Saturday, July 26, 2014

The Last Hurrah of Jesse Ventura

Whatever the verdict in the libel case against Chris Kyle, Jesse Ventura has lost.  He had lost years before the trial and everyone knew that except for Ventura himself.  In so many ways this trial revealed that Ventura came to believe all the hype about himself that he was a popular and respected political figure.  The reality is that he was never the icon that the media and he made himself out to be and this trial is Ventura's last gasp for fame.
            The basis of Ventura’s lawsuit against Chris Kyle, to quote his legal complaint, is that the published statements in his book the American Sniper “negatively affected, and will continue to negatively affect Governor Ventura in connection with his businesses and professions, including but not limited to his current and future opportunities as a political candidate, political commentator, author, speaker, television host and personality.”  Ventura denies that he made disparaging remarks about other Navy Seals and that Kyle knocked him down.  Ventura asserts that Kyle knew these statements were false, and therefore they damaged Ventura’s career.
            Whatever damage that has come to Ventura’s career was mostly self-inflicted.  Yes, Ventura was elected governor, but remember first that he received only 37% of the vote–63% of Minnesotans  did not vote for him.  He ran at a time with nearly a $5 billion state surplus and an unemployment rate of 2.2%. Ventura benefitted from great economic times, a popular but largely unknown political persona, disenchantment with the establishment candidates of Skip Humphrey and Norm Coleman,  and promises to give the entire surplus if elected.  He ran against government.
            One interpretation of his victory was that 37% of the voters gave the state the middle finger.  Ventura’s initial popularity  as governor soared to record levels, but that was a consequence of him giving tax rebates or “Jesse checks” back to voters along with a careful national media campaign that fawned over him.  By the time he left office his popularity had dramatically fallen, in part as a result of actions taken by Mr. Ventura himself.  These actions may have included his public performance as governor as well as personal behavior in hosting events such as XFL football, his famous Playboy interview, or his combative posture that he took with the media and with political opponents.  By the time he left office as governor his popularity was wearing thin, and had he decided to run for governor in 2002 it is uncertain whether he would have been re-elected.
            In the decade since Mr. Ventura left office he has taken a series of actions that have probably done damage to his political fortunes.  His comments about the war in Iraq, 9/11, his failed television shows, boorish interviews, bland books, and moving to Baja, Mexico have all made him less of a popular figure than in the past.   Also, continuing the law suit against Kyle’s widow after he was murdered did not help.  The morally decent thing to do would have been to drop the case and walk away.  But he did not and that decision too has not helped Ventura’s reputation.  What made Ventura so interesting and successful initially was his ability to combine his entertainment pop culture persona with politics; his politainer status as I once argued.  But now it is boring and predictable–every time he says he is going to run for office again or every time he makes a media appearance it is for self-promotional purposes. 
            What Ventura most wants but cannot get is to be relevant and taken seriously.  The lawsuit against Chris Kyle is about relevance, but it also about vanity or ego.  If Kyle  is telling the truth, he decked Ventura, bruising the latter’s ego before fellow Navy Seals.  That he could not take, nor could he take that Kyle’s book was selling but his were not.  They were just ignored.  And even as Kyle’s book came out he was ignored–his reputation was largely unaffected.
            Two surveys by Public Policy Polling (PPP) largely show that Kyle’s book had no impact on Ventura’s reputation. The first one was dated June 6, 2011, before Chris Kyle’s book came out.  The second survey is dated October 8, 2012, several months after the book was published.  Among the many questions that PPP asked Minnesotans was "Do you have a favorable or unfavorable opinion of Jesse Ventura?" 
            In the first poll 29% said "Favorable, "58% said "Unfavorable," and 13% said "Not sure."  The poll was subject to a margin of error of  +/-2.9%. In the second poll 29% said "Favorable, "53% said "Unfavorable," and 18% said "Not sure."  The poll was subject to a margin of error of  +/-3.2%. There was no change in  aggregate public opinion regarding Ventura's favorable views between the time before Kyle's book and several months afterwards.  More importantly, the second poll reveals a 5% decrease in Ventura's unfavorable views between the time before Kyle's book and several months afterwards, along with a shift of opinion away from unfavorable to undecided.  Given the margins of error in the two polls, it is either possible that:  1) Ventura's unfavorable views decreased after Kyle’s book; or 2) there was no real change in public opinion attitudes among Minnesotans regarding Ventura as a result of Kyle's book. 
            These two polls therefore suggest that Kyle’s book had no real aggregate impact in terms of damaging Ventura's reputation, at least in Minnesota. Perhaps that was the case because largely Minnesotans’ views on Ventura have largely been made up, or perhaps no one is really paying attention to him anymore.  Given that PPP no longer asks about Ventura, that itself may speak to his irrelevance.
            Ventura’s lawsuit was a cry for help.  It was a last gasp to take him seriously and be relevant.

Note:  This essay originally appeared in Politics in Minnesota on July 24, 2014.

