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Keith Olbermann is Officially Our Erick Erickson: to Hell with them Both

Whether it’s Jonah Golberg and Glenn Beck making “liberals” out to be “fascists,” or Keith Olbermann and Erick Erickson comparing their least favorite Supreme Court decisions to Scott v. Sanford (“Dred Scott”), it ought to be possible to criticize our political opponents without comparing them to the worst parts of human history.

Keith Olbermann’s equivalence between Citizens United and Dred Scott is particularly reprehensible. Although I most certainly don’t, if you buy Erickson’s premise — that every fetus is a human life — it actually makes sense to compare Roe to Scott, as a matter of scale if not of taste. But despite the obvious flaws in Citizens United, and the deleterious effects it shall surely work on the political process, it comes nowhere close to the evils of Scott, which literally multiply with every reading. The time has come for us to stop tolerating extremists on either side. If we’re going to boycott Glenn Beck, we should at least try to moderate Olbermann, or push him out of the mainstream.

Our Zapp Brannigan

From John Boehner (R-OH):

Less than a week after the Massachusetts special election, the Obama administration is vowing to ‘stay the course’ and double down on the same costly, job-killing policies that are leaving America’s middle-class families and small businesses high and dry.

Also, if we can hit that bullseye, the rest of the dominoes will fall like a house of cards. Checkmate.

Inform the men.

Systemic Flaws in American Party Politics: A Facebook Vignette

When Scott Brown beat Martha Coakley in last week’s special election, I was mad. So mad, in fact, that I posted this to my Facebook wall:

Republicans have never truly governed this country: all they’ve ever done is sell failed policies with divisive rhetoric, pass the buck to [Democrats] to fix it, wait for their failures to drown us, and trust the public’s memory to be short enough to let the cycle repeat. All Scott Brown’s election proves is that sometimes, that’s enough.

I stand by the general sentiment. So did a few others. But this “status update” ultimately provoked a debate that endured for more than seventy-five comments. Admittedly, there are probably better venues for this kind of debate. Like Twitter! One comment, though, deserves a wider audience, and a more substantial reply. From “S.R.,” a 2L at Michigan Law:

While the commentary on this post feigns a dialog, it is emblematic of the deeply rooted animosity and lack of honest discussion in American politics. Let’s all take a deep breath and consider the message underlying [the author's] upset tirade.

I am going to put myself out there and support [the author's] characterization of the Republican Party (1980-Present). He did something that Democrats do rather poorly: he conjured up a clear archetype of the opposition, used general language to define it, and ran with it. This is a basic rhetorical method which conservative news and radio pundits, political strategists, and politicians do very astutely. What some call fear-mongering, is really just schematizing. Humans think by putting things in boxes. Republicans have discovered that by defining general boxes in an “us v. them” framework, they can develop coherent, persuasive political messaging without proposing policies. This may seem like an attack on the GOP, but I say this with awe and respect. By conjuring up an image of Democrats as liberal spending, taxing, defense-softies, Republicans can literally sit back and watch Democrats manifest these qualities — sometimes at no fault of their own — thereby undermining their ethos. By undermining the appearances of Democrats, the Republican Party can systematically take apart the Democrats and sway public opinion to their favor without doing anything.
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Michael Savage Ghostwriter: Kennedy’s Death “Divine Intervention”

Also, swine flu was a conspiracy to push the public towards “socialized” medicine, and only “slutty” women get abortions. Ah, to live in such a simple, apocalyptic world!

Don’t Let Kennedy Be Kennedy

My opinion of Justice Kennedy is, by this point, a matter of public record. In short, his flair for the dramatic, middle-of-the-road and substantially unresolved politics, and sudden power combine to create a jurisprudence wholly bereft of principles, no matter what his apologists say, and a worrying tendency to depart from established law precisely when it matters most, and for bad reasons.

Thursday’s holding, in Citizens United v. FEC (pdf), was no different. By way of background, the bar on direct campaign contributions from a corporation’s general treasury was, until Thursday, ancient. Twenty years is a long, long time in law. The function of Citizens United, which permits corporations to donate to political campaigns without restriction, is to remake the legal landscape for no reason other than that Sandra Day O’Connor is no longer on the bench. Kennedy seems to acknowledge as much: nearly every citation to a controlling principle of law is to a dissent (Scalia or Thomas), or to a Kennedy concurrence. Make no mistake: this is a dissent which has, through the vagaries of politics, managed to find its way into governing law. Were we more inclined to resort to pejoratives, we might even call it “judicial activism.”

