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Sanders, the "Progressive" Plutocrat, and the Supreme Court Vacancy

Sunday, September 11, 2016 By Rob Hager, Truthout | News Analysis
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 Sen. Bernie Sanders of Vermont and Hillary Clinton take the stage for a debate hosted by PBS on the University of Wisconsin-Milwaukee campus, Feb. 11, 2016. (Jim Wilson / The New York Times) Sen. Bernie Sanders of Vermont and Hillary Clinton take the stage for a debate hosted by PBS on the University of Wisconsin-Milwaukee campus, on February 11, 2016. (Jim Wilson / The New York Times)

The Washington Post reports that, in his Labor Day stump speech for Democratic presidential nominee Hillary Clinton, Vermont Sen. Bernie Sanders repeated his Democratic National Convention endorsement speech proposition that Clinton would "nominate Supreme Court justices who will overturn Citizens United" and "fight for real criminal justice reform." Sanders still did not provide, as evidence for this statement, the names of any such reliable anti-corruption, pro-civil liberties candidates that Clinton promised Sanders she would nominate. Though naming a Supreme Court justice might have been worth Sanders' turnabout to support, rather than oppose, corrupt plutocracy, we still do not know what Sanders received in return for his capitulation to "Clinton, Inc.," if more than his lucrative book deal. His book agent Ronald Goldfarb's firm coincidentally also represented Clinton surrogate and fixer, Lanny Davis.

The Post needs to fact-check Sanders in his new role as an advocate for the plutocracy with the same rigor they used in criticizing him when he campaigned in opposition to the influence of what he calls the "billionaire class." Both statements he made about Clinton appointments are untrue -- if Clinton's support for President Obama's pending Supreme Court nominee, Merrick Garland, is any guide.

The only potential Supreme Court appointee that Clinton is known to support is Judge Garland. Clinton did not contest Democratic Minority Leader Harry Reid's statement that as president she would appoint Garland to the Supreme Court. Clinton praised Garland's credentials, and has criticized the Republican Senate for not acting on President Obama's nomination of Garland for the empty seat on the Supreme Court. The Hill reports that campaign "insiders" confirm that Garland tops Clinton's short list of potential nominees. Others on the list comprise a diverse ethnic potpourri for playing identity politics, but are not sure votes for anti-corruption/pro-civil liberties rulings.

The Supreme Court's swing seat that Justice Scalia's death left empty in February may be one of the most important judicial appointments in US history. With four of the sitting justices routinely opposing the court's legalization of systemic political corruption in cases like Citizens United (2010), Arizona Free Enterprise Club (2011), American Tradition Partnership v. Bullock (2012) and McCutcheon (2014), the appointment of a fifth justice who is clearly opposed to the underlying principles of those cases, first invented in Buckley v. Valeo (1976), could profoundly effect the restoration of democracy from the grip of the ruling plutocracy. A pro-civil liberties judge would also help reform the criminal justice system.

Garland is clearly not such a judge. He is well known to make worse criminal justice rulings than even Justice Scalia did. Nor is he known to have expressed opposition to Citizens United. More important than anything he might say, he signed on to the DC Circuit Court's opinion in Speechnow.org v. FEC (2010). This decision, issued shortly after Citizens United, held that contributions for "independent" electioneering from any quarter, corporate or otherwise, could not be limited by Congress. It was this decision, not Citizens United, that legalized unlimited "independent" political investments, and hence super PACs. Super PACs are responsible for much of the escalation of political corruption during the Obama administration that was not caused by President Obama himself.

Citizens United held that Congress could not altogether ban independent corporate electioneering. That ruling did not, in itself, legalize significantly more corporate money in politics than had already been authorized by 5-4 decision in FEC v. Wisconsin Right to Life, Inc. (2007). Wisconsin Right to Life had legalized unlimited spending on sham issue ads by corporations and others. This is political advertising that electioneers for or against a named candidate, while pretending to be about an issue.

Only after Speechnow.org struck down any limits on independent electioneering, whether invested by corporations or anyone else, did the Citizens United ruling legalizing independent electioneering by for-profit corporations take on significance. But even then it was not the for-profit corporations enabled by Citizens United that invested most of the money in Speechnow.org's super PACs. Most of the money for super PACs had been originally enabled by Buckley v. Valeo and its earlier progeny. Therefore overturning Citizens United, Sanders' accepted litmus test for Clinton's appointees, would have little impact on what he calls the "corrupt campaign finance system which is undermining American democracy." It is not Citizens United, but rather Buckley v. Valeo that needs to be overturned to again outlaw the Supreme Court's system of conflict of interest politics, and perhaps also McDonnell v. United States (2016), where the court has started to undermine bribery law as well.

