Hannah Arendt Center for Politics and Humanities
7Apr/140

Amor Mundi 4/6/14

Arendtamormundi

Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.

Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.

Oligarchs, Inc.

supremeOver at SCOTUSblog, Burt Neuborne writes that “American democracy is now a wholly owned subsidiary of Oligarchs, Inc.” The good news, Neuborne reminds, is that “this too shall pass.” After a fluid and trenchant review of the case and the recent decision declaring limits on aggregate giving to political campaigns to be unconstitutional, Neuborne writes: “Perhaps most importantly, McCutcheon illustrates two competing visions of the First Amendment in action. Chief Justice Roberts’s opinion turning American democracy over to the tender mercies of the very rich insists that whether aggregate contribution limits are good or bad for American democracy is not the Supreme Court’s problem. He tears seven words out of the forty-five words that constitute Madison’s First Amendment – “Congress shall make no law abridging . . . speech”; ignores the crucial limiting phrase “the freedom of,” and reads the artificially isolated text fragment as an iron deregulatory command that disables government from regulating campaign financing, even when deregulation results in an appalling vision of government of the oligarchs, by the oligarchs, and for the oligarchs that would make Madison (and Lincoln) weep. Justice Breyer’s dissent, seeking to retain some limit on the power of the very rich to exercise undue influence over American democracy, views the First Amendment, not as a simplistic deregulatory command, but as an aspirational ideal seeking to advance the Founders’ effort to establish a government of the people, by the people, and for the people for the first time in human history. For Justice Breyer, therefore, the question of what kind of democracy the Supreme Court’s decision will produce is at the center of the First Amendment analysis. For Chief Justice Roberts, it is completely beside the point. I wonder which approach Madison would have chosen. As a nation, we’ve weathered bad constitutional law before. Once upon a time, the Supreme Court protected slavery. Once upon a time the Supreme Court blocked minimum-wage and maximum-hour legislation.  Once upon a time, the Supreme Court endorsed racial segregation, denied equality to women, and jailed people for their thoughts and associations. This, too, shall pass. The real tragedy would be for people to give up on taking our democracy back from the oligarchs. Fixing the loopholes in disclosure laws, and public financing of elections are now more important than ever. Moreover, the legal walls of the airless room are paper-thin. Money isn’t speech at obscenely high levels. Protecting political equality is a compelling interest justifying limits on uncontrolled spending by the very rich. And preventing corruption means far more than stopping quid pro quo bribery. It means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here. The stakes are the preservation of democracy itself.” It is important to remember that the issue is not really partisan, but that both parties are corrupted by the influx of huge amounts of money. Democracy is in danger not because one party will by the election, but because the oligarchs on both sides are crowding out grassroots participation. This is an essay you should read in full. For a plain English review of the decision, read this from SCOTUSblog. And for a Brief History of Campaign Finance, check out this from the Arendt Center Archives.

Saving Democracy

democZephyr Teachout, the most original and important thinker about the constitutional response to political corruption, has an op-ed in the Washington Post: “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.” Teachout spoke at the Arendt Center two years ago after the Citizens United case. Afterwards, Roger Berkowitz wrote: “It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values. Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.” Read the entirety of his commentary here. Watch a recording of Teachout’s speech here.

The Forensic Gaze

forA new exhibition opened two weeks ago at the Haus der Kulturen der Welt in Berlin that examines the changing ways in which states police and govern their subjects through forensics, and how certain aesthetic-political practices have also been used to challenge or expose states. Curated by Anselm Franke and Eyal Weizman, Forensis “raises fundamental questions about the conditions under which spatial and material evidence is recorded and presented, and tests the potential of new types of evidence to expand our juridical imagination, open up forums for political dispute and practice, and articulate new claims for justice.” Harry Burke and Lucy Chien review the exhibition on Rhizome: “The exhibition argues that forensics is a political practice primarily at the point of interpretation. Yet if the exhibition is its own kind of forensic practice, then it is the point of the viewer's engagement where the exhibition becomes significant. The underlying argument in Forensis is that the object of forensics should be as much the looker and the act of looking as the looked-upon.” You may want to read more and then we suggest Mengele’s Skull: The Advent of a Forensic Aesthetics.

Empathy's Mess

empathy

In an interview, Leslie Jamison, author of the very recently published The Empathy Exams, offers up a counterintuitive defense of empathy: “I’m interested in everything that might be flawed or messy about empathy — how imagining other lives can constitute a kind of tyranny, or artificially absolve our sense of guilt or responsibility; how feeling empathy can make us feel we’ve done something good when we actually haven’t. Zizek talks about how 'feeling good' has become a kind of commodity we purