Spawn of Citizens United

During my six years as Executive Director of Indiana’s ACLU, if my youngest son called the office when I was out, he’d leave a message: “just tell her Satan’s spawn called.” (He found the popular caricature of the ACLU endlessly amusing.)

I thought about “spawn” when a Facebook friend pointed me to a recent, truly bizarre ruling from the Seventh Circuit Court of Appeals.

When the Supreme Court decided, in Citizens United, that corporations have a right to free speech, it drew a dangerous equivalence between individual human beings and the legal constructs created to simplify the transaction of business and commercial transactions. In the immortal words of Mitt Romney, the Court ruled that for purposes of free speech, “corporations are people, my friend.”

Citizens United was itself the spawn of a series of unfortunate Supreme Court rulings that effectively equated money with speech. It thus had the effect of handing a huge megaphone to corporate entities able to outspend–and thus “out-shout”–individual voters. The ruling has been exploited to allow for the creation of so-called “SuperPacs,” and it has raised a number of thorny issues, among them: what happens when shareholders don’t agree with the corporate “message”? What if they don’t agree that money should be spent for such arguably non-business-related purposes?

The problems and questions that have emerged in the wake of Citizens United point to the essential absurdity of treating artificial constructs as if they were people. And now the ruling is spawning even more nonsensical progeny. If you have had trouble getting your head around the nature of a corporate right to “free speech,” try this one: the Seventh Circuit says corporations have a right to the free exercise of religion.

The court came to this bizarre conclusion in a case brought by K & L Contractors, a secular, for-profit company that is challenging the Obama Administration’s mandate that contraception coverage must be provided by employers as part of their health insurance coverage.  The court ruled that the fact “that the Kortes’ [the majority shareholders] operate their business in the corporate form is not dispositive of their claim,” a proposition for which it cited Citizens United.

The result in this case is clearly contrary to the law prior to Citizens United. For decades, the law has essentially recognized a trade-off: if you opt to do business in corporate form, you get to take advantage of the benefits that status confers, especially the ability to limit your personal liability for debts the corporation incurs. In return, you follow the rules that apply to corporations, including loss of the right to impose your religious faith on your employees.

Even for individuals, asserting a religious objection to a law of general application is seldom seen as justification for ignoring that law. If my religion requires that I use cocaine, or sacrifice my first-born, or chain up my spouse, the courts are unlikely to give me a pass from the rules against those behaviors.

Let’s hope Citizens United hasn’t changed that result.

In fact, let’s hope the Supreme Court comes to recognize how reckless that decision really was, and limits or overrules it.

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A Little-Noted Lesson from the Fiscal Cliff

Apparently, the country will be taking a leap off the so-called fiscal cliff, since–despite a flurry of last-minute activity and a vote by the Senate–midnight came and went without passing anything. (And even the Senate’s measure didn’t remotely resemble a “grand bargain.”)

For most of us, the tax consequences are likely to be short-term. Incredibly, a significant number of Representatives refused to vote in 2012 to terminate the Bush tax cuts for rich folks, but are perfectly willing to come back early in 2013 after the cuts have expired and vote to reinstate them just for the non-rich. Why is that, you might reasonably ask, when the result will be exactly the same? Because they can then tell their constituents they never voted for a tax increase. They evidently think the American public is really, really stupid–and we elected them, so maybe they’re right.

Then there’s the issue of spending cuts. If a larger deal cannot be negotiated, and the dreaded “sequester” goes into effect, we’re told that government spending will be sharply reduced. And that’s true–as far as it goes. But the nasty little secret is that government is no longer a word that describes…government. As in public sector employees and elected and appointed officials. After decades of privatization and contracting out, government is all of us and everywhere–defense contractors, civil engineers, social service agencies and other for-profits and nonprofits that depend upon government contracts to survive. The last analysis I saw–and it is now several years old–counted some eighteen million people working full-time at ostensibly private and nonprofit sector jobs that were wholly supported by our tax dollars.

Retrenchment in those government contracts–required by the sequester–will affect more than just those 18+ million people who are employed in what we might call the “quasi-government” sector. When the defense contractor loses his biggest customer, his suppliers lose theirs, and so on down the line. The economic contraction would be rapid and severe.

I say it “would be” because I believe that the reality of that outcome will quickly become apparent even to the less-than-brilliant policymakers in Congress. (Their constituents can be counted on to point it out, if they somehow don’t get it.) Call me Pollyanna, but I think we’ll see some sort of acceptable-but-not-ideal agreement early in January.

Even if we evade economic disaster via fiscal cliff-diving, however, it may be worth pondering the largely unrecognized extent to which the private and nonprofit sectors are now part and parcel of that “bloated and wasteful” government we routinely excoriate, and the extent to which demands for cuts in “government spending” threaten to reduce our own incomes. That’s certainly not an argument for unrestrained spending; it is, however, an argument for recognizing economic reality and the extent to which “privatization”–which has increased, rather than reduced, the size of government–has made necessary spending cuts infinitely more difficult.

Happy New Year.

