Hannah Arendt Center for Politics and Humanities
4Apr/140

The First Amendment and Campaign Finance

ArendtWeekendReading

Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.

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Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:

The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard.  Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation?  In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations.  Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.

It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.

What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.

Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.

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The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.

Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:

The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution  to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:

But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.

The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.

-RB

Roger Berkowitz
Roger Berkowitz is Associate Professor of Political Studies and Human Rights at Bard College, and Academic Director of the Hannah Arendt Center for Politics and the Humanities. He is also the author of "Gift of Science: Leibiniz and the Modern Legal Tradition", as well as co-editor of "Thinking in Dark Times: Hannah Arendt on Ethics and Politics".
13Dec/131

Trusting in Power, Not Concentrated Power

ArendtWeekendReading

Francis Fukuyama has a new essay up on “The Decay of American Political Institutions.” Fukuyama begins with a basic point that is undeniable, and is artfully made manifest in George Packer’s National Book Award Winning The Unwinding: “Many political institutions in the United States are decaying.” There are many reasons for that failure. But in Fukuyama’s analysis, two reasons stands out: First, the American penchant for addressing political problems through law, and second, the legalized corruption of interest groups. What unites these two culprits in Fukuyama’s grand synthesis is that both are born out of what he sees as a fundamentally American distrust of government.

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Distrust of government means, Fukuyama writes, that American politics has elevated the judiciary to a position of power unlike other democracies. And this has led our political institutions to decay.

The decay in the quality of American government has to do directly with the American penchant for a state of “courts and parties”, which has returned to center stage in the past fifty years. The courts and legislature have increasingly usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies has led to an explosion of costly litigation, slow decision-making and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government. Ironically, out of a fear of empowering “big government”, the United States has ended up with a government that is very large, but that is actually less accountable because it is largely in the hands of unelected courts.

Fukuyama knows bureaucracy can be problematic—the rule of nobody, in Arendt’s formulation—but at least bureaucrat rule is rule. In his telling, the problem is that U.S. has developed a huge bureaucracy that we don’t trust and thus limit through lawsuits, injunctions, and constitutional challenges. So we have the worst of both worlds, a large unelected and anonymous bureaucracy that is itself disempowered and neutered by an even more powerful unelected and anonymous judiciary.

Because there is “too much law,” the bureaucracy doesn’t work. What is more, the combined power of an anonymous bureaucracy and an anonymous judiciary has led to our present crisis of representative democracy, one in which Americans of all political persuasions feel that government is a foreign occupying power that is unanswerable to them. This leads in turn to a distrust of all government, a cynicism that “further reduces the quality and effectiveness of government by reducing bureaucratic autonomy.”

The fact that Americans distrust government means that they place increasing judicial and legislative roadblocks in front of governmental decisions. There is the famous multiplication of agencies and competing authorities, which offers multiple points for influence by lobbyists. As long as so many different agencies have the power to veto or slow down governmental action, government is stymied. “The longstanding distrust of the state that has always characterized American politics had led to an unbalanced form of government that undermines the prospects of necessary collective action. It has led to vetocracy.” Lobbyists thus have an outsized power to capture authorities and disproportionately impact legislation, which furthers cynicism about government. These problems are deeply ingrained in American values and in our Constitution, which makes them unsolvable. Which is the depressing note upon which Fukuyama ends his essay:

Americans regard their Constitution as a quasi-religious document. Persuading them to rethink its most basic tenets short of an outright system collapse is highly unlikely. So we have a problem.

What is striking is how Fukuyama is unable to find resources in the American Constitutional system that might reinvigorate our political institutions. It is as if the American distrust of government means that American democracy is unsalvageable. At times of partisanship, it will lead to Civil War or sclerosis. There is no alternative.

It is a mistake—although one commonly made—to understand the U.S. Constitution as one dominated by a mistrust of governmental power and thus marked by institutions designed to limit governmental power. The genius of the American Constitution, as Hannah Arendt argues, is not the limitation of power, but the multiplication of powers. More important than the three branches of the Federal government in Arendt’s account is the preservation of multiple levels of federal, state, county, city, and village power. The Congress’ power was limited not simply by the President and the Judiciary, but by the states and local authorities. The grant of powers to Congress was limited and expansion of national power was to be constrained by the power of local institutions.

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What Arendt saw in a way Fukuyama ignores is that Americans don’t distrust power so much as they distrust the concentration and centralization of power. It his been quintessentially American for citizens to engage in government, especially local government, and to take active part in public debates about political questions. From their arrival in the New World, Americans formed councils, engaged in public affairs, and empowered democratic institutions. The federalist elements of the Constitution provide ample support for vibrant democratic and local institutions.

Beyond the judicializaiton of politics and the rise of a corruption by lobbyists, another cause of the present decay of American politics is the increasingly national approach to government and the hollowing out of local institutions. There are many other causes for the increasing concentration of power and the loss of local institutional power, but there are plenty of resources for reinvigorating local self-governmental institutions in the American political tradition and in the Constitution itself. Yes, “we have a problem.” But there are always ways forward.

Francis Fukuyama’s analysis of our current political decay is powerful and important. It is your weekend read.