Characteristically, Kennedy’s majority opinion suffers from a surfeit of emotion, a certain sense of predestination, and a deficit of real logic. As Kennedy began his landmark abortion opinion (Gonzales v. Carhart, 550 U.S. 124 (2007)) with a grisly, in-depth explanation of abortion procedures that left no doubt about his feelings on the subject, so his opinion in Citizens United puts its author’s politics immediately on display:

Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin. (p. 12)

In a novel, we’d call this foreshadowing; in a Supreme Court opinion, it’s called “assuming your conclusion.”

For, indeed, the conclusions that corporations “speak” in any meaningful way, and that regulating them is therefore “speech suppression,” are not obvious. Excise citations to cases about the importance of the press, disingenuously billed as describing the importance of corporate speech ((pp. 25-26); a distinction that Scalia addresses but Kennedy ignores), and we’re left with an opinion that assumes but fails to explain why corporate speech matters as much as personal speech (pp. 23, 27). It should not.

The First Amendment exists for two reasons: to ensure a robust exchange of ideas, and to encourage and validate personal expression. The first rationale permits (or should permit) regulation, the better to encourage a free and fair marketplace of ideas, but the second does not. Further, because the extra protections provided by the second rationale are tied to notions of personal liberty, they ought not to apply to entities that — like corporations — are emphatically not capable of personal expression.

True, corporations have interests that deserve to be heard. But individual citizens are entirely capable of representing corporations in their own capacities: letting the same persons double their representation, and finance their speech with corporate coffers, creates a distortionary effect that ought to raise concerns about the integrity and representative quality of the marketplace of ideas.

This argument is not novel; nor is it “liberal.” It’s an exercise in responsible line drawing, drawing inspiration from a pointedly conservative Supreme Court justice:

Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an “intellect” or “mind” for freedom of conscience purposes is to confuse metaphor with reality.

Pacific Gas & Elec. Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 33 (1986) (Rehnquist, J., dissenting).

Shmaltzy comparisons to Mr. Smith Goes to Washington aside (seriously; p. 56), Citizens United was not a case about whether to let certain opinions be heard. Corporations will have their voices heard through their shareholders, their management, and their customers. This case was about whether to let some citizens exploit corporate alignments to drown out other, less fortunate voices. The First Amendment is about people, and when people are not involved, and personal liberty is not at stake, the government has an obligation to facilitate, through content-neutral rules and regulations, the easy exchange of ideas and the concomitant search for truth. To let corporate “liberty” defeat the public interest, as expressed and ratified by the people’s duly elected representatives, is, as is so often the case in Kennedy’s cases, to put style before substance.

Politico Slyly Legitimizes Glenn Beck

Yesterday, Glenn Beck aired a new “documentary,” “Revolutionary Holocaust,” which, with the assistance of noted revisionists like Jonah Goldberg, attempted to trace the modern progressive movement’s origins through Nazism, communism, and other historical horrors. The attacks aren’t new, nor are their easy rebuttals. That Hitler pushed for universal healthcare (just like Obama!) conveys about as much information as the fact that Hitler, just like Sarah Palin, was known to eat food.

What’s surprising is that Politico, in an article published today, attempts to give an honest read to Beck’s inflammatory, violent, and simply false allegations, by first treating it as plausible:

Not everyone who watched his history lesson was convinced – especially some professional historians.

And second, by quoting agenda-driven historians with known allegiances as authoritative. Interviewing a Heritage Foundation expert who appears on the show about the film’s veracity is not an alternative to fact-checking:

But Edwards said he was impressed by Beck’s “solid research” and willingness to take on “still-prevailing myths about Che Guevara and Mao.” In Edwards opinion it was “one of the best documentaries [he's] seen on communism,” and rare in today’s media world.

“I think this suggests the line on Beck that he is some kind of wild man is just not true,” Edwards said. “This guy is thoughtful and interested in history. How many journalists in cable, print or whatever have this kind of interest in giving you a historical context. I think he should be commended for that.”

Politico‘s instinct is all too familiar to those of us who follow the public “debate” over creationism. There, great evil is done by journalists who, in a misguided attempt for “balance,” strive to give each side equal time. But like creationism, Glenn Beck is emphatically a case where it’s not fair to be balanced.

Don’t Let Kennedy be Kennedy

Apologies for the continuing lack of a post on Justice Kennedy’s latest unprincipled, dishonest fiasco. Pending…

Obama’s Response to MA-Sen.: Too Temperate by Half

In the wake of Scott Brown’s (un-)surprising victory in Massachusetts’ recent special election, President Obama is visibly trying to project calm:

Here’s my assessment of not just the vote in Massachusetts, but the mood around the country: the same thing that swept Scott Brown into office swept me into office. People are angry and they are frustrated. Not just because of what’s happened in the last year or two years, but what’s happened over the last eight years. [. . .]

Here’s one thing I know and I just want to make sure that this is off the table. The Senate certainly shouldn’t try to jam anything through until Scott Brown is seated. People in Massachusetts spoke. He’s got to be part of that process.

