Supreme Court

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Rest in . . . Wait a Minute!

Republicans proved they are the Party of No Class (PNC) when they leaped from the death of one of their honored Supreme Court Justices to insisting that President Obama had no standing to nominate a new justice. Apparently the Constitutional duty to nominate Supreme Court justices does not extend to a Democratic president. Justice Antonin Scalia might well stir at such disrespect, both for him and the Constitution.

Governor John Kasich, notable for his good sense, spoke in last night’s debate about the haste the candidates had taken to move from honoring the passing of a conservative colleague to demanding his replacement await a new administration. Really, is 24 hours too long to remember a justice who graced the Supreme Court for a quarter of a century?

Perhaps it should be expected that a Party that spawned Donald Trump should be jockeying for political position before their comrade had some moments of peace and recognition, but it is disappointing nonetheless. A Supreme Court justice, regardless of his political bent, ought to receive the honor due his service, and Antonin Scalia was a pronounced and outspoken figure in the judiciary. He deserved better.

The high road in politics is increasingly the Road Not Taken

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Money Talks . . . Again

Once again we are hearing the argument that campaign donations are a form of free speech in the case currently before the Supreme Court, McCutcheon vs. the Federal Elections Commission. Shaun McCutcheon, an Alabama businessman, contends that the cap on contributions he makes to federal candidates, party committees and political action committees violates his rights as a citizen to speak freely in the battle for the vote.

I can not say how much this concept of free speech offends me. I have never given more than $100 to a political cause, because of my modest means, and I resent the citizen who is unhappy that he can not exert more than a thousand times my influence, because of his wealth.  This form of influence is neither free nor speech.

I can’t decide which claim offends me more: that money is speech or that its influence show go unfettered. The expression “money talks” is extremely cynical, suggesting that what you say is never accorded the same respect given to the money that changes hands when you say it.  It is the subtext of every election, as the media calculates what they call the “war chest” of one candidate over another. It is as if the political message of every candidate should be “I disagree, and I have money.” This is class warfare in its most naked form.

The claim that money’s influence should not be curtailed is equally abhorrent.  The power that the Koch brothers exert through political action committees and campaigns against moderate candidates is terrifying.  The potential influence of one Nevada billionaire on the previous Presidential election was unnerving. The seamless passage of Congressional representatives from pubic servant to influence peddler in Washington threatens the integrity of the government.  All this is done under the existing campaign and lobbying laws. And we want to extend the power of wealth in the political process?

I can not blame those who have money, because they are expected to use their resources to their advantage. I do blame the Supreme Court for “Citizens United,” and I blame democratically elected officials who cater only to their wealthiest supporters. In my naivete I have expected elected representatives to protect the interests of their most vulnerable citizens against those who disregard those interests.  That is what government is designed to do: defend the rights of the less powerful.  The rights of the powerful should receive a lot less obeisance, especially from those who benefit from their largesse.

What really gets me is the image of wealth degrading the value of discourse. It means that the most articulate and impassioned defense of a cause can be silenced by a backroom transaction. It means that no one will bargain in good faith, because they have already been bought.  It means that no one will speak their mind for fear of offending wealthy contributors. It means that words are cheap, even words that stand for something.

“Money talks” may be a commonplace of our society, but I can never hear it without cringing.  There is nothing articulate or inspiring in the exchange of wealth, except to those who make it so. Those who would use wealth to amplify and leverage their free speech should be restrained from domination, if only to preserve the meaning of “free” and the meaning of “speech.” Money has no legitimate claim on either of those words.

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Broccoli Ad Absurdum

The claim that if government can require the purchase of health insurance it can therefore require the consumption of broccoli is one of those so-called “slippery slopes” that judges are always scrambling around.  Courts, politicians and lobbyists have found our legal system utterly eroded by slippery slopes, endangering us with every change in the law. If they identify a law that rankles, they will immediately excavate a slippery slope and then point to it with mounting panic.

Oh yes, health insurance today, but tomorrow . . . broccoli!

In the world of logic, this move is called “reductio ad absurdum” or “a reduction to an absurdity; the refutation of a proposition by demonstrating the inevitably absurd conclusion to which it would logically lead.”  Although logic has a strong reputation in our legal system, the “ad absurdum” part of this strategy should not be overlooked.

A delightful parody of the “reductio ad absurdum” is the current run of Directv commercials, such as “See what happens when you make bad decisions. Don’t wake up in a roadside ditch!” (http://bit.ly/ymT7PP).  In this instance, a cable television user becomes angry at being on hold with his cable provider, leading to several hazards, resulting in getting an eye-patch and finally getting mugged and left in a roadside ditch. Directv has run several commercials on the same silly premise, but no one is buying satellite television service because they are worried about ending up in a roadside ditch.  They laugh at the ridiculous outcome of a simple behavior, such as getting angry on the phone while being on hold.