-RB

 

Roger Berkowitz
Roger Berkowitz is Associate Professor of Political Studies and Human Rights at Bard College, and Academic Director of the Hannah Arendt Center for Politics and the Humanities. He is also the author of "Gift of Science: Leibiniz and the Modern Legal Tradition", as well as co-editor of "Thinking in Dark Times: Hannah Arendt on Ethics and Politics".
1Jul/130

Un-shared Worlds

Arendtquote

“Don’t hold your breath, ‘cause the pretty things are going to hell…”

-David Bowie

In the social spheres in which I circulate, both personal and electronic, reactions to the Supreme Court’s twin same-sex marriage rulings Wednesday have tended to fall fairly neatly into one of two categories, each sprinkled liberally with that unique brand of wry humor that long, bitter struggles breed.  On one side, the watch-phrase of the day is that it is “the end of an era,” a legal victory so pragmatically important and symbolically immense as to mark a break with a past of marginalization and oppression, a coda or at least a caesura in a national timeline of violence.  On the other side, there is a weary gladness that nevertheless casts a wary eye at the map of state-level battles won, and cautions that jubilance be tempered, slightly at least, with the reality that the race is still quite far from run.

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You hear relatively few of those somber cynics of the legal system who otherwise are generally keen to point out that historically, grand Supreme Court victories tend not to turn out very well for civil rights movements in the end.  Then, these tend to be a disagreeable sort to invite to a victory party, anyway.

In that description of my social world, though, lie the seeds both of a kind of beautiful promise and a form of quiet peril in this political moment that is easily lost behind the spectrum of satisfaction and still images of weeping couples.  And how and if and what we capture and carry from this moment hinges, a little at least, in whether or not we can find it in ourselves to tarry on these two things for a time, before resuming our march to where we will have been.  These musings should be taken for no more than that: no parades are meant to be rained on here, nor cynics bashed, nor innocence dispelled by piercing insight.  Simply a tarrying.  A more homemade kind of caesura.

Supreme Court decisions always reveal as much in what they do not settle as in what they do, and the palette of reactions I’ve described does too.  In both cases it is the unsettled, the absent which is both silent and intrusive.  It didn’t strike me until I began to work on this that I know literally not a single person who supported the Defense of Marriage Act (at least I don’t know that I do, which would simply signal another part of the same difficulty).  Not one, and my places of birth generally make the politics of my friends rather diverse (or perhaps more appropriately, in the older sense, queer).  And if that or something close to that experience is a fairly widespread one when we tarry long enough to notice – and I think it is, on both sides of the coin – that is deeply troubling, or ought to be deeply troubling as we paint each other pictures over tables and glasses of the road to come.

Some of the bitter fractiousness that marked Washington’s heights has died down a bit in recent months…this morning brought an until recently unthinkable immigration bill through the Senate, and while it faces a bloodier road in the House, that it may yet reach to foot of the road at all is an extraordinary thing, viewed through the eyes of ourselves a year younger.  But the at least temporary waning of the sheer, violent ugliness of that divisiveness should not obscure the deeper truth that was revealed in those days of “death panels” and other repeated invocations of cold, dead hands.  That the nation is deeply politically divided is facilely true, but also true of nearly all of its short history.  But it is possible that we face now something new, or at least a dangerous new incarnation of an old imp from our democracy’s outlands.

One of the reasons some activists will now focus on finding state-level legal cases in which to use the emphasis on dignity in United States v. Windsor’s majority  and Kennedy’s quite sweeping description of DOMA’s violation of equal protection is that there is a fear in parts of the movement that, without the power of the court, there remain what might be called “The Unreachables”: a handful of states (or more) in which opposition to non-hetero marriages is so entrenched that they cannot be won politically for the foreseeable future.

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The idea of the Unreachable hints at something much deeper than a simple statistical diversion of views.  If this were the only problem, then demographic trends are, if too slow for some couples who still wait to marry, at least strongly on the movement’s side.  One of Hannah Arendt’s consistent concerns across her writings is the possibility of shared worlds.  Underlying the idea of the unreachable state, whether or not it is recognized, is the possibility that the divergences in politics between various parts of this country are only the symptoms of a deeper reality that individual experiences of the world around them are so different, share so little in common from which to draw a common weal, that in some politically and socially salient sense they are no longer sharing a world.  And in a nation with an ideologically divided media culture, extraordinary and accelerating wealth disparity, and any number of structural mechanisms that favor political extremism over moderation, there is more to this worry than we might be willing to admit.  If I try to cast my soul into the shoes of an evangelical preacher – whose experience of consumption may be far different from mine, whose experience of events of the outside world comes to her or him described in terms immensely unlike mine and contain figures barely recognizable to me, whose social frames and urban structure are radically disparate from my own – who is today mourning with all sincerity, and not cheering…in that moment it’s not moral difference that concerns me, as Scalia invoked in his dissent.  It is the vanishingly thin fabric of a jointly sensed world that seems at stake, a jointly sensed world from which a nation has to be imagined.

There’s a sense in which the one thing that Supreme Court decisions do not do, ironically, is decide.  At least, they do not decide much: they must be interpreted by lower courts and in the process extended or evacuated, they are subject to legislative challenge and circumvention, they have to be enforced and pursued by those outside the legal system.  In that sense, at least, a Supreme Court decision is not an end to anything, let alone an era, and this is why proponents of non-hetero marriage have cautioned each other against over-optimism, the piece of truth in the curmudgeonly dismissal of the power of the High Court.  But this essential malleability and chimeric strength becomes a particularly acute problem when filtered through the problem of un-shared worlds.  There will be some, in those 36 states that have banned non-hetero marriage (a fact which formally at least remains unchallenged by United States v. Windsor) who will be swayed by the rhetorical and symbolic power of Kennedy’s words, that handful that will actually be heard.  But those words, such few of them as trickle down the communicative chain, and the content of the decision, will by necessity be received filtered through social worlds both rich and rigidified.  And as sociopolitical soil for Kennedy’s words, some of those worlds are very hostile worlds, indeed.