If he means what he says, we’re in trouble. On the first point, the President is surely right. Conservatives and right-leaning moderates are visibly frustrated, but their frustration is both premature and misdirected. It took the general public five and a half years of gradual failure to lose patience with George W. Bush; but congressional Republicans have, in the space of a year, managed to blame Obama’s failure to right the ship of state on her new captain, rather than on the man who tore a gaping hole in her side in the first place.

But the answer must be to patch the hole as fast as possible — not to stall for a consensus on precisely how that must be done. Accordingly, on Obama’s second point, a thousand times no. Over the course of this past year, the Republican Party, and their constituents, have shown a complete disinterest in the work of governing. In retrospect, it was a mistake to put consensus ahead of results. Because it will never come, Obama waits for a bipartisan consensus at his peril. Results will bring consensus, and although the Senate version of the healthcare bill, as it stands, is an imperfect vessel, it’s a substantial improvement over the status quo, at a time when Democrats must, for the good of the country, secure a result.

Our best option, therefore, are these:

1. Threaten to pass a separate, simple public option bill through reconciliation, now, if the current Senate bill fails;
2. Promise the same to House Democrats, should they pass the Senate bill as is, thus taking the Senate completely out of the equation and putting the legislation on Obama’s desk ASAP;
3. Sign the current bill into law, and;
4. Ram a public option through reconciliation anyways.

There’s no value left in the middle ground. We’ve paid the price for pushing left; it can literally only get worse if we emerge with nothing to show for it. A risk half-taken is the worst of all possible worlds.

Reports of Voting Errors in MA-Sen. Greatly Exaggerated

There’s no way to spin it: yesterday was a bad day to be a Democrat. Because his campaign depended on blaming Democrats for his own party’s failures, which we’re still in the process of correcting, Scott Brown emphatically did not deserve to win this election, but neither did Attorney General Coakley. She took her seat for granted, which a politician must never do. We show we care for our constituents by working strenuously to advance their interests, and by never presuming to be better than them. Coakley’s belief in her own entitlement broke this second necessity, and suggested an apathy that would eventually betray the first. That she was the lesser of two evils I still maintain, but sometimes that’s not enough.

Yesterday also saw the second of two special elections to feature “serious” questions about ballot and voting machine integrity. Frequent readers will recall (and resent my over-excited coverage of) Doug Hoffman’s abortive, ill-informed attempt to challenge his loss in the NY-23 special election.

The Coakley/Brown election almost descended into similar controversy, upon reports that some ballots came pre-marked for Brown. It’s too early to judge whether that actually happened. Election Day reports carry with them the emotion of the hour, and therefore ought to be distrusted. But even assuming the reports are true, Coakley is displaying more class than Hoffman by letting the issue slide, because this just isn’t something to worry about. That may sound like an odd thing to say, as any and all Election Day errors should concern us, but premarking ballots is a terrible way to steal an election. It just doesn’t work, and here’s why.

Like an increasing number of states, Massachusetts uses a paper ballot/optical scanner-based voting system. In this system, the voter marks a ballot in a private area, and scans it herself into the machine. By federal law (PDF), optical scanner machines must reject a ballot that marks more than the allowed choices (in lingo, an “overvoted” ballot; Help America Vote Act of 2002, § 301(a)(1)(A)(iii)), and must permit an “audit,” where election administrators compare actually-voted paper ballots to machine-reported totals (HAVA § 301(a)(2)).

These two requirements both function to catch almost any mischief worked by prevoting ballots. If the ballots are handed to the voter, even if the voter barely glances at the ballot, most voters will either intend to vote the ballot as it was marked, or vote for another candidate, and have their ballot rejected as overvoted. The error is thus either harmless or immediately flagged to the voter’s attention. The only “theft” of votes can be from those voters who deliberately or accidentally undervote (mark no choices) for the premarked contest, or from voters who refuse to correct their overvoted ballot. I can’t peg a number to how many voters would likely fall into these categories, but most likely, it’s not enough to alter the outcome.

Alternately, if premarked ballots are simply voted by campaign workers — the modern equivalent of ballot box stuffing — a simple canvass and comparison to paper records will reveal the scheme. If a machine from a precinct with 600 voters shows 2,000 ballots, even a slight glance will suffice to note the discrepancy.

Reports of ballot stuffing by Brown operatives thus fall into a strange hole in the legal landscape: these reports should be investigated, but because, even if true, they wouldn’t change the election’s outcome, Coakley’s motivations to conduct this public service are precisely zero. Coakley the candidate may not care, but perhaps Coakley the Attorney General should, if she can avoid the appearance of sour grapes.

The Worrying State of Political Education

It ought to be deeply concerning that people regularly search for numbers 2, 4, 6, 7, and yes, even 8.

Click to enlarge.