As Politico reported in an article on the subject, Clinton "made the Supreme Court a big issue in her campaign" against Sanders. But Sanders never challenged Clinton's support for President Obama's choice of another plutocrat justice, Garland. Accordingly, the Sanders campaign never forced Clinton to choose between supporting President Obama on this crucial appointment or rejecting a judge who was responsible for a decision far worse than Citizens United, vastly increasing super PAC money from all sources. Sanders could not draw Clinton out on perhaps the most important decision she would make as president for progressives, because Sen. Bernie Sanders himself "100 percent supported" Garland rather than use his "advise and consent" power to protest President Obama's appointment of a pro-plutocratic justice to this historically important swing seat.

Sanders should have advised President Obama to make a recess appointment after Republicans made it sufficiently clear that they would not act on Garland. A recess appointment is both the constitutionally prescribed means under Article II, Section 3, and also the most strategically effective reply to Republican obstruction of an appointment. A recess appointment was, precisely for that reason, the option that was rejected by President Obama in favor of his standard Kabuki politics designed to serve plutocrats under the cover of a diversionary partisan dispute over process.

Having made such profound campaign errors in his handling of this appointment as a candidate, it is still not too late for Senator Sanders to call on President Obama to make a recess appointment. The Democratic National Convention and the summer recess of seven weeks that expired on Labor Day was the best opportunity for making this demand. But there will be future recesses. Progressives should demand that Sanders call on President Obama to make a recess appointment of a progressive justice who will reliably fulfill the litmus test that he ascribes to Clinton without any evidence. He should also insist that Clinton join him in making this request. Progressives could let Sanders know that if he is too timid to take this action there is no reason to fund his "Our Revolution" venture or buy his book.

Copyright, Truthout. May not be reprinted without permission.

Rob Hager

Rob Hager, a Harvard Law graduate, is a public interest litigator who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy. He is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current draft of the first part, Hillary Clinton's Dark Money Disclosure "Pillar," is available online.


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Sanders, the "Progressive" Plutocrat, and the Supreme Court Vacancy

Sunday, September 11, 2016 By Rob Hager, Truthout | News Analysis
  • font size decrease font size decrease font size increase font size increase font size
  • Print

 Sen. Bernie Sanders of Vermont and Hillary Clinton take the stage for a debate hosted by PBS on the University of Wisconsin-Milwaukee campus, Feb. 11, 2016. (Jim Wilson / The New York Times) Sen. Bernie Sanders of Vermont and Hillary Clinton take the stage for a debate hosted by PBS on the University of Wisconsin-Milwaukee campus, on February 11, 2016. (Jim Wilson / The New York Times)

The Washington Post reports that, in his Labor Day stump speech for Democratic presidential nominee Hillary Clinton, Vermont Sen. Bernie Sanders repeated his Democratic National Convention endorsement speech proposition that Clinton would "nominate Supreme Court justices who will overturn Citizens United" and "fight for real criminal justice reform." Sanders still did not provide, as evidence for this statement, the names of any such reliable anti-corruption, pro-civil liberties candidates that Clinton promised Sanders she would nominate. Though naming a Supreme Court justice might have been worth Sanders' turnabout to support, rather than oppose, corrupt plutocracy, we still do not know what Sanders received in return for his capitulation to "Clinton, Inc.," if more than his lucrative book deal. His book agent Ronald Goldfarb's firm coincidentally also represented Clinton surrogate and fixer, Lanny Davis.

The Post needs to fact-check Sanders in his new role as an advocate for the plutocracy with the same rigor they used in criticizing him when he campaigned in opposition to the influence of what he calls the "billionaire class." Both statements he made about Clinton appointments are untrue -- if Clinton's support for President Obama's pending Supreme Court nominee, Merrick Garland, is any guide.

The only potential Supreme Court appointee that Clinton is known to support is Judge Garland. Clinton did not contest Democratic Minority Leader Harry Reid's statement that as president she would appoint Garland to the Supreme Court. Clinton praised Garland's credentials, and has criticized the Republican Senate for not acting on President Obama's nomination of Garland for the empty seat on the Supreme Court. The Hill reports that campaign "insiders" confirm that Garland tops Clinton's short list of potential nominees. Others on the list comprise a diverse ethnic potpourri for playing identity politics, but are not sure votes for anti-corruption/pro-civil liberties rulings.

The Supreme Court's swing seat that Justice Scalia's death left empty in February may be one of the most important judicial appointments in US history. With four of the sitting justices routinely opposing the court's legalization of systemic political corruption in cases like Citizens United (2010), Arizona Free Enterprise Club (2011), American Tradition Partnership v. Bullock (2012) and McCutcheon (2014), the appointment of a fifth justice who is clearly opposed to the underlying principles of those cases, first invented in Buckley v. Valeo (1976), could profoundly effect the restoration of democracy from the grip of the ruling plutocracy. A pro-civil liberties judge would also help reform the criminal justice system.

Garland is clearly not such a judge. He is well known to make worse criminal justice rulings than even Justice Scalia did. Nor is he known to have expressed opposition to Citizens United. More important than anything he might say, he signed on to the DC Circuit Court's opinion in Speechnow.org v. FEC (2010). This decision, issued shortly after Citizens United, held that contributions for "independent" electioneering from any quarter, corporate or otherwise, could not be limited by Congress. It was this decision, not Citizens United, that legalized unlimited "independent" political investments, and hence super PACs. Super PACs are responsible for much of the escalation of political corruption during the Obama administration that was not caused by President Obama himself.

Citizens United held that Congress could not altogether ban independent corporate electioneering. That ruling did not, in itself, legalize significantly more corporate money in politics than had already been authorized by 5-4 decision in FEC v. Wisconsin Right to Life, Inc. (2007). Wisconsin Right to Life had legalized unlimited spending on sham issue ads by corporations and others. This is political advertising that electioneers for or against a named candidate, while pretending to be about an issue.

Only after Speechnow.org struck down any limits on independent electioneering, whether invested by corporations or anyone else, did the Citizens United ruling legalizing independent electioneering by for-profit corporations take on significance. But even then it was not the for-profit corporations enabled by Citizens United that invested most of the money in Speechnow.org's super PACs. Most of the money for super PACs had been originally enabled by Buckley v. Valeo and its earlier progeny. Therefore overturning Citizens United, Sanders' accepted litmus test for Clinton's appointees, would have little impact on what he calls the "corrupt campaign finance system which is undermining American democracy." It is not Citizens United, but rather Buckley v. Valeo that needs to be overturned to again outlaw the Supreme Court's system of conflict of interest politics, and perhaps also McDonnell v. United States (2016), where the court has started to undermine bribery law as well.

As Politico reported in an article on the subject, Clinton "made the Supreme Court a big issue in her campaign" against Sanders. But Sanders never challenged Clinton's support for President Obama's choice of another plutocrat justice, Garland. Accordingly, the Sanders campaign never forced Clinton to choose between supporting President Obama on this crucial appointment or rejecting a judge who was responsible for a decision far worse than Citizens United, vastly increasing super PAC money from all sources. Sanders could not draw Clinton out on perhaps the most important decision she would make as president for progressives, because Sen. Bernie Sanders himself "100 percent supported" Garland rather than use his "advise and consent" power to protest President Obama's appointment of a pro-plutocratic justice to this historically important swing seat.

Sanders should have advised President Obama to make a recess appointment after Republicans made it sufficiently clear that they would not act on Garland. A recess appointment is both the constitutionally prescribed means under Article II, Section 3, and also the most strategically effective reply to Republican obstruction of an appointment. A recess appointment was, precisely for that reason, the option that was rejected by President Obama in favor of his standard Kabuki politics designed to serve plutocrats under the cover of a diversionary partisan dispute over process.

Having made such profound campaign errors in his handling of this appointment as a candidate, it is still not too late for Senator Sanders to call on President Obama to make a recess appointment. The Democratic National Convention and the summer recess of seven weeks that expired on Labor Day was the best opportunity for making this demand. But there will be future recesses. Progressives should demand that Sanders call on President Obama to make a recess appointment of a progressive justice who will reliably fulfill the litmus test that he ascribes to Clinton without any evidence. He should also insist that Clinton join him in making this request. Progressives could let Sanders know that if he is too timid to take this action there is no reason to fund his "Our Revolution" venture or buy his book.

Copyright, Truthout. May not be reprinted without permission.

Rob Hager

Rob Hager, a Harvard Law graduate, is a public interest litigator who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy. He is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current draft of the first part, Hillary Clinton's Dark Money Disclosure "Pillar," is available online.


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