Sunday, August 31, 2014

Lobbyist Influence in the 2014 Legislative Session

Note:  This blog originally appeared in Politics in Minnesota on August 28, 2014.  Please consider subscribing to that publication.

 Many of us learned about government and how it works by watching “I’m Just a Bill on Capitol Hill.”  Part of the ABC School House Rock series, it depicted the process of how a bill becomes a law in Washington, D.C.  It describes the role of citizens, members of Congress, and the president in legislating.  Yet it left out an important actor–lobbyists.  In so many ways, legislating  would be impossible–good or bad–without lobbyists, and that is equally true in Minnesota.
            Looking back at the 2014 Minnesota legislative session we know what was passed or not.  Among the notable highlights, the legislature raised the minimum wage, passed anti-bullying legislation, cut taxes, passed a massive bonding bill, enacted the Women’s Economic Security Act,  adopted smartphone theft  and medical marijuana laws.  It also debated but did not pass  the Toxic Free Kids Act, dealt with the constitutional defects in the sex offender treatment program, or do more to address the ailing state infrastructure. 
            One can catalog the what was passed or not, but the more interesting question is the why.  Why did some bills pass and others fail?  One explanation offered by political scientist David Mayhew is that it is all about the electoral connection.  One can explain why legislators do what they do by looking at whether such actions enhance their election prospects.  Yes, the quest for reelection explains the motivation for many actions, but missing from that explanation is an analysis of the structural forces that shape election prospects and motivations when legislating.  This is where lobbyists come in.
            To a large extent legislation in Minnesota is debated and shaped under the structural influence of lobbyists and the associations they represent.  Depending on how you look at it, they  perform one of two roles.  In the first lobbyists and associations like to describe themselves as simply information brokers providing valuable knowledge to legislators about bills.  They additionally represent key constituencies, insuring that legislators take them into account when acting.  The contrary role is that lobbyists and associations pollute the legislative process.  They are special interests who use personal connections, insider relationships such as friendships, and even gifts, food, and money, to affect the legislative process.  Both images are correct in Minnesota.
            First, let’s consider some basic numbers.  There are 201 Minnesota legislators who make a base salary of $31,140.  Because of per diem, some make more than that.  There are 1,316 currently lobbyists and 1,351 associations registered  in Minnesota.  This means there are approximately 6.5 lobbyists and 6.7 associations per legislator in the state.  During the 2014 session  lobbyists spent $5,404,778 to influence the legislative process, or $26,889 per legislator.  Lobbyist disbursements include gifts, meals, telephone, and other costs associated with seeking to affect legislation.  This spending does not include the salaries of lobbyists. Add these figures in and based on past trends, associations spend upwards to $40 -$50 million to affect legislation. The sheer number of lobbyists, associations, and the amount of money they spend is enormous, eclipsing the salary and number  of legislators many times.
            But not all lobbyists are equal.  This is not a level playing field where all lobbyists and associations are of equal weight and influence.  Some are more powerful than one another, giving some a greater voice.  Consider the $50,000 club.  These are the 29 lobbyists who disbursed at least $50,000 during the session.  These 29 lobbyists spent $2,609,557, or nearly 50% of what all the 1,316 lobbyists spent.  These 29 lobbyists represented 103 associations.  There are some lobbyists who work for a specific organization and only represent them, such as David Olson for the Minnesota Chamber of Commerce or Brandon Rettke for Education Minnesota.  But Ted Grindal represented 44 groups including Ebay, Microsoft, Proctor and Gamble, Mille Lacs Band of Ojibwe Indians, DaVita, and the Boys and Girls Clus Association, and Andew Kozak works for  25 groups that include the  Shakopee Mdewakanton Sioux (Dakota) Community, the University of Minnesota, OPUS, the Mayo Clinic, and AT&T.  They are part of the  mega-lobbyists, the ones who really are the major players in the legislative process.
            Consider the top ten spending lobbyists and who they worked for in the 2014 session.  These ten alone spent $1.28 million, or 24% of total lobbyist disbursements..  At the top of the list was the Minnesota Chamber of Commerce at $348,000, followed by the Associated General Contractors of Minnesota at $110,939, and then Education Minnesota at $110,178. 
            While these dollar figures tell us something about their efforts to influence legislation, they still miss a lot.  Minnesota has some of the weakest lobbyist reporting laws in the country according to the Center for Public Integrity.  Missing from the raw numbers is an ability to link directly expenditures to particular bills or legislation.  There is a transparency problem–lobbyists are not required to state whom the lobbied  or what specific bills they worked on.  One can presume that the Chamber of Commerce spent a lot of money on the minimum wage and tax bills and the Education Minnesota did the same for the anti-bullying legislation, but we cannot be sure.  It is next to impossible to connect dollars to legislation and influence based on the what the law requires to be reported.
            But there are even more problems here.  In 2013 the legislature strengthened the hand of lobbyists.  First, it weakened the gift ban law, again making it possible in some circumstances for  lobbyists to wine and dine legislators.  Second, they increased the amount of money that lobbyists may contribute to candidates while simultaneously decreasing disclosure requirements.  Put simply, lobbyists can give more money and goodies to legislators but with less transparency and accountability.
            What does all this mean?  Lobbyists have a major presence in the Minnesota legislative process.  They expend significant resources to affect law making.  The public has limited information to know what they are doing.   Some of the lobbyists and the groups that they represent are far more powerful than others, thereby creating a structural bias in terms of how legislation is debated or whose interests are considered.  The legislative process may be stacked to favor a few interests or it simply might be so engulfed by lobbyists, associations, and money that one wonders whether the public interest is actually being considered when bills are debated.  The 2014 legislative session then was yet another one where one has to ask whether and how the debates on minimum wage, taxes, and other topics were shaped by lobbyists.  To know the answer to that question is really to know how a bill becomes  a law. 

