Same-Sex Marriage and the Supremes: What will the Court Do Now?

    So after two days of arguments before the Supreme Court, what are the prospects for legalization of same-sex marriage across the United States if not in Minnesota?  The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country but that instead potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.

Constitutional Law 101
    The Supreme Court under Justice Roberts has a history of closing the doors of justice.  What do I mean by that?  Since Roberts and Alito joined the Court the mostly conservative majority has issued numerous rulings making it more difficult for individuals and entities to bring cases.  The Court has taken a narrow view of standing.  Standing refers to whether a person has a right to bring a case to court.  Not everyone is allowed to bring a case to court.  One must show an injury.  By that, the Constitution and the rules of civil procedure require that  persons show that they are injured in someway–legally or injured in fact–and that they are the appropriate person or persons to claim that injury.  During Roberts' tenure, his Court has made it difficult for taxpayers to challenge government use of money for religious purposes, and in general has also made it hard (as in Walmart sex discrimination  case) for class actions to move forward.
     In other cases, when it comes to medical devices or generic drugs, the Roberts Court has made it difficult to sue on grounds that federal law preempts state law.  Finally, the Court has also  made the basic threshold requirements for alleging a claim or injury more difficult, giving judges more discretion to thrown out cases.  Finally, the Court has made it difficult to challenge the facial validity of a law.  This was the case with the Indiana voter ID case.
    In short, the Roberts Court is closing the door to the federal courts.
    Finally, there are two other points about constitutional law that one needs to know.  First, for a case to be brought in court there must be case or  controversy.  By that, there must be a real dispute with opposing parties.  If there are no opposing parties then there is no dispute and therefore the courts must dismiss the case.  Second, as a general principle, courts should generally not involve  themselves in political questions or disputes, reserving their resolution for Congress, the president, or the states.

Closed Doors but Coming out of the Closet?
    Normally closing the doors of the courts means a denial of justice.  But with the two gay rights cases before the Supremes, this closed door policy may bring same-sex marriage out of the closest?  How so?  One needs to understand what law professors call the procedural posture of the two cases.
    First look at the California Prop 8 case.  The CA Supreme Court declares that a state law denying same-sex couples the right to marry is unconstitutional.  Prop 8 is then adopted by voters to overturn that ruling.  Prop 8 is then challenged in federal district court and it is declared unconstitutional.  The 9th Circuit on appeal agrees, ruling narrowly that once rights have been granted they cannot be retracted for some group without violating the Equal Protection clause.
    However what makes the CA case interesting is that the State of California refused to defend Prop 8 on appeal.  Instead, the district court let some of the supporters of Prop 8 intervene to defend it.  This is where the problems begin.
    On Tuesday the Supreme Court asked whether supporters of Prop 8 had a right to bring the suit.  The Court said that the appropriate party to defend Prop 8 was the State and that these individuals lacking standing to bring the case.  Moreover, several members of the Court also wondered whether these supporters had suffered any injury in fact or law.  By that, can they show how same-sex marriages harm them or traditional marriages?  The Court seem unconvinced by their answers. 
    The standing and injury issues are important.  If there is no standing or injury, the case would be dismissed.  If dismissed, the lower court decision would stand, thereby invalidating Prop 8, and therefore by default legalizing same-sex marriage in California.  Six of the Supreme Court Justices  suggested this is a possible direction they may go.  Effectively, they are closing the door of the federal courts and that may work to the benefit of advocates of same-sex marriage.
    The same closing of a door may also work to the advantage of the same-sex marriage in the DOMA case.  Here, the challenge is the 1996 federal DOMA law denying federal benefits to same-sex couples even in states where such marriages are recognized.   But again there is an oddity to this case–the Obama administration has refused to support the constitutionality of the law in court and instead is arguing against it while still enforcing the law. The law is defended by the Republican Leadership in the US House of Representatives and not by the president (whose job it is to defend federal laws).
    Why is this significant?  There may not be a case or controversy here.   If no one is defending the law then the case gets dismissed.  Several Justices expressed concern about this along with concerns about standing.  Given that a lower court had ruled against DOMA, refusal of the Supremes to rule on this case may mean that the lower court decision stands and DOMA is gone.
    Finally, in both cases majorities seemed unwilling to want to rule in a way that would create a 50 state rule.  They expressed concern that for the Court to act would pre-empt states from experimenting with marriage, a traditional state function.  This was Kennedy’s  issue concerning the DOMA case.  Other justices thought that gay marriage was such a new concept that they should let states do what they want.  Still others raised concerns that DOMA stood in the way of state action and that federalism  dictated that DOMA was unconstitutional.

