Several years ago, a lawyer friend of mine explained the Supreme Court’s ruling in Citizens United. The concept that campaign donations were expressions of free speech challenged my belief in common sense and semantics. But he painstakingly explained the Court’s rationale. The Justices cited the First Amendment and a body of precedents that were well established in contract law. My friend patiently explained that the Judicial Branch interprets the law but does not make the law. In other words, my problem with equating money with speech should be directed at Congress, rather than the Supreme Court Justices. So, I redirected my angst towards Congress and the obvious requirement for campaign finance reform. Corporations may be treated like people in contractual agreements and in their monetary expression of support for candidates, but their campaign donations can still be limited or even eliminated by Congress. For example, Congress could establish tomorrow that all Federal elections will be financed by public funds.
Yesterday, the Justices approved the latest iteration of the President’s travel ban against Muslims in deference to the President’s Constitutional authority to conduct foreign affairs. The President is after all the Commander-and-Chief. And Congress has always acknowledged the powers of the President to determine what best serves our national security. Therefore, the Justices ignored the political context and adhered strictly to established precedence. Previously, the lower courts had considered the President’s words to establish his intent in prohibiting immigration from Muslim nations. After a series of court injunctions, the Administration adjusted its “Muslim ban” to limit immigration from nations that it assessed not equal to the vetting standards of the United States. Also, the Administration softened its more inclusive “travel ban” by touting a Visa waver program for the seven nations subject to its restrictions. The Justices chose to ignore the obvious intent behind this third iteration of the Administration’s angst with Muslims. Instead, they accepted the analysis presented by the Government that there was a national security interest involved. At the same time, they stated their expectation that Visa wavers would be used as promised.
Traditionally, the Supreme Court has always deferred to the Presidency in foreign affairs and to the Congress in its Constitutional powers to declare war, ratify foreign treaties, and limit the exercise of Presidential actions (like imposing tariffs). Congress, of course, could limit the reach of the President’s powers in foreign affairs. Clearly, it has chosen not to do so. It never bothered to authorize drone strikes within the borders of sovereign nations, the practice of international surveillance of foreign leaders whether allies or adversaries, or the use of missile strikes and troop deployments against rogue nations. These precedents belie the fact that the Constitution reserves for Congress the authority to declare war and to legislate the limits of Government intrusion into personal privacy both here and abroad. So, here again, the Justices followed precedence established in practice and traced to a non-specific Constitutional authority granted the President in the exercise of foreign affairs.
Today, the Supreme Court ruled against the assessment of labor union dues on non-union civil servants in city, county, and state governments. There has been a long-standing disagreement on the fairness of charging non-union members for that portion of union dues associated with the collective benefits won on behalf of all employees. But the Constitution would seem to vindicate the employee who feels the union does not speak for him/her on the grounds of the free speech guaranteed in the First Amendment. I believe this decision will be conclusive and unchallenged, that is, become settled law. But Congress could have ameliorated this dispute decades ago by adhering to the Constitution and relieving companies from the obligation to provide collective bargaining benefits to non-union members. Of course, such legislation would have disrupted labor/management relations. But it would have forced a more honest cost/benefit analysis of union participation. Bargaining then would have to include the interests of all civil servants in labor/management negotiations.
You may conclude that blaming Congress in these matters is patently unfair. Also, you might feel that the issues are just too unwieldly and potentially explosive for our legislators. But if I asked you why you feel legislators cannot deal with these issues, you might be forced to reconsider. The answer to that question could be manifold: the absence of political will; fear of voter blowback; obeisance to Party positions; pressure from powerful lobbyists; loss of large single-issue campaign donors; bad press; and an inability to explain complex issues to constituents. You might even acknowledge all these suppositions as legitimate political considerations. And you would be right. But consider what is missing in these political considerations—specifically, any attempt to address the problem. We could have, instead, campaign reform that eliminates the growing threat of a kleptocracy. We could also improve the “meritocracy” of our immigration system without enforcing ethnic, racial, or religious discrimination. (Yes, I’m excusing the Administration’s national security justification as just a ruse to appease the Court.) And we could actually improve labor-management relations by honoring the vote of all employees in determining the outcome of labor/management negotiations.
