From "Deem and Pass" to Citizens United

The debate over health care reform is now in its final stage. The Democratic House leadership is considering use of a self-executing rule known as the "deem and pass," which Republicans criticize as ultimately unconstitutional.

This is the latest example of everything that is wrong with American politics.

It also exemplifies why campaign finance in general, and Citizens United in particular, troubles me as much as it does.

Go back to the last time Republicans held a majority in Congress, from 2005 to 2006. During that time, the Republican leadership used the same self-executing rules they now deride no less than 35 times, and even defended them in court. Needless to say, Democrats criticized them then, yet defend them now.

Similarly, yesterday's Washington Post published an editorial by Tom Scully, former administrator of the Centers for Medicare & Medicaid Services from 2001 to 2004, that criticized the price tag on Obama's health care plan:

If we want health coverage for all Americans, it has to be paid for. The tough choices needed to reduce this massive gap: Cut spending and/or raise taxes. Raise the Medicare retirement age as we did with Social Security. This year's $1.6 trillion deficit is approaching 11 percent of GDP. That's unsustainable. We can't expand health subsidies until we get the deficit under control.

In case the reader missed it, this is the same Tom Scully who, according to Bruce Bartlett, former Deputy Assistant Secretary for economic policy at the U.S. Treasury Department, "was responsible for one of the most reprehensible episodes in recent American political history." This was the passage of the "totally unfunded Medicare Part D program that will cost taxpayers roughly $1 trillion over the next decade--that's $1 trillion more than Obama's plan, which is fully paid for according to the Congressional Budget Office." According to Bartlett, Scully was critical to the passage of Medicare D, "because he personally hid from Congress critical details about its cost that would have torpedoed the legislation had those facts been known prior to the congressional vote in 2003."

Taken together, these episodes led Andrew Leonard to write that "healthcare reform hypocrisy goes supernova." Norm Ornstein similarly asks, "is there no shame anymore?"

Note the problem: politicians can say whatever they want, whenever they want to say it, yet voters rarely hold them accountable for it. How could the same practice be used by congressional leaders one term yet criticized by the same leadership in subsequent years? One view clearly points to the hypocrisy that inheres to the politics of the day. Fair enough. But a view just as strong points to the American voter and how little interest s/he pays to what happens in the world of politics. The voter does not care, a fact that politicians of all stripes know full well.

The implications are dire. The argument for competitive elections, for example, hinges on a view of voters as political animals, engaged in the politics of the day and aware of the debates around them. To have a choice, in other words, demands a reasoned choice, a rational choice among competing alternatives.

This is why the campaign finance debate should give us pause. A view of the First Amendment as expressed by the majority in Citizens United places heavy demands on the citizenry. To say that the cure for speech must be more speech implies that the listener can discern fact from fiction, right from wrong. At the very least, it implies that there is somebody at the other end of the speech paying attention.

But the health care debate teaches us exactly the opposite. The public is hardly paying attention, and sophistry is the order of the day.

This is depressing indeed.

Deem and Pass Misunderstood

Over at the Atlantic, Marc Ambinder has a very helpful post explaining the self-executing maneuver known as deem and pass.  Ambinder's post helps one understand why the constitutional argument on this issue is a bit muddled.

What Does "Pass" Mean? Is the House's Method for Passing Healthcare Reform Constitutional?

Ezra Klein outlines the House leadership's strategy for getting healthcare reform through the House (see also this story for the Washington Post) and Michael McConell, former federal court of appeals judge and current Stanford Law Professor, argues that it is unconstitutional.  One hates to disagree with Judge McConnell but I think under current law the procedure is constitutional.  Though I should hasten to add that Judge McConnell may be right if the question is whether this Supreme Court would find the procedure unconstitutional.

The Indiana Voter ID Law Comes Home

The debate over voter identification continues. After the state Court of Appeals overturned the law last September, in League of Women Voters v. Rokita, the Indiana Supreme Court took up the case. Late last week,the justices heard oral arguments.