But in another way, that is exactly the promise in moments like Kennedy’s decision.  What’s important about decisions, contra their image and verbiage, is precisely that they are never an end to anything.  Their more significant function is not their symbolism, but that they begin.

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The irony of a legal judgment is that, from the moment it is uttered, it becomes itself the subject of judgment.  It is judged by lawyers, it is judged by lawmakers, it is judged by commentators…and it is judged by janitors and welders and artists and firefighters, equally.  And as we circle our collective judgments around a mass of words uttered into our national vocabulary, a possibility is born.  Certainly, we may simply pat our social selves on each other’s backs, and revel in our joy (or anger) that we know already to be shared.  That’s not such a terrible thing itself.  But the greater promise of the day, and the institution, is that it begins something that is shared, however thinly, between Farragut, Tennessee and Coolidge, New Mexico.  It raises the possibility that our thoughts and judgments, a few at least, through those connections that remain in our worlds across lines built by mobile histories, might find their way into corners of other worlds.  It is in those moments, those moments when we are confronted by someone who is a part of our lives, national or personal, for whom the experience of the day is profoundly different, that a thin tissue of sharing an object of judgment is vital.  It may lead to the discovery of commonalities, it may lead to violent disagreement along all-to-familiar lines, but either way, a language is being born across worlds.  Here, in this issue, that language is a language around what is most intimate to us, the most precious and tumultuous and defining parts of our lives: our lives with intimate others.  And if we can share our lives with intimate others across the bounds of un-shared worlds, even in fraction and splice…then that world will not remain so un-shared, and another small bridge has been built between that which joins ourselves and our partners, our friends, our paramours, to each of our impish outlands.  And that, that is cause for hope.

-Ian Storey

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
12Feb/131

The Politics of Non-Movement

Did the Arab Spring come from nowhere, or was it preceded by modes of social and political action that might have eluded our common conceptual frames? How do ordinary people in the Middle East manage and even alter the conditions of everyday life despite the recalcitrance of authoritarian governments? These questions formed the starting point for Asef Bayat’s lecture “Non-Movements and the Power of the Ordinary,” which he gave in Olin Hall on Thursday evening, February 7th. Bayat is the Catherine and Bruce Bastian Professor of Global and Transnational Studies at the University of Illinois, Urbana-Champaign, where he teaches in the sociology and Middle East Studies departments. Throughout his illustrious career, his research has focused on social movements, religiosity, and urban space in Iran, Egypt, and other Middle Eastern states.

Contrary to common public perception, Bayat insisted that these countries’ subaltern populations do not resign themselves to adverse economic and political circumstances. Indeed, the region has well established traditions of activism among leftists, unionists, women, Islamists, and post-Islamists, among many other constituencies. But it has often proven difficult to create and sustain organized social movements when Middle Eastern states have been so reluctant to tolerate opposition. How then might citizens foster meaningful political change?

Bayat argued that many Middle Easterners, rather than overtly confronting authoritarian governments, have resorted to what he calls “social non-movements.” Such non-movements are defined not by formal lobbying and protest, but rather by fleeting moments of mundane but nevertheless contentious action. Such action constitutes a “quiet encroachment of the ordinary” to the extent that it slowly alters everyday conditions in a manner that authoritarian state forces must respond to but cannot easily prevent. At the same time, social non-movements are propelled not by bureaucratic organizations that governments can readily identify and target, but rather by constituencies of dispersed individuals and groups who mobilize around common experiences and grievances.

In an effort to lend empirical weight to these general claims, Bayat offered a series of illustrative case studies. One concerned the actions of the poor. In Egypt and many other countries of the Middle East, large numbers of rural residents have sought to escape grinding material scarcity by moving to larger cities and building their own homes from scavenged materials. The formation of these squatter settlements is rarely if ever coordinated by any formal collective organization, but it nevertheless results in a dramatic reshaping of the urban landscape. Although government forces may initially destroy homes built in this fashion, the persistent construction and reconstruction eventually compels them to alter urban planning protocols, provide water, electricity and other utilities, and incorporate these makeshift districts into the “official city.”

Another case study turned on pious women’s myriad efforts to carve out more satisfying places for themselves in Iranian public life. The Islamic Republic has long sought to regulate female bodily coverage in the street as one means of assuring the nation’s moral and spiritual integrity, but hundreds of thousands of women have opted to defy government dictates by wearing “bad hijab” (i.e., headscarves and chadors that leave a few centimeters of hair visible). These women’s subtle but consistent sartorial challenges, which circumvent but do not entirely disregard the state’s norms of bodily coverage, have gradually shifted the requirements that government actors can effectively enforce on a day-to-day basis.

Moreover, large numbers of women wear hijab while hiking, jogging, driving cars, and engaging in other activities that are not conventionally regarded as gender-appropriate, or they choose to live alone and unmarried rather than in the homes of their parents and spouses. Once again, these varied practices have not been centrally orchestrated or institutionalized, but they have nevertheless altered the terms of women’s participation in everyday life.

Bayat acknowledged that social non-movements like these can and do coalesce into more organized and concerted activism, and he recognized that both movements and non-movements constitute important means for subaltern groups to claim de facto citizenship. But he also insisted that these two modes of action cannot be readily equated. Whereas social movements pursue a politics of overt protest, non-movements engage in a quieter, less obtrusive politics of everyday presence and practice. They are also driven less by specific and explicit ideological commitments than by inchoate desires for more expansive and appealing life chances. Nevertheless, they also provide a nutritive context within which more articulate claims for rights and resources might be formulated.