Nobody would consider playing football on a hockey rink. But Congress consistently legislates in the arena of its own political context rather than on the field of the people’s public forum. Of course, the political concerns surrounding re-election and Party politics have an undeniable influence on politicians. But these concerns should not be the governing influence in determining what benefits the American people. Occasionally, we identify legislators’ public interest with bi-partisan behavior. I would agree that bi-partisan behavior usually implies compromise. And compromise is required for Congress to serve the full spectrum of over 330 million Americans. But too often what is compromised is one dead fish for another—my moldy mackerel for your calcified cod. President Clinton’s compromise with Speaker Gingrich, for example, won Republican support for parts of the President’s legislative agenda in exchange for cutting back a welfare program. (ADFC, an ongoing welfare program for families with children, became TANF, a temporary welfare program with a 5-year limit.) Although Clinton presided over an internet fueled economic expansion, his legislative agenda eliminated support for many poor families with children and paved the way for a decade of multiple recessions in 2001 and 2008 as a result of his signing the repeal of the Glass Steagall Act in 1999. In this instance, compromise was a lose-lose proposition. An example of a win-win compromise would be a bill that funded rebuilding America’s infrastructure. The initial investment would be justified both by the jobs created and by the resources needed to promote productivity and future economic expansion. Both labor and management would benefit. And both Republican and Democratic constituents would benefit as well.
Consider the wrangling in Congress over healthcare reform, DACA, immigration reform, budgets, and so on. What are the results of these political contests? We hear many distortions, accusations, and one-sided policy proposals. What we do not hear are legislative proposals that solve problems or benefit Americans. Instead, Congress reduces healthcare subsidies and the availability of some preventive healthcare practices. It shaves three years off Medicare’s financial longevity. It fails to legislate a path to citizenship for DACA dreamers or even their security from the threat of deportation. Meanwhile, Congress does nothing to check the Administration’s zero tolerance policy that results in mass deportations, many of which violate American due process and international asylum laws. The inhuman practice of removing children from their parents and placing them in internment camps is a key ingredient in this immigration policy as its primary deterrent. Some members of Congress are investigating and empathizing but seem unable to do anything constructive to undo these crimes. And Congress acts as a rubber stamp for the Administration’s fiscal policy that creates annual trillion-dollar deficits over the next ten years. You might ask why Congress should be blamed for this rogue Presidency. A cynic would reply that Congress is captive to its political leadership and that its Republican majority is afraid of losing the President’s support in the mid-term elections. And that analysis would be correct. It is also mired in a swamp of cynicism!
America’s judicial system seems to be the only branch of government that is working. But it is handicapped by a distracted and very partisan Congress more concerned about holding onto political power than legislating solutions for America’s problems. Congress has become complicit in Trump’s radical attempt to undo the checks and balances built into our form of government. While it stands idyll, children are suffering in internment camps and our DACA neighbors face deportation to foreign countries. Meanwhile, the fate of these children and our American raised neighbors will depend on the courts because Congress refuses to legislate.
As I write this blog, there is nothing prohibiting Congress to pass laws that protect children from being separated from their parents and that formalize humane and just processing of immigrants at our southern border. It could also legalize DACA and provide a path to citizenship for its dreamers. Because of its inaction and political cynicism, it shames all Americans by making us complicit in the suffering of immigrants desperate to escape violence and of dreamers fearful of losing the only life they have ever known. The failure of our legislators to represent a better America handicaps progress, overwhelms our courts, abets a rogue administration, and shakes Americans’ belief in their government. They risk making cynics of us all, thereby creating a self-reinforcing circle of cynicism.
Just consider this: cynics could never have created America, its system of government, or its democratic institutions. But optimists did. We must become their contemporary counterparts who will run for office and/or vote in November.