So what does all this mean?
    These procedural issues are important and may work to the benefit of same-sex marriage supporters.  It is clear the Roberts Court wants not to rule on these cases.  Yes, there are some Justices who would rule that bans on same-sex marriage are unconstitutional.  But it is not clear that there are five votes to do that.  Moreover, the nature of the facts in these two cases make it difficult  to reach this kind of ruling.  Do not expect either of these two cases to be clear rulings to be similar to the famous Loving v. Virginia that declared that bans on mixed-race marriages were unconstitutional. 
    The Court here could use standing, injury, or the case and controversy concepts simply to throw out the cases.  What would that mean? Prop 8 is gone and same-sex marriage in California  is legal and the DOMA is unconstitutional.  This may not be the bigger ruling many want, but it is a long way toward constitutional recognition of same-sex marriage.

The Minnesota Connection
    Minnesota figured prominently in the Prop 8 case.   In1971 the Minnesota Supreme Court ruled in Baker v. Nelson that Minnesota state law prevented same-sex couples from marrying.  This was the first ruling on same-sex marriage in America and I have covered this case in my State Constitutional Law course for over 20 years.  That case was appealed to the US. Supreme Court and the Supremes denied to hear it in part presumably because it did not raise a federal question.  This case was discussed in the Prop 8 case in terms of whether the denial in Baker still represented good precedent for the Supreme Court to stay out of the same -sex marriage dispute.
    Assume DOMA or Prop 8 falls, what does it mean for Minnesota?  Legally maybe invalidation of the federal DOMA might raise questions about the MN DOMA (although the MN DOMA is about MN recognition of same-sex marriages performed in other states).  Depending on how the Supreme Court rules, it may open up legal challenges to the state law.   Additionally, if the federal DOMA falls, then if MN legalizes same-sex marriage the federal government will have to recognize the marriage.  It is less clear legally what the Prop 8 case means for Minnesota.
    However, culturally, decisions in these two cases will have a major impact on Minnesota. It may create more momentum for Minnesota to act legislatively, especially if the legislature does not act this year.

Last Thoughts: Kennedy’s Swan Song?
    Every year I do a training session at Reuters/Thompson/WEST on the Supreme Court.  About three years ago I argued that Justice Kennedy’s last vote on the Supreme Court would be to strike down laws banning same-sex marriage.  He would do that and then resign.  I still am betting that.  Kennedy will go out as the most ardent defender of GLBT rights ever on the Court.  He will do that as conservative old line Catholic who is pro-life, anti-death penalty (for minors at least), and who supports prisoner rights.  His decisions read of words about respect for all life and about human dignity–including for gays and lesbians. 

Minnesota's Constitutional Politics and the Tyranny of the Majority

 (Please note:  This blog is drawn from my comments at a October 26, 2012 conference at Hamline University sponsored by the Hamline University Law School that discussed the two constitutional amendments.)

The case against the Marriage and the Elections amendments can be made on many grounds.  But one argument often overlooked is that their proposal and perhaps adoption by the people represents what America’s constitutional framers feared most–the tyranny of the majority. 
    Consider the context that influenced the framing of the Constitution  in 1787.  On the one hand the framers feared strong central authority and power as exemplified by King George III.  Our American Declaration of Independence is literally an indictment of the king.  Conversely, events such as Shay’s rebellion 1786 instilled a fear of mob rule and the instability that accompanies it.  Thus, the writing of the Constitution set a task: Create a government powerful to maintain stability yet not too powerful to threaten individual liberty.
    This problem of politics is the subject of the Federalist Papers.  According to Alexander Hamilton and James Madison in Federalist 47 and 49, "all government rests on opinion" (Federalist, p. 329).  Public opinion is composed of the sentiments and passions of the majority of  people organized together for particular purposes.  Arguably the strength of popular government is that it rests upon public opinion, drawing its democratic impulse and authority from the consent of the government.   Yet, the weakness of republican government also rests upon public opinion. Alone, humans can be reasonable but not in crowds, at least this is the sentiment expressed in the Federalist.  Crowds and the crowd sociology turns individual thoughts into restless sentiment and passion.  Public opinion is both popular sentiment and popular sovereignty.  The sentiment of public opinion is the ruler in a popular democracy yet this sentiment is not firm but unstable, subject to frequent changes, and to fits of passion and excess.  But the real danger is how such public opinion can decay  and become destructive, degenerating into a faction.
    What is a faction for Madison and how do factions relate to speech and public opinion?  According to Madison:

