Five Editorials...Citizens United v. the Federal Election Commission

The Trial of John Roberts

By JEFFREY ROSEN
Published: September 12, 2009
Washington

Related
Times Topics: John G. Roberts Jr.

FOUR years ago, when John Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall. But if Chief Justice Roberts presides over a broad, ideologically divided ruling in a campaign finance case the court heard last week, he risks being remembered instead as a conservative Earl Warren.

For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process.

Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.

Likewise, if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.

But many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.

In his confirmation hearings in 2005, Judge Roberts talked about the “jolt to the legal system” that occurs whenever the Supreme Court overturns its own precedents. And soon after taking office, he expressed concern that his colleagues were acting more like law professors than members of a collegial court in their willingness to divide along predictable party lines. He said he would try to persuade his colleagues to converge around narrow, unanimous opinions that avoided the most contentious constitutional issues. The result, he said, would help shore up the court’s legitimacy in a polarized age.

During his four terms as chief justice, Mr. Roberts has had mixed success in achieving his vision of narrow, unanimous opinions, although he surely deserves credit for trying. Under his leadership, the percentage of 5-to-4 decisions has fluctuated from a low of 11 percent in his first term to a high of 33 percent in the term that ended in 2007. Chief Justice Roberts has been most successful in achieving unanimity in cases involving business interests, which now represent some 40 percent of the court’s docket. According to the United States Chamber of Commerce, 79 percent of these cases are decided by margins of 7-to-2 or better.

At his best, Chief Justice Roberts has distanced himself from the most ardent conservative culture warriors on the court, Antonin Scalia and Clarence Thomas. In his most impressive act of judicial statesmanship, he persuaded his colleagues to converge around a narrowly written 8-to-1 decision in June that sidestepped the constitutional difficulties raised by a bipartisan amendment to the federal Voting Rights Act. (Only Justice Thomas dissented.) And Justice Roberts pointedly refused to join Justices Scalia, Thomas and Anthony Kennedy when they called in 2007 for gutting campaign finance regulations — endorsing a more modest position that Antonin Scalia attacked as “faux judicial restraint.”

If, however, in the Citizens United case, Justices Roberts and Samuel Alito now join Justices Scalia, Kennedy and Thomas in a 5-to-4 decision that broadly overturns longstanding bans on corporate campaign expenditures, the 2007 Scalia critique will be vindicated. And liberals will conclude that John Roberts is guilty of precisely the kind of strategic temporizing that conservatives have long ascribed to Earl Warren.

There is, of course, a case to be made for Warren Court activism, and it was made in the Citizens United argument last week by Floyd Abrams, a principled liberal who opposes campaign finance regulations on free speech grounds. (Paradoxically, he was arguing on behalf of Senator Mitch McConnell, the very conservative leader of the Senate Republicans.) Mr. Abrams invoked the landmark 1964 decision in New York Times v. Sullivan — which held that public figures could not sue the press for defamation unless there was “actual malice” involved — as one in which the court was right to rule broadly and overturn 150 years of settled jurisprudence.

But the Sullivan decision was 9-to-0: not a single justice believed that The New York Times could be sued for running an ad that the police commissioner in Montgomery, Ala., viewed as critical of his actions against civil rights protesters. Moreover, it was a decision that was acceptable to the country as a whole at a time when all three branches of government agreed about the importance of federal civil rights laws.

In fact, the most successful decisions of the Warren era fit the same model. Despite conservative caricatures of him as an activist who didn’t care about public opinion, Warren was a canny politician who viewed his role as working harmoniously with the governing majority in the White House and Congress to solve the nation’s problems. The unanimous Brown v. Board of Education was popular with 54 percent of the country when it came down in 1954. Baker v. Carr, the landmark 6-to-2 decision (Justice Charles Evans Whittaker did not participate) from 1962 that Warren considered the most important of his tenure, was hailed by voters from both parties for recognizing the principle of “one man, one vote.” Griswold v. Connecticut, the 7-to-2 decision from 1965 striking down an archaic Connecticut law forbidding the use of contraceptives by married couples, was supported by broad national majorities.

HOW, then, by the late 1960s did Warren become a symbol of judicial arrogance? The answer, according to the historian Lucas A. Powe Jr., can be found in its controversial decisions on criminal procedure. These cases tended to be closely divided along ideological lines and intensely opposed by national majorities. Mapp v. Ohio of 1961, for example, was a 6-to-3 decision that imposed the exclusionary rule on the states, changing the law in half of them and freeing guilty defendants across the country. Escobedo v. Illinois of 1964, the 5-to-4 decision that held that suspects have a right to a lawyer during police interrogations, created a political firestorm.