Sunday, July 13, 2014

A Note on the Hobby Lobby Disinformation Industry

“The contraceptive mandate, as applied to closely held corporations, violates RFRA.”
Justice Alito for the majority in Burwell v Hobby Lobby.

    The Hobby Lobby decision has spurred a lot of disinformation, some of it from those who distort the decision to downplay its real holding and its broader implications (or it is form those who just do not understand legal reasoning). The disinformation machine works by attacking its critics with assertions or distinctions that really are immaterial. A previous blog of mine entitled “Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision” along with a Minnpost op-ed I penned  were attacked along this line where I was accused of not reading the decision or being dishonest about what it said.
    One way to distort Hobby Lobby was highlighted by no less than Fox’s rocket scientist Megyn Kelly who contended that Hobby Lobby and the other plaintiff’s only objected to four of the 20 contraceptive drugs.  They did so because those four drugs may have the ability to act as an abortifacient. While this is true factually it is immaterial to the holding in the case.  The Supreme Court did not rule that the Affordable Care Act’s (more specifically, the HHS rule) contraceptive mandate as it applies only to abortion violated RFRA. Instead, as noted in the quote from the majority opinion, they ruled that the entire contraceptive mandate as applied to closely held corporations violated RFRA.  While Hobby Lobby may only have had objections to abortion the Court went further in invalidating the entire contraceptive mandate (as applied to closely-held corporations).  Thus whatever Hobby Lobby may have narrowly objected to, that is not what the Court ruled on.  Its decision was broader.
    Thus, one spin in this case is to say it is about abortion and not contraception in general.  The actual holding in the case does not make that distinction.  Moreover, such a distinction is not even material.  The four drugs objected to by Hobby Lobby and other plaintiffs, as the Court points out, “may” serve as abortifacients.  It is also the case that they may not do that.  What the majority allows for is an employer to inquire or second guess medical treatment of women and say they do not want to pay for certain drugs because they may do certain things such as potentially induce abortions.  Further, by the actual language of the Alito opinion, there is nothing to prevent a employer in a closely-held corporation from objecting to all of the contraceptive mandate, including all of the 20 drugs referred to in the opinion. 
    Even further, while the decision only applies to contraceptives, there is nothing in the decision that closes the door to objections to other medical treatments such as vaccinations.   While the majority contends that under RFRA there may be other compelling governmental interests that outweigh religious objections to them, the Court did not (and could not) in this case say that if adjudicated these religious objections would not be upheld.  Finally, while the majority opinion said that the case only applied to closely-held corporations, the language of RFRA and the decision itself does not foreclose application to all corporations.  The majority merely at this point said it neither knew of nor thought that many public corporations would have such religious objections.  Again, the Court did not rule and say that RFRA would protect them if they had such an objection, but they also  correctly did not preclude such a possibility.
    As any good lawyer knows, cases have facts and sometimes courts decide narrowly based on them.  This is what lower courts do.  But appellate courts such as the Supreme Court do more than make narrow factual rulings, They decide cases that are often broader than the facts in the case and have broader precedent than what the litigants want.  This is the case with Hobby Lobby. As you listen to the Hobby Lobby disinformation machine please note what the Court actually ruled and think also about the legal implications of the decision.  It is far different from what the Megyn Kelly’s of the world spin.

Friday, July 4, 2014

Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision

Five votes.  Five Catholics.  Five men.  One decision.  Potentially millions of American women denied contraceptive coverage.  This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society. 
    Burwell  v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby  contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA).  In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic.
    First, the majority opinion looked to the text of RFRA.  The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The first question was whether the law’s reference to “person” also included corporations.  The Court said yes.  It did that by making two arguments.  One was to ask how a dictionary defined the word.  Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships.  The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations.  Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
    Second, the Court argued that creating a religious exemption under RFRA for a corporation  had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate.  Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby.
    So think first about the sexism of the decision.  Five male Justices rule that it is ok for an employer to deny women contraceptive coverage.  Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women.  This is bad enough.  But the sexism is even worse–it is about not getting a clue.  Contraceptives are not just about birth control–they are about women’s health.  Many of the drugs used to prevent pregnancies also address other women’s health issues.  I doubt the Justices understand this (even if they care).  One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra.
    But the sexism is compounded by the Catholicism and religiosity of their votes.  All five guys in the majority are Catholics.  The Catholic Church opposes not just abortion but birth control.  These five Justices seemed simply to vote the sexist Catholic party line in their decision.  But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law.  The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law.  When the First Amendment was written it declared that “Congress shall make no law establishing a religion.”  But RFRA and the five Justice majority appear to have done that.  We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause.
    Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United.  The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals.  Here, when the rights of corporate owners clashed with female workers it was the former who won.  More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy.  He was correct.  The powers given to property and corporations under the Roberts Court come at the expense of American democracy.  It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power.  Hobby Lobby is just another example of how some have confused the economic and political marketplaces.