Bayat’s lecture offered a suggestive framework through which to conceive practices and processes that often do not meet our established expectations of politics. Much of the ensuing discussion then attempted to probe and delimit the contours of his argument. What, for example, are the conditions in which a social non-movement might pivot into more cohesive and institutionalized forms of collective protest? How can a social non-movement be distinguished from a dissenting subculture or counter-public, more conventional forms of deviant or illegal behavior, or the glacial drift of wider social change? And to what degree does the notion of a social non-movement presume the existence of an authoritarian state, whether in the Middle East or in other parts of the world? Could we also identify non-movements, for instance, in the liberal democracies of North America and Western Europe?

Here Bayat contended that non-movements were closely tied to authoritarian states that retain a degree of “softness.” That is to say, these states aspire to exert thorough if not complete control over the social field, but they ultimately lack the capacity to make such control a living reality. As a result, they necessarily leave “opaque spaces” that subaltern groups can turn to their own advantage. Bayat’s remarks obviously referred to the many Middle Eastern governments that have recently teetered or toppled as a result of the Arab Spring. Yet he also suggested that the gradual undoing of Prohibition in the 1930s U.S. might also illustrate the concept of a social non-movement and its long-term incremental effects.

In his reading, the ban on alcohol was undermined less by concerted lobbying and protest than by millions of Americans’ spontaneous, mundane but eventually consequential disregard for existing legislation.

To my mind, this apparent discrepancy was not a flaw in Bayat’s analysis as much as an invitation for further inquiry. Like the lecture as a whole, it demonstrated the rewards but also the challenges of breaking out of our intellectual ruts to wrestle with complexity in new ways.

-Jeff Jurgens

Readers who would like to delve further into Bayat’s argument should consult his book Life as Politics: How Ordinary People Change the Middle East (Stanford University Press, 2010).

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
13Jul/120

Roberts’ Opinion—Taxation Will Set You Free

The Wall Street Journal, The New York times, and Guernica—it seems everyone is excoriating John Roberts' opinion upholding the health insurance mandate in the Affordable Care Act. The WSJ calls the precedent Roberts set "grim." The Journal, in another editorial, writes that Roberts' decision is "is far more dangerous, and far more political, even than it first appeared last week." Roberts has, the WSJ argues, substituted "one unconstitutional expansion of government power [the commerce clause] for another [the taxing power]," and, in doing so, rearranged "the constitutional architecture of the U.S. political system."

In Guernica, Ciara Torres-Spelliscy, argues that  "Closer inspection of the actual written opinion shows Roberts gave those who want to hem in Congress’s power everything they wanted." Torres-Spelliscy agrees with the WSJ that, in her words, Roberts "provided the blueprint for a radical rebalancing of powers among the three branches."  But while the WSJ thinks Roberts is expanding governmental power, Torres-Spelliscy argues he is radically constricting it.

What both sides in this debate get right is that Roberts' opinion is deeply important and that it will likely change the way that the U.S. Federal Government interacts with citizens. That said, for those concerned with freedom within a constitutional government, as was Hannah Arendt, Roberts' opinion offers much to be excited about. It deserves greater and more serious consideration than it has so far been given.

Roberts' opinion begins with an eminently sensible manifesto for judicial restraint. Like his hero Oliver Wendell Holmes Jr., Roberts believes the Court should defer to Congress except in those cases where the legislation cannot be squared with the Constitution. The devil is always in the details of such a squaring, but at a time of ideological posturing, Roberts' opinion is a welcome read:

Our permissive reading of [Congress' enumerated powers] is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated."  Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgment. those decision are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Whatever one thinks of Roberts' actual legal opinion, the statesmanship he evinces is welcome. In the most politically sensitive case since Bush v. Gore, Roberts defused a potential explosion threatening to undermine the Supreme Court's legitimacy. As the Arendt Center's Bard colleague Walter Russell Mead writes, "in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward." The introductory pages of the Roberts opinion offer a balanced and at times inspired primer in Constitutional interpretation and U.S. Constitutional history.

Beyond the near pitch-perfect tone, Roberts' opinion offers much to be thankful for. It is one of the most legally important opinion the Court has handed down in decades.  It seems worth making a few points.

1. Many have derided Roberts for considering the mandate payment a tax when the legislation called it penalty. Let's give him credit for speaking frankly. It really was a tax. The Congress simply didn't want to call it a tax for political reasons. The mandate is a payment required to be made to the Treasury, collected by the IRS, with no Criminal or Social Stigma of wrongdoing attached to it. Roberts did not have to call it a tax, but he did so on the principle of judicial restraint, interpreting the statute in a way most likely to maintain its constitutionality. That is the role of a Supreme Court in a constitutional republic.

The distinction Roberts employs to call the mandate a tax makes total sense. He says that a payment is a penalty when non-payment is considered a wrong. If you speed and pay a ticket, you have committed a misdemeanor. That is a penalty, not a tax. But when the payment is simply made without any claim that the action generating the payment is wrong, that is a tax. So, if you purchase cigarettes or a speed boat, you pay a special tax. It is your choice.

In the case of the mandate, the Affordable Care Act says that if you don't purchase insurance, you pay a certain amount to the treasury. That amount is less than you would normally pay for insurance in many circumstances. Thus the legislation expects and imagines people for whom the payment is lower than purchasing insurance to actually pay the payment rather than purchase insurance. This is evidence for Roberts that there is no stigma associated with the payment and that it really is functioning as a tax rather than as a penalty. There is no sense of a wrong. Despite what Congress said for political purposes, Roberts is on good grounds to call the mandate payment a tax.

2. Roberts blazes a new path on which the federal government can continue to regulate the actions of citizens. The Congress must now increasingly justify its regulatory initiatives by appeal to the power to tax rather than the power to regulate commerce.  While this may seem merely a semantic distinction, it is not a meaningless difference. And this is the heart of the real importance of Roberts' opinion.