By a faction, I understand a number of citizens, whether amounting to a majority of minority of the whole, who are united and actuated by some common impulse of passion, or interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Madison is saying four things about factions.  One, people join factions because of some common interest or, two, because of some common passion.  Three, factions can either be composed of a minority or a majority of the population.  However, while Madison is concerned about both types of faction, his real concern is with majority factions because the regular votes of the majority and the weakness of the minority will prevent the latter from being a real threat to others.  Finally, a faction is not defined as simply any band of people who share common impulses or interests.  Their association must be destructive of the rights of others or of the interests of the entire community.  The latter suggests that there is an identifiable common good that can be known and should be defended .  Individuals banding together, can do great things and pursue the public good, but they can also let their passions and interests run wild, thereby threatening the rights of others and the public good.
    Individuals have a propensity to band together for common base interests and desires and this pursuit of desires can constrain or distort the rights of others including the community.
    If a faction is simply a small portion of our society then the majority can outvote them. But what if a faction is composed of a majority, then what?   This is the question Madison asks and in Federalist 10 he states the core problem facing the framers: 

    When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

The issue for the framers was how to preserve individual liberty and popular government from the threats of majority faction.  Phrased otherwise, the problem, as Alexis DeTocqueville would later ask, is how can the American republic deal with the threats of the tyranny of the majority?  Another way of stating it: How to balance majority rule with minority rights?  How does one allow for majority opinion to rule, as it should in a popular government, but not let it become destructive to minority rights?
    The constitutional solution is a complex combination of ways to break up political power and slow down the forces of political change.  It involves appeals to separation of powers, checks and balances, federalism bicameralism, and the enabling of a robust competitive political process to prevent anyone group from getting too powerful.   Bit is also included eventually in 1791 the adoption of a bill of rights.
    The Bill of Rights takes some issues out of politics.   As Justice Jackson eloquently stated in  West Virginia v. Barnette:

    The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The essential problem for American democracy is balancing majority rule versus minority rights.  Majorities get there way on most issues, but not when it comes to minority rights.  And the problem with ballot measures such as the two constitutional amendments is there legacy in targeting minority rights.
    There is unfortunately an ugly side to American politics where fear and prejudice have prevailed.  The Salem witch trials, slavery, denying women the right to vote, the McCarthy era, and Stonewall.  Majorities do ugly things and the constitutional framers were correct that pure majority rule needs to be tempered by minority rights.
    Seldom do ballot measures and votes by majorities protect minority rights. Barbara S. Gamble’s “Putting Civil Rights to a Popular Vote,” 41 American Journal of Political Science 245 (1997) examined local and state ballot measures related to AIDS testing, gay rights, language, school desegregation, and housing/public accommodations desegregation), from 1960 to 1993. that Minorities almost always lose. In the eighty-two initiatives and referendums surveyed in this Article, majorities voted to repeal, limit, or prevent any minority gains in their civil rights over eighty percent of the time.
        Gamble also found that measures aimed at limiting the civil rights of minority groups were much more successful than other types of initiatives and referendums. She noted that a previous study of ballot measures between 1898 and 1978 found that only 33% of measures  succeeded.  Low passage rates change dramatically when it came to the  limitation of civil rights is the subject of the proposal.  In this case, 78%  of the 74 civil rights measures that she studied resulted in a defeat of minority interests.
    Gamble's findings are consistent with those of political scientists Haider-Markel and Meier. Mei-er and Haider-Markel's study on gay ballot initiatives found that 77% of those seeking to repeal the rights of lesbians and gays were successful in doing so, and in the 13 attempts to extend rights of gays and lesbians, 84% were unsuccessful.  Gays and lesbians, as well as other minority groups, lose when their rights go to the ballot box.
    What does all this mean?  Direct democracy and majoritarian politics inconsistent with the broader substantive values of the Constitution and Bill of Rights which the Framers understood.  They recognized the problems of the tyranny of the majority and the threat that the ballot box poses to individual liberty.  In the case of the marriage amendment, it singles out a specific group for a special disability, in ways that the Supreme Court found unconstitutional in Romer v. Evans.  Gays and lesbians (and transgenders too) are the classic discrete and insular minority  that the Supreme Court speaks of in footnote four of United States v. Carolene Products.  Groups unable to defend themselves in the normal political process are those which the judiciary are supposed to protect against the tyranny of the majority.
    Moreover, Carolene Products also spoke of special judicial scrutiny in cases where legislation circumvents the normal political process and closes it down.  Normally we say that if you do not like a specific policy use the ballot box to change it.  The Elections amendment targets the political process, seeking to close down and make it more difficult to vote.  It and the Marriage amendment, by constitutionalizing these policies, aim to circumvent the normal legislative process and place political change beyond the reach of ordinary legislation.
    The opening three words of the Constitution are “We the people.”  Our nation is one that is supposed to be inclusive, respecting the rights of all to compete fairly and equally in the political process.  The tragedy of the Marriage and Elections amendments is how they undermine the promise of We the People and hoe they are inconsistent with the values that our Framers endorsed.
   

