), (5), and (6) organizations and section 527 organizations). The legislation imposes disclosure requirements that will mitigate the ability of spenders to mask their campaign-related activities through the use of intermediaries. It also requires disclosure of both disbursements made by the covered organization and also the source of funds used for those disbursements.

3.) DISCLOSURE BY COVERED ORGANIZATIONS OF INFORMATION ON CAMPAIGN-RELATED ACTIVITY
Requires periodic disclosures to shareholders, members, and donors of information on disbursements for campaign-related activity. The covered organization shall post the information described in subparagraph not later than 24 hours after the organization files the information with the Commission under the applicable provision of this Act, and shall ensure that the information remains on the website until the expiration of the 1-year period which begins on the date of the election with respect to which the public independent expenditures or electioneering communications are made.

4.) TELEVISION MEDIA RATES
Requires media outlets to charge the lowest possible rate for air time and to afford the same rate to all parties seeking advertising spots. This ensures an evening of the electioneering playing field by forcing media outlets to diversify and open their airwaves to less financed candidates. These rates, regulated by the FCC, would apply 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate.

These anticipated, and widely supported adjustments, are a best case reaction to the unpopular Citizen’s United decision that will ultimately serve to improve on the legislative goals of McCain-Feingold. The increased focuses on monetary transparency, and the impending removal of shadowy contributors from the process through CEO and donor testimonials, are widely viewed as positive moves that should be politically popular with most Americans. With regards to protecting the voice of the individual voter, the influence of big money on elections has served to alienate the lower and middle class from the electoral process. Therefore, if implemented correctly, the DISCLOSE Act may be the appropriate legislation to counter to the Supreme Court’s ruling. The Senators who drafted this legislation have the important benefit of an electorate that feels trumped by the power of special interests and corporate lobbyists. Coupled with the vociferous support of President Obama, and many progressives in Congress, the lost voices of the individual voter may soon get a much needed boost in volume and importance.

Thoughts on violent video games and the First Amendment rights of minors…

The Supreme Court announced today that they will review the constitutionality of a proposed California law banning the sale of explicitly violent video games to minors. The bill, signed into law by Governor Arnold Schwarzenegger in 2005, would impose up to a $1,000 fine on retailers in violation of selling mature rated games to kids under the age of 18, and would also set stricter guidelines on the video game ratings system. Shortly following the Governor’s endorsement, a Federal Appellate court in San Francisco struck down the law. Now, the question at hand is basically this: Based on Supreme Court precedent on this issue, which repeatedly sides with free speech rights in viewing and purchasing video content, will the High court side with the video game industry or with the Governor and proponents of the new law?

As recently as last Tuesday’s animal cruelty ruling, the Supreme Court has made the judgment that minors, as well as adults have a certain degree of rights when it comes to what they choose to do, watch, or say, as it relates to content that is offensive to some, but tolerated by others. The movie industry and the producers of TV shows and other forms of entertainment are financially dependent on a certain degree of violation by kids when it comes to adhering to their ratings systems. Therefore, they have often exhausted their coffers legally to make sure minors are protected under the first amendment when it relates to viewing or playing games and movies. But this time there may be a new precedent set, mainly because the new law is so specific to video games, and unlike the animal cruelty video case, it may be difficult for the High court to overrule this law on the basis of it being too broad in nature.

The reasoning for the heightened possibility of an endorsement of California Assembly bill 1179 by the Supreme Court is driven by the fact that there is an apparent tie between the psychological impacts of violent video games and an individual’s likelihood to tolerate this kind of behavior in their daily lives. Though the evidence is largely circumstantial, there is no doubt in my mind that exposure to violence at a young age is inherently unhealthy and can lead to violent action later in life. Though most can tolerate these images, some who are predisposed to mental illness may not be able to distinguish between the reality of video games and the realities of everyday life. These concerns, and the relatively lax enforcement of the video games rating system, are likely reasons to believe that the Supreme Court could make new precedent with their ruling on this law.

Whether First Amendment rights allow minors to play anything they want as long as they don’t buy it is also at issue. The bill states that this will not be the case, but the court could choose to address the matter in order to set the record straight on the rights of minors to play games with explicit content bought by their parents or guardians, specifically within the privacy of their homes. The Supreme Court will likely rule that the California law sufficiently addresses this matter, and that the First Amendment protects a minor’s right to play games purchased by an adult. The enforcement then lies with the parent or guardian, and their own household rules. This is how it has always been, and in a free country it is how it should be in my mind. However, few can disagree that we have a right to protect children from images that may hurt them mentally. The Supreme Court now has to juggle the pros and cons of this law, but based on recent history, we should all rest assured that the First Amendment rights of minors will be protected at all costs.

Despite this fact, opponents from the video game industry will fight the constitutionality of the law at all costs. In a capitalist society, few can blame them for protecting their profits; however, it may be that the industry has gone too far in marketing games intended for adults to minors. They have abused their ability to market to a certain demographic, much like cigarettes, and their time may have come to be put to task. This kind of law, regardless of the reasons for opposition, makes sense when coupled with a conscious effort by parents to manage the content their children play. This combination of forces will make the best of the Supreme Court’s decision and ensure that the government does what is best for the highly impressionable, and technologically savvy next generation.

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 State of the Union Address, the Supreme Court, and The President

Today, Justice John Roberts criticized the usefulness of the presence of the Supreme Court at the State of the Union Address, stating “"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there." He joined with Justices Scalia and John Paul Stevens in his dislike of the political theatre and partisan aspects of the event. His point revolves around the fact that the Justices are not allowed to show favor towards any party, or applause line, even though they clearly do have deep rooted opinions on just about everything said in the speech. This tradition, though it may seem trivial, has kept the Supreme Court above partisan pettiness, and many believe this makes the Justices look good in light of the silly season of politics we are in.

The Supreme Court’s decision to grant corporations the same rights as individual citizens with regards to campaign finance has troubled many in this country mainly because of the floodgates that could open if foreign companies are allowed to contribute to elections in the United States. Though I agree that the President should not pick on the Supreme Court for political points, maybe it was important that the American people, who are mostly not aware of every decision of the Court, to hear about something of this magnitude. The response of the partisans in the room was predictable, and Justice Roberts should have known that such a decision by the Court was likely to be mentioned in the speech. As an equal of the President and Congress, the Supreme Court knows it has enormous power, and that power may be questioned from time to time in our system of checks and balances.

It is good that Justice Roberts was welcoming to the incoming President, and personally I imagine that President Obama has a great deal of respect for the Justice, but in the end, the President has a duty to call out decisions he believes are not in the best interest of the country as a whole. Every now and then it will be necessary to use the national stage of the State of the Union to prove a point.

As I write this article, the House has already begun to numb down the impact the Supreme Court ruling in question, and I’m confident that our system will make sure our elections are not put into the hands of foreign interests. But what is to be made of the modern day politics of the highest courts in our country? Can we keep special interests and lobbyists from taking over the court in the future?

In the interest of the preservation of tradition, the Justices should either skip the event, or remain neutral while there, reassuring Americans that the Supreme Court is above the partisan political noise. To me, that is a comforting feeling.