If the mandate payment had been upheld under the commerce clause (as Justice Ginsburg's dissent advocated), then the government would have been permitted to do anything it wanted or needed to do in order to achieve its ends of creating a health care system. For example, Congress could have simply required people to purchase health care. You may think that is what Congress did. But according to Roberts, such a requirement is no longer constitutional. Instead, what the Congress did was say: "You have a choice. You can buy health insurance or you can forego buying health insurance and pay a tax to support the health insurance market."

What is the difference? Under the commerce clause, the government can tell you what to do (buy insurance) and it can punish you if you do not do so. Under the taxing power, all the government can do is require people to pay money into the treasury. This is not a meaningless difference.

 

While the power to tax can be terrible and the power to tax is also in certain cases the power to destroy, this is not usually the case. When taxes are reasonable and not destructive, an individual charged with buying insurance or paying a tax can always choose to pay the tax and not buy insurance.

This is the emancipatory thrust of Roberts' opinion. By shifting the Congressional authorization from Commerce to Taxation, he has struck a surprising balance between freedom and the government's power to influence behavior. On the one hand, it is now significantly harder to justify congressional authority over individuals that will compel them to act in a certain way. On the other hand, Congress can pursue its ends by taxation rather than by regulation.

3.  To make it clear just what it is that Roberts allowed, he offers an example that I think is helpful.

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.”

Roberts is right here. The real reason to like his opinion is that by shifting the authorization from commerce to taxation, Roberts affirms the federal government's right to influence behavior but weakens the federal government's authority to compel citizen behavior. His argument is that it is more consistent with federal limits and the protection of freedom to allow the government to tax us then to regulate us.

There are still many unanswered questions here. It is unclear how impactful Roberts opinion will be in the future. But he has offered an alternative to the ever-expanding use of the commerce power to justify intrusive federal regulations, while still asserting that the federal government does have the power to motivate and behavior through its power to tax.

It is rare to read a Supreme Court opinion that is as surprising as it is thoughtful. It is also worth doing so. Robert's opinion is your weekend read.

-RB

Roger Berkowitz
Roger Berkowitz is Associate Professor of Political Studies and Human Rights at Bard College, and Academic Director of the Hannah Arendt Center for Politics and the Humanities. He is also the author of "Gift of Science: Leibiniz and the Modern Legal Tradition", as well as co-editor of "Thinking in Dark Times: Hannah Arendt on Ethics and Politics".
26Apr/121

Childism, Chapter 3 – Elisabeth Young-Bruehl

Elisabeth Young-Bruehl's final work, Childism, was published soon after her untimely passing in December of 2011. In the book, Young-Bruehl, a long time psychoanalyst and child advocate, focuses on the pervasive prejudice she feels overshadows many children in our society. Be it abuse, or the modern day phenomenon of helicopter-parenting, she felt these injustices served to demarcate children, marking them as less worthy than adults. The resulting consequences result in unhealthy and damaging parent-children relationships.

Arendt Center internAnastasia Blank, is reading Childism and providing us with a chapter by chapter review, highlighting some of the most interesting and compelling insights and arguments. Her previous posts about the book can be read here. Today, she shares her thoughts and impressions of Chapter 3. We hope you are inspired to read along. You can purchase the book here. 

Chapter 3 of Elizabeth Young-Bruehl's Childism argues that something went terribly wrong in the early 1960’s, the initial period when forms of child abuse and neglect were being identified. Young-Bruehl explains that the emergent field of Child Abuse and Neglect [CAN] “did not understand adult motivation and childism, [so that] childism was built into the field and its legal policy and advocacy.”

So why does Young-Bruehl take issue with the advocates and academics hoping to protect children? She explains that one of the pioneers of the field, Dr Henry C. Kempe, “Construed the children’s injuries… as a disease of the child. Not a disease of the abuser that is manifested on the child.” This turns the issue of abuse into something that can be solved by removing the child from the harmful environment, implying that there is a single cure for the child’s problem.

What Young-Bruehl wants us to see is that abuse and neglect are not issues with children, they are problems that stem from the abuser.

So how could a person, a family, a government, go about dealing with this problem?  Young-Bruehl describes a mother who had four children, but beat only one. Through therapy the mother determined that she identified her son with her own brother. Her brother had been favored by their parents, while they had neglected her throughout her childhood. Her relationship with this specific son was directly affected by the resentment she harbored from her own childhood. In a way she was afraid of her son, because  she associated him with negative experiences of her youth. This in turn caused her to use abuse as a means to keep him down and demonstrate her power and importance. Here we can see how abuse manifests itself explicitly within a relationship between child and parent. There is no single cure for abuse, because each case is different. What should be clear is that the solution lies in a multi-faceted approach. Human relationships are notoriously complicated, and one so vital as that between a child and their parent need not be doomed just because there is a problem (albeit it a very grave one).

What happened in the field of child abuse and neglect was that a problem was identified without ever being fully understood. Young-Bruehl traces years of legislation beginning in the early 1960’s to show that abuse is not the only concern we need to be addressing, but also how we as a country have responded to instances of abuse. In her discussion of the 1974 Child Abuse Prevention and Treatment Act she notes that it implied that,

All physically abusing parents are impulsive, hysterical, aggressive, and untreatable, so that removing children from their homes into foster homes is necessary. In effect, it looked like an argument for increasing reliance on foster care, not for establishing treatment programs for children or parents.

