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Money in US Politics: Congress Protests Too Much

March 13, 2012 05:51 / Leave a comment

One of the great sports of American politics is to blame the Supreme Court for just about anything that we don’t like.  Our elected officials seize upon the opportunity to do so because it deflects the focus of public opinion and scrutiny away from the legislators—whose job it is to write the laws—and shifts it onto the judiciary, whose job it is to interpret, apply and sometimes declare laws unconstitutional.  The dirty little secret to the anti-court tirades is that the people who can actually do something about court decisions—the legislators themselves—choose instead to protest…too much.
Case in point: the current litany of complaints about SuperPacs and the role of money in the presidential campaigns.  True, SuperPacs are now flourishing in the wake of the 2007 Supreme Court decision in Citizens United.  There, the Supreme Court declared the Bipartisan Campaign Reform Act unconstitutional.
That should not have ended the debate about the role of money in politics, but, it did.  Pundits excoriated the court for striking down limits on spending by interest groups and corporations. They declared that the integrity of elections was lost.  This was all nonsense.
Buried in the hue and cry about the decision was the pesky fact that the court had said, simply, (granted it took more than 100 pages) that the law was unconstitutional as it was written.  That is, BCRA may have been a noble enterprise, but it was a bad law.
In broad strokes, a key complaint about BCRA was that it was vague.  The court pointed out that, as it was written, the constraints it imposed on corporations also applied to media corporations.  That is, it could apply to journalists and other news outlets.  This raised a serious problem:  how to square the First Amendment’s protection of the press with a law that, while nobly designed to make the political playing field a bit more level, also could be used to suppress press freedom? The court raised other issues with the law.  But, the bottom line was that it was badly written and unclear. 
The solution was for Congress to write a new, better law.  In fact, in the wake of the Citizens United decision, more than a few members of Congress rattled their sabers and said that, indeed, they would work to do so.
We are still waiting.
The fact is that the judiciary still is, as Alexander Hamilton said a long time ago in The Federalist, “the least dangerous branch” of the government. No matter what the judiciary decides, legislatures can respond by rewriting or tailoring laws to address the constitutional issues raised in a particular case.  Perhaps the best example of this is the history of the abortion right. 
Regardless of one’s opinion of abortion, it is generally accepted that the court “created” an abortion right in Roe v. Wade.  In fact, it created the trimester system for dealing with a controversial, complicated and rather new area of law.  In the wake of the decision, state legislatures wrote new laws creating restrictions and freedoms with regard to the exercise of the abortion right.  The result has been some 40 years of dialogue between the judiciary and the elected branches about what the law should be with regard to the scope and definition of the abortion right.
The same pattern has occurred with regard to restrictions on campaign spending. In 1973, the Supreme Court declared parts of the Federal Election Campaign Actunconstitutional in Buckley  v. Valeo.  Since then, numerous cases have gone back to the court as the state and federal government have sought to control the impact of money and interest groups on politics while preserving speech rights.  Citizens United was merely the latest phase in a dialogue about campaign spending that is as old as the dialogue between the courts and elected officials about abortion rights.
Clearly, the nation should lament the fact that powerful political actors are able to skew the political process by spending incredible sums of money.  This undermines the integrity of politics and the ability of the people to make informed decisions.  But, this is not the fault of the Supreme Court.  It is the fault of our elected officials who would rather complain about the Supreme Court than take the time to write a better campaign finance law.
Mark Rush, of Lexington, is Dean of Arts and Sciences at The American University of Sharjah in the U.A.E.

Give the Arab Spring Time to Fully Bloom. USA Today 6 February 2012

February 10, 2012 04:26 / Leave a comment

USA Today 6 February 2012

A year ago, the Arab Spring was in full bloom. Popular uprisings had toppled or were toppling despots in Egypt and Tunisia. Civil war, which brought an end to the rule of Moammar Gadhafi, broke out in Libya. Ultimately, the uprisings spawned what seemed to be the first stirrings of constitutional democracy. Egypt held a constitutional referendum. Morocco followed suit with elections of its own. Some 4 million Tunisians voted in an election to form a constituent assembly.

