Money, Speech, & Bullshit

Conservatives and Liberals can disagree, and genuinely believe that their own points of view are valid. But more and more I’m coming to believe that most conservative points of view are lies that conservatives tell themselves to justify doing what they know is wrong. It’s like telling yourself that ice cream is healthy because it is made out of milk. It’s like a bully complaining that a nerd’s face keeps hitting his fist.

The McCutcheon decision is bullshit. The idea that money is speech is bullshit. I have a right to express my opinions, but the First Amendment doesn’t guarantee every method available for doing so. The First Amendment doesn’t guarantee my right to shout my opinions louder than local noise ordinances permit, or to paint my opinions on the sides of public buildings. Megaphones are not speech. Neither is spray paint. Neither is money.

The Supreme Court has often ruled that speech can be restricted for valid reasons. When you consider all of the restrictions on speech that exist despite First Amendment protections, such as restrictions against libeling, threatening, talking about classified information, or amplifying your voice above certain volumes, it’s absurd that that something which can only be considered speech in a highly metaphoric application of the word has more protection than actual speech does.

In the National Law Journal, James Copeland compared limits on campaign spending to limits on legal defense, or to telling people that they can’t spend money on abortions (apparently referencing Eugene Volokh but I can’t find the original). Do Mr. Copeland or Mr. Volokh, both men much more knowledgeable than I am, even think such analogies make sense? I could spend all the money I have on legal defense and still not match the resources available for my prosecution. And I can’t even grasp enough of a correlation between campaign finance and abortion spending to criticize the analogy.

With patriotic language about how the government shouldn’t restrict access to the political process, the Supreme Court restricted access for millions of ordinary people. This was the same court that overturned the Voting Rights Act, telling us that our country no longer requires such protections, because it has “changed”. And it was just one large step in a march to eliminate the voice of the people completely. In the past several years, the Supreme Court has used bullshit logic to reverse over a century of progress toward making the First Amendment meaningful to ordinary citizens. And it will continue to do so until we replace at least one conservative justice with one who will start with the law and reason outward, rather than start with ideology and interpret the law accordingly.

I’m Still Thinking about Impeachment

I know how happy I’m supposed to be with the Supreme Court approval of the health care mandate but little has changed when it comes to talking about impeachment for Supreme Court Justices who act more like politicians than constitutional interpretors. Justice Scalia has provided more than enough examples of his willingness to alter his opinions to meet the Republican agenda, Justice Thomas weighed in on the health care mandate despite a strong and clear financial conflict of interest, and Justice Roberts produced a convoluted opinion based more on threading a political needle than on providing an honest interpretation.

I’m glad that ACA passed but it should have passed under the commerce clause just as the Obama administration argued. The U.S. government has the right to regulate commerce. Health care is a fifth of our economy, a vital service on which our very lives depend, and has costs which have been rising out of reach for an increasing number of Americans because the wealthiest are willing and able to pay so much for it. It’s clearly under the purview commerce, but after the Affordable Care Act passed in congress, an idea emerged, the explanation of which could easily be followed by the phrase, “yeah, that’s the ticket!”. The idea was that the mandate was unconstitutional because it tells us what to do, instead of telling us what not to do. It was dismissed as ridiculous at first, but not wanting to overlook any opportunity to cause the president to fail, conservatives eventually began to support the ridiculous challenge.

There were no honest grounds for the challenge, and conservatives knew it. As Brad Delong explains, referring to Republican Governor Mitt Romney’s health care plan on which the ACA was modeled, and a similar “mandate” proposed by Republican president George W Bush,

No office-holding Republican complained that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional, or whatnot–for it was the signature policy initiative of a Republican governor. The mandate that was at its core? That was the conservative Personal Responsibility principle. And remember the centerpiece of the Bush administration’s Social Security privatization proposals: it was an individual mandate to regulate “inactivity”: to require that people who had not established their own private individual retirement accounts do so.

Had the issue of “inactivity” reached the justices in the form of a challenge to a Republican mandate to purchase retirement accounts rather than a Democratic mandate to purchase health insurance, the Republican justices would have voted the other way.