Research on reported instances of child abuse has shown that only about ten percent of abusers are psychotic and untreatable. So why should the other ninety percent be marginalized as being doomed to failed parenthood? Young-Bruehl wants us to look beyond the instances of abuse and to try to recognize the underlying motivations. Once abuse is reported, the next step is to ask why it happened? And then how can it be prevented? When we fail to ask why, we fail to give families a chance. She believes that solutions can be found to help the abusers, and subsequently help the abused. While protective service agencies remove children from harm, this process is a scary and disruptive event that leaves children without their parents. If we can identify resolutions that treat the issues apparent in the abusers we may be able to leave the family intact.

-Anastasia Blank

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
2Mar/120

Nothing is Really Free

The copyright conflict between the internet community and the entertainment industry escalated recently when some of the most visited sites on the web flexed their muscle by spearheading a campaign to kill the two bills which started the trouble. The bills have been shelved, thanks to the participation of most of the major social media websites and search engines in a twenty-four-hour blackout (including Wikipedia, Google, Reddit, Tumblr, Mozilla, among many others) – but what does such a “victory” mean?

Just days after most support had been pulled from the bills in both houses, the founder of file-sharing site Megaupload, Kim Dotcom (born Kim Schmitz, but had his name legally changed around 2005), was arrested in New Zealand and is facing extradition to the US due to alleged piracy charges, along with at least three of his closest associates. This may come as a surprise to those who argued that these bills were necessary to stop intellectual property theft. As Bill Keller explains in a recent Op-Ed piece in the Times, “The central purpose of the legislation — rather lost in the rhetorical cross fire and press coverage — was to extend the copyright laws that already protect content creators in the U.S. to offshore havens where the most egregious pirates have set up shop.” And yet, even without the new laws, Dotcom and his cohorts were arrested on US government orders.

It is helpful to go back to basics and try to understand the thinking behind the protection of intellectual property. Why, in other words, is it necessary to arrest someone like Dotcom, who merely makes content available to a wide and interested audience?

One attempt to answer that question is Mark Helprin's Digital Barbarism, an impassioned, literary, and philosophical defense of copyright on the internet. Known best for his novels, most memorably Winter's Tale, Helprin puts forth a philosophical and humanist argument in favor of copyright. At root, copyright is necessary as the “guarantor” or “coefficient” of liberty itself.

That property is at the essence of liberty is an idea that has its roots deep in liberal thinking. Property, from the root proper or propriety, is what is right and most my own. Who I am includes the character I possess, what defines me. This includes as well the way I live and the things I choose to own. Ownership, in other words, concerns what is my own, and who I am.

Our love for and defense for our property is not simply economic. It is a matter of identity and existence. Pace Helprin:

Property is to be defended proudly rather than disavowed with shame. Even if for some it is only a matter of luck or birth, for the vast majority it is the store of sacrifice, time, effort, and even, sometimes, love. It is, despite the privileged inexperience of some who do not understand, an all-too-accurate index of liberty and life. To trifle with it is to trifle with someone's existence, and as anyone who tries will find out, this is not so easy. Nor has it ever been. Nor should it ever be.

The copyright battle is less about economics, in Helprin's telling, than about freedom.  Unlike some proponents of free market ideology, he does not advocate the absence of limits on freedom. In his words (which remind us of Helprin's artistry):

Nothing is entirely free, not even an electron (hardly an electron) or an atom floating in the inaccurately named vacuum of space. Everything that exists is subject to the pull or constraint of something else.

The point is not to reject all limits on property, but to insist upon a balance—one that Helprin thinks today is too far weighted toward disrespect for property.

He makes his argument in the context of taxation. Opposing both extreme positions of liberals (who find it cruel and inexplicable that someone would want to set limits before every mouth is fed and every cry comforted") and conservatives (who "find it deeply alarming that anyone can fail to recognize the danger of pressing ahead in the absence of limits"), Helprin insists that we at least honestly recognize that taxation has a non-material cost: taxation, to some extent, "extinguishes liberty."

In other words, taking someone's property is, in itself, wrong. There may be reason's do to so, and there is no absolute right to one's property. Society demands limits and some takings. But such decisions should be made with an appreciation that these takings are meaningful intrusions on individual liberty. This is Helprin's core point and it is one that I believe is rarely made and even more rarely considered.

To illustrate his claim about the imposition involved in all takings, Helprin calls on the common (and these days volatile) theme of income tax. Taxes, while necessary, are infringements on freedom (not simply on income). If the state compels Cyril “to surrender half his income” in an effort to provide for those who cannot provide for themselves, then Cyril is “laboring for the state during half his working life,” and not for himself. Helprin likens such disenfranchisement to slavery. This seems excessive. As far as I can tell, Helprin employs the analogy because he wants to shock us into seeing just how we have come to naturally accept the fact that it is normal for the majority to take property from the minority. In his account, just as the slave owner “presumes that the labor of his slaves belongs to him…that whatever they make is rightfully his,” so does the state, when it requires its citizens to pay a tax on the income generated by their own labor, operate under the assumption that it is entitled to decide the ultimate use of such labor.

The comparison of taxation to slavery is over the top, sure. But there is a point Helprin makes that is important:

Anyone who blithely recommends expropriation as a means of "economic justice" should first divest himself of most of what he has and give it to those who have less — and there are certain to be those who have less and are greatly afflicted for it. We tend to look up rather than at ourselves when surrendering to such passions of righteousness. The assault on copyright is a species of this, based on the infantile presumption that a feeling of justice and indignation gives one a right to the work, property, and time (those are very often significantly equivalent) of others, and that this, whether harbored at the ready or expressed in action, is noble and fair.

