Rachel Maddow: Science of campaigning goes beyond fundraising

Rachel Maddow: Science of campaigning goes beyond fundraising:

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Why the Government Won't Fight Wall Street:

Why the Government Won't Fight Wall Street

By Matt Taibbi, Rolling Stone Magazine

19 September 12

the great mystery story in American politics these days is why, over the course of two presidential administrations (one from each party), there’s been no serious federal criminal investigation of Wall Street during a period of what appears to be epic corruption. People on the outside have speculated and come up with dozens of possible reasons, some plausible, some tending toward the conspiratorial – but there have been very few who've come at the issue from the inside.

We get one of those rare inside accounts in The Payoff: Why Wall Street Always Wins, a new book by Jeff Connaughton, the former aide to Senators Ted Kaufman and Joe Biden. Jeff is well known to reporters like me; during a period when most government officials double-talked or downplayed the Wall Street corruption problem, Jeff was one of the few voices on the Hill who always talked about the subject with appropriate alarm. He shared this quality with his boss Kaufman, the Delaware Senator who took over Biden's seat and instantly became an irritating (to Wall Street) political force by announcing he wasn’t going to run for re-election. "I later learned from reporters that Wall Street was frustrated that they couldn’t find a way to harness Ted or pull in his reins," Jeff writes. "There was no obvious way to pressure Ted because he wasn’t running for re-election."

Kaufman for some time was a go-to guy in the Senate for reform activists and reporters who wanted to find out what was really going on with corruption issues. He was a leader in a number of areas, attempting to push through (often simple) fixes to issues like high-frequency trading (his advocacy here looked prescient after the "flash crash" of 2010), naked short-selling, and, perhaps most importantly, the Too-Big-To-Fail issue. What’s fascinating about Connaughton’s book is that we now get to hear a behind-the-scenes account of who exactly was knocking down simple reform ideas, how they were knocked down, and in some cases we even find out why good ideas were rejected, although some element of mystery certainly remains here.

There are some damning revelations in this book, and overall it’s not a flattering portrait of key Obama administration officials like SEC enforcement chief Robert Khuzami, Department of Justice honchos Eric Holder (who once worked at the same law firm, Covington and Burling, as Connaughton) and Lanny Breuer, and Treasury Secretary Tim Geithner.

Most damningly, Connaughton writes about something he calls "The Blob," a kind of catchall term describing an oozy pile of Hill insiders who are all incestuously interconnected, sometimes by financial or political ties, sometimes by marriage, sometimes by all three. And what Connaughton and Kaufman found is that taking on Wall Street even with the aim of imposing simple, logical fixes often inspired immediate hostile responses from The Blob; you’d never know where it was coming from.

In one amazing example described in the book, Kaufman decided he wanted to try to re-instate the so-called "uptick rule," which had existed for seventy years before being rescinded by the SEC in 2007. The rule prevents investors from shorting a stock until the stock had ticked up in price. "Forcing short sellers to wait for the price to tick up before they sell more shares gives a breather to a stock in decline and helps prevent bear raids," Connaughton writes.

The uptick rule is controversial on Wall Street – I’ve had some people literally scream at me that it doesn’t do anything, while others have told me that it does help prevent bear attacks of the sort that appeared to help finally topple already-mortally-wounded companies like Bear Stearns and Lehman Brothers – but what’s inarguable is that Wall Street hates the rule. Hedge fund types or employees of really any company that engages in short-selling will tend to be most venomous in their opinions of the uptick rule.

Anyway, Connaughton and Kaufman were under the impression that new SEC chief Mary Schapiro would re-instate the uptick rule after taking office. When she didn’t, Kaufman wrote her a letter, asking her to take action. When that didn't do the trick, he co-sponsored (with Republican Johnny Isakson) a bill that would have required the SEC to take action.

Nothing happened, and months later, Kaufman gave a grumbling interview to Politico about the issue. One June 30, the paper’s headline read: "Ted Kaufman to SEC; Do Your Job."

The next day, the Blob bit back. Connaughton was in the basement of the Russell building when a Senate staffer whose wife worked for Shapiro shouted at him. From the book:

"Hey, Jeff, you’re in the doghouse." He meant: with his wife. "Why?" I asked. "That Politico piece by your boss." I was taken aback but tried to downplay the matter. "We just want the SEC to get its work done." "Remember," he said. "We all wear blue jerseys and play for the Blue Team. I just don’t think that helps."

When Connaughton told Kaufman over the phone what the staffer said, Kaufman exploded. "You call him back right now and tell him I said to go fuck himself in his ear," Kaufman said.

Similarly, when Kaufman tried to advocate for rules that would have prevented naked short-selling, Connaughton was warned by a lobbyist that it would be "bad for my career" if he went after the issue and that "Ted and I looked like deranged conspiracy theorists" for asking if naked short-selling had played a role in the final collapse of Lehman Brothers. Naked short-selling is another controversial practice. Essentially, when you short a stock, you're supposed to locate shares of that stock before you go out and sell it short. But what hedge funds and banks have discovered is that the rules provide "leeway" – you can go out and sell shares in a stock without actually having it, provided you have a "reasonable belief" that you can locate the shares.

This leads to the obvious possibility of companies creating false supply in a stock by selling shares they don't have. Without getting too much into the weeds here, there is an obvious solution to the problem, which essentially would be forcing companies to actually locate shares before selling them. In their attempt to change the system, Kaufman and Connaughton discovered that the Depository Trust Clearing Corporation, the massive quasi-private organization that clears most all stock trades in America, had come up with just such a fix on their own. Kaufman recruited some other senators to endorse the idea, and as late as 2009, Connaughton and Kaufman were convinced they were going to get the form. "I said to Ted, 'We’re going to change the way stocks are traded in this country.'"

