Essentially Contested America

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

Last week, the Supreme Court heard the oral argument Citizens United v. FEC, which could become a landmark First Amendment case. At issue is the constitutionality of the FEC’s ban of anti-Hillary documentary sponsored by corporate funds. The Court could decide the issue narrowly, on the grounds that this particular commercial speech was clearly political and thus warrants the highest level of First Amendment scrutiny. However, comments by several justices at the oral argument hint that the Court may use this case as a vehicle for establishing a new rule – that commercial speech merits the same strict scrutiny as does political speech. Until now, the Court has applied a lower level of scrutiny to commercial speech. The reason for this practice is that because commercial speech is for profit, there is less of a danger of chilling that speech than there is for political speech. If the Court does use Citizens United v. FEC as a vehicle for establishing a new level of review for commercial speech, thousands of statutes that currently regulate business and commercial speech will fall under attack, and may be struck down. Monied interests, which are already far too powerful in our political system, would become even more powerful.

If the Court issues a broad ruling in Citizens United v. FEC, that would be consistent with a trend on the Court to protect the interests of property owners and businesses. The Court has established a new regulatory takings doctrine which makes it considerably more difficult for the government to regulate property in the public interest (though the Court’s ruling in Kelo was a step backwards in this line of cases). The Court has established new limits on punitive damages in tort cases brought against multi-national corporations like Exxon. If the Court, as expected, issues a broad ruling in favor of corporate commercial speech in Citizens United v. FEC, it will be just another Supreme Court ruling in favor of the “haves” at the expense of the “have nots.”

As I have said before on this blog, the Virginia governor’s race will not be a referendum on President Barack Obama.  The latest flap in that race suggests as much.  A few days ago, the Washington Post published a story on Republican candidate Bob McDonnell’s master’s thesis written in 1989.  The thesis is worth a read.  It reads like a Republican playbook from the end of the Reagan era.  McDonnell concedes as much.  Its attack on Democratic policy is full-throated.  Its critique of women outside of the home and homosexuals everywhere is not kind.  The ideas expressed in the thesis are not necessarily kooky, they are just very conservative.  The thesis was not written by a callow 24-year-old.   It was written by a 35-year-old man who would begin elected public service just a few years later.  Virginia Democrats have argued that McDonnell has followed his thesis  through his 14 years in the Virginia legislature followed by his 3 years as attorney general.   They claim that his work reflects rather than repudiates his thesis.  Not surprisingly, McDonnell claims otherwise.

The race will be fought over the next 60 days or so over issues that are peculiar to Virginia.  Virginia politics is not just local, it is special.  Regardless of whether McDonnell wins or his Democratic opponent Creigh Deeds wins, the outcome of the Virginia governor’s race is unlikely to hinge on any general feeling regarding President Obama and his policies.

RNC Chair Michael Steele and others have suggested that Virginia’s gubernatorial election this fall will be the next test of the President Obama’s strength.  However, the race is not terribly likely to offer a proxy referendum on President Obama’s agenda.  Tuesday’s primary suggests this.  There was no Republican primary.  The GOP’s candidate in the race will be former Virginia Attorney General Bob McDonnell, a conservative Republican.  McDonnell grew up in Northern Virginia, but represented the Virginia Beach area in the Virginia House of Delegates.  The Democratic Party’s candidate will be Creigh Deeds, a state senator and conservative Democrat from Bath County in the western part of the state. Though McConnell may be a proxy for the current Republican Party, Deeds is not a proxy for Obama’s Democratic Party.  Certainly, Deeds fits comfortably within the conservative wing of the party.  However, he does not appear to represent the median of the party.

In addition to the fact that the candidates are not well-matched proxies for the Republican and Democratic Parties, the two candidates have a history of their own.  The 2009 gubernatorial race is replay of the 2005 attorney general race.  That race was essentially a photo finish with McDonnell edging Deeds by fewer than 500 votes.   That makes this race squarely about Deeds and McDonnell rather than about the parties.  Deeds can beat McDonnell by putting together his prior coalition and adding a few voters who may vote on issues unrelated to how the country is doing or the direction in which it is heading.  Conversely, McDonnell can beat Deeds by keeping his prior coalition and adding voters based on the name recognition that comes from having been attorney general for three years before he resigned to run for governor.   Thus, it is quite possible that neither a McDonnell nor a Deeds victory will have much at all to do with President Obama’s policies or the direction that America is taking.  To be sure, both parties will likely pour significant money into the race because both would like to win and this is an off-cycle election.  The money should help ensure that the race will be great theater.  However, the money may help create so much sound and fury in a race that has its own distinctly Virginia flavor.

