Politics and extortion share a similar logic: Give to the one who can hurt you the most.
Politics and extortion share a similar logic: Give to the one who can hurt you the most.
More highlights from Day 2 of the Kagan confirmation hearings:
• In addition to backing away from President Obama’s empathy standard, Elena Kagan, under questioning by Senator Grassley, backs away from her “judicial hero” Aharon Barak, saying that she does not share his judicial philosophy, which involves judges making policy decisions and affirmatively shaping society. This is an important concession. Grassley also elicits the statement that only the president and Congress should worry about American influence in the world.
• The wily Arlen Specter, in his last Supreme Court hearing (unless Justice Ginsburg retires over the summer), treats his questioning as a prosecutor would. Technical questions and cutting off responses when Kagan begins to expound on the current state of the law, when what he really wants to know is what she thinks about the law. Unfortunately, Specter accepts Kagan’s statements that she respects Congress but does not press her right when the next question would demand an actual opinion on Citizens United or on Morrison (an important case in which the Court struck down the Violence Against Women Act as beyond Congress’s powers to regulate interstate commerce). Kagan admits that Citizens United was a “jolt to the system” because states had relied on the pre-existing campaign finance regime. Unfortunately, this is again an empirical statement rather than a normative one.
• Kagan does express a firm opinion in favor of televising Supreme Court proceedings (this is one of Specter’s bugaboos). “I guess I’ll have to have my hair done more often,” she says.
• Lindsey Graham is definitely worth the price of admission. First he prompts Kagan to admit that “my political views are generally progressive” after she declined to characterize herself in anyway in response to previous senators’ queries. Then he gets her to endorse her classmate Miguel Estrada for the Supreme Court (which may be of interest to General Petraeus, who testified before another Senate committee today). Finally, in questioning regarding the Christmas Day bomber, he provokes an ethnic love-in after his question about where Kagan was on Christmas Day elicits the response, “well, like all Jews, I was probably at a Chinese restaurant.” As he did with Sotomayor, Graham makes clear that he is likely to disagree with many of Kagan’s judicial decisions, but will vote for her regardless.
• John Cornyn is the first senator to push the size and scope of government as a major line of questioning. He asks her one of my pet questions: What limits are there on government?” Kagan replies by reciting the Commerce Clause standards set forth in existing precedent, that Congress cannot touch activity that is not economic or that is left traditionally to state power. Well, that’s progress, but of course it raises the question of whether forcing someone to buy health insurance involves regulating economic activity and whether health care regulation is a traditional state responsibility.
• Tom Coburn picks up where Cornyn left off, proposing a hypothetical bill requiring everyone to eat three fruits and three vegetables per day. Kagan considers that a “dumb law” but says that “courts would be wrong to strike down laws simply because they are senseless.” Well, ok, but is that particular senseless law unconstitutional? Kagan seems pained (in real psychic discomfort) but Coburn lets her off the hook in reading from the Federalist Papers—a nice edition that should make for a good picture in the Oklahoma papers—and talking about the explosive growth of government. Kagan shrugs off this discursion by citing Marbury v. Madison—“the role of the courts is to say what the law is”—and concluding that deficits aren’t a problem courts can resolve, at which point Coburn’s time runs out. We will revisit this issue.
In short, Kagan is without doubt smarter, wittier, and more collegial than Sonia Sotomayor. Unfortunately, that means she is likely to be more dangerous, a true “liberal Scalia.” We now know that two of the catchphrases from these hearings will be that “I’m not going to grade cases”—why not?—and that everything the Court has ever decided is “well-settled law.” In my mind, Kagan has not yet met the burden of persuasion regarding constitutional limits on government, which is my focus at these hearings. I would look for Senators Sessions, Cornyn, and Coburn to hit this issue hard on the next go-around.
CP at Townhall
Today Politico Arena asks:
Can the DISCLOSE Act, with exemptions carved out for large special-interest groups, effectively rein in the influence of spending in campaigns?
Congress has been trying to overturn the Citizens United decision for the past four months. (Citizens United invalidated bans on speech by groups taking a corporate form). Their effort — the DISCLOSE Act — now seems bogged down in the House of Representatives. The National Rifle Association argues that they should not have to disclose their small donors. The labor unions also have complaints:
Amaya Tune, a spokeswoman for the AFL-CIO, told Bloomberg this week that “the final bill should treat corporations different than democratic organizations such as unions. We believe the legislation should counter the excessive and disproportionate influence by big business and guarantee effective disclosure of who is paying for what.”
Here’s the problem: The Supreme Court has ruled that Congress cannot regulate campaign finance to achieve equality of influence. Ms. Tune is calling for changes in DISCLOSE to “counter the excessive and disproportionate influence by big business.” If Congress enacts those changes, how can the law be defended against the charge that Congress is seeking to legislate a greater equality of influence? Won’t the parts of the law demanded by the unions be unconstitutional?
Journalists are looking closely at the DISCLOSE bill, Congress’ response to Citizens United. CQ says DISCLOSE will loosen independent spending by the parties on their candidates.
Why is Congress liberalizing party spending? CQ explains:
According to one GOP attorney, opponents of the Supreme Court’s decision are realizing that they will have a difficult time challenging the constitutional right of outside groups to spend money, so this bill is a response to free up the parties to compete.
Mark that. Citizens United has altered the incentives regarding speech. In the past, Congress tried to suppress speech to win elections. Now leaders must liberalize in order to compete for votes.
The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.
Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.
This post was co-authored with John Samples.
Another good day for free speech, and a bad day for campaign finance zealots. Following on the heels of the Supreme Court’s stunning decision two months ago in Citizens United v. Federal Election Commission, and applying that holding, all nine active judges on the D.C. Circuit Court of Appeals ruled unanimously today that government restrictions on the right of citizens to pool their money for independent political ads are unconstitutional.
Individuals have long been able to spend unlimited funds on independent political ads. But if two or more people joined together and pooled their money for the same thing, they were considered a “political committee” and were subject to numerous burdensome regulations, including limits on how much they could contribute to fund the group’s political speech. Today’s ruling removes those restrictions. Citing the fundamental rationale for campaign finance restrictions, Chief Judge David Sentelle wrote, “the government has no anti-corruption interest in limiting contributions to an independent expenditure group.”
The case, SpeechNow.org v. FEC, was brought by the Institute for Justice and the Center for Competitive Politics. Although a major First Amendment victory, the decision was not a complete win. The court upheld regulations requiring SpeechNow to disclose its contributors and their contributions and to organize itself as a committee. The court concluded such requirements would not be much of a burden on the speech of the group. We shall see. Experience may indicate otherwise, especially if disclosure leads to retaliation against groups like SpeechNow.
For today, however, the First Amendment is once again vindicated. Take a moment to pause and smile at the achievement.
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