But before the change could be made, Goldman, Sachs issued "data" showing that there was "no correlation" between naked short selling and price movements. When Connaughton asked an Isakson staffer what the data said, the staffer, intimidated by Goldman, replied, "The data proves we're full of shit." Connaughton looked at the data and realized instantly that it was a bunch of irrelevant gobbledygook, even firing off an angry letter to Goldman telling them the tactic was beneath even them.

But Goldman’s tactic worked. A roundtable to discuss the idea was scheduled by the SEC on September 24, 2009. Of the nine invited participants, "all but one" were for the status quo. Connaughton expected the DTCC representatives to unveil their reform idea, but they didn’t:

Afterwards, I went over to [the DTCC representatives] and asked, "What happened?" Sheepishly, and to their credit, they admitted: "We got pulled back." They meant: by their board, by the Wall Street powers-that-be.

Essentially the same thing happened in Kaufman’s biggest reform attempt, the amendment to the Dodd-Frank bill he co-sponsored with Ohio’s Sherrod Brown, which would have broken up the Too-Big-To-Fail banks. But the Brown-Kaufman amendment, which was really the meatiest thing in the original Dodd-Frank bill, the one reform that really would have made a difference if it had passed, just died in the suffocating mass of the Blob. The key Democrats one after another failed to line up behind it, and in the end it was defeated soundly, with Dick Durbin, the number two man in the Democratic leadership, giving it this epitaph: "a bridge too far."

Again, those interested in understanding the mindset of the people who should be leading the anti-corruption charge ought to read this book. It's the weird lack of concern that shines through, like Khuzami’s comment that he’s "not losing sleep" over judges reprimanding his soft-touch settlements with banks, or then Southern District of New York U.S. Attorney Ray Lohier’s comment that the thing that most concerned him – this is the period of 2008-2009, the middle of a historic crimewave on Wall Street – was "cyber crime."

On the outside we can only deduce the mindset from actions and non-actions, but Connaughton’s actually seen it, and with the book you get to see it too. It’s scary and definitely worth a read.

Matt Taibbi is a contributing editor for Rolling Stone. He’s the author of five books, most recently The Great Derangement and Griftopia, and a winner of the National Magazine Award for commentary.

 
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Rachel Maddow: Romneys 47% remarks more blunt statement than misstatement

Rachel Maddow: Romneys 47% remarks more blunt statement than misstatement:

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Our Pro-Corporate Supreme Court - Bill Moyers / Katrina Vanden Heuvel & Jamie Raskin

Our Pro-Corporate Supreme Court:

Our Pro-Corporate Supreme Court

By Bill Moyers, Moyers & Company

16 September 12

ILL MOYERS: Welcome. When five conservative members of the Supreme Court handed corporations and the super-rich the right to overwhelm our elections with tsunamis of cash, they moved America further from representative government toward outright plutocracy, where political power derived from wealth is devoted to protecting wealth.

We saw it first in the mid-term elections of 2010, and we’re seeing it in spades in this year’s elections – organized money, much of it dark money, given secretly So it can’t be traced, enveloping the campaign for president, Congressional campaigns, and state legislative and judicial races. There’s never been anything like it in our history – not on this scale, and not this sinister. We’ll take a look at this radical threat to democracy in our next two broadcasts – how it’s happening, and what can be done about it.

We’ll begin with this current issue of "The Nation" magazine, “The One Percent Court,” devoted entirely to the United States Supreme Court. It’s one you’ll not want to miss – and not because it opens with an article jointly written by me and the historian Bernard Weisberger. Our mission was simply to remind the reader of what’s obvious: that because of the partisan gridlock paralyzing both president and Congress, more than ever the court has become the most powerful branch of government, and the center of a controversy which may shape the fate of democracy for generations to come.

With me to talk about this is "The Nation" magazine’s editor and publisher Katrina vanden Heuvel. She’s a frequent presence on the talk news shows and a familiar byline in major publications. She has been one of those out in front, calling the president to task for orphaning his values and promises, as can be seen in her most recent book, "The Change I Believe In: Fighting for Progress in the Age of Obama."

The prolific Jamie Raskin also joins us. One of the country's leading scholars on constitutional law, he teaches at American University and is a Maryland State Senator, where in his first legislative session alone he managed to see more than a dozen of his bills pass into law. He's been described as “one of the nation’s most talented state legislators.” His many writings include a centerpiece article in this special issue of "The Nation."

Welcome to you both.

JAMIE RASKIN: Thanks so much.

BILL MOYERS: Okay, let’s play the numbers. What comes to mind when I call out 79, 76, 75, and 73?

KATRINA VANDEN HEUVEL: The age of the four oldest justices on the court. And one of the reasons we did this issue is that as we enter this election season, this election could determine not only the future of the court for generations to come but the shape of our democracy for generations to come.

BILL MOYERS: You've devoted whole editions of the magazine, in the past, to the Supreme Court. What makes this one different?

KATRINA VANDEN HEUVEL: I think we're at a moment, Bill, where we are witnessing the unprecedented concentration of power, wealth, and income. It is reminiscent not just of The Gilded Age, but of the New Deal period, when you had a Supreme Court which wanted to invalidate and dismantle the New Deal legislation that President Roosevelt was putting forward.

There's always been a threat. The court has always been important. But now we've seen a spate of 5-4 cases, 5-4, 5-4, 5-4, on the core issues that this magazine grapples with. The A.C.A. health care decision, in my mind, Jamie I'm sure has--

BILL MOYERS: Obamacare decision?

KATRINA VANDEN HEUVEL: The Obamacare--

BILL MOYERS: Judge Roberts voting with the majority?

KATRINA VANDEN HEUVEL: I think at that point partly because Citizens United has awakened Americans to the understanding that this court favors corporate interests. It's burgeoning. It's latent, but it's there. And I think Judge Roberts decided to be an institutionalist and wanted to save the court to come back to a next session and perhaps do some damage on voting rights, affirmative action, and other issues.