The success of Earl Warren’s bipartisan decisions, and the intense controversy produced by his ideologically divided ones, offers a cautionary tale for Chief Justice Roberts. If he presides over a court that establishes itself as the adversary rather than the partner of the president and Congress — imposing hotly contested visions of free speech and racial equality with a narrow court majority — he will become as polarizing a figure at the beginning of his tenure as Warren became at the end of his own.

John Roberts clearly understands the stakes. During an interview at end of his first term, he told me that the most successful chief justices in American history have been able to persuade their colleagues to speak with one voice. By contrast, he said, 5-to-4 decisions involving the most controversial questions in American politics make it harder for the public to respect the court as an institution that transcends politics.

Now he can support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down. John Marshall or Earl Warren: the choice is his.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.
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September 10, 2009

Justices Are Pressed for a Broad Ruling in Campaign Case

By ADAM LIPTAK
WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The open issue was just how broad that victory would be.

The argument was extraordinary in its timing, length and participants. It took place during the court’s summer break, almost a month before the start of the new term in October; lasted more than 90 minutes instead of the usual hour; and featured the Supreme Court debuts of Justice Sonia Sotomayor and the solicitor general, Elena Kagan.

It was, moreover, a rare re-argument. When the case was first heard in March, it centered on whether the restrictions on corporate spending in the 2002 McCain-Feingold campaign finance law applied to the documentary “Hillary: The Movie,” which was produced by a nonprofit advocacy corporation called Citizens United. In the request for re-argument, the court raised the much broader question of whether it should sweep away restrictions on political speech by corporations.

On Wednesday, Ms. Kagan all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested to the justices that Citizens United might not be the sort of corporation to which some campaign finance restrictions ought to apply. What the Supreme Court should not do, she said, is overrule two earlier decisions and thereby allow all kinds of corporations to spend money to support or oppose political candidates, principally through television advertisements.

Chief Justice John G. Roberts Jr., on hearing the government’s position, accused it of engaging in strategic behavior.

“So you want to give up this case,” Chief Justice Roberts said to Ms. Kagan, “change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”

Ms. Kagan did not go that far. But she said, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.”

Chief Justice Roberts and several of the court’s more conservative justices seemed frustrated with the complex state of modern campaign finance law and appeared ready to take bold action. Justice Sotomayor, like some of the court’s more liberal members, seemed inclined to take a narrower approach.

“Wouldn’t we be doing some more harm than good,” she asked Floyd Abrams, “by a broad ruling in a case that doesn’t involve more business corporations, and actually doesn’t involve the traditional nonprofit corporation?”

“Your honor,” Mr. Abrams responded, “I don’t think you’d be doing more harm than good in vindicating the First Amendment rights here, which transcend that of Citizen United.” Mr. Abrams represented Senator Mitch McConnell of Kentucky, the Republican leader and a longtime foe of campaign finance regulation.

The order calling for re-argument in the case, Citizens United v. Federal Election Commission, No. 08-205, asked the parties to offer their views on whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates, and part of McConnell v. Federal Election Commission, the 2003 decision that upheld the central provisions of the McCain-Feingold campaign finance law.

The McCain-Feingold law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. The law requires the government, Justice Anthony M. Kennedy said, to make an array of distinctions — among speakers, what they say and when they say it — that raise serious First Amendment concerns.

The court could rule in favor of Citizens United without making fundamental changes to the political landscape. It could say that the McCain-Feingold law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Justice Sotomayor asked Theodore B. Olson, a lawyer for Citizens United, whether his side had abandoned earlier arguments based on the McCain-Feingold law rather than the First Amendment rights of all corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory. But he added that the court would have to confront the larger question in the case soon enough and that whatever interim lines the court drew would chill free speech in the meantime.

Mr. Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, a broad ruling can be the correct one.

“Hillary: The Movie,” a caustic critique of Mrs. Clinton, was shown in theaters in six cities, and it remains available on DVD and the Internet. A three-judge panel of the Federal District Court said last year that it could not be transmitted on cable because it had only one purpose: “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

Ms. Kagan disavowed a statement that a government lawyer made when the case was first argued in March. The lawyer said the government could ban the distribution of books paid for by corporations before elections.

“The government’s answer has changed,” Ms. Kagan said, adding that the Federal Election Commission had never tried to regulate distribution of books.

Chief Justice Roberts bristled at that statement. “We don’t put our First Amendment rights in the hands of F.E.C. bureaucrats,” he said.