The GOP war on the 1960s: “I thought this debate was over years ago.”

Curiouser and curiouser turns the 2012 Republican presidential primary. But what seems now to stand out the most is how the race is turning on issues that one had thought were long since resolved. In many ways, Rick Santorum’s presidential campaign, and the pull he is having on the Republican Party, seem to be a referendum on the 1960s and the changes that decade unleashed on American society.

Over the last few weeks I have had so many people turn to me and say about the issues being debated this year: “I thought this debate was over years ago.”

Think about it.

Santorum grossly misquotes a 1960 John Kennedy speech talking about the need to respect a diversity of religious perspectives and not use the government to impose its orthodoxy upon others. JFK gave this speech both to assure voters that his Catholicism did not mean as president he would take direction from the Pope and that America was simply more than a Protestant nation. Santorum construes this speech to be about an attack on religion and a separation of church and state that makes he want to throw up. Never mind also that the Supreme Court has also repeatedly addressed  issues of prayer in public schools and public displays of religion on governmental property. Santorum wants to fight this battle all over again. “I thought this debate was over years ago.”

Santorum hates birth control and think that employers and their health plans should not be required to pay for it for women. In 1965 the Supreme Court ruled in Griswold v. Connecticut that a constitutional right to privacy protected the choice of couples to use birth control. Last year Rick Perry was assailed for a decision at one time to mandate human papilloma virus (HPV) vaccine for  young women to protect their health. Rush Limbaugh calls a woman a slut and prostitute for taking a stand on this issue. All this is reminiscent of the battles in the 1960s over the pill and claims that it encouraged promiscuity. Have we not resolved the issue of protecting women’s health and promoting women’s equality? “I thought this debate was over years ago.”

Beginning in the 1960s states began relaxing abortion laws and repealing rules restricting sexual behavior between consenting adults.  In 1973 in Roe v. Wade the Supreme Court affirmed reproductive rights of women, and again did so in 1992 in Planned Parenthood v. Casey. Yet Santorum and all the Republicans want to take away these rights and label women who want to control their reproductive and sexual choices as sluts. “I thought this debate was over years ago.”

Ron Paul objects to the passage of the 1964 Civil Rights Act as eroding personal freedom. I thought Martin Luther King, Jr., “I have a dream” speech and the civil rights movement demonstrated the importance of racial equality. “I thought this debate was over years ago.”

The 1967 Loving v. Virginia Supreme Court case stated that marriage is a fundamental right.  Then beginning with the 1969 riots at the Stonewall Bar in NYC the movement for gay rights began.  The two events come together to represent a national evolution towards equal rights regarding of sexual orientation.  The Republicans want to deny marriage equality to gays and lesbians. “I thought this debate was over years ago.”