BILL MOYERS: You could have chosen any subject to write for Katrina, in this issue. But you chose Citizens United. Why?

JAMIE RASKIN: The way I look at it is, we'd had a decade of right-wing derailment of the Supreme Court and the politics of the country. In Bush vs. Gore in 2000, we had a 5-4 decision which took victory away from Vice President Gore, who had more than a half million votes more than Bush did and gave it to George W. Bush by intervening to stop the counting of ballots, for the first time in American history. And the history all of us know with the Iraq War and Afghan War and the corruption and so on.

That was the last decade. Now in 2010, a decade later a 5-4 coalition on the court, the right-wing block gets together and says, "Corporations, for the first time in American history, are declared to have the political free speech rights of the people, such that they can take money directly out of the corporate treasury and put it into politics."

Well, that threatens a total capsizing of democratic relationships that we've known before. And it completely upends what the Supreme Court has always said about what a corporation is. Because you can go back to Chief Justice John Marshall in the Dartmouth College case who said, "A corporation is an artificial entity. It's an instrument set up by the state legislatures for economic purposes." He said, "It's invisible. It's intangible. It exists only in contemplation of law. And it has all of these rights and benefits conferred upon it. But it must remain under the control of the government, essentially."

And that has been standard conservative doctrine on the Supreme Court all the way through Chief Justice Rehnquist. Justice White who said, "We give them limited liability. We give them perpetual life. But in return, we ask them to stay out of politics." And there's a beautiful sentence from Justice White dissenting in a case called First National Bank of Boston vs. Bellotti, where he said, "The state need not permit its own creature to consume it." And yet, this court is saying that, "We must permit the creation of the state legislatures to consume our politics." And so to me, the Citizens United case is the emblem for the whole era we're in. We're living in the Citizens United Era, I think.

BILL MOYERS: But before Citizens United, wealthy people were funneling money into politics, corporations were forming political action committees. And CEOs of those corporations were lavishing money on selected favored political candidates.

JAMIE RASKIN: Absolutely right, the corporate voice was never missing. And that's something, you know, Justice Stevens has pointed out. He said, "There were many faults to American politics. But nobody thought that a lack or a dearth of corporate voices was among the vices." But there was still a radical change effectuated by the majority--

BILL MOYERS: How so? Radical?

JAMIE RASKIN: --in Citizens United.

BILL MOYERS: What do you mean?

JAMIE RASKIN: Because before corporations could have issue ads. They could take out an ad in the New York Times on something. Before the CEOs and executives, as you say, could put their own money into campaigns. They could spend to the heavens of their own money. And they could contribute directly to candidates. But the one thing that couldn't happen was the CEOs could not take money directly out of the treasury and funnel it into campaigns

ExxonMobil for example. I mean, in 2008, ExxonMobil had a political action committee. And that was money that was given directly by executives. People wrote checks for it. And they raised about a million dollars, which is not chump change. And they were able to spread it around.

But if ExxonMobil had been able to take money directly out of the corporate treasury, their profits in that year were $45 billion. If they had taken a modest 10 percent of their profits to spend in politics, it would have been more than the Obama campaign, the McCain campaign, the DNC, and the RNC, and every congressional campaign in the country. One corporation in the Fortune 500.

KATRINA VANDEN HEUVEL: What Jamie is describing is the reason we have unprecedented inequality today and why we don't hear people's voices. We're hearing the voices of money. Money is the realm, the coin of power in this country. But, you know, one of the reasons we did this issue was because of the trajectory of this court. Because it is true that this is a radical shift. But we could see more dismantling of the frail structures of campaign finance reform that remain.

BILL MOYERS: There's hardly anything--

KATRINA VANDEN HEUVEL: There's hardly anything left. But it has been a terrible downward spiral. But the clean money legislation in states like Arizona, the ban on corporate spending in Montana. These are other steps that this court could take if it moved to not a 5-4, but if you had more right-wing justices on this court. But it--

KATRINA VANDEN HEUVEL: There's no question that the arc, as Jamie said, from Bush v. Gore, which in so many ways was a right-wing coup. When you talk to people outside this country, they saw it as that. I mean, you had the brother of the governor overseeing the decision and the justices shutting down democratic votes to this decision.

BILL MOYERS: Do you agree with Jamie that Citizens United is a game changer?

KATRINA VANDEN HEUVEL: Yes, I do.

JAMIE RASKIN: But it's also emblematic of what's going on in the court. If you look at the 2011, last year's Supreme Court term, the court wiped out a very important class action suit brought by women in the Wal-Mart stores. A million and a half women brought a class action, again, a 5-4 decision saying that they didn't have enough in common with each other. They had not alleged a sufficiently common element to their complaint. The sex discrimination wasn't enough. They didn't have the same supervisor, for example.

Of course, they were all over the country. We saw another major blowout decision against consumers in-- AT&T Mobile versus Concepcion, where a family responded to an ad saying, "Get a free phone." And then after they got a free phone, they got a bill for $30, which was to go for taxes. They brought a suit. It was consolidated with a class-action suit. And AT&T said, "Well, you've signed our boilerplate adhesion contract which says you've got to go to independent arbitration."

That was appealed. And the Ninth Circuit said that you can't do that to people. This is unconscionable to steer them away from the ability to get judicial relief. Well, 5-4 decision reverses that in AT&T versus Concepcion. And the court said it was preempted by the Federal Arbitration Act.

KATRINA VANDEN HEUVEL: And also the court siding with management against labor. Basically invalidating the National Labor Relations Act. And we saw in this decision which was underreported, because it was just on the eve of the Obamacare health care decision, Knox vs. S.E.I.U., Service Employee International Union.