Wednesday, August 27, 2014

A long, powerful history: How we militarized the police

Please Note:  Today's blog originally  appeared in Minnpost on August 26, 2014.

Policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time.

The shooting of Michael Brown in Ferguson, Missouri, raises many troubling questions, among them: How did we come to militarize the police? The answer reveals a powerful history that ties race, class, policing and the military together.

The shared history goes back to the Reconstruction era. After the Civil War, federal troops were used to enforce civil rights and the Reconstruction in the South. But as a result of the disputed presidential election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden, Democrats conceded the electoral votes to Rutherford if federal troops were withdrawn from South.

Passage of the 1878 Posse Comitatus Act ended Reconstruction and barred federal military personnel from enforcing the laws. The Act does not apply to the National Guard, and over time they have been deployed repeatedly to keep the peace. A couple of examples: The 1894 Pullman strike saw 12,000 federal troops deployed to break up a workers' strike. In 1957 Eisenhower nationalized the Arkansas National Guard to enforce integration in Little Rock.

Prior to the Civil War, only a few American cities had police. Post Civil War, policing grew along several fronts. There were the Pinkertons, who were created as private police to bust unions. In the South, police departments emerged to maintain order against the freed slaves. In the North, they grew to check immigrants and unions.

Early 20th-century reforms

Reformers such as August Vollmer in the beginning of the 20th century sought to professionalize the police by reforming its structure and organization along a military model of authority and hierarchy, creating uniforms and command structures that exist to this day.

Yet the modern militarization of police in America owes it origins to several events. First, reaction to the urban riots of the 1960s led to President Lyndon B. Johnson signing into law the Omnibus Crime Control and Safe Streets Act of 1968. The Act created the Law Enforcement Assistance Administration, which made available grants to local governments to develop and purchase military-type resources to suppress the riots. The money facilitated the development of SWAT and other heavily armored police forces which had developed in Philadelphia, Los Angeles, and other cities to counteract so-called black insurgency.

Second, President Richard M. Nixon’s declaration of the war on drugs and its reemphasis by President Ronald Reagan further enhanced the militarization of the police. It did so in its rhetoric — the war metaphor — sanctioning that a military-style response was needed to address drugs. But also underlying the war against drugs was a racial overtone — the urban riots of the 1960s and drug usage were often associated with blacks. This was seen later as punishment differentials between drugs such as crack and cocaine more heavily punished racial minorities than whites. American prisons and jails incarcerate far more people of color than whites for drugs.

Civil forfeitures

Third, the war on drugs encouraged the police use of civil forfeitures. This was the confiscating of property of convicted and sometimes suspected drug dealers. The theory was it would take the profit out of crime and prevent drug dealers from using their money to enrich their businesses. Civil forfeiture was upheld by the Supreme Court in 1996; it gave local police departments the money to be able to purchase even more military equipment from the Pentagon.

Finally, the events of 9-11 and reaction to it led to the collapse of the distinction between criminal policing, intelligence gathering and protection of national security. Laws such as the Patriot Act effectively turned the police into agents in the war against terror, again providing both a war metaphor to support aggressive policing and, with the creation of the Department of Homeland Security, new resources and funds to fight that fight with military-style weapons.

Thus, policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time with racial profiling, the death penalty and shootings like that of Michael Brown in Ferguson. The only surprise is the degree of press and visibility it has received. Hundreds if not more Michael Browns have existed, and the question now is what America will learn from this latest tragedy.

Friday, August 15, 2014

What we learned from the Minnesota primary?

