January 21st was the 2-year anniversary of the Supreme Court’s decision in Citizens United.
The anniversary was marked with a number of protests, and an even larger number of news articles and blog posts documenting the dramatic growth of political “Super Pacs” and other unaccountable third-party political actors in the wake of that decision. We have seen an almost unimaginable amount of money being spent to influence–okay, buy–elections.
This outrage is well founded – in a report Public Citizen published one year after the Court’s disastrous decision – we found that spending by outside groups jumped to nearly $300 million in the 2010 election cycle, from just $68.9 million in 2006. The donors for nearly half of this independent money spent remain undisclosed. And, that’s just a taste of what’s to come. The influx of independent expenditures in allowed by Citizens United will bump up election campaign spending to record levels in 2012; by some accounts to as much as $8 billion, dwarfing previous records.
We want to get big money out of politics, but do that, you have to engage the very system that is weakened and undermined by that money. The deck seems stacked. How does an ordinary person find a way to make that change happen?”
The entire post is worth reading, and the author concludes–as have many others–that we need a constitutional amendment that would overturn the decision and confirm that corporations are not people.
I agree that such an amendment is warranted, if incredibly difficult to pass. But as a retired Judge told me several months ago when we were discussing the case, the real travesty was the earlier decision in Buckley v. Valeo, in which the Court equated money with speech. That was the decision that made Citizens United possible.
We all know that wealthier people have more clout in every society; they always have and probably always will. Wealth buys privileges–it allows people to get better educations, join organizations that are influential, have more leisure, hire lobbyists, and access a wide variety of other social “megaphones” that allow them to influence others. That’s just reality–an inescapable consequence of free speech in a market economy, and in my view, an acceptable if regrettable trade-off.
But Buckley and Citizens United vastly increase the power of the rich at the expense of everyone else. Rather than helping to level the playing field by upholding laws that would have moderated political advantage, those decisions dramatically increased the disparity.
If money is speech, and corporations are people, the 1% will always own the political process.
The Indiana Statehouse has been the focus of a lot of demonstrations over the years, and probably just as many efforts to abort–or at least minimize– those demonstrations. Remember when the KKK came to town? The argument was “We can’t let them use the Statehouse steps–people will riot and it will endanger public safety!” The same argument, of course, was made when Martin Luther King spoke at public venues in the South–public officials argued that he couldn’t be allowed to address the crowds because the local “bubbas” would riot and endanger public safety.
The courts have had a pretty standard response to such arguments: the First Amendment protects all expression, even “the idea we hate.” Neither the government nor the “hecklers” who disagree with the message get to veto other people’s right to speak.
The term “heckler’s veto” is shorthand for the proposition that people who don’t like an idea don’t get to “veto” its expression by threatening the public safety. If there is a genuine concern about safety, courts have uniformly held that the proper response is to address that concern–provide more police, remove weapons, fix rickety stairs or do whatever else it takes to minimize the perceived danger–without denying the speaker(s) First Amendment rights.
Which brings us to the current effort to minimize the message of people opposed to pending Right to Work legislation. If having lots of folks in “the people’s house” is truly dangerous, make whatever alterations/accommodations are necessary to ameliorate that danger. But it’s hard to accept the proposition that this sudden concern about “safety” is isn’t simply a transparently political effort to shut down political opposition, an effort at a somewhat more sophisticated version of the “heckler’s veto.”
Don’t believe that? Let’s engage in a “thought experiment” suggested by my son the other day.
Let’s say a member of the General Assembly offered a bill to provide public funding for late-term abortions, and his colleagues seemed likely to vote for that bill. How many of the legislators who are piously expressing concern for the “public safety” would be working to limit the number of people Eric Miller and his anti-choice cohorts could bring to the Statehouse?
Since the election of Barack Obama, the GOP–aka “the party of no”–has shown impressive discipline, putting party orthodoxy ahead of both the common good and, frequently, sanity. The Democrats, on the other hand, have happily confirmed Will Rogers’ great line: “I’m not a member of any organized political party; I’m a Democrat.” The left wing of the party has pretty constantly criticized the President for not doing more, not doing it more quickly, and not doing what they wanted.
I’ve considered much of this criticism unfair–often it has been the result of not understanding the constraints imposed by Separation of Powers, or the magnitude of the economic threat he inherited. Other complaints have had more merit–contrary to Republican rhetoric, for example, Obama has often seemed too willing to compromise, too reluctant to play hard-ball. But by far the most serious criticism has been his acceptance of Bush-era infringements on civil liberties.
This is a man who taught Constitutional law, a man who stood up for the rule of law as a Senator and who said all the right things as a candidate. It was a relief, after 8 years of a profoundly lawless administration, to cast a vote for someone who could be expected to respect Constitutional limits. That expectation has proved illusory, and Obama’s embrace of Bush-era surveillance measures has been painfully disappointing.