He then asked about pamphlets. “A pamphlet would be different,” Ms. Kagan said. “A pamphlet is pretty classic electioneering.”

Much of the argument was taken up by discussions of whether the speech of corporations might be treated different from that of individuals. Mr. Olson and Justice Antonin Scalia noted that most corporations were small, had limited assets and often were owned by a single shareholder. Justice Ruth Bader Ginsburg asked about “megacorporations” with foreign investors.

Changes at the court, particularly the replacement of Justice Sandra Day O’Connor by Justice Samuel A. Alito Jr. in 2006, have substantially altered its attitude to campaign finance laws. A five-justice majority of the Roberts court has been hostile to such laws, but Chief Justice Roberts and Justice Alito have so far moved in cautious increments.

Judging by the request for re-argument and the tenor of the questioning on Wednesday, that may be about to change.
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September 8, 2009
EDITORIAL

A Threat to Fair Elections

The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.

Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.

The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.

In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.

All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.

The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law.

The scheduling is enormously troubling. There is no rush to address the constitutionality of the corporate expenditures limit. But the court is racing to do that in a poorly chosen case with no factual record on the critical question, making careful deliberation impossible.

Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.

Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

The conservative majority on the court likes to present itself as deferential to the elected branches of government and as minimalists about the role of judges. Chief Justice Roberts promised the Senate that if confirmed he would remember that it’s his “job to call balls and strikes and not to pitch or bat.”

If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.
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September 11, 2009
EDITORIAL

The Court and Campaign Finance

In the Supreme Court this week, Elena Kagan, the new solicitor general, eloquently defended the longstanding ban on corporate spending in political campaigns. But the conservative justices who spoke showed a disdain for both Congress’s laws and for the court’s own prior rulings. If the ban is struck down, as we fear, elections could be swamped by special-interest money.

Conservative jurists talk about judicial modesty and deferring to the elected branches. But in the questioning, Justice Antonin Scalia made clear that he considers Congress to be a self-interested actor when it writes campaign finance laws. Chief Justice John Roberts and Justice Samuel Alito seemed to put little weight on the fact that the court has repeatedly upheld a ban on corporate campaign expenditures.

What the conservatives seemed most concerned about was protecting the interests of corporations. The chief justice and Justice Scalia seemed especially perturbed that what they see as the inviolable right of these legal constructs to speak might be infringed upon.

The conservatives also seemed incredulous that vast amounts of corporate money flooding into campaigns could be seen as corrupting the system. We agree with Senator John McCain, who told reporters after the argument that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

The more liberal justices — including Justice Sonia Sotomayor, who was participating in her first argument — were far more sympathetic to the ban on corporate expenditures, but they have only four votes.

There is still some hope that Chief Justice Roberts may decide his affection for corporations is less important than the reputation of the Roberts court. If he does, there is a chance for a limited, and relatively undamaging, ruling that hews closely to the facts of this case.

The underlying dispute is a narrow First Amendment challenge brought by Citizens United, a nonprofit group that wanted to show an anti-Hillary Clinton movie on a video-on-demand service during the primary season. The court could uphold its right to show the movie without opening the door to a new era of political corruption.
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It Could Be the End of Our Democracy as We Know It

http://www.truthdig.com/report/item/20090906_it_could_be_the_end_of_our_democracy_as_we_know_it/

Posted on Sep 6, 2009

By E.J. Dionne

President Barack Obama’s health care speech on Wednesday will be only the second most consequential political moment of the week.

Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.

This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since 1907 in one case and 1947 in the other, banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.

The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word radical does not capture the extent to which the justices could turn our political system upside down. Will the high court use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?

Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.

Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.

I don’t have the space to cite all the precedents the court would have to set aside, going back to the Buckley campaign finance ruling of 1976, if it threw out the prohibition on corporate money. Suffice it to say that there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

“I do think that it is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.”

This careful jurist continued: “And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.”

He learnedly cited Alexander Hamilton, who wrote in Federalist 78: “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of “arbitrary discretion” to discard a well-established system whose construction began with the Tillman Act of 1907.

Were the courts that set the earlier precedents “legitimate”? This ban was upheld over many years by justices of a variety of philosophical leanings. We are not talking about overturning a single decision by a bunch of activists in robes seizing a temporary court majority.

Are the precedents “workable”? The answer is clearly yes, which is why there is absolutely no popular demand to let corporate cash loose into our politics. Our system would be less “workable” if the court abruptly changed the law.