Some called that the Scott Walker decision, because it placed such an undue burden on public employees that it has made collective bargaining more difficult. Dahlia Lithwick, has a piece in the issue, builds on what Jamie was saying, which is that in some ways the move to arbitration has closed off the possibilities of class action. Which has been an avenue for ordinary citizens to challenge corporate power, corporations, their malfeasance. And that is a trend which I believe we need to bring more attention to. It may seem dry, but again, it affects everyday lives.

BILL MOYERS: You open your article with a quote from the announcer in The Hunger Games. "And may the odds be ever in your favor." What are you trying to tell us?

JAMIE RASKIN: Well, in the Citizens United era, we're moving dangerously close into a kind of corporate state mentality, where the corporations operate with impunity in the Supreme Court. And they're now endowed not with personhood rights, as some people think, but super personhood rights. Because they have all kinds of protections that ordinary human beings don't have, like limited liability and perpetual life. And they continue to, you know, accrue wealth through the generations.

But now they're given political free speech rights that people theoretically have. But of course, most American citizens don't have millions of dollars to spend in politics. But the corporations do. And it’s, you know, a matter of chump change for them to put several million dollars into a campaign that could, you know, very much affect the direction of public policy.

BILL MOYERS: You live in New York, Katrina, if you were explaining to another straphanger on a moving subway the impact on that person's life of Citizens United, what would you tell her before the next stop?

KATRINA VANDEN HEUVEL: What's misunderstood is that money is not an abstraction. Money will decide how people live, how their children are raised and treated, and how you're treated by corporations. I mean, if you're defrauded by AT&T and you don't have access to a fair legal system, you're not living in a fair democracy.

JAMIE RASKIN: And it's a fundamental distortion of a fair market, too. That's the other thing. It's not just an offense to Thomas Jefferson. It's an offense to Adam Smith.

BILL MOYERS: And by the way, this is why some conservatives I've talked to are distressed by Citizens United. They do not see it as a boon to--

JAMIE RASKIN: Corporations should compete based on the ingenuity of their engineers, their ability to come up with better products, not based on an army of lobbyists that they send to Washington or the amount of money they can put into politics to get their guy elected to office.

KATRINA VANDEN HEUVEL: You know, what I really dislike about the current campaign is this idea if you raise a question of corporate power that you're antibusiness.

We're not antibusiness. We're simply saying that you need to have labor. You need to have organized citizens given the same rights as corporations are now being given. The rights of free association are being limited while the rights of corporations are being enhanced. So that countervailing power, which was at the heart of an American politics and system, is being diminished and dismantled.

So the fact that the federal district and appellate courts are deciding so much, and those have been so seriously already reshaped by Bush, by the right. It's a long game that the right has played. And that it's not too late but it's almost too late--

BILL MOYERS: You've been publishing about this. You've been writing about this for some time now. You both have seen this coming. You've written about how the court has been taking the side of corporations against regulators. And as you said a moment ago, the corporations against citizens. So wasn't Citizens United the logical next step to this trend that has--

JAMIE RASKIN: Oh, it absolutely was. I mean, Justice Powell was a key figure here. He wrote this memorandum as a private lawyer for the Chamber of Commerce in 1971 saying, "We need a counter-attack against the environmentalists and the labor unions and so on." And developed a whole strategy for kind of a corporate takeover of the judiciary and politic.

BILL MOYERS: By the way, you said something very important. Justice Lewis Powell, then a lawyer in Virginia, wrote this for the Chamber of Commerce, later became appointed by Richard Nixon to the Supreme Court.

JAMIE RASKIN: Just several months later.

BILL MOYERS: Many people look at the Powell Memo as the charter--

KATRINA VANDEN HEUVEL: The foundational, the foundational document.

JAMIE RASKIN: And the first big case in this direction was the First National Bank of Boston vs. Bellotti case, which he wrote the decision on. And what it said was corporations -- the identity of the speaker is irrelevant, which becomes the key--

BILL MOYERS: What does that mean?

JAMIE RASKIN: What it means is you can't tell corporations that they can't put their money into politics just because they're a corporation. Which has, I guess, a surface plausibility to it. But then would you say that, for example, the City of New York can put money into an election--

KATRINA VANDEN HEUVEL: That could be the next step.

JAMIE RASKIN: --to tell people how to vote?

BILL MOYERS: If we had any money. City of New York is broke.

JAMIE RASKIN: Can churches put their money in? I mean, if the identity of the speaker is really irrelevant. And even the court itself has not gone with that notion, because the next step was the right-wing lawyers who are pushing this today like James Bopp said, "Well, then we should have a right to give money directly to campaigns." Corporate contributions are next. And the court, at least at this point, is unwilling to go that far. So it doesn't totally buy the rhetoric of the identity of the speaker is irrelevant. But the First Amendment is being used today the way that the Lochner Court in the attack on the New Deal used due process.

BILL MOYERS: Back in the '30s.

JAMIE RASKIN: Which is you get everything through the First Amendment. For example, this outrageous case from 2011 from Vermont, Sorrell's decision, which struck down a patient and physician confidentiality law, which said that pharmacies and insurance companies could not sell-- information about patients being prescribed particular drugs by doctors directly to pharmaceutical companies. And the Supreme Court struck that down as a violation of the First Amendment, which is incredible that the data that's being collected by physicians somehow is free speech. And the pharmaceuticals have a right to it.

BILL MOYERS: So you could tell the straphanger on the subway that the data she gives her physician about her health could be sold by him to some corporate cause--

JAMIE RASKIN: Absolutely.

BILL MOYERS: --to some corporate subscriber.

JAMIE RASKIN: Now her name wouldn't be in it, at least in this variation.

BILL MOYERS: But it does change the relationship.

JAMIE RASKIN: It changes the relationship. And the point is that the First Amendment is being used by corporations to get everything that they want, including the right, basically, to own campaigns.

BILL MOYERS: Is your position that corporations do not have quote "free speech" under the First Amendment?