The recent announcement that the President would not veto the current Defense bill , however, is worse. While much of the bill is uncontroversial, its counterterrorism section states that the entire world, including American soil, is a battlefield in the war on terror, and that the U.S. military thus has the authority to arrest and indefinitely detain anyone, even citizens, suspected of aiding terrorists.
I can’t think of anything more profoundly unAmerican.
It’s bad enough that large numbers of Congressmen and Senators support this assault on the Constitution and the rule of law. For Obama–who clearly knows better–to sign it is simply inexcusable. Laura Murphy, the longtime head of the ACLU’s Washington office, said it best:
“If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”
In ordinary times, when we had two responsible political parties, the loyal opposition would provide a corrective to Executive Branch over-reaching. The saddest thing about the farce that is our current political environment is that no such counterbalance exists; indeed, the major movers of this appalling provision include Lindsay Graham and the ever-angrier John McCain. The same GOP that contests the power of the White House to reform health care evidently has no problem handing over the power to arrest and indefinitely detain American citizens.
We can only hope the Supreme Court remains sufficiently “activist” to invalidate this incredibly unAmerican measure.
As readers of this blog know, I’m a pretty rabid civil libertarian. But even I know that my right to free speech doesn’t mean I can stomp into your living room to harangue you. My right to free exercise of religion doesn’t include the right to impose that religion on students in my public university classroom. My right to petition my government for a redress of grievances doesn’t translate into a right to march into the legislature when it is in session and disrupt the proceedings.
In other words, the exercise of my rights is conditioned upon my willingness to respect the equal rights of others.
Granted, that little caveat is widely ignored by citizens who are absolutely convinced that they and they alone are in possession of Truth that must be imposed upon others despite the fact that those others may have Truths of their own. Nevertheless, respect for the equal rights of others is a foundational premise of our legal/constitutional system.
Those for whom the Second Amendment is less a statement of rights than a religion just don’t get that. They seem to believe that the Second Amendment trumps all the other provisions of the Bill of Rights. A couple of years ago, the Indiana legislature blithely ignored the rights of employers to determine what safety measures they would require, and passed a measure allowing workers to pack heat in the workplace. Now, a state representative has introduced a bill to allow students–and presumably others–to come armed to campus.
There are sound reasons why IUPUI and other universities do not want guns on campus. We have our share of immature students, troubled students, and far more troubled visitors. (There used to be a self-described “evangelist” who “preached” loudly on the plaza next to my building, calling female students “whores of Babylon” and ranting about various sins he attributed to passersby. I don’t think arming him would have been a great idea.) I know that gun lovers really believe arming students would prevent tragedies like Virginia Tech; I don’t share their sunny suppositions–my guess is it would be equally likely to increase the bloodshed. But whether I am correct or they are is not the point.
The point is that government should not be able to decide who can come armed into my home, my place of business or my office on campus.
Gun rights activists who are constantly criticizing government over-reach, constantly talking about limited government, ought to take a good hard look in the mirror. Their hypocrisy is showing.
Tonight, I’ll chair a Spirit and Place Panel on “The Body Politic” at the Indiana Statehouse. I hope some of you can attend; for those who can’t, here are my introductory remarks.
I’d like to introduce the panel: Eric Meslin is Associate Dean and Director of the Center for Bioethics at the IU School of Medicine; Philip Goff is Associate Dean of Liberal Arts at IUPUI and Director of the Center for the Study of Religion and American Culture; and Louis Galloway is Senior Pastor at 2d Presbyterian Church. I’m Sheila Kennedy, and I teach Law and Public Policy at the School of Public and Environmental Affairs.
So–What is a “body politic”? For purposes of tonight’s discussion, the body politic is best defined as a political community, a collective body of people who share allegiance to a particular government. Or—as I like to think of it—a body politic is comprised of people who share certain norms and attitudes that have been shaped by their governing philosophy and institutions, people who share a certain Constitutional culture.
Our national motto is e pluribus unum—out of the many, one. That never has meant sameness or homogeneity—Americans have never shared a single religion, national origin, skin color, or even political philosophy. What we have shared is a certain approach to how we live together, an approach that grew out of the Enlightenment and includes a strong belief in the importance of reason, the rule of law, individual rights and political equality. Our political community makes space for all the other communities we participate in: religious communities, professional communities, social communities and so forth. A healthy political community—a healthy body politic—is essential to the health of all our other associations. And right now, the body politic isn’t doing so well.
The question our panel will consider is: what does it take to create and maintain a body politic? Are there things that citizens absolutely have to know, values they absolutely have to share? In a country as diverse as ours, what creates and sustains unum from our pluribus?