It is curious. The Republican presidential candidates and the base seem intent on revisiting the 1960s. They cannot seem to stand the fact that America has evolved, even after nearly 50 years has passed. It is more than simply the politics of nostalgia. It seems to be one of both a generational and racial divide, looking to see a world that has changed and an anger over it. For the Republicans, these issues are disasters both in 2012 as they will alienate many swing voters, but beyond as one generation dies out, only to be replaced by another that believes simply: “I thought this debate was over years ago.”

Final Thoughts
My very first undergraduate political science professor Mary T. Hanna wrote a book in 1979 entitled Catholics and American Politics. She foretold of a future American politics with Catholics as the largest religious denomination in the country. Yet at the time she wrote the book in 1979 she saw a Catholicism that was progressive and liberal. Since then much of Catholic politics has turned conservative. What we may be seeing in the United States now is how the change in Catholicism is driving the GOP. It is now a religion that is large and conservative, pent on using it clout to further its orthodoxy. Amazing how it is forgotten the days when Catholics were a minority persecuted by a Protestant majority. Amazing how it has forgotten the wisdom of JFK’s 1960 speech.

Super Tuesday Preview
Super Tuesday will be rough for Romney. He will not do well in the South and if he doe not win Ohio then the race is clearly wide open. The race is tightening in Ohio and it is unclear who wins but even a close second by Santorum along with wins in Oklahoma and Tennessee and a Gingrich win in Georgia mean the race is not over for a long time. But now the race is less about states than delegates, although where those deletes are won makes a difference in terms of assessing presidential prospects. Romney, except for Florida, seems to win in states that Republicans will not win in November, and has a tough time in close swing states such as Iowa, Michigan, and Ohio.

“Don’t be Cruel”: The Limits of Republican Compassion

Since when have cruelty and greed have become politically and ethically acceptable in America? From the looks of the base of the Republican Party, both seem to be selling in 2011.

Just look at Republican presidential contenders and the debates so far. Rick Perry gets applause from the audience when he stated that he presided over more than 200 executions in his state. Conversely he gets attacked for using the word compassion when advocating some route for illegal aliens to get citizenship in America. States such as Arizona pass laws to randomly stop and question individuals who look illegal; Alabama adopts a law punishing the children of illegal aliens. Republican candidates jockey for position to show who is tougher on immigration. They talk of building fences and deploying troops to barricade the Mexican border, and proposals to amendment the Fourteenth Amendment to limit citizenship receive applause.

An openly gay solder Stephen Hill asks a question at the Orlando, Florida Republican debate and he is booed by the audience and then literally denounced by the candidates. No one thanks him for his service, for placing his life on the line. Michele Bachmann, Rick Santorum, and the rest of the candidates acted as if he did not exist, denouncing homosexuality as wrong and gay marriage as evil.

But there is more cruelty and greed. Unemployment is 9% and underemployed near 16%. The delinquency rate for homes (homes foreclosed or facing foreclosure) is above 8%–nearly one out of twelve owners are in danger of losing their homes. In 2010, 15.1%, of the population, representing a record 46 million, are in poverty. Record numbers of women, children, and people of color are in poverty. Nearly 50,000,000 are without health insurance. Better girls get cervical cancer than receiver the HPV. Better that children get aids or sexually-transmitted diseases than talk of birth control. Better women give birth to unwanted babies the product of rape than allow for the sale of RU 486. Children go hungry to underfunded schools.

But the GOP fiddles while America burns. They say we need to slash government spending, cut back on social services, preserve tax cuts for millionaires, and punish people who come to America seeking a better life. Cut back on disaster relieve and FEMA funding to extract budget cuts. Somehow the free market will save us all. Yes, the same free market that brought us the market crash, the mortgage crisis and the subprime problems, tainted meat and cantaloupes,

At one time America was the embodiment of the inscription of the Statue of Liberty--“Give me your tired, your poor, your huddled masses yearning to breathe free.” But no more. How did this all happen?

Perhaps it began with Ronald Reagan asking in 1980 “Are you better off now than you were four years ago?” Such a question made greed acceptable. Maybe it was Rick Santelli’s 2009 rant on CNBC against government bailouts to help owners that spurred the emergence of the Tea party. Who knows! The issue is that the anger expressed this year in the Republican presidential debates is so un-American and unpatriotic. And an unchristian.