JAMIE RASKIN: They have commercial speech rights. And this is a point that Justice Breyer makes very effectively in the Vermont decision. He says, "What's happening is the majority is confusing the political speech, free speech rights of the citizenry with the commercial speech rights of businesses."

And those rights are constricted. For example, we say that states can punish businesses for lying and defrauding people. But we don't say that in politics. Politicians get up and say almost anything. And you can't sue them for fraud, basically. But commercial speech is a much lesser notion, because corporations are instrumentalities of the state. And they're endowed with all of these great rights and privileges that have made them fantastic accumulators of wealth and investors of money. But everybody from Chief Justice Marshall to Rehnquist to Justice White said, "You don't let them convert their economic power into political power."

And that is the fateful step that's been taken by the Roberts Court.

BILL MOYERS: Justice Scalia would disagree with you. I want to show you Justice Scalia earlier this summer on CNN.

PIERS MORGAN: At that moment, under your interpretation, I believe, of the Constitution, you should be allowed to raise money for a political party. The problem, as I see it and many critics see it, is that it has no limitation to it. So what you've now got are these super PACS funded by billionaires effectively trying to buy elections. And that cannot be what the Founding Fathers intended. Thomas Jefferson didn't sit there constructing something which was going to be abused in that kind of way. And I do think it's been abused, don't you?

ANTONIN SCALIA: No. I think Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.

PIERS MORGAN: But it's not speech when it's...

ANTONIN SCALIA: The first...

PIERS MORGAN: -- it's ultimately about money to back up the speech.

ANTONIN SCALIA: You can't separate speech from the money that facilitates the speech.

PIERS MORGAN: Can't you?

ANTONIN SCALIA: It's utterly impossible.

Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper? Would they not say this is abridging my speech?

PIERS MORGAN: Yes, but newspaper publishers aren't buying elections. I mean to -- you know, the election of a president, as you know better than anybody else, you've served under many of them...

ANTONIN SCALIA: I--

PIERS MORGAN: -- is an incredibly important thing.

ANTONIN SCALIA: Newspapers...

PIERS MORGAN: And it shouldn't be susceptible to the highest bidder, should it?

ANTONIN SCALIA: Newspapers endorse political candidates all the time. What do you mean -- they're almost in the business of doing that.

PIERS MORGAN: Yes.

ANTONIN SCALIA: And are you going to limit the amount of money they can spend on it?

PIERS MORGAN: Do you think the...

ANTONIN SCALIA: Surely not.

PIERS MORGAN: Do you think, perhaps, they should be?

ANTONIN SCALIA: Oh, I certainly think not. I think, as I think the framers thought, that the more speech, the better.

JAMIE RASKIN: Well first of all, the freedom of the press is just an irrelevant distraction from this. And that's an easy question, not that difficult a question. The good justice betrays either an ignorance of what Thomas Jefferson's position was or a willful defiance of it. Because Jefferson wrote several times about how afraid he was about an encroaching corporate tyranny and corporations who already, with their charters would bid fair to the laws of the land, in attempt to go off in their own direction.

BILL MOYERS: You actually quote Jefferson on the rise of a quote "single and splendid government of an aristocracy founded on banking institutions and incorporations." He said they would ride and rule over the plundered ploughman and beggared yeomanry. The ordinary citizen, right?

JAMIE RASKIN: Well, look, our founders understood power. And one thing that Jefferson really believed in, he invented the phrase "the wall of separation between Church and State," was dividing power up. And one way we've divided power up over the last century is building a kind of wall of separation between corporate treasury, wealth, and public elections.

That wall has been bulldozed by the Roberts Court. And now they're letting the corporate money flow in. And everybody knows, I think, across the country, what that means, from Montana to Florida. You know, what that means to have corporations directly involved in politics. And look, we should want corporations out competing and prospering and thriving and profiting. But we shouldn't want corporations to govern, because that inverts the proper democratic relationship.

KATRINA VANDEN HEUVEL: Part of what Scalia and these originalist judges have done, and the right, is appropriate the language, is take the language. And we haven't found a narrative and a language to explain the importance of the court. They use terms like "freedom" and "liberty" and "activist judges.” And the importance of talking about the fairness and the balance and how these kinds of decisions infringe on the individual liberty of people.

It seems to me an important mission, as well as working with those in Congress to hold accountable State Senators, to hold accountable a president, to appoint and deepen the bench of those who understand the fairness and balance. And the values of freedom, of opportunity, of equality, that are at the core of our country's purpose and constitution.

BILL MOYERS: You include in here some very specific, concrete examples. I was especially taken with a particular case that you make in your centerpiece, where you say that the 2010 election should have been framed by three major events. They were?

JAMIE RASKIN: Corporate catastrophes.

BILL MOYERS: They were?

JAMIE RASKIN: The BP oil spill, which destroyed an entire ecosystem and created billions of dollars worth of damage. The Massey Corporation's collapsing coal mines, which caused the deaths of 29 people and--

BILL MOYERS: In West Virginia.

JAMIE RASKIN: --suffering in West Virginia. And then, of course, the biggest of them all, which was the subprime mortgage meltdown, which destroyed trillions of dollars of wealth for the American people, in terms of people's retirement incomes, their home values, and so on. That should have been what the campaign was about.

BILL MOYERS: But they weren't--

JAMIE RASKIN: No.

BILL MOYERS: --what the campaign was about, because?

JAMIE RASKIN: Well, we saw, because of Citizens United and an infusion of hundreds of millions of dollars, an unprecedented amount of corporate money coming in, not just through Super PACs, but as The Nation pointed out, through 501c4's and c6's, what we saw was a complete reframing of the issue to the big culprit being regulation. And so the theme of the campaign was corporate deregulation being the solution to all of our problems. It was like a parallel universe.

BILL MOYERS: And it worked because the Republicans, funded by many of these corporations and billionaires, took control of the House. Sixty-three votes, I think they won then. And fulfilled the wishes of their funders for deregulation.