Which is why the question of Kim Dotcom’s arrest is central. According to Helprin’s explanation, Dotcom's websites and others like them blithely engage not just in economic exploitation of writers and artists, but do so without seriously considering the injustice involved in their depriving others of their sense of ownership in what they create. One can disagree. To do so, you must think that our societal right to read your essay or hear your song trumps your right to sell that song (or not) to whomever you wish.

For your weekend read, buy a copy of Helprin's Digital Barbarism, and give it a read. Or, read a chapter that Helprin has, freely, made available on the web.

-RB

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
24Feb/120

Legislating Memories of Violence

The Constitutional Council, France’s highest court, will soon issue a ruling with significant implications for how we think about free speech, violence, and collective memory. The ruling, due by the end of February, will determine whether French lawmakers can criminalize the denial of the Armenian genocide in the Ottoman Empire during World War I.

Legislation to this effect passed the French National Assembly in December 2011 and the Senate just last month, but the Council agreed to rule on the constitutionality of the provision after inquiries from dozens of parliamentarians. President Nicolas Sarkozy has indicated that he will sign the bill into law if and when it reaches his desk, but he cannot do so until the court announces its decision. The geopolitical implications of this ruling are potentially far-reaching, for it may decisively shape Turkey’s relationship with the European Union and other states in the Middle East. But the ruling’s cultural and philosophical ramifications are significant as well, for they raise important questions about public discourse and collective memory not simply within but also across national boundaries.

The bill that would criminalize Armenian genocide denial was introduced in the National Assembly by Valérie Boyer, a parliamentarian from Marseilles who is affiliated, like Sarkozy, with the center-right Union for a Popular Movement. It would require a year in jail and a fine of 45,000 Euros (approximately $59,000) for “those who have praised, denied, or roughly and publicly downplayed genocidal crimes, crimes against humanity, and war crimes.” Significantly, the legislation does not specifically mention the mass killings of Armenians, but the only other instance of genocide recognized by the French government is the Holocaust, and its denial is already defined as a criminal act under another law. Despite the bill’s generic formulation, then, its effective point of reference is rather targeted.

Members of the French opposition have charged that the bill constitutes a cynical effort to curry favor with the country’s sizable Armenian population in advance of this spring’s presidential elections. Foreign Minister Alain Juppé, meanwhile, has opposed the legislation because he believes it will hinder efforts to maintain Turkish cooperation on urgent matters of state, including Iran’s nuclear ambitions and the ongoing government crackdown in Syria.

  

But the bill’s proponents deny that they have any ulterior motives in either the national or international arena: Boyer insists that genocide is a general human concern that stands “over and above politics,” while Sarkozy asserts that the bill is in “no way aimed at any state or people in particular.” In this respect, the legislation and its overt rationale are consistent with an important strand of the French republican tradition, one that equates the nation and polity with a commitment to universal principles.

Given the state’s ideological position, it should come as no surprise that Turkish responses to the legislation have been hostile. The national government, led by the center-right Justice and Development Party, has suspended many of Turkey’s diplomatic, economic, and military relations with France, and Prime Minister Recep Tayyip Erdoğan has dismissed the bill as an instance of “evident discrimination, racism, and massacre of free speech.” In addition, Erdoğan has accused France of its own unacknowledged genocide during the era of colonial rule in Algeria, while other lawmakers have insisted that France has failed to confront its unseemly role in the 1994 genocide in Rwanda. Far from regarding the legislation as a universalist condemnation of genocide and genocide denial, then, Turkish state officials have treated it as a direct attack on their national self-regard, and they have been quick to accuse the French government of a pernicious double standard: Sarkozy and his colleagues want Turkey to reckon with its burdened past when France has not scrutinized its own violent (post)colonial history.  

On the one hand, I sympathize with the bill’s impulse to engage with past instances of violence. Remembrance of traumatic pasts is not a zero-sum game: attention to one instance of collective violence, such as the murder, deportation, and starvation of Armenians in the Ottoman Empire, does not prevent or preclude attention to others, such as the assault, torture, and killing that accompanied French colonial domination in Algeria. In fact, as Michael Rothberg suggests, the remembrance of past violence across national and/or imperial contexts “has the potential to create new forms of solidarity and new visions of justice.”

On the other hand, I am uncomfortable with the premise that certain forms of public discourse, even those associated with the denial of genocide, should be prohibited by law. I am too committed to liberal thinking to believe that this kind of restriction on free public speech is acceptable, and I have my doubts that it will actually encourage a reasoned understanding—and condemnation—of collective violence in the past, present, and future.

 

In particular, I am very concerned that this legislation, if it indeed becomes law, will have a chilling effect on ongoing discussion and debate in Turkey.

Turkish state and public institutions have grown a bit more receptive to Kurdish grievances over the past decade, and in November 2011 Prime Minister Erdoğan took the remarkable step of apologizing for army and air force attacks that killed nearly 14,000 Kurds in Dersim (now known as Tunceli) from 1936 to 1939. To be sure, Erdoğan issued this apology as police and military personnel were detaining hundreds if not thousands of Kurdish activists in the state’s renewed counterinsurgency campaign. But we should not neglect the fact that such a pronouncement would have been unthinkable only a few years ago. How ready will Erdoğan’s government be to acknowledge other elements of Turkey’s fraught past if France criminalizes denial of the Armenian genocide? Not very, I suspect.

In the end, then, I support concerted public engagement with the nature and extent of the Armenian genocide in France, Turkey, and elsewhere. Precisely for this reason, however, I also oppose the criminalization of Armenian genocide denial.

For more discussion of the transnational politics of memory, I highly recommend Michael Rothberg’s book Multidirectional Memory: Remembering the Holocaust in an Age of Decolonization (Stanford University Press, 2009).