Social conservatives talk of America as a Christian nation. I thought compassion and charity were the essence of Christianity. At least this is the version I learned growing up. But somehow the social conservatives seem inured to social compassion. They fail to practice what their faith preaches. This is not my Christianity, my America, my vision of socially responsible capitalism. Adam Smith, author of the economic classic Wealth of Nations, also wrote the Theory of Moral Sentiments and of the virtues of social compassion. America’s legacy is one of open arms to help others. Christianity of a religion embracing the golden rule.

America is not a suicide pack. We are in it together–we are supposed to be one nation-indivisible. We should be helping one another–with the thought that on another day they will help us. This is the America I grew up in.

My question to the Republican presidential candidates and members–“Have you no sense of decency?”

Hardball and Overreach: Gutless Democrats and Overextended Republicans

Hardball
Why are Democrats so awful playing hardball and the Republicans so good?

Think about events in the last couple of weeks. The fiscal forecast for Minnesota drops the state budget deficit from $6.2 billion to $5 billion and what happens? Dayton drops his call for a one time special tax on millionaires and the GOP thumbs its nose at the rest of Dayton’s tax proposals.

In Congress, the Democrats are ready to fold on budget cuts.

In Wisconsin the GOP votes to gut the collective bargain rights of unions and Democrats look powerless.

On top of all this where is Obama? He seems ready to offer compromise on health care, he seems unwilling to fight for union rights, he does not draw a line in the sand over the budget. Instead, he seems almost irrelevant to the events going on around the country. On top of which, he seems paralyzed by what to do in Libya.

Yet again I see a pattern. Republicans attack, make demands, and Democrats sit back and take it. There is a partisan fight in American but only one party is fighting. Why is that?

Maybe there is a secret strategy that the Democrats have? Perhaps the strategy is that if they act reasonable and offer to compromise it will force the GOP to do the same? Or perhaps the idea is that if you look reasonable then it will win over swing voters who will think the GOP are inflexible ideologues? Perhaps, just perhaps, this the strategy of the Democrats.

But we see how well it works for them. This strategy worked terrifically for Obama in 2009 and 2010, did it not? It led to the GOP fighting the Democrats on everything, making them look ineffective, and eventually it led to the rout of 2010. Additionally, the strategy of compromise has cost the Democrats dearly. Extension of the Bush tax cuts is one example, production of a mediocre health care bill and a less than half a loaf financial stimulus and regulation bills are also examples. Additionally, by not fighting and trying to look responsible the Democrats have also upset its base and the many voters who elected them because of what they promised and then they failed to deliver.

But Democratic compromise encourages GOP resistance. For Dayton, who wants to balance the budget without any more cuts and with tax increases, his decisions to give up on some taxes simply encourages Republicans to dig in their heels. For weeks people have wondered when will the GOP release their budget? The answer is they do not want to release one. They do not want to be the ones to cut education and throw granny out of the nursing home. Instead, by forcing Dayton to compromise more and more they hope eventually to get him to propose the cuts they do not want propose. Shift the blame to the DFL for all the ugly cuts that will have to be made. This is the GOP strategy. Fight, don’t compromise, make the Democrats back down, and they will eventually do the dirty work. The same is happening in Congress, the GOP are threatening a government shutdown, leading Democrats to panic and compromise.

Perhaps part of why the Democrats are so bad at playing hardball is that they think they are responsible for the government. They have come to believe they are the party of the government and that their job is to protect it and the vulnerable. Good aims, but such a strategy is forcing them into a defensive posture where they keeping giving up ground one step at a time. It is a strategy of retreat, fearful of losing but nonetheless they are still losing.

Or perhaps Democrats are so bad at playing hardball because they really do not believe in their principles in the same way the GOP does. For at least a generation Democrats have been corporate liberals, taking money and cues from the business community. Obama, as I argued in previous blogs, seems bent on proving that he is pro-business to the point that he sides with banks over homeowners and companies over workers. Democrats ape to be GOP-wannabes, and perhaps that is why they do not fight so hard–they really do not believe in what they say they believe.

Or perhaps, in the end, the answer is simple–Democrats have no guts! They have no guts to fight for what they believe in and are unwilling to risk anything to get what they want and what they promised voters. Yes, Democrats are gutless, but why they have not learned that they need to fight is beyond me.

Overreach

Did the GOP overreach in Wisconsin? Polls suggest yes, but will it cost them? There are recall petitions across the state but it is not clear to me that voters will really punish them. Similarly, in MN there is a plethora of antichoice bills being introduced. Will this hurt the GOP?