Far less than you think.  Journalists and politicos want to write the big story and find trends.  If there is a special election in one race they see in it a harbinger of a trend.  Think of Eric Cantor losing to a Tea Party candidate and how from one race everyone is saying that the immigration issue did him in and therefore Republicans will refuse to compromise on this topic.  Maybe it was immigration that cost him his seat, or maybe it was that he lost track with his constituents or simply was complacent in his campaigning. This is what did Jim Oberstar in.
    My point is that there are two competing trends in thinking about politics.  One is the classic Tip O’Neill line that all politics is local.  The other is the belief that all politics is now being nationalized.  Evidence exists for both propositions and there are serious questions also whether one can generalize from one event to seeing a trend. 
    Minnesota’s August 12, primary invites this type of speculation.  By now the received wisdom is that endorsements matter and that the turnout was bad.  There is some truth to both but more needs to be said.
    First it appears that all the party endorsed or party favored candidates one–Johnson, McFadden, Otto, Kahn, and Loon just to mention a few.  After what appeared to be a nearly generation-long repudiation of convention endorsements, they seem to have mattered this time and perhaps it is a sign of a trend.  Yes they mattered this time but a trend is not something one can leap to yet.  This primary the endorsements mattered and parties looked strong because the turnout was so bad.  The two are related and when we think about it, the parties do not look that strong.
    One of the classic functions of political parties is voter mobilization and get out the vote.  Strong parties are generally associated with vigorous voter turnout.  But in this primary turnout was 12.8%, more or less confirming a long-term decrease in turnout dating back 30 years in Minnesota when in 1982 31% showed up on primary day.  Since then the number of individuals identifying themselves as a member of a political party has decreased, thereby making it harder for parties to mobilize as many people as before.  Many of those people are also younger voters or Millennials who are less likely to identify with the two major parties compared to the past.  They are also individuals harder to reach by more traditional methods of communication (mail or phone) and instead need to contacted by alternative or social media.  Finally, unlike 30 years ago, third parties such as PACS are more powerful today and they along with interest groups perform many of the functions that parties used to perform. 
    My point is simple.  Low turnout and the appearance of party endorsements as mattering last Tuesday went hand-in-hand.  Because the parties (and the candidates) did such a bad job reaching and mobilizing voters the turnout was so bad.  With turnout so bad we saw young people stay away from the polls and also those who did show up were the hardcore partisans–those whom the endorsement process mattered most to.  Come November when turnout is at about 54% things will look different.  Parties and the candidates will be competing more with third party groups (PACS, legislative caucuses,  and independent expenditures) for influence and they may or may not look as relevant as they did in this primary.
    Now of course there are other reasons why turnout was bad.  As I pointed out four years ago in a study other states that moved from a post to pre Labor Day August primary demonstrated lower turnout.  Four years ago MN had a slight bump in turnout (as did other states with their first August primary) but the longer term trend is for lower turnout.  Few people are thinking of politics n Minnesota except for the hardcore politicos.  Most Minnesotans barely think about elections until the state fair, or after Labor Day when school starts.  Picking an August primary date as opposed to an early one such as June favors incumbents or party endorsed candidates by holding an election when many people are not thinking about voting.  June would be better for an primary but incumbents did not want it because of how close it came to the end or the legislative session (assuming it ends on time) and it would hurt their ability to fund raise and campaign.
    A couple of other thoughts about Tuesday.  This was the first with new excuses early voting.  Many thought this would increase turnout.  It did not for two reasons.  One, few people knew about the change in the law.  Second, the evidence is mixed regarding whether early voting really increases turnout or simply makes voting more convenient for those who do vote.  Additionally, it is not clear  that many candidates knew how to use early voting to their benefit.  I remember talking to Scott Honour at one point and he thought he would win because he had the most money and would use it to get people to early vote.  I asked him how he was taking advantage of early voting and he said he had a link on his web site for people to download an absentee ballot application.  This is hardly  a good use of early voting.  I heard of similar other candidates operating with similar naive strategies.
    Finally, one other argument I had emerging out of this election is that money did not matter–Entenza and Honour lost.  Yes they did but in part because they did not use their money effectively and also because there is something that one needs to consider–they were not quality candidates.  Both faced many liabilities that money just could not overcome.
    So what do we learn from the August 12 primary?  Maybe far less and far different from what the received wisdom is saying

Wednesday, August 6, 2014

Predicting Turnout and Winners in the 2014 Minnesota Primaries

Getting it Wrong...and Right
Predicting turnout and winners for the August 12, 2014 Minnesota primaries is complicated.  Four years ago when Minnesota held its first August primary I predicted a 12% voter turnout.  This estimate was premised upon two factors.  First, a general downturn since 1982 in primary turnout and a trend from other states of a decrease of 2% when switching from a post to a pre Labor Day  primary.  I was wrong!  The 2010 turnout was 15.94%–an approximate 2% jump in turnout.  I should have anticipated that given the closely contested DFL gubernatorial primary involving Margaret Anderson Kelleher, Matt Entenza, and Mark Dayton.  That race also featured significant political spending.  Couple a closely-contested race with big money and voter turnout should go up.