Has the precedent been “eroded”? Absolutely not. In case after case, no matter where particular court majorities stood on particular campaign finance provisions, the ban on corporate contributions was taken for granted. As the court stated just six years ago, Congress’ power to prohibit direct corporate and union contributions “has been firmly embedded in our law.” That’s what you call “settled expectations.”

This case is the clearest test Justice Roberts has faced so far as to whether he meant what he said to Congress in 2005. I truly hope he passes it. If he doesn’t, he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.

E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.

© 2009, Washington Post Writers Group

The Wing-Nut Code: What Glenn Beck and Sarah Palin Are Really Saying to Their Followers

By Adele M. Stan, AlterNet

Posted on September 2, 2009, Printed on September 13, 2009

http://www.alternet.org/story/142333/

Editor's note: As members of the Tea Party and patriot movements march and rally in Washington, D.C., on September 12, they will be out in full regalia, and you can expect the speeches to be loaded with code -- signals to various factions of their coalition, some of them armed, to mobilize politically on specific issues (health-care reform, energy reform, net neutrality) and against President Obama himself. Here's a glossary of the symbols and shorthand likely to be employed in this weekend's smoke-and-mirrors display of purported right-wing power.

When Glenn Beck offers an odd-looking icon for his 9-12 Project, or Sarah Palin says something about her native state that sounds a bit to off-kilter to the ears of those in the lower 48, it's tempting to think, well, they're just nuts. Perhaps they are, but that's beside the point. The point is that when Beck throws up a graphic of a segmented snake as his project's mascot, or Palin speaks of her native land as the "sovereign" state of Alaska, they're blowing a kind of dog-whistle for the armed and paranoid who make up the right-wing, neo-militia "Patriot" movement and the broader "Tea Party" coalition. The loose affiliation of right-wing groups under the Tea Party umbrella can make it difficult to discern who's truly dangerous, and who's just an angry blowhard.

For instance, in its report about the resurgence of the militia movement, the Southern Poverty Law Center notes that a Minuteman militia in Southern California uses the Tea Party anthem as its call to arms. Scott Roeder, the militant anti-abortion activist who is charged with the killing of Dr. George Tiller, counts himself among the members of the patriot movement.

But in Pittsburgh earlier this month, I sat among a group of disgruntled senior citizens at a conference sponsored by the astroturf group, Americans for Prosperity, who probably don't spend their weekends training for a war with the government, but nonetheless consider themselves to be part of the Tea Party coalition -- and perhaps even the patriot movement. Nonetheless, when conference speakers made reference to gun rights, they received heartfelt applause.

The Tea Party coalition is mobilizing for what it promises will be a big march on Washington on Sept. 12. As the date approaches, expect to hear more disguised shout-outs to patriots and tea-partiers, as right-wing politicians seek to placate the hordes said to be on their way to the nation's capitol. Members of the far-right Tea Party and patriot movements love the iconography of the American Revolution. They fancy themselves as "patriots" in the mold of Ethan Allen and Charles Gadsden -- men who led militias against the troops of England's despotic King George III. Yet much of their ideology stems from the states' rights philosophy of the Confederacy in the Civil War, and sometimes the ideas and symbols of the two wars are drawn together in a tangle of rage.

Some self-described "patriots" take part in the resurgent militia movement, but many do not. However, gun enthusiasts are rife in their ranks, and many view their role as one of "resistance" to what they see as government encroachment in their lives. They oppose virtually all forms of taxation and almost anything run by the government. (Hence, the title of the site run by Grassfire.org known as ResistNet.)

Here are some words and images used by right-wing political and media figures as signals to the patriot and Tea Party constituencies, signals used to organize the throngs against health care legislation, environmental reforms and all things identified with President Barack Obama.

1. Snakes! -- Even before the American Revolution, the rattlesnake -- native to North America -- was a potent symbol for the American colonies. The patriot movement has appropriated the use of a number of Revolutionary War militia flags that feature rattlesnakes, often accompanied by the words, "Don't Tread On Me."

The most recognizable of these is the Gadsden flag, a yellow flag emblazoned with the image of a coiled snake, and the "Don't Tread On Me" slogan.

It's the image that graced the sign carried by the New Hampshire man who showed up with a gun strapped to his leg outside the venue where Obama was scheduled to conduct a town-hall meeting on health care reform.

At the Americans for Prosperity Conference that I attended, a group called American Majority offered for sale a poster that featured the same coiled-snake image. Beck, when creating the iconography for his 9-12 Project -- an organizing hub for town-hall disrupters and people preparing to join the Sept. 12 Tea Party march on Washington -- found a slightly more obscure version of the colonial snake that would resonate, nonetheless, with the patriot types.