Think about twin imperative at play in MN. The GOP wants to stay a majority party beyond 2012. To do that it needs to temper the extremist tendencies in its party that want to adopt very conservative anti gay and antichoice legislation. Most of this legislation probably does not command a majority support among the state general population. However, this legislation is popular with its base. Unlike Obama who failed to understand how he needed to reward his base, the GOP understands that. That is why it pushes legislation like this along with voter fraud and other similar bills.

On one level it does not matter if the legislation passes but is vetoed. The GOP has delivered to its base and that makes the happy. Moreover, look to see many of these proposals come back as constitutional amendments next year as a way to invigorate the GOP during a 2012 election cycle that might be more favorable to Democrats. Thus the balance here is how to maintain majority status and not alienate swing voters but at the same time appease the base?

The Democratic strategy seems to be to let the GOP push this legislation, hoping it will show the DFL base and swing voters that the GOP are extremists. However, simply hoping the GOP will overreach is not a viable political strategy. It is a defensive one, placing your electoral success on the hoped failures of the other side. This strategy is no different from the failed one of 2010 where Democrats tried to win by labeling the Tea Party as nuts and crazy. That did not work then and there is no guarantee that perceptions of GOP overreach will work to the Democrats advantage in 2012. At best it might lead to GOPers thrown out but it gives Democrats no mandate.

9/11 and Hate American Style: Have we no sense of decency?

If July 4 is the American holiday of freedom and independence, 9/11 is rapidly becoming the calendar date for hate and bigotry in the United States.

As we remember 9/11, numerous events are converging in this country. There are the demands by Tea Party activists, members of the Republican Party, and assorted so- called Christians and nativists to prevent Muslims from building a community near Ground Zero. Claims are it is too close. Is too close four blocks, one mile, one state, or not in the United States?

From the sounds of the lunatic minister in Gainsville, Florida, who wanted to declare 9/11 national burn a Koran day, building anywhere in the Christian, God-loving red, white and blue America seems to close.

Then there are those who opposed immigrants and support the punitive Arizona law. There are those who oppose gay marriage. There are those who rallied with Glen Beck asking that we remain a Christian nation and those–including Beck–who question Obama’s faith and patriotism and implicitly his race, and then there are all of those who think the war on terrorism is the 21st Century version of the Crusades.

Hate seems to be everywhere and it is embarrassing. I thought this country was better than that. I thought the Statue of Liberty represented better. As someone who takes pride in a family that came through Ellis Island, I thought it represented better than that. I thought our Constitution, Bill of Rights, and Declaration of Independence stood for something better than that.

Unfortunately, the ugly side of American politics is out again. The side that burned witches at Salem, enslaved the blacks, beat gays at Stonewall, fried the Rosenbergs, and blacklisted many fine Americans during the 50s; all that is back. 9/11 now seems to be the symbol and date for hatred and bigotry in America.

I feel sorry for Obama, he is doing the right thing denouncing those who wish to persecute Islams. But he seems to be alone. Other major Democrats seem silent, perhaps fearing for their jobs in November. Republicans such as Palin, Bachmann, and others in the leadership are not speaking out, instead ranging from silently to overtly egging on this bigotry.

Moreover, the more Obama denounces the bigots, the more he enrages them, convincing them that he is one of them, whomever it is. America seems to be turning into what we despise. We say we fight for freedom against oppression but now we seem as guilty as those whom we oppose. Where is our moral leadership, our sense of decency?

Charles “Chuck” Colson of Watergate fame, now a Christian leader, got it right in an ad in the NY Times the other day: “Burning the Koran does not elevate the Bible.” How is hate and persecution consistent with any Christianity except for that practiced by the Grand Inquisitor and the Spanish Inquisition? To be Christian, as far as I know means more than that.

Raised Catholic during Vatican II the message I learned was one directly from Jesus and the Sermon on the Mount. It was a Christianity of equality and forgiveness, of social justice, and compassion. Where is that spirit now among those who claim to be Christian? The Jesus I learned about would have said that a Christian nation is one that welcomes all, respects all, and treats us all according to the Golden Rule.