Table I:  Minnesota Primary Turnout: 1982-2010 (Gubernatorial Years)
Year    Turnout    Contested?
1982    31.08%    Yes
1986    25.69%    Yes
1990    24.28%    Yes
1994    27.17%    Yes
1998    19.79%    Yes
2002    14.93%    Yes
2006    13.8%      Yes
2010    15.94%    Yes

Predicting 2014 Turnout
    Given what I learned from 2010, what is my prediction for the 2014 primary turnout?

    The prediction for turnout in the 2014 primary can be expressed as an equation:

T= C +$ +A + P

T = August 12, turnout
C = Contested election
$ = Money spent by candidates, parties, and political organizations to encourage turnout
A= No excuses absentee voting
P = Party turnout

Let me explain each variable.  Contested election refers to whether there is a seriously contested statewide election on the ballot that should drive turnout.  In 2014 there are at least two such races.  The first is the Republican gubernatorial election featuring Jeff Johnson, Kurt Zellers, Marty Seifert, and Scott Honour in a close race.  The second race is the DFL primary for state auditor between Rebecca Otto and Matt Entenza.  Both races will ensure that party regulars will be excited about these elections, that the candidates are working hard to get out the vote, and that the potential closeness of these elections will entice voters to cast ballots.  On balance, I would argue that the level of contestation here is not as high as 2010, thereby suggesting a slight decrease in turnout in comparison.

Money spent refers to amount of money spent by candidates, parties, and political organizations on  advertising, voter mobilization, phone banks, and get out the vote to encourage turnout.  Here again  one can anticipate that several candidates, such as Scott Honour and Matt Entenza will spend significant amounts of their own money to support their campaigns and that in turn will force their opponents to also spend more money.  Of course, not all spending will be directed toward voter mobilization, but in general the more money spent the greater the turnout.  Here less money is being spent compared to 2010, again suggesting a lower turnout.

No excuses absentee balloting refers to how the change in laws affecting early or absentee voting will impact voter turnout.  By that, in general no excuse voter turnout has lead to more people across the country voting before election day and there is also some evidence that it has increased turnout.  The issue here for the August 12, primary is to ask whether this new law will lead to an increase in turnout or simply to a shift in more voters casting ballots before election day. Assume no excuses absentee turnout slightly increases turnout from 2010.

Finally, party turnout refers to which party or parties have a more competitive turnout.  The DFL generally enjoys a greater percentage of the population voting in their primary as opposed to the Republicans.  This reflects the fact that more people in the state consider themselves Democrats than Republicans.  In 2010 74% of the primary voters for governor voted DFL.  This high turnout was  in part due to a close DFL race and an almost pro forma GOP primary.  In most years the DFL share of the primary vote is lower than this.  Given that there are close statewide races for both parties, my estimate is that about 60-65% will vote DFL and the remainder Republican.  Even though the DFL State Auditor’s race is contested and will drive turnout for that party, it is not generating the same excitement as a governor’s race.  Thus, the main race driving the 2014 primary is the GOP gubernatorial race.  Given that, I anticipate a slight decrease in enrollment.

Taking all of the variables together, what can we predict?  As of May 1, 2014, the Minnesota Secretary of State estimates the total number of registered voters in Minnesota is approximately 3,116,899.  My estimate is a turnout of 14% or 436,000 voters.  Of those, the estimate is that 275,000 will vote in the DFL primary and 161,000 in the GOP primary.

Winners and Losers
One final prediction: In the Republican gubernatorial primary I am estimating that the winner will receive approximately 35% of the vote.  If that is correct, it will take about 57,000 votes to win the Republican gubernatorial primary.  Put in perspective, the winner will receive approximately 2% of the vote in the state.  This proves that every vote counts.  If I had to make a prediction I would argue that the GOP primary is between Jeff Johnson and Kurt Zellers.  This pits party endorsement and resources against name recognition.  This is too close to call but the guess goes to Johnson.  In the Otto-Entenza race, party mobilization for Otto and backlash against Entenza should help her win.

Upset Prediction
Finally, a note of caution: I have note described the race between and Mike McFadden and Jim Abler as a contested one.  But after what happened to Eric Cantor in Virginia complacency is a clear vice to avoid.  Jim Abler is the underdog but he has the endorsements of the Star Tribune, Governor Al Quie, and Senator Durenburger.  If I had to pick one possible upset this is it.

Come August 13, we shall see how wrong I am!

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.