This entire odyssey continues to intrigue me.

I get the politics behind it. It is not as if the state legislators even attempted to hide their politics, nor could they. Republicans supported the measure, the Democrats opposed it. The U.S. Supreme Court refused to strike down the law, in Crawford, and probably for good measure. Judicial activism should not be a question of whose ox is being gored. (The conservative majority on the Court only needs to work on its consistency).

The plaintiffs then came to the state courts, where they should have been in the first place. To think the federal courts would be receptive to their claim, with a record lacking even one aggrieved voter, was sheer lunacy. The state Court of Appeals accepted their claim on state constitutional grounds,in a unanimous ruling. Critics branded it judicial activism, supporters called it a sound judicial ruling, a decision grounded on law, not politics. Most puzzling to me was the response from some of the Republican leaders of our state. They argued immediately after the ruling not only that this was an activist ruling -- I get that part -- but also that the question was already settled by the U.S. Supreme Court and the plaintiffs should well leave it alone. This is clearly wrong; the federal court did not pass on the state constitutional question.

I had two reactions soon after the Court of Appeals ruling back in September. The first was a reminder to Justice Brennan's argument in the 1970's for litigants to turn to the state courts to bring their claims, as he well knew that the federal courts would no longer offer a receptive forum. The Warren Court era had come to a close, and it was time to switch strategies. This was sound advice, from a very strategic justice. The plaintiffs in the voter id case finally heeded his advice.

The second reaction focuses on the state Supreme Court justices. Why would they step into this minefield if they did not intend to overrule the lower court? I have nothing but the utmost respect for the Indiana Supreme Court justices; they are sound, level-headed jurists. They would not court trouble lightly.

Hearing the argument from last week reinforced this last point for me. The justices lobbed hard yet fair questions at both sides. They did not tip their hand. Yet I still wonder why they would take the case if not intending to overrule it. Could it be that they would rather shine the focus of this political football on themselves, and away from the Court of Appeals. That is, and as political scientists and law professors often remind us, are the justices simply seeking to legitimize what the Court of Appeals did? After all, it is one thing for a three-member court to strike down a law, yet quite another for a state Supreme Court to do so. This would be an act of statesmanship of the highest order.

I cannot wait to see how this issue finally ends.

Earmarks in the House

On Wednesday, House Democratic leaders banned budget earmarks awarded to for-profit industries. Looking for the moral higher ground, House Republicans pushed to extend the ban across the board, to for-profits and non-profit institutions alike. The Senate is yet to come along and, according to Senator Daniel K. Inouye, chairman of the Senate Appropriations Committee, is unlikely to do so.

This is one of those puzzles of American Democracy that never ceases to amaze me.

Consider, first, the reasons that led to the ban on earmarks. The practice is rife with corruption and has led to political embarrassments in many instances, sometimes to criminal investigations and ethics inquiries. This is the classic congressional pork; in the last fiscal year alone, Congress doled out $16 billion dollars in this awards.

These facts alone would seem to indicate that members of Congress would use earmarks at their peril. After all, should not the electoral process take care of this problem, assuming it is a problem in the first place? Take the case of Peter J. Visclosky, an Indiana Democrat presently under investigation by the FBI. Could the voters in Indiana's first congressional district possibly vote for him ever again? And if so, wouldn't that be the clearest indication that they approve of his work and the earmarks he has directed to their district?

One answer is that it should not take a federal investigation, much less an indictment, to stop this corrupt practice. I get that. But this answer actually reinforces the puzzle to which I alluded earlier. Short of an indictment, is the point that constituents do not mind earmarks at all, and in fact welcome them?

This puzzle comes up in election law debates often. My favorite one is the almost universal call for courts to put a stop to the odious gerrymandering of state and congressional districts, where candidates win without much of a fight. The argument is that constituents have no real choice. In the end, this argument gives voters very little credit. After all, elections must still take place, and votes must be counted. A majority within the district must choose the winning candidate.