Blaming it all on Islam reminds of another movement. They blamed it all on the Jews. Now I know some will say I am being alarmist or doing an injustice to the Holocaust and what Jews faced under Hitler. Ok, without making that parallel, the recent events remind me of a great Monty Python routine where John Cleese portrays a Hitler-like figure who blames all social problems on the bicycle riders! Sound foolish? Of course it does and so do those who are turning 9/11 into a national day of hate.

The McCarthy era ended when Joseph Welch said to the senator: “Have you no sense of decency?” I ask the same and hope that as a nation we have the decency to turn on the bigots.

Citizens United, Politics, and the Lessons of Target Corporation

The backlash against Target Corporation’s political contributions offers important lessons about the brave new world of politics ushered in by the Supreme Court decision Citizens United v. Federal Election Commission. The lessons range from corporate marketing and governance to accountability.

Citizens United was a triumph for conservatives who believed that there was not enough money in American politics and that corporations lacked an effective voice in it. The 5-4 majority in Citizens United ruled that the free speech rights of corporations were violated in banning them from making express advocacy independent expenditures.

The decision freed corporations to make direct expenditures from their treasuries to endorse or oppose candidates of their choosing. That is exactly what Target Corporation did in Minnesota.

Tom Emmer is the Republican gubernatorial anti-tax and anti-gay rights candidate. Minnesota Forward was a PAC formed in Minnesota after Citizens United and it collected corporate donations to run ads endorsing Emmer. Target contributed $150,000 to the PAC, ads for Emmer ran, and then the sky fell in for Target. Immediately employees, gay rights organizations, and Moveon.org criticized the contribution, asking how the company’s donation squared with Target’s commitment to gay rights and its policy on same sex couple benefits. Target CEO Gregg Steinhafel tried to massage the protest, stating the company only endorsed the candidate’s views on taxes, not gay rights issues. But the rationalization was too late, and Target has been unable to contain the damage. Why?

Unlike other Minnesota companies such as Polaris and Best Buy which also donated to Minnesota Forward, Target occupies a unique place. Originally the Dayton and then Dayton-Hudson Corporation, this company is locally incorporated and was family owned for years. The Daytons had a record of community support and philanthropy, still expressed in terms of the company donating 5% of its profits to schools. Self-consciously, Target has curried this socially responsible, good corporate citizen brand in juxtaposition to its rival Walmart. For many, Walmart is the evil empire and Target’s progressive image made it a favored retailer for many. Steinhafel forgot all of this when he made the political contribution.

The donation supported a candidate who stood contrary to the image Target has sought to cultivate for years. Steinhafel violated the number one rule of business–know your customers.

The deterrent to corporate political contributions after Citizens United was that retail businesses would be loath to act, for fear they would alienate half of their customers. Target should have remembered that. It should have remembered how it had consciously built its image and thought about how this political contribution impacted it. Clearly Target failed to do that.

The half-hearted apology that the contribution did not mean it supported Emmer’s views on gay rights demonstrated a naivete about marketing. When companies employ celebrity spokespersons, they hire the entire package and it is impossible to separate off one part of their life or views from the rest. Think of Tiger Woods. Corporations cannot insulate themselves from criticism by saying they endorse only part of a candidate–they are stuck with the entire package.

What Citizens United and the Target donation revealed is that corporate political activity merges politics and marketing. Support of political candidates and causes are marketing and imaging statements, and companies in the future now must think about how their political activity affects their brand. Steinhafel and Target should have known that. In Target’s case, the contribution was bad branding but for other companies–such as a gun company supporting a pro Second Amendment candidate–such an expenditure might be a smart move.

Steinhafel thus violated a second rule of business–confusing his own self-interest or views with that of the interest of the company. This tells us something about corporate governance. The real power of corporations rest not with shareholders but management, and most of the major misdeeds in corporations occur when management comes to substitute their interests for that of the shareholders and stakeholders they serve. Steinhafel’s choice raises questions about how decisions are made in companies, who speaks for corporations, and whose First Amendment rights were furthered by Citizens United–the shareholder or the management?

Finally, what Target and the supporters of Citizens United forgot was that over the last 25 years corporations are increasingly being held socially accountable for the choices they make. Target understood that with its branding, but seems unable to grasp that point now that it has entered partisan politics. The brave new world of Citizens United does mean that corporations can speak, but they will be held accountable by their customers and shareholders for the choices they make.