I’m feeling pretty emotional about our president-elect. One reason is obvious –Barack Obama is going to be the first Black president of the United States. This is a truly momentous event to me, a former legal services lawyer in a virtually all-Black neighborhood, and a scholar of the civil rights movement and the Reconstruction eras. Like millions of people all over this country, I also am thinking of the loved ones that I have lost who would have given anything to see this day — my grandparents, who devoted their lives to the cause of civil rights and inter-religious understanding; my Uncle Carl, also a civil rights activist, who marched with Martin Luther King, Jr. to fight for voting rights in Selma, Alabama; and most of all, my dear friend Denise Morgan, a brilliant Black woman law professor who specialized in education rights litigation, whose life was cut tragically short days after her 41st birthday. I can’t tell you how many times in the last few months that I have reached for the cell phone to call Denise and talk about the latest political developments. Denise would have been ecstatic about Obama’s success, and I am certain that she would have bestowed her highest compliment on him — if Obama had gone to law school with us, he would have been our friend.

Barack Obama is my friend – well not really, but I can’t shake the feeling that he easily could be my friend. There have been many close misses. Obama was at Columbia University for two years when I was also a college student there. He worked as a community organizer on the south side of Chicago in the years immediately preceding my time there as a legal services lawyer. He went to law school at the same time as I did, at a rival elite institution just a few hours up the road. There are also the coincidental commonalities. Like me, he met his spouse at work in Chicago, and his two daughters are the same age as my two daughters. Like me and my husband, Barack and Michelle are clearly devoted to each other, and to their children.

In sum, there are many parallels between my life and that of Barack Obama. But that’s not the point. Obama seems like a thoughtful, decent person with a good sense of humor, someone who would be fun to be around. I am certain that there are thousands, if not millions, of people in this country who feel the same way. Throughout this election, the pundits have emphasized Obama’s race, asking whether the American people were ready to elect someone so different from the norm. While it is undeniable that Obama is different from any president we’ve ever had, we the people of the United States of America have gotten to know him, and we’ve gotten to feel that we have a lot in common with him. As a young white Obama supporter here in Toledo told me when explaining why his grandmother, a lifelong Republican, was going to vote for Obama – “she likes him.” Well, Obama’s landslide victory yesterday showed that a lot of us agree with her.

Congratulations to Barack Hussein Obama who, when the Electoral College meets next month, will formally become the President-Elect of the United States. On 20 January 2009, then President-Elect Obama will assume office as the most radical president in American history. No, he’s not a socialist; nor is he a super-liberal. Obama’s radicalism is strictly American. It resides in his commitment to civic virtue and to fashioning an inclusive deliberative dialogue or conversation between and among the citizenry of the United States and between and among the citizens and their governmental representatives. His promise resides in rejecting warfare as the modus operandi of American politics and replacing it with the quest for consensus-seeking cooperation and community. Obama’s promise is to listen to the different voices in American society, the different songs in the choir of republican democracy. This requires stifling the instinctual demonization and slandering of our political opponents and seeing them instead as reflecting ourselves, everyone of us seeking the nation’s good, but explicating that good in different, sometimes, in incompatible ways. His radicalism counsels us to appreciate that in a genuine democracy, one cannot, one should not, feel entitled to political and policy victories in every case. Conflict, in our nation is inevitable, but resolving conflict through bitter, partisan, and hateful methods is not. That’s where Obama’s radicalism lies.

Citizens of the United States of America go to the polls today in record numbers to begin a fundamentally new direction in the American experiment. (Click here.) Will the poisonous rot of the contemporary Republican Party remain in place or will the Party be punished for permitting itself to be hijacked by the most dangerous, the most divisive, and the least constitutionally faithful president in American history? If the polls are accurate predictors, Barack Obama will become the forty-fourth president of the United States.  The American people, however, should keep in mind that an Obama victory, even an Obama mandate, will be ineffective unless each individual supporting Obama appreciates the necessity of finding a place on their everyday “to do” list a category labeled “political participation.”  Voting every two, four, or six years is not enough.  A movement must be created that will make sure that the forces of darkness are kept at bay.  These forces derive from an attitude deeply entrenched in every American constituting an obdurate insistence that “I’m right and you’re wrong,” and that my political responsibility is to beat you, dominate you, or eliminate you.  You are not merely my opponent; you are instead my hateful enemy. Unless we acquire a sincere respect for our opponents and until the necessity for principled compromise resonates deeply in the American spirit, Obama’s victory will be short-lived.

During the Republican Party convention, many speakers derided Barack Obama’s background as a “community organizer.” Next Tuesday, if the polls are to be believed, they will see just how hard it is to run against a good community organizer. Indeed, the benefits of the community based Obama campaign are likely to last for many years to come.

Obama has run a campaign based in grass roots organization, with a neighborhood based structure and an emphasis on the individual autonomy of volunteers. This structure will enable the campaign to mobilize the “boots on the ground” necessary to get out the vote in the next couple of days. But even more importantly, the campaign has been a source of empowerment for thousands of volunteers throughout the country. Volunteers have met neighbors who share their interests and concerns, and enjoyed the experience of working with them for a common cause.

In an era when many of us feel increasingly isolated from others and cynical about politics, this grass roots based campaign has been a refreshing source of social contact and re-connection. It also has established a network for future political change. When my neighbors are concerned about an issue, whether national or local, they now know whom to call. The next progressive candidate in my community will have a ready-made structure on which to rely. With this pattern repeating itself throughout the country, thanks to Obama’s campaign strategy, American politics may never be the same.