In 1987, E.D. Hirsch wrote a book called Cultural Literacy: What Every American Needs to Know. His thesis was that in order to engage in genuine communication, people need to share a basic understanding of cultural allusions—terms like “banana republic” or “academic freedom” or “Achilles heel,” that are used as short-hands to convey certain ideas common to the culture. The person who is unfamiliar with those terms, according to Hirsch, is not genuinely engaged in the conversation. Whether or not you accept Hirsch’s entire thesis, it’s hard to argue with the proposition that we need a shared understanding of basic cultural references in order to communicate. The question is: what is the minimum that Americans need to know in order to sustain a healthy body politic?
These days, if you turn on a “public affairs” television program, listen to talk radio, or attend a lawmaker’s “town meeting,” you are likely to witness the increasing stridence and incivility of what currently passes for democratic discourse. Our elected officials seem unable to engage with each other in anything approaching a productive and mutually meaningful exchange. Americans seem increasingly to be talking past, rather than to, each other.
On one hand, it is important to place our current “red state/blue state” hostilities in historical perspective. This country has seen periods of very significant conflict before—the Civil War, prohibition, the civil rights movement, and the turmoil of “the sixties,” to name just a few. On the other hand, the radical pluralism that characterizes modern life—and the new technologies that bring a certain “in your face” quality to that pluralism—pose challenges that are arguably unlike those of past times.
It’s fairly obvious that the labeling and insults that increasingly dominate our media and politics aren’t communication. Communication doesn’t require an absence of argument or disagreement, but it does require that we actually hear each other, that we argue from the same basic premises or facts, that at some level, no matter how minimal, we be able to acknowledge what it is the other person is saying and understand the basis upon which that person is saying it.
Unfortunately, these days Americans seem to be living in separate realities, unable to participate in the same conversation. And in my own opinion, one of the root causes of that disconnect is a widespread lack of civic literacy and cultural competence.
I study how constitutional values operate within a diverse culture, how those values connect us to people with very different backgrounds and beliefs and make us all Americans. That research has convinced me that an understanding of the history and philosophy of our country is absolutely critical to our continued ability to function as a body politic. That research has also convinced me that the civic literacy we need is in short supply.
Let me share an anecdote that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits our policy options, and how “original intent” guides our application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how Madison’s beliefs about freedom of expression should guide courts faced with contemporary issues involving the internet. But a couple of years ago, when I asked a young woman—a junior in college—that question, she looked at me blankly and asked “Who’s James Madison?”
It’s tempting to dismiss this as anecdotal, but there are reams of research confirming widespread civic ignorance. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about the government. Twenty-eight percent could identify the Constitution as the supreme law of the land; 26% knew what we call the first ten amendments to the Constitution; 27 % could identify the two parts of the U.S. Congress; 10% knew how many justices are on the Supreme Court; and only 43% could name the two major political parties.
There’s more—much more. Only 36 percent of Americans of any age can correctly name the three branches of government. Fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution.
This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped the culture we live in. They dictate how we think about what’s public and private, our notions of personal responsibility, and our conceptions of human rights. They frame the way we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview. Failure to understand and appreciate those initial decisions is failure to understand the structure of the world we live in; it is failure to understand the context of contemporary politics and policy.
People who have little grasp of American history or the Enlightenment roots of our particular approach to government don’t argue from within our Constitutional Culture. Look, for just one example, at current debates over gay rights. People who disapprove of homosexuality for personal or religious reasons want the government to treat gay people differently. Their arguments are based upon their views of moral behavior, usually as dictated by religious authority. Our constitution absolutely protects their right to believe and to act upon those beliefs in their personal lives—if they don’t like gay people, they don’t need to invite them to dinner; if their churches condemn same-sex marriage, they need not conduct them. But that same Constitution limits the ability of government to tell citizens how to live their lives, and it requires that government treat citizens as equals before the law.
We can argue the morality of homosexuality, or we can argue about the proper role of government in our constitutional system. Both arguments are legitimate, but they are different arguments. When person A says “the Constitution requires X” and person B responds “God doesn’t like that,” we are not having a conversation from within the constitutional culture, and we are not sustaining the body politic. We aren’t having a conversation at all—we’re just yelling past each other.
Tonight’s panel is going to wrestle with a very difficult question: what is the minimum level of knowledge—of civic and other literacy—that we should expect from members of our “body politic”? Citizens don’t need to be constitutional scholars, scientists or historians—but we can’t survive, can’t sustain the necessary cultural norms, unless they share a basic understanding of who we are and where we came from. What is the necessary content of that understanding?
What is the minimum reality we need to share in order to communicate productively and in order to create a constitutional culture?