 - Jeff Jurgens

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
10Feb/122

Digital Democracy

Cary H. Sherman has written a provocative Op-Ed piece, “What Wikipedia Won’t Tell You”, arguing in favor of the SOPA and PIPA bills that were recently withdrawn after an unprecedented uproar spurred by the protests of Wikipedia, Google, and other websites. Sherman, CEO of the Recording Industry of America, accuses the bill's opponents of propaganda. He writes that the sites that participated in the so-called Internet blackout are guilty of “an abuse of trust and a misuse of power” for producing what Sherman calls “hyperbolic mistruths” about censorship.

It is no secret that the entertainment industry spends millions of dollars on lobbying Congress; information giants like Google, Microsoft, and Apple, also have large and active lobbying budgets. However, in this case, the Internet companies did not deal with Congressmen behind closed doors to secure legislation that would have been beneficial to their business. Instead, the digital world appealed to the people who depend on their technology every day – and it worked. By educating Internet users and voting citizens, the sites empowered people so that they could make an informed decision about how to act.

Sherman worries that the latest protest raises “questions about how the democratic process functions in the digital age.” He is right. It certainly does presage an era in which it is much easier to distribute information and activate a body of concerned citizens, something that offers great possibilities for democracy. He is also right that many of those who contacted their congressman had heard only one side of the issue and likely had only a tenuous understanding of what was complicated legislation. But how different is that from any protest or action by large groups of citizens? While mass democracy carries risks and is unpredictable, the  “digital tsunami” that Sherman fears also points toward the potential for a more direct and interactive democracy—something along the lines of the “liquid democracy” promised recently by the Pirate Party in the Berlin government.

We should not underestimate the risks of allowing complicated decisions to be heavily influenced by mass protests. However, the reality is that this risk poses the greatest threat to  those used to a democracy in which elections are bought and sold and in which a cadre of paid lobbyists has inordinate influence over the writing and passage of legislation. Sherman takes the party line on online piracy and copyright infringement, asking, “When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?”  A valid question; the digital age does pose problems in terms of traditional copyright law, and these problems must be addressed. Equally important, however, is that we as citizens take back our government from lobbyists and other power brokers. Perhaps Alexis Ohanian, founder of Reddit, expressed this frustration best:

Why is it that when Republicans and Democrats need to solve the budget and the deficit, there’s deadlock, but when Hollywood lobbyists pay them $94 million to write legislation, people from both sides of the aisle line up to co-sponsor it?

 

 

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
24Jan/120

Legal Doesn’t Make it Right – Jack Blum

Jack Blum, Chair of Tax Justice Network USA, is a longtime friend of the Hannah Arendt Center. He participated in the Center's 2009 Conference, The Burden of Our Times: The Intellectual Origins of the Financial Crisis. One of the national experts on tax evasion, Jack recently collaborated on the film, "We're Not Broke," in which he helps shed light on the tax system in the United States. We reached out Jack to shed some light on Mitt Romney's tax returns for 2010-2011. We found him at the Sundance Film Festival in Utah where he is promoting "We're Not Broke," and he agreed to share with us his thoughts. 

Mitt Romney’s tax returns show us just how rotten the American tax system has become. He is right when he says that his returns are correct and that he followed the law – but what a law! His work allowed him to call his salary a “carried interest.” Under current tax law he can to decide when to take the income, and when he decides to declare it, to pay tax on that income at the capital gains rate of 15%.

Making matters worse, his line of business, venture capital, relies in large part on tax breaks. Venture capitalists more often than not buy their target companies on borrowed money. They convert the capital in the target business from equity to debt and take deductions for interest payments on the debt. Capital is after tax money – debt is before tax and thus tax favored. Call it capitalism without real capital.

All of this is perfectly legal, but that doesn’t make it right. After all, slavery was legal for hundreds of years. So was preventing women from participating in the political process.

Beyond the case of venture capital, the tax code is riddled with privileges for the few, and for the multi-national corporations. Senator Carl Levin D-Mich. Has just introduced legislation that tries to close many of the most egregious loopholes. But, he is not on the tax writing Finance Committee, and that Committee is looking at ways to make the situation worse, not better.

The question every citizen should ask is how the Internal Revenue Code got this way. Certainly a government prepared to cut the budget for education, research, and infrastructure should be looking at the way it is subsidizing “free market” financial engineering business activity – activity that is usually not terribly productive.  The answer lies in the campaign finance system. Seats on the tax-writing committees are the most coveted in Congress because the members are showered with contributions from lobbyists, political action committees, and employees of corporations wanting favors.

As a result, it should come as no surprise that many of the largest corporations have a negative tax rate.

The latest insult to the political system is the Citizens United  decision that gives corporations the right to contribute to political campaigns. Corporations are not people. They are not citizens. They will invert one of the slogans the country was founded on. The new slogan will be “representation without taxation.”

Mitt Romney thinks that what he has done to take advantage of the loopholes without comment on the inherent injustice is normal and justifiable.

It does not seem to occur to him that the tax code that made him rich has shifted the burden of providing for the funding the common good to average citizens who are being told that they should expect nothing from government.

Finally, the people who are most favored by the tax system are the leaders and funders of the incessant drumbeat that social security and Medicare are bankrupting the country. The Mitt Romney’s of the world who make their money from “carried interest” don’t pay social security and Medicare taxes and won’t need the benefits.

The debate over the economy and the budget must include corporate tax subsidies. America cannot provide for its needs if the likes of Google, Apple, and Pfizer pay no tax. It cannot provide for its needs if the very rich can turn real income into capital gains and time their decision on when to take the income. The silence on this subject is deafening.

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.