JAMIE RASKIN: And the corporate-funded Tea Party caucus in the Republican Party, in the House has basically been driving the train of government, which is why we've had near, you know, financial collapses again through these various debt controversies that have been taking place.

KATRINA VANDEN HEUVEL: But let me broaden it. I agree with Jamie that those are the three disasters which should have been at the focus of our attention. But it is the case that across the board, at the moment, the idea that we need austerity in this country, that jobs aren't the great crisis of our-- you know, the joblessness isn't the great crisis of our time, but debt and deficits. That's also a function of the .01 percent who are the big players, who have the money, Democrat and Republican, who are funding these elections.

Because if it wasn't that kind of money in our system, you would hear more of the people's voices and those who lost their wealth through the terrible subprime mortgage disaster, those who are seeking jobs, 26 million people in this country either underemployed or unemployed. Those voices aren't heard, because of the din of money in the system. You know the story, what is it, seven lobbyists for every representative. It may be ten, at this stage.

And one thing that isn't paid as much attention to. You have the lobbyists. But this National Chamber Litigation Center, the N.C.L.C., started by the Chamber of Commerce, again an outgrowth of the Powell Memo. Its record is better than the solicitor general. And if you want to track the court--

BILL MOYERS: They've won more cases before the court.

KATRINA VANDEN HEUVEL: They've won more cases before the court. And a nonpartisan group, The Constitutional Accountability Center documented this. And in the last, I think it was 2010-2011, their record was unblemished, meaning they won all the cases brought before the court. And this is the Chamber's specialized litigation bar. Now there are good environmental consumer civil rights, civil liberties groups working.

But you don’t have that coherence. And you certainly don't have foundations and individuals in this country supporting those groups in the way that the right has supported the Chamber of Commerce and this kind of bar. That distorts justice. It's about money. And what's always shocking, and not to diminish the amount of this money in the system, is for some of these people this is chump change that they're putting into the system, in terms of investment on return, because they will buy the deregulation, the low taxes, the ability to pollute, the ability literally to kill, as was the case in the Massey mine disaster, 29 miners killed because of the deregulation and the lax oversight. Why is that? Partly because of the starving of government, but also because the money in the system gives them the power.

JAMIE RASKIN: Well, and the Massey Company's exactly what Thomas Jefferson was talking about, a company that defied the law, had hundreds of violations written up--

KATRINA VANDEN HEUVEL: That's right.

JAMIE RASKIN: --against it. Constantly litigated and gone against the government. Put millions of dollars into politics, in order to have its way, and continues to be a major political actor, despite its being essentially a criminal corporation, in terms of its disregard of human life and its defiance of the law.

BILL MOYERS: I talked to a well-known, a leading, and a very thoughtful conservative yesterday about the magazine. And he said, "Katrina is hyperbolic about this. We've only taken a small step to the right, trying to reverse the pendulum that swung so far, not only under Roosevelt, but under Lyndon Johnson and that period of the '60s when the conservatives had to grit their teeth and the only thing they could do was say, 'Let's impeach Earl Warren,' because all of what he called the social liberal causes that the court was trying to push down our throats." He says, "We're just correcting history." That was what he said.

KATRINA VANDEN HEUVEL: No, first of all, what's interesting about this issue in my mind is we're not dealing with some of the important cultural issues, which often rile up the right and rile up so many. Abortion--

RASKIN: Guns.

KATRINA VANDEN HEUVEL: The schools, guns.

BILL MOYERS: Guns. Gay rights.

KATRINA VANDEN HEUVEL: The whole-- but I think on the corporate front, this is an extremist court. A court that has shifted so far to the right that it is beyond just the backlash to the Warren and Berger courts, and moving in a direction that has very little check on it. And I don't believe it's hyperbolic.

In fact, you know, very sober commentators in commenting on the Roberts Court on the eve of the health care decision, noted how extremist, how radical the four or five-- I won't call them conservative, the right-wing justices on the court were in terms of literally-- one thing Jamie hasn't talked about is Citizens United, and he will express this far better than I do, they literally called back the case in order to open a jurisprudence--

JAMIE RASKIN: You talk about judicial activists.

KATRINA VANDEN HEUVEL: Activism, that's right.

JAMIE RASKIN: Well, judicial-- I mean, for one thing, the masterpiece of judicial activism was, of course, Bush vs. Gore, where the Supreme Court intervened in democratic politics to stop the counting of ballots. Then a decade later, we get Citizens United, where the court says, "You know, we don't like the questions presented, even by this conservative group, Citizens United."

All they were saying was, "Don't treat our made for TV pay-per-view movie like a TV ad." And I think anybody could have gone along with that. They said, "That's not quite sweeping enough for us. We want to know, does every corporation in America have political free speech rights, such that they can take money out of the treasury and put it into politics. Go brief that." They briefed it. They came back. They reargued it. And what do you know, five justices say, "Yeah, they've got that right."

BILL MOYERS: Alito and Roberts both come out of a corporate background, either serving corporations as lawyers or teaching corporate law.

KATRINA VANDEN HEUVEL: Well, this is an-- I mean, in the issue, there's a piece by Sherrilyn Ifill which is interesting, because on the face of it, the court looks diverse. But when you look at their actual professional backgrounds, I believe that eight come out of the appellate court system. Elena Kagan, solicitor general. But you don't have a Thurgood Marshall, who had experience in civil rights or practical--

BILL MOYERS: Real life experience.

KATRINA VANDEN HEUVEL: --experience and real life experience that could connect to ordinary citizens. And so I think that diversity is something we've lost and has been an--

JAMIE RASKIN: And what's interesting--

KATRINA VANDEN HEUVEL: --important part of the court.