However, when “reductio ad absurdum” is introduced into the courts or on the floor of the legislature, no one is laughing.  We are all sobered by the possibility we may be forced to eat broccoli in the future.  Why do we take these arguments seriously?

The National Rifle Association is a past master of “reductio ad absurdum.” Every restriction on the licensing of guns appears to them a violation of their right to bear arms.  Most recently they mounted a furious attack on the new technology, which would imprint an identification number on shell casings, so that police gathering them at the scene of a crime could trace them to their users– the criminals.   But if we can identify criminals, we can also identify innocent users of guns, and we wouldn’t want that– would we?  Why should we be allowed to know who fired a weapon and when they did it?  Won’t this mean that the government will come to our houses and seize our weapons without recourse? Ad absurdum!

Judicial decisions are particularly hazardous, because they are used as precedents, so there really is a slippery slope out there, not an imagined one.  The federal government has used its Constitutional power to regulate “interstate commerce” to intrude into affairs many would see best regulated by the state, such as education or care of the indigent. The Supreme Court is the ultimate arbiter of the degree of federal control, so it should take these cases of federal power seriously.

But the judges of the high court should be more wary of the “ad absurdum” arguments or they may find themselves with a satellite dish on the roofs of their houses.  Seeing broccoli as the outcome of universal health care really stretches the legal imagination. Health insurance is a lot more like Social Security and Medicare than it is like broccoli. Is the Constitutionality of Social Security at stake here? Should citizens be required to save money for retirement or for hospitalization? You can spot slippery slopes running off to the right as well as to the left.

We have a compelling social interest in citizens having funds for retirement, in having access to catastrophic health care, and ultimately to the high level of medical care this country offers. In no way does broccoli rank among these interests, and I will defend every citizen’s right to leave it alone. Regardless of the outcome of the Affordable Health Care decision, I am confident that the Supreme Court will protect my sacred right to eschew broccoli.

And I mean no offense to the broccoli growers and producers of America.

 

 

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Metaphors, Money, and Speech

Perhaps the dialogue across the pages of the New York Times on Tuesday, April 12 was accidental, but it was fascinating, just the same. On one side David Brooks reminded us of the importance of metaphor as our lens for seeing reality. On the other side the lead  editorial warned us that the Supreme Court may change the metaphor of money enabling speech in political campaigns to money being the equivalent of speech and therefore deserving the same protection as speech. Both articles suggest we ought to watch what we say and be wary of what we hear.

Commenting on the research of linguists, such as James Geary ( I Is an Other) and George Lakoff and Mark Johnson, Brooks reminded us to be alert to the metaphors we use:

It’s to be aware of how imprecise our most important thinking is. It’s to be aware of the constant need to question metaphors with data–to separate the living from the dead ones, and the authentic metaphors that seek to illuminate the world form the tinny advertising and political metaphors that seek to manipulate it.

In the context of the upcoming budget debate these words could not be more timely. Just as poignantly, they address the debate about the financing of political campaigns and whether the right to uninhibited spending is protected by the First Amendment. The legal question must be complex ( or why would the Supreme Court be so sharply divided?), but the ethical question seems pretty stark to me.

“Money talks.” This seems to be the Supreme Court’s metaphorical view of campaign funding. I have never heard this expression used without some rueful implication that money has more influence than words.  No one says, “Money  should talk” or “We should pay attention to money more than speech.”   It is regrettable that “money talks,” and that valuable social programs are being slashed because of deficits, not because of their value to society. Perhaps it is reasonable to pay attention to funding, but it is not preferable.

So when a legislative or judicial body has the opportunity to curb the realities of funding, to curtail the power of money, it should ethically seize that responsibility.  The law should not maintain, but improve the status quo.  The law should not empower the powerful, but protect the weak.  The ethical responsibility of lawmakers and law mediators is clear.

Consider the regulation of speech. What if we allowed those with access to the press and publication to use language to slander and malign a person’s reputation? Those with the sharpest pens and most demented imaginations could wreak havoc on people they disliked. Instead the law curbs language which unfairly scars our reputations.  This is a fair restriction on speech. No matter how abundant your store of adjectives, you can not freely unleash them on your enemies in publications.

You can come pretty close to libel in a political campaign,  but if you have good lawyers and media consultants you can avoid overstepping the law.  With a substantial campaign fund you can disseminate half-truths to a wide audience. Hence, ” Money talks.” This is not an inescapable reality, but a sad commentary.

Turning money into a form of speech is a travesty of the First Amendment. A strict constructionist should be appalled by the ruling of the Supreme Court, which allows us to use money freely to consolidate power within the ample limits of free speech.

Given the power of language, however, we might be most concerned with the metaphors we use and interpret. If the Supreme Court can conflate money with speech, what other exaggerations might be unloosed on the voting public? How much will these metaphors determine what programs get cut in the coming months or which President is elected in the coming years? That is not a subject for the law, but for, you, gentle, but critical readers. Let the reader and consumer of media beware!