Now, a year later, the euphoria and hope that characterized the Arab world have tempered, to put it mildly. The bloodbath in Syria continues. Despite increasing pressure from the Arab League and the rest of the world, President Bashar Assad clings intransigently to his power as the death toll among his people climbs. Libya remains tense as it seeks to purge the lingering influence of Gadhafi supporters. In Egypt, January’s commemorative celebrations in Tahrir Square were disrupted as secularists and the Muslim Brotherhood ended up fighting instead of uniting to promote civilian rule and an end to military control over the interim government.
A time for patience
For those eager to write off the historic change across the Middle East as spasms rather than enduring movements, I’d say not so fast. Political change seldom comes easily or quickly, and it is frequently accompanied by violence.
Case in point: American history.
Many of the more pressing issues of religious freedom and civil rights in the United States were not effectively addressed until the judiciary resolved them in the 1960s — more than 180 years after the nation’s constitutional founding. This process was slow, no doubt. But it demonstrated that a pillar of the American political experiment and a key to freedom was the independent judiciary, which ensured that a democratic government and a religiously diverse society could co-exist and even thrive.
Managing religion’s role in society is perhaps the greatest challenge facing the nascent democracies across the Arab world. When religion and politics can be separated, or at least balanced, peace and freedom — especially religious freedom — are much more likely to flourish. When they can’t be separated, controversy and violence are likely to follow.
In the United States, this balance has been managed by the judiciary.
To be sure, the record of U.S. courts in managing church-state conflicts has been imperfect. But, over time, the judiciary has maintained the wall of separation between church and state. Yet even 200 years of case law has not put these issues to bed. (See the sharia law controversy in states such as Oklahoma.) Fortunately and typically, Americans take such conflicts to the judiciary, not the streets or the battlefield.
In the countries swept up in the Arab Spring, there has been no such wall, or even a speed bump, in most cases.
Critics may argue that a judicially managed separation of church and state is a Western phenomenon. But one needs to look only as far as Muslim Indonesia to see how it can work elsewhere. In that Southeast Asian nation, we see proof that an ethnically diverse country with strong religious traditions can — through the rule of law, an independent judiciary and free elections — slowly and successfully reconcile the strains between religion and the state within the context of a fragile, nascent constitutional government.
In the Arab region, Morocco and Tunisia are taking tentative first steps to reconcile their religious traditions with constitutionalism and democracy. Tunisia’s moderate Islamist governing party, Ennahda, leads that country’s multiparty government in a spirit of religious pluralism and toleration. In Morocco, King Mohammed VI looks to manage the transition to a more democratic system that is led by an Islamist governing party.
Trouble in Egypt
Sadly, the news from Egypt is more sobering. Scores of Coptic Christians have been killed, and Islamist lawmakers disrupted the assembly’s opening session as they qualified their oaths of office with religious incantations. Then there are the recent religious tensions in Tahrir Square.
A year later, it is clear that it would have been naive to expect the Arab Spring to smoothly segue into a crop of budding constitutional democracies. As the American experiment in constitutional democracy has shown, the real work begins after the gunfire has ceased. A stable government and judiciary can take decades to take root and mature, so the world should keep that in mind when observing the nations of the Arab Spring.
But without a commitment to some shade of constitutionalism and a separation of church and state, the Arab experiment will remain fragile and imperiled.
Mark Rush is the dean of Arts and Sciences at the American University of Sharjah in the United Arab Emirates. He is originally from Lexington, Va.

The Whiff of Redistricting Politics

January 21, 2012 09:59 / Leave a comment

Just a brief breach of the silence.  I’ve thought about emerging from my expat cocoon now and then for many a reason.  But, thought better because, just when I think I have a thoughtful comment on local doings, the sun rises again and the sands have shifted…literally and metaphorically.

One place where nothing has changed is the effluent pool of the decennial redistricting mess in the United States.  When I did my Ph.D research, the study of voting rights, electoral systems and rules, the opportunity posed by a shift from the American system to some alternative along the lines of proportional representation was a vibrant field full of unanswered questions and new frontiers of investigation.

It is no more.  Even over here in the U.A.E., halfway across the world, the whiff of redistricting politics is as awful as it is at home.

What began in earnest as an effort to overcome the heinous discrimination imposed on minority voters has now become a decennial dark comedy played by consultants and incumbents who seek to draw lines to clients’ advantage under the cover either of the voting rights act or the most convenient interpretation of the most relevant and or proximate judicial decision.  Sadly, there is little to show for this.

In this post, I won’t take the time to dig up the data.  Even a cursory perusal of incumbent reelection rates and turnout in congressional and state legislative elections will demonstrate that competitiveness is low, partisanship (in handcrafted districts) is uniform, turnout is low and primaries are where the real action is in any given election.

District still are drawn more along the lines of Rorschach tests or things you scrape off of your windshield than they are along the lines of existing political subdivisions.  To the extent that it is necessary for districts to meander to achieve some semblance of fair representational opportunities for minorities or other groups whose constituents are not conveniently enough located to fit into a geographically compact district, an easy solution is to draw multimember legislative districts.

It’s been done before and it is done now. But, legislators do not aspire to campaign anymore than they need to.  Accordingly, they prefer bizarrely shaped, homogeneously populated districts. Makes their life much easier if they get to pick their own voters.

There is a lot written on this and it is easily available at fairvote.org run by my friend Rob Richie.  I don’t agree with some of Rob’s conclusions.  But his criticisms are spot on.  That’s the subject of another posting.

For now, I leave it to anyone who reads this and who might be interested to ask the following of any legislator or political consultant who has made a living drafting and then defending legislative districting schemes:  what good have their efforts done and how much of the taxpayers money has been funneled into their efforts?  Really, if we begin with the cost of the light bulbs, heat, air conditioning, etc. that goes into the typical special legislative session dedicated to drawing new legislative district lines and then continue on till the last lawyer and consultant are paid, then we look at the good and the bad legislative district maps, can we really conclude that the effort—and the expense—was worth it?  Consultants were paid and incumbents returned to office.  But, has the quality of politics improved?  Is legislation better?  Could the tax dollars diverted to this process not have been put to better use for improving schools, paving roads or, well, anything else?  How much has all this cost?  Has anyone calculated the bill?

Cui bono?

Just asking.