With Senator Obama steadily increasing his lead over Senator McCain, the single most important worry is whether the election will be conducted fairly. Or will the Republicans steal the election as they certainly did in 2000 and probably in 2004 also? (Yes, I know that some legal academics have engaged in sophisticated cognitive gymnastics in their attempt to justify the Supreme Court’s intrusion into the 2000 campaign. But sophistry is sophistry called by any other name.) My only hope is that Democrats have already amassed an army of election specialists to prevent the theft of the presidency once again. The reliability of voting machines must be the first priority. Second, preventing election workers to refuse legitimate voters their right to vote is a close second. Behind the scenes of November Fourth lies troubling questions of whether voting every two-four-and six years is a satisfactory method of keeping the people involved in self-government.

The American decentralized method of conducting elections is rife with actual and probable defects.  And keep in mind the theft of the 2000 election caused the calamitous eight years of the Bush-Cheney administration.  The Constitution must be revisited to guarantee that individuals who serve as the Chief Executive of the United States are, for better or for worse, the people’s choice. Vigilance and prompt remedial responses to attempts to illegitimately prevent voters from exercising their constitutional right to vote are the key to the integrity of an election that certainly will certainly determine the future of democracy in the United States.

Click here for the New York Times‘ compelling endorsement of Senator Obama.  Here’s a critical sample of the endorsement.

It will be an enormous challenge just to get the nation back to where it was before Mr. Bush, to begin to mend its image in the world and to restore its self-confidence and its self-respect. Doing all of that, and leading America forward, will require strength of will, character and intellect, sober judgment and a cool, steady hand. Mr. Obama has those qualities in abundance. Watching him being tested in the campaign has long since erased the reservations that led us to endorse Senator Hillary Rodham Clinton in the Democratic primaries. He has drawn in legions of new voters with powerful messages of hope and possibility and calls for shared sacrifice and social responsibility.

Every four years, Ohioans experience a new surge of interest in election law.  This year’s litigation has taken an ironic turn.  The Republican Party has run into a roadblock – the barriers to civil rights litigation erected by Republican nominees on the United States Supreme Court.

Two weeks ago, the Ohio Republican Party filed a lawsuit against Jennifer Brunner, the Democratic Ohio Secretary of State.  The suit asked a United States District Court to find that the Help America Vote Act (HAVA) requires the Secretary to compare the list of 600,000 newly registered voters against other government databases, and to investigate the voters whose names and addresses did not precisely match other government records.  If they had prevailed, the right to vote of an estimated 200,000 Ohio voters could have been challenged, and there would have been a real risk of chaos on election day.

The District Court ruled against the Secretary despite the fact that the Republican Party failed to show any evidence of voter fraud, and despite the fact that another federal statute, the National Voter Registration Act (also known as the “Motor Voter” Act), prohibits the removal of voters based on computer matching.  A 6th Circuit panel overturned the District Court, but in a highly unusual procedural move, a divided 6th Circuit issued an en banc opinion upholding the District Court’s order.  Written by Bush “43″ appointee, Judge Jeffrey Sutton, the panel opinion was, to be kind, surprising.

Prior to his appointment to the federal bench, Sutton established his legal reputation as an advocate for restricting Congress’ power to enact civil rights legislation and make civil rights enforceable against state officials.  One of Sutton’s most important victories was in the case of Alexander v. Sandoval, a case in which the Court gutted the ability of private individuals to enforce their federal rights by imposing a highly restrictive test for determining whether a federal statute creates a private right of action, thereby making the requirements set forth in the statute enforceable by private citizens against the government.  Combined with the subsequent case of Gonzaga v. Doe, the Court’s Sandoval ruling has had a devastating impact on civil rights and other public interest litigation.

Sandoval and Gonzaga pose an insurmountable barrier for any private individual, including the Ohio Republican Party, wishing to enforce the provisions of a statute like HAVA, which governs the Secretary of State’s implementation of a variety of voter registration requirements.  Yet, in his opinion, Sutton inconceivably glossed over the private right of action issue, stating “perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist.”  Perhaps that would have been the case had Sutton not prevailed in his role as counsel for the State of Alabama in Sandoval . . . perhaps someday in the future when we have another Supreme Court . . . perhaps when a snowball no longer melts in hell! Perhaps, indeed.

Millions of recipients of public benefits, those concerned about the environment, victims of civil rights violations and others who have suffered from states’ violations of federal law would be better off if Judge Sutton had been right.  But, thanks in large part to Sutton’s efforts as a private attorney, his Sixth Circuit en banc opinion was clearly wrong.  Secretary Brunner appealed to the United States Supreme Court, which issued a 2-page per curiam opinion vacating the 6th Circuit en banc ruling on the ground that – surprise – there was no likelihood that the plaintiffs would prevail since the holdings of Sandoval and Gonzaga precluded them from having a private right of action to enforce the requirements of HAVA.  Thus, the party that appointed the judges that closed the doors of the federal courts to civil rights litigants had those same doors slammed in their face — truly a bittersweet victory for Ohio voters.