But when the same Republican policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind.

But despite the lack of any legal basis, conservatives pushed the idea. The CATO institute, always ready with an argument to protect the secure from the needy, said, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.”

But it isn’t a radical departure. Consider two of the important historical cases which considered during the deliberations: Wickard vs Filburn and Gonzolez vs Raich. In the first, Roscoe Filburn was told that he couldn’t grow his own wheat (beyond a certain acreage) to feed his own chickens, because doing so effected commerce in wheat, and in the second, Angel Raich was told she couldn’t grow marijuana for her own medical use, even though her doctor said it might save her life and it was legal under California law.

In his opinion, Chief Justice Roberts wrote:

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sus-tained under a clause authorizing Congress to “regulate Commerce.”

Conservatives contend that in earlier cases, the citizen’s activity was restricted, not mandated. But that argument isn’t completely true. The government didn’t expect Filburn to starve his chickens, they expected him to buy wheat. If he wasn’t expected to buy wheat when told he couldn’t grow his own, then growing his own would have had nothing to do with commerce. And Angel Raich, who can’t grow her own pot, is forced to purchase whatever medicine the marijuana would have replaced.

Technically, Filburn and Raich weren’t mandated into commerce, but realistically they were. So five Supreme Court justices made a falsely grounded interpretation based on a technicality in order to support a political attack on the president and on the millions of people who will be helped by affordable health care. Justice Roberts, of course, came halfway back and found a tricky way to support the ACA while apparently hoping to appease his conservative peers by upholding the silly technicality.

One crazy aspect about this situation is that right wingers are correct in saying that the commerce clause has been stretched beyond its written scope and used to justify actions that have nothing to do with commerce. But the decision of the Supreme Court, that the commerce clause can’t be used for a mandate, does nothing to reign in the abuses of federal power. A mandate to enter into commerce doesn’t effect my freedom nearly as much as a restriction on what I can grow on my own property; especially when the restriction prevents me from growing my own medicine to save my own life, and especially if I can opt out of the mandate for religious purposes.

If the conservatives on the Supreme Court wanted to reign in the overreach of the commerce clause, they would have to have chosen a case other than one which is clearly about commerce.

I’m not supposed to have a fit when the Supreme Court makes a decision that I don’t agree with, and in this case it made a decision that I do agree with. But the five justices who tried to strike down the ACA, including the one who changed his mind half-way, were motivated by politics rather than jurisprudence. And while there’s no chance of unseating any of those judges, the specter of impeachment might keep justices in line in the future.

Reasonably be Characterized

My wife and I raise animals for meat. We occasionally grow fond of a certain animal and decide not to eat it. That animal can “Reasonably be Characterized” as a pet, because certain rules of pets apply to it. But other rules don’t apply, and therefore we don’t consider it a pet. And I’m not a big liar when I tell you that it isn’t.
Sow and Piglets

Trolling about Health Care at NRO

Trolling at the NRO is frustrating because it takes so long for comments to appear. On the other hand, I should admit that I was wrong In an earlier post when I suggested that my comments would be replied to by excessively nasty and low-class remarks.

Charles Krauthammer wrote a post about the Affordable Care Act in which he begins re-telling the easily and repeatedly debunked lie about the 1.76 trillion cost estimate from the CBO. Then he gives the old slippery slope warning, suggesting that if the Supreme Court approves Obamacare, there won’t be any limits on federal power. Finally, he writes about Catholic organizations being forced to pay for contraception, which they’re not actually being forced to do, as an unprecedented denial of religious freedom, when actually it’s tame compared to oppression that the Supreme Court has approved of in the past.

I wrote a reply, but it probably won’t appear until tonight or tomorrow.

The 1.76 trillion figure is part of a calculation that has been taken out of context from a report (pdf) in which it’s very clearly not being used as a final estimate. One conservative lied about it and it spread through the internet at an amazing clip. Mr. Krauthammer undercut his usual low standards by repeating a lie that not only has been debunked by multiple organizations, is pretty easy for anyone to debunk on their own. The report isn’t too hard to read. The report actually says, on the first page, that the CBO’s new estimate is lower than previous estimates for the same period of time. But when not using the same time period, which is what happens each year when the CBO produces it’s ten-year projections, the cost will rise as more of the ACA is implemented. This is a well known fact but Mr. Krauthammer sounds the alarm as if he’s just uncovered a secret plot. But 1.76 trillion is false even with the new, increased estimate.

The health care mandate is in keeping with current powers of the federal government. A commenter on National Review suggested that if Obamacare passes then everyone over 18 should be mandated to purchase a gun. I don’t know if the commenter is aware that a similar mandate was passed during the presidency of George Washington. Washington’s mandate was never challenged in the Supreme Court but 1942, the Supreme Court ruled that the federal government can use the commerce clause to put limits on wheat production even if the production is for private use. More recently, the court overrode state law by outlawing marijuana for medicinal purposes, and Justice Antonin Scalia supported the power of the commerce clause in that case. Charles Krauthammer wants to know, if the mandate passes, is there anything the commerce clause doesn’t allow the federal government to do? George Washington’s mandate was never challenged and the two cases I just mentioned are far more overreaching than the health care mandate, so whatever the federal government can and can’t do now, it won’t change with approval of the health care mandate.

The recent accommodation for Catholic institutions means that those institutions will not directly pay for contraception. If it’s unconstitutional for Catholic organizations to be forced to pay indirectly for something they don’t believe in, than all taxes are unconstitutional because they may be used indirectly to pay for things that citizens don’t agree with, such as war, subsidies for farms which produce pork, and even Medicare, since some people don’t believe in medicine.

Mr. Krauthammer writes,

Today, it’s the Catholic Church whose free-exercise powers are under assault from this cascade of diktats sanctioned by — indeed required by — Obamacare. Tomorrow it will be the turn of other institutions of civil society that dare stand between unfettered state and atomized citizen.

But the federal government has a long history of trampling over religious beliefs when doing so supports a national agenda. One good example, also supported by conservative Justice Scalia, is the religious use of controlled substances, which the Supreme Court has determined can be disallowed. Mr. Krauthammer has access to high level archival databases. Surely has access to wikipedia.

Conservatives, including Mitt Romney, New Gingrich, and the leadership of the Heritage Foundation all supported the individual mandate before defeating the mandate became something that could used to damage the Democratic party. That’s another inconvenient fact that Mr. Krauthammer has to ignore in order to paint Democrats as Socialists for their support of Obamacare.

A nobody like I can be forgiven for acting like a passive element and mindlessly repeating lies that are bouncing around the internet. Someone with Mr. Krauthammer’s resources should know better.

Precedent vs Ideology will be important in the Health Care Decision

From TPM:

Since [ the new deal era ], the high court has overwhelmingly supported congressional authority to make economic regulations — from the 1942 Wickard v. Filburn case, which upheld laws restricting wheat production for personal consumption, to the 2005 Gonzalez v. Raich ruling, which decreed (with the help of Scalia and Kennedy) that Congress may override state laws permitting medical marijuana patients to grow cannabis for personal use. The administration will argue that both laws reflected broad exercises of Congress’s power on the scale of mandating insurance coverage.


Despite the favorable precedents, progressives have a nagging fear that the five Republican-appointed justices will hand down a partisan decision on the scale of Bush v. Gore, to deliver a blow to President Obama. After that unprecedented 2000 ruling, some liberals take little comfort in scholars’ view that political pressure doesn’t usually carry the day in the chamber, that the high court’s longstanding tendency is to make gradual, not radical, shifts in jurisprudence on core Constitutional questions.

A Supreme Court decision in favor of the health care mandate would reflect a century of precedent. A decision against it would reflect the same philosophy that resulted in the 2000 decision to stop Florida from recounting its own votes, which is that federal power over states’ rights can only be used to enforce conservative ideology.

US Supreme Court