I know that constituents love their representatives yet Congress as a whole gets low approval ratings. This is one of those cases when that axiom is clearest. When members of Congress direct money to their districts, constituents rejoice in the fact that their elected representatives are doing a good job. This is why earmarks are to Congress what alcohol is to an alcoholic.

But make no mistake, to the untrained eye, this is Democracy at its finest. In fact, if you asked the conservative majority on the Supreme Court, this might be the price we must pay for our First Amendment.

So maybe it is the Senate, that most undemocratic of institutions, that finds itself on the right side of Democracy on this one.

The Chief Justice Strikes Back: Is he Right?

Chief Justice Roberts, apparently, was not happy by the fact that the President used part of his State of the Union address to express his displeasure with the Court's decision in the Citizens United case. I'm not with the Chief on this one.

As my colleague Neil Siegel has argued, the Chief is in the process of changing a fair amount of the Court's jurisprudence. When the Executive Branch strikes back, as the President did at the State of the Union, the Executive Branch is performing its checks and balances function. The hopeful consequence of this clash between the Executive and the Judiciary is that we will have a healthy debate in this country about both the judicial power and the executive power. What role should courts play in a democratic society and what are the limits of executive power? These are both important questions that we must examine continually. If the Chief does not enjoy being called out during the State of the Union address (and I can't imagine why he would enjoy it), he can, as some of his colleagues have, refuse to attend. Moreover, the beauty of our system, the Chief will get his opportunity to pushback against the Executive. The hope is that our republic will be better for it.

Justice for Judges?

Judicial salaries in New York state have not increased for over 10 years. Judges have complained about it, legal scholars have argued against it on grounds of legal justice and the need to safeguard judicial independence, and critics in general have denounced the tactic of tying judicial salaries to lawmakers' salaries as a political ploy. Or so tells us the New York Times in an editorial published today. The editorial concludes that "[r]efusing to grant any increase would be grossly unfair to judges, undermine the quality of the court system, and ignore the ruling by the Court of Appeals."

There is so much wrong in that one statement that I do not even know where to begin.

The unfairness point and the view that quality is undermined by low pay are just silly. Many things in life are unfair. But to argue that a salary of over $130,000 is unfair is hard to do, irrespective of what the judges do. If they don't like it, they can always get a new job. This, of course, is the segue to the quality argument. If judges are not paid enough, the best judges will choose to leave the judiciary for better paying positions elsewhere. This assumes many things about judges, including a method of judicial selection that ensures that only the best qualified candidates will assume office. New York state chooses its judges through elections, however, so the quality argument rings hollow.

Further, the quality argument takes a formalistic view of judging that does not comport with real life. Think of it this way. There are many people who would be willing to assume judicial office in New York state. The state chooses among them through elections. To be sure, many of these candidates are undoubtedly qualified, and hopefully the winning candidate is one of the qualified choices. But we have no way of ensuring that. This is one of the classic critiques of judicial elections. Note, however, how we readily equate quality with achievement, as if judging should only be reserved for the most qualified. This is simply not true, not even at the federal level. We know that. We also know that judges are not automatons, and that only the best judges will get the right answers to the legal questions presented to them. This is also a fanciful view of the judicial function. Judges are policy-makers,and elected ones at that; they just happen to have different constraints from legislators and executives. That does not make them any less political, or driven by ideological considerations.

The argument that low pay will affect the quality of the judiciary is simply not borne out by reality.

The third argument offered by the Times' editorial is curious at best. The state's highest court ruled last week that linking judicial pay to legislative pay violates the separation of powers' clause of the State Constitution. This is a lawsuit, mind you, began by judges wishing to see their pay increase.

You cannot make this stuff up. I think we have a name for this in law: conflict of interest?

Without question, these are difficult times. People are struggling to find jobs, or to hold on to the ones they have. Law school graduates are no exception. In this environment, pleading for higher pay is a hard sell. To invoke the state constitution, or argument of judicial quality or threats to judicial independence, should be taken for what they are.

Self-serving.