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A Low Bar

Mitch Daniels will be leaving the Governor’s office next week, and the predictable “puff pieces” are popping up. Daniels will leave with a reputation for good stewardship, primarily because Indiana emerged from the recession in decent fiscal shape–at least if you gauge fiscal health by money in the state’s bank accounts rather than by the condition of its cities, towns and workforce. (By that measure, we don’t look so good…)

Which leads to a question none of these adulatory articles has bothered to address: how should we measure a Governor’s performance? What are the criteria for success as a state’s chief executive?

In Daniels’ case, those applauding his performance seem to set the bar pretty low. Yesterday, Matt Tully’s column celebrated the fact that Daniels actually made decisions. Granted, Tully has long exhibited what local political wags call  a “man crush” on the Governor, but he is not alone in suggesting that the mere fact that someone we elected actually did stuff is reason enough for praise.

So what “stuff” did Mitch do? Let me use Tully’s list: He leased the Indiana Toll Road. He led the fight for “Right to Work,” and was successful in adding property tax caps to the State Constitution. He was the moving force behind Tony Bennett’s approach to education reform. He revamped the BMV, and finally got Indiana on Daylight Savings Time.

Fair is fair: the BMV is a far, far better agency than it ever was before. It is efficient, user-friendly–I’d certainly give Daniels kudos for solving agency problems that defied his predecessors. I will also give him credit for Daylight Savings Time; it seems ridiculous that getting Indiana to go along with the rest of the country took so much political capital, but hey–this is Indiana, where one of our brilliant legislators worried aloud that an extra hour of sunlight would burn the crops. So props to the Guv for that one, too.

The rest of it, not so much.

The Toll Road deal was part and parcel of the conservative love-affair with privatization; it amounted to what one expert recently called an “intergenerational transfer,” meaning the state deferred expenses that will be paid by our grandchildren in return for quick and easy up-front cash that could be spent during Daniels’ term in office. (And spent it was–it’s all gone.)

Right to work was a payoff to the business interests that supported his campaigns.

The tax caps are strangling every urban area in Indiana–making it virtually impossible for Mayors to fund ongoing services, and forcing them into “rob Peter to pay Paul” deals to sell off public assets. Indianapolis is less safe, less clean, and less healthy; thanks, Mitch.

Whatever the merits of the education policies that Daniels and Bennett championed, it is hard to find anyone–education reform advocate or defender of the status quo–who has a kind word for their aggressive, slash-and-burn attacks on teachers.

I haven’t read all of the fawning articles, but the ones I’ve seen haven’t mentioned some of the other legacies Governor Daniels is leaving. There’s a state contract with a horribly expensive coal gasification plant in Southern Indiana, run by a company that employs Daniels’ close ally Mark Lubbers–a contract that ensures Indiana ratepayers will overpay for gas for the next 30 years. There’s the developing scandal involving the IEDC and Mitch Roob, another Daniels protege.

Tully and others acknowledge that there is “debate” about the consequences of many of his decisions, but they praise Daniels for the fact that he actually did stuff, that he “boldly” made decisions. That he changed things.

Apparently, that’s enough to earn their praise.

Talk about setting the bar low.

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It’s Us

The fault, dear Brutus, is not in our stars,
But in ourselves…

Shakespeare penned those words; Nate Silver demonstrates their accuracy.

The increasing partisanship and polarization in Washington is making it more and more difficult to get anything meaningful done. The paralysis of government is real, and it is making all of us vulnerable–to economic recession, to climate change, to gun violence and all of the myriad challenges of contemporary social systems. Those in what Molly Ivins called the  “chattering classes,” the punditocracy, bewail this state of affairs, and insist that the American public not only deserves better but deeply disapproves of this ideological rigidity.

Nate Silver begs to differ.

in a recent post for the New York Times, Silver demonstrates that the gridlock in Washington mirrors our own polarization. As recently as 1992, there were 103 swing Congressional districts; this year, there were 35. At the same time, the number of “landslide” districts doubled, from 123 to 242. As a result, most members of Congress now come from “hyperpartisan” districts where they face no general election threat. Any re-election challenge will come in a primary; in other words, Democrats must protect their left flanks, Republicans their right. As Silver notes, House members have little incentive to move toward the middle. Compromise with the other party simply makes them vulnerable to a primary challenge.

I have written about the pernicious effect of “safe” districts before, but I have generally assumed them to be the product of redistricting–gerrymandering. But Silver says the effect persists even if we ignore redistricting. He underscores what Bill Bishop reported in The Big Sort: people are voting with their feet, moving to areas they find congenial. The result is that Democrats are crammed into urban areas, and Republicans populate more rural districts. The result of that is the dilution of Democratic votes: in this year’s election, Democrats won the national popular vote by one point–an 8 point shift in their favor from 2010. But they gained only 8 House seats out of 435.

The results of these population patterns disadvantages Democrats by making continued control of the House by Republicans likely (absent a “wave” election), but it holds an even more serious threat to Republicans. As Silver points out, although individual Republican House members have little incentive to compromise, there are risks to the party if they fail to do so. Individual House members come from districts that reward them for being intractable, but that intransigence and hyper-partisanship make it increasingly difficult for the GOP to win either the Senate or the White House.

It seems appropriate, given how dysfunctional our government has become, to devolve from Shakespeare to Laurel and Hardy:  this is certainly a fine kettle of fish we’ve gotten ourselves into!

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