JAMIE RASKIN: --is that it's not a partisan question that Katrina is raising here. I mean, my two favorite justices were Republican appointees, Justice Souter and Justice Stevens. They were incredible. They were evenhanded. They were serious and sober. They never would have gone along with this and didn't go along with this idea that somehow corporations should be treated like citizens for the purposes of political free speech--

BILL MOYERS: So what's happened?

JAMIE RASKIN: Well, part of it is this story of the extremism of the Republican Party today. Because after Justice Souter was named to the court, the slogan, the mantra within the Republican Party was "No more Souters." They really are imposing a very strict litmus test, not just on the right to privacy and abortion but also on these corporate questions.

They want to see that you’re going to be, down the line, just voting with corporate, you know, big corporations regardless of what it is that they're saying. And that's not justice. We don't want justices who are pro-corporate or anti-corporate. We want people who are going to--

KATRINA VANDEN HEUVEL: Who are fair.

JAMIE RASKIN: --enforce the rule of law.

KATRINA VANDEN HEUVEL: The rule of law.

JAMIE RASKIN: And here, what we've got is a complete derailment of the rule of law, just like we have a derailment of democracy. Because we have one part of society that's gotten too much power. And, you know, the economists, conservative economists talk about the difference between societies where the economy is closed and you have extractive industries that are taking money for themselves. And they end up closing politics at the same time. Versus societies that are open, that have open free markets and open politics. And we're moving to a closed kind of economy and a closed kind of society.

KATRINA VANDEN HEUVEL: And I would say, you know, Jamie talks about the extremism of the Republican Party, yes. But go back 40 years, because it was the revolt of the plutocrats, which was part of the Powell Memo and the reason for the Powell Memo. And that revolt is winning now. It was class war waged from the top down. And I think we're seeing the culmination of the Powell doctrine so to speak, which is that corporations should not be checked, should not be fettered, and that they have free reign of the land. And that--

BILL MOYERS: What puzzles me, Katrina, is that that's not a conservative position necessarily.

KATRINA VANDEN HEUVEL: No, it's an extremist. I don't-- I believe in conservatism. I believe that there is a role for conservatives. I believe that there's a role for a conservative Republican Party in this country. And we can talk about Edmund Burke and all of that. But at the moment, we're witnessing an extremist Republican Party willing to ravage and savage the freedoms and liberties in the name of-- they want to say greater good, but it essentially is a corporate good.

And I would argue that we're now going to witness a court next session, and Jamie follows this more closely that there is a well-funded, right-wing intellectual and corporate campaign now to try and really gut the Voting Rights Act, which I see linked to this, because I think more voices, more diversity in our political system can counter some of this corporate power. And if that's gutted, we are at great risk of a monotone political system.

JAMIE RASKIN: And that's why I invoke The Hunger Games. Because I think it doesn't have anything to do with conservatism. It has to do with corporatism. And that's a completely different philosophy of government.

KATRINA VANDEN HEUVEL: Or Jamie has this great term, "jurist corporatists."

JAMIE RASKIN: Jurist corporatists.

KATRINA VANDEN HEUVEL: Jurist corporatists. Jurist corporatists.

BILL MOYERS: So The Hunger Games announcer is, in effect, speaking for the corporate state, right?

JAMIE RASKIN: Yeah, I mean, she's basically saying, "May the odds be ever in your favor," wink, wink. "But everything is stacked against you once you arrive here."

BILL MOYERS: And are the odds now in the favor of corporations on the Supreme Court?

JAMIE RASKIN: You know, if you check out the People for the American Way website, where I follow the Supreme Court decisions, you will see case after case, where the court is throwing out tort verdicts against large corporations, jury verdicts for plaintiffs, throwing them out, because it's preempted by this federal law or that federal law or "You messed up the class-action mechanism below." There's always a reason why the little guy's got to lose.

BILL MOYERS: Well, you have written that over history the people have turned against the court and amended the Constitution 16-17 times when the enemies of democracy were slaveholders or people trying to prevent a minimum wage or stop women from voting and right on down. Is it feasible to expect that another amendment could reverse Citizens United?

JAMIE RASKIN: You know, we've had 17 amendments since the Bill of Rights. Most of them have been suffrage expanding, democracy enlarging amendments, where in a number of cases the people had to confront the court. So the court says in the Dred Scott decision that African Americans can never be citizens and persons within the meaning of the Constitution.

And it took a civil war and a whole bunch of constitutional amendments to reverse that. The Supreme Court said, "Women don't have the right to vote." In Minor vs. Happersett, despite the 14th Amendment. That got reversed by the 19th Amendment. The Supreme Court upheld poll taxes and that got reversed by the 24th Amendment.

So there are a whole bunch of cases where the people have said, "You know what? The court is a fundamentally conservative institution, often times reactionary. And we've got to confront their power and tell them what the Constitution really means. Because the first three words of the Constitution are 'We the people,' not 'We the court' not 'We the corporations' but the people."

KATRINA VANDEN HEUVEL: I mean, the struggle in the country today is between "of, by, and for the people" and "of, by, and for the one percent," speaking about the corporate powers. And I think the importance of framing the debate about the future of the court, as this issue tries to do, between those who would roll back the civilizing advances of this country, economically, politically, socially against those who want to build a more just, fair, and diverse country.

And in the future of this country, the demographic shifts, for example, I do think the right looks out at this country, doesn't like what it sees, which is why you see the influx of money and the voting right suppression. And those two fused may give them a last hurrah, but there is a struggle moving forward in a different country that they may not be able to win.

BILL MOYERS: One of my colleagues asked me to tweet to her the essence of your magazine. Would this be an accurate expression of the essence of what you've done here? "The Supreme Court is now a corporate court that by giving big business the advantage is shrinking access to justice for everyday citizens."

KATRINA VANDEN HEUVEL: Most beautiful 140 characters I've heard.

BILL MOYERS: Right out of your magazine, too. Jamie Raskin, Katrina vanden Heuvel, thank you very much for being with me.