Beck's snake is segmented into nine parts, to align with his project's "nine principles." The image is a variation on this one, by Benjamin Franklin, which is thought to be the first political cartoon to run in an American newspaper.

Franklin's snake is segmented into eight parts, representing what were then only eight American colonies. His cartoon implores all eight to join together to fight the French in the French and Indian War and is labeled with the slogan, "Join, or Die."

Bottom line: Any time you see the snake used as a graphic element by right-wingers, you can safely assume it's a call to the often-armed and sometimes-violent members of the patriot movement.

2. The tree of liberty -- This reference comes from a famous Thomas Jefferson quote: "The tree of liberty must be refreshed from time to time with the blood of tyrants and patriots." You'll often find it used in bits and pieces as a form of code.

Outside the New Hampshire town hall, the armed man held a sign that not only featured the coiled snake of the Gadsden flag, but a reference to the Jefferson quote: "It is time to water the tree of liberty."

Note the call of secessionists speaking just this week on the steps of the Texas state capitol building. Fringe gubernatorial candidate Debra Medina may have flubbed the Jefferson quote, but her intent is clear: "We are aware that stepping off into secession may be a bloody war," she said at the rally called by the Texas Nationalist Movement. "We are aware that the tree of freedom is occasionally watered with the blood of tyrants and patriots." In an example of how more-establishment types signal the far right in code, Ralph Reed used another piece of the quote while speaking at an Americans for Prosperity-sponsored rally against health care reform in Atlanta on Aug. 15: "Our right to protest has been purchased with the blood of patriots who paid the ultimate price so that we could be free men and women and have the ability to petition our government. We will not be intimidated, we will not be silenced, and we will not go away." That "blood of patriots" bit? Dog whistle to the gun nuts.

3. Patriot -- A patriot is a member of a movement seen by its participants as the resistance -- often armed -- to the perceived conspiracy of socialists, Jews, blacks and other people "not like us," who have taken over the government, the global banking system and the world. Some self-identified patriots are armed to the teeth and seem pathologically violent; others, not so much. As Chip Berlet and Matthew N. Lyons wrote in a 1995 edition of The Progressive about the patriot movement: Attending a patriot meeting is like having your cable-access channel video of a PTA meeting crossed with audio from an old Twilight Zone rerun.

The people seem so sane and regular. They are not clinically deranged, but their discourse is paranoid, and they are awash in the crudest conspiracy theories.

When you hear a right-wing politician or media figure refer to someone as a "patriot," watch out! That patriot may think it his patriotic duty to take you out.

4. Tea Party -- The Tea Party coalition encompasses a broad swath of the right -- including members of the religious right and the patriot movement. (There's even an organization called Tea Party Patriots.) Taking its name from the Boston Tea Party -- a famous incident that foreshadowed the American Revolution -- the Tea Party coalition was initially drawn together under the anti-taxation umbrella by such astroturfing outfits as FreedomWorks, Americans for Prosperity and Grassfire. (The Boston Tea Party was an act of civil disobedience at which revolutionaries threw overboard, as a tax protest, the cargo of three tea-carrying British vessels. King George III had slapped a hefty tax on the tea, in a defiance of the colonial Continental Congress.)

5. Sovereign -- In the right wing, this term has two meanings. The most troubling refers to a notion called "sovereign citizen," a term popularized by the violent Posse Comitatus militia formation in the 1970s to argue that white people have a superior form of citizenship to that of black people. More commonly, the term "sovereign" refers to a states' rights philosophy that is consonant with secessionist ideologies. Before she left office in July, Palin signed a "sovereignty resolution," reasserting Alaska's rights as a "sovereign state" under the U.S. Constitution. Legislators in 36 other states have introduced similar resolutions, according to the right-wing Tenth Amendment Center. Palin, you'll recall, sent a video shout-out last year to the secessionist Alaska Independence Party, of which her husband, Todd, was a member for seven years.

6. Tenth Amendment -- The final amendment to in the Bill of Rights reads simply: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Secessionists and states' rights enthusiasts argue that the federal government has already unconstitutionally usurped all sorts of powers from the states. Bear in mind that the argument for states' rights and state sovereignty provided the justification offered by the states of the Confederacy during the Civil War.

The issue at had was not slavery, per se, the argument went -- it was the federal government overstepping into the jurisdiction of the states when it began to regulate slavery. The 10th Amendment movement is tied in with the Tea Party and patriot movements: On the Web site of the Tenth Amendment Center, one finds yet another version of the "Don't Tread On Me" flag, and links to 35 state groups identified as part of the patriot movement -- a number of them state chapters of Glenn Beck's 9-12 Project. State-sovereignty enthusiasts are known as "tenthers".

7. Second Amendment -- The right to bear arms, the patriot movement's cornerstone. Beck devotes a whole channel of his 9-12 Project Web site to this most-precious amendment to the Constitution. Members of the Tea Party and patriot movements read this amendment in absolutist terms, arguing that the Constitution allows the federal government no earthly role in the regulation of firearms. The amendment is simple, and was passed at a time when the young United States was dependent on state-based militias for the nation's self-defense: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Earlier this year, legislators in the states of Montana and Tennessee decided to test the limits of the Second Amendment by passing gun laws designed to conflict with federal regulations, in the hope of calling forth a showdown on not just the Second Amendment, but the Tenth Amendment, as well. At issue is the federal regulation of firearms produced within each state for use within that state's boundaries. In the past, the federal government has justified federal regulation of firearms based on the constitutional power granted for the regulation of interstate commerce. The Bureau of Alcohol, Tobacco, Firearms and Explosives has responded to both states, taking issue with their new laws -- a mere volley in what promises to be a constitutional showdown.

8. Revolution -- When these folks talk about a revolution, they're not talking in merely philosophical terms. No, this is no paradigm shift, no sea-change. This is about guns. Remember, they're all little Ethan Allens and George Washingtons, ready to take on the tyrant's guard. So when Sen. James Inhofe, R-Okla., told a town-hall meeting last week, "We're almost reaching a revolution in this country," he's giving a nod to the patriot movement.

9. The government -- Plain and simple, all things bad and evil. Oklahoma's Republican junior senator, Tom Coburn, gave the patriots a nod last month when he told David Gregory, host of NBC's Meet the Press that members of Congress who face threats of violence over the prospect of health care reform have "earned" that response, because Congress has caused people to "stop having confidence in, in our government." Visit msnbc.com for Breaking News, World News, and News about the Economy Coburn said this after Gregory noted that Timothy McVeigh, who killed more than 160 people when he blew up the Oklahoma federal building, bore the Jefferson "tree of liberty" quote on the T-shirt he wore that day -- the same quote on the sign that armed man in New Hampshire held to greet the president. Timothy McVeigh's T-shirt

Finally, it must be noted the code is not always necessary to send the signal. There are sins of commission, and sins of omission, such as that of Sen. Charles Grassely, R-Iowa, who simply stood by as an audience member at one of his town-hall meetings on health care reform last month called for an armed intervention on the White House. Audience member Tom Eisenhower said that Obama was "acting like a little Hitler," and suggested that others gather up their guns and join him for a visit to Washington. Grassley didn’t condemn the man or his suggestions but went on to rationalize Eisenhower’s anger, calling health care reform "the straw that broke the camel’s back," especially in light of the "General Motors nationalization" and the "nationalization of banks."

Adele M. Stan AlterNet's Washington bureau chief.

© 2009 Independent Media Institute. All rights reserved.

View this story online at: http://www.alternet.org/story/142333/

FoxPAC: Network Again Engaging in Political Advocacy with "9-12 Project" September 11, 2009 12:57 pm ET

September 11, 2009 12:57 pm ET

Comments

FOR IMMEDIATE RELEASE

Friday, September 11, 2009

CONTACT

Jess Levin (202) 772-8162

jlevin@mediamatters.org

Washington, D.C. - Today, on the eighth anniversary of 9-11, one day before Glenn Beck's "9-12 Project" descends on Washington, Media Matters for America calls attention to what has become a familiar, disturbing pattern on the purportedly "fair and balanced" news network.

Fox News now routinely engages in political advocacy against the Obama administration and the Democratic Congress, and Beck's promotion of a September 12 march on Washington is the latest example. Network executives have made little effort to hide Fox News' agenda, with one referring to the network as the "voice of opposition."

"There is little difference between being the 'voice of opposition' and just being the opposition," said Eric Burns, president of Media Matters. "Since the president's election, Fox News has become nothing more than the 24/7 media wing of the Republican Party. No political party in American history has had such an enormous megaphone."

BACKGROUND:

Since President Obama's inauguration, Fox News network executives have made their intentions clear. In clips aired on the March 23 broadcast of NPR's Media Circus, vice president for programming Bill Shine referred to the network as the "voice of opposition." And chief executive officer Roger Ailes reportedly said of the new administration: "I see this as the Alamo," adding, "If I just had somebody who was willing to sit on the other side of the camera until the last shot is fired, we'd be fine."