JAMIE RASKIN: Thanks for having us.

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Poll Finds Obama Is Erasing Romney's Edge on Economy:

Poll Finds Obama Is Erasing Romney's Edge on Economy

By Jeff Zeleny and Megan Thee-Brenan, The New York Times

15 September 12

resident Obama has taken away Mitt Romney's longstanding advantage as the candidate voters say is most likely to restore the economy and create jobs, according to the latest poll by The New York Times and CBS News, which found a modest sense of optimism among Americans that White House policies are working.

But while the climate for Mr. Obama has improved since midsummer, and Mr. Romney has failed to shift sentiment decisively in his favor, the poll found that the presidential race is narrowly divided. The outcome could still turn on unexpected events and how the candidates are perceived after their three debates next month.

With their conventions behind them and the general election campaign fully engaged, the Democratic Party is viewed more favorably than the Republican Party. The poll also found that more likely voters give an edge to Mr. Obama on foreign policy, Medicare and addressing the challenges of the middle class. The only major issue on which Mr. Romney held an advantage was handling the federal budget deficit.

The nationwide poll was conducted during a turbulent week in the campaign, with a new torrent of television ads from Mr. Romney, a disappointing jobs report for Mr. Obama and both candidates reacting to deadly violence in Egypt, Libya and across the Arab world.

Among those considered most likely to vote, the president was the choice of 49 percent to 46 percent for Mr. Romney, including those who said they were leaning in one direction or another. It is within the survey's margin of sampling error of plus or minus three percentage points for each candidate.

The president holds a 10-point advantage on who would do a better job handling foreign policy, with 4 in 10 voters very confident of Mr. Obama's ability to handle an international crisis, compared with about one-quarter who say the same about Mr. Romney. The survey was largely conducted before foreign affairs took on heightened importance when the United States ambassador to Libya and three other Americans there were killed on Tuesday.

While the poll reflects a prevailing sentiment among Mr. Romney's advisers that he must find a way to change the dynamics of the race, the findings also highlight a lingering discontent running through the electorate. A slim majority of likely voters still disapprove of how Mr. Obama has handled the economy and 7 in 10 rank the economy as fairly bad or very bad.

But with only two weeks before the first wave of early voting begins in some states, the presidential race has taken on a new sense of urgency, the poll found, with enthusiasm increasing among voters. A plea for patience, which Mr. Obama delivered at the Democratic convention, appears to be resonating with some voters.

"I believe the country is going in the right direction, little by little," Anita Young, 42, an independent voter from Ardmore, Pa., said in a follow-up interview. "Are things moving fast enough? No, of course not, but Rome wasn't built in a day."

The president's job approval rating of 51 percent among all Americans marks the first time he has surpassed a majority in the poll by The Times and CBS News since immediately after Osama bin Laden was killed, in May 2011. The number of adults who say the country is on the right track has increased to 40 percent, though 54 percent say it is on the wrong track.

The coalition that helped sweep Mr. Obama into office four years ago is at least partly intact. He holds a 12-point advantage among women, while Mr. Romney holds the upper hand among men by 8 percentage points. But independent voters, who supported Mr. Obama by eight percentage points in 2008, are now breaking for Mr. Romney by six percentage points.

The poll found that a majority of voters embrace the president's vision of a country that emphasizes community and shared responsibility over self-reliance and individual responsibility, a distinction at the core of the debate between the Republican and Democratic tickets about the proper role of government.

But with the nation's unemployment rate still above 8 percent, a recent spike in gas prices and another impending budget showdown in Washington, a cloud of pessimism still looms, which creates an opening for Mr. Romney among frustrated voters who are looking for a change.

Looking forward, 45 percent of likely voters say they believe the next generation of Americans will be worse off and 31 percent say it will be better. On this question, there is a sharp divide among race, with black men and women far more hopeful about the future than white men and women.

When asked who understands their needs and problems, Mr. Obama has a 20-point advantage over Mr. Romney among women, compared to an 8-point advantage among men. Since a Times/CBS News poll in early March, Mr. Romney has made significant gains with voters in finding a personal connection and showing empathy; the latest survey finds 46 percent of likely voters say he understands their challenges and 48 percent say he does not.

"We're getting further behind," said Gregory Sowin, 55, an independent voter from Kewaskum, Wis., who owns a bar and a construction business and is frustrated by health care and other policies of the administration. In a follow-up interview, he said, "Romney can't do any worse than Obama has done, and I'm betting my future that he can do better."

This is the first poll by The Times and CBS News of the election cycle to take a measure of those considered most likely to vote. The nationwide telephone survey was conducted from Sept. 8 through 12 among 1,170 registered voters, including those who were weighted by their responses to questions about voting history, attention to the campaign and likelihood of voting.

Among the wider spectrum of registered voters in this poll after the Democratic National Convention last week, Mr. Obama has a stronger command of the race. The poll found that 51 percent of those voters supported Mr. Obama and Vice President Joseph R. Biden Jr., while 43 percent supported Mr. Romney and Representative Paul D. Ryan of Wisconsin.

But among the probable electorate, which models likely voters and typically reflects the tendency of Republicans to turn out more consistently at the polls, the candidates are running far closer. When these likely voters were asked about the trajectory of the United States over the last four years, 35 percent said the country was better off, 41 percent said the country was worse off and 23 percent said it was about the same.

The president's base of supporters is more enthusiastic and loyal, with 62 percent saying they will vote for him because they like him and 30 percent because they dislike Mr. Romney. But among Mr. Romney's supporters, 50 percent say they like him and 39 percent say they are supporting him because they do not like the direction Mr. Obama is taking the country.

With less than eight weeks remaining until the election on Nov. 6, just 5 percent of voters have not yet decided which candidate to support, while about 1 in 10 voters who already support a candidate say they could still change their minds

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