On air, the network's agenda is even clearer. Fox News personalities and hosts have promoted and encouraged viewers to "join" tea party protests and town hall meetings. They have implored viewers to call Congress and the White House to protest Democratic policies. And they have declared "Victory!" when Democratic legislation has been stalled.

Most recently, Beck and Fox News have repeatedly promoted Beck's "9-12 Project," which, in addition to encouraging local events, is organizing a September 12 march on Washington, which Fox News will broadcast live.

Beck's 9-12 Project "a place" for people looking to take back their country. Beck started the 9-12 Project, which describes itself as "a place for you and other like-minded Americans looking for direction in taking back the control of our country."

Beck's FoxNews.com website, under a section titled, "TAKE ACTION: GET INVOLVED!" states of the 9-12 Project: "Check out Beck's new Web site for updates on the stories and people who prove that your values and principles are still very much alive." 9-12 Project organizes events across country.

The conservative project frequently organizes events around the country. For instance, members of the 9-12 Project have helped organize tea parties, and Beck's 9-12 website is working with others for a "March on Washington," among other local events, on September 12.

Beck will participate in a 9-12 "March on Washington" by broadcasting live from 1 to 3 p.m. ET on Fox News.

Beck: "9-12 Projects and rallies happening all over." In recent months, Beck has frequently touted the effectiveness of his 9-12 Project in organizing followers. On August 12, for instance, Beck described the 9-12 Project as giving "ourselves an outlet of voice to connect, because you needed to community organize. ... Well, you have already done it. There are 9-12 Projects and rallies happening all over.

The biggest one seems to be in Washington, D.C., on September 12."

Beck: "We started that. Millions all involved across the country and the 9-12 project and other organizations like it." On August 27, Beck said of the 9-12 Project:

BECK: Now, the second part of this. A few months ago, I told you, you got to know you're not alone. You've got to know. You got to unite. Talk to people. Make sure you know you're not alone, through the 9-12 Project. We started that. Millions all involved across the country and the 9-12 Project and other organizations like it. I knew we needed to connect with one another.

Beck: "On 9-12, I hope to see you in Washington. I will make sure you're seen all over the country." On August 28, Beck described the 9-12 march on Washington as something "worth standing up for" and told viewers, "I hope to see you in Washington. I will make sure you're seen all over the country."

Beck: Will we find people "to stand for our country?" Discussing his participation in the 9-12 march, Beck asked viewers: "Will we find another 50 men or women willing to stand for our country and the republic? On the Fox News Channel, you can find out all of the details at the 912Project.com."

9-12 march website: Beck "really helping our numbers grow!" A post on the 9-12 march website 912dc.org states, "The recent coverage by Glenn Beck is really helping our numbers grow!" The website frequently mentions Beck's promotion of the march and excerpted a September 8 USA Today article which reported that the march has been "[e]ncouraged by conservative commentators such as Fox's Glenn Beck."

For more examples of the network's political advocacy, please see Media Matters' comprehensive report:

"Voice of the opposition": Fox News openly advocates against Democratic Congress, White House

Uncivil Discourse

Bill Moyers: The editors of THE ECONOMIST magazine say America's health care debate has become a touch delirious, with people accusing each other of being evil-mongers, dealers in death, and un-American.

Well, that's charitable.

I would say it's more deranged than delirious, and definitely not un-American.

Those crackpots on the right praying for Obama to die and be sent to hell — they're the warp and woof of home-grown nuttiness. So is the creature from the Second Amendment who showed up at the President's rally armed to the teeth. He's certainly one of us. Red, white, and blue kooks are as American as apple pie and conspiracy theories.

Bill Maher asked me on his show last week if America is still a great nation. I should have said it's the greatest show on earth. Forget what you learned in civics about the Founding Fathers — we're the children of Barnum and Bailey, our founding con men. Their freak show was the forerunner of today's talk radio.

Speaking of which: we've posted on our website an essay by the media scholar Henry Giroux. He describes the growing domination of hate radio as one of the crucial elements in a "culture of cruelty" increasingly marked by overt racism, hostility and disdain for others, coupled with a simmering threat of mob violence toward any political figure who believes health care reform is the most vital of safety nets, especially now that the central issue of life and politics is no longer about working to get ahead, but struggling simply to survive.

So here we are, wallowing in our dysfunction. Governed — if you listen to the rabble rousers — by a black nationalist from Kenya smuggled into the United States to kill Sarah Palin's baby. And yes, I could almost buy their belief that Saddam Hussein had weapons of mass destruction, only I think he shipped them to Washington, where they've been recycled as lobbyists and trained in the alchemy of money laundering, which turns an old-fashioned bribe into a First Amendment right.

Only in a fantasy capital like Washington could Sunday morning talk shows become the high church of conventional wisdom, with partisan shills treated as holy men whose gospel of prosperity always seems to boil down to lower taxes for the rich.

Poor Obama. He came to town preaching the religion of nice. But every time he bows politely, the harder the Republicans kick him.

No one's ever conquered Washington politics by constantly saying "pretty please" to the guys trying to cut your throat.

Let's get on with it, Mr. President. We're up the proverbial creek with spaghetti as our paddle. This health care thing could have been the crossing of the Delaware, the turning point in the next American Revolution — the moment we put the mercenaries to rout, as General Washington did the Hessians at Trenton. We could have stamped our victory "Made in the USA." We could have said to the world, "Look what we did!" And we could have turned to each other and said, "Thank you."

As it is, we're about to get health care reform that measures human beings only in corporate terms of a cost-benefit analysis. I mean this is topsy-turvy — we should be treating health as a condition, not a commodity.

As we speak, Pfizer, the world's largest drug maker, has been fined a record $2.3 billion dollars as a civil and criminal — yes, that's criminal, as in fraud — penalty for promoting prescription drugs with the subtlety of the Russian mafia. It's the fourth time in a decade Pfizer's been called on the carpet. And these are the people into whose tender mercies Congress and the White House would deliver us?

Come on, Mr. President. Show us America is more than a circus or a market. Remind us of our greatness as a democracy. When you speak to Congress next week, just come out and say it. We thought we heard you say during the campaign last year that you want a government run insurance plan alongside private insurance — mostly premium-based, with subsidies for low-and-moderate income people. Open to all individuals and employees who want to join and with everyone free to choose the doctors we want. We thought you said Uncle Sam would sign on as our tough, cost-minded negotiator standing up to the cartel of drug and insurance companies and Wall Street investors whose only interest is a company's share price and profits.

Here's a suggestion, Mr. President: ask Josh Marshall to draft your speech. Josh is the founder of the website talkingpointsmemo.com. He's a journalist and historian, not a politician. He doesn't split things down the middle and call it a victory for the masses. He's offered the simplest and most accurate description yet of a public insurance plan — one that essentially asks people: would you like the option — the voluntary option — of buying into Medicare before you're 65? Check it out, Mr. President.

This health care thing is make or break for your leadership, but for us, it's life and death. No more Mr. Nice Guy, Mr. President. We need a fighter.

That's it for the Journal. I'm Bill Moyers. See you next time.

It Could Be the End of Our Democracy as We Know It

http://www.truthdig.com/report/item/20090906_it_could_be_the_end_of_our_democracy_as_we_know_it/

Posted on Sep 6, 2009

By E.J. Dionne

President Barack Obama’s health care speech on Wednesday will be only the second most consequential political moment of the week.

Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.

This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since 1907 in one case and 1947 in the other, banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.

The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word radical does not capture the extent to which the justices could turn our political system upside down. Will the high court use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?

Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.

Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.

I don’t have the space to cite all the precedents the court would have to set aside, going back to the Buckley campaign finance ruling of 1976, if it threw out the prohibition on corporate money. Suffice it to say that there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

“I do think that it is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.”

This careful jurist continued: “And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.”

He learnedly cited Alexander Hamilton, who wrote in Federalist 78: “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of “arbitrary discretion” to discard a well-established system whose construction began with the Tillman Act of 1907.

Were the courts that set the earlier precedents “legitimate”? This ban was upheld over many years by justices of a variety of philosophical leanings. We are not talking about overturning a single decision by a bunch of activists in robes seizing a temporary court majority.

Are the precedents “workable”? The answer is clearly yes, which is why there is absolutely no popular demand to let corporate cash loose into our politics. Our system would be less “workable” if the court abruptly changed the law.

Has the precedent been “eroded”? Absolutely not. In case after case, no matter where particular court majorities stood on particular campaign finance provisions, the ban on corporate contributions was taken for granted. As the court stated just six years ago, Congress’ power to prohibit direct corporate and union contributions “has been firmly embedded in our law.” That’s what you call “settled expectations.”

This case is the clearest test Justice Roberts has faced so far as to whether he meant what he said to Congress in 2005. I truly hope he passes it. If he doesn’t, he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.

E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.

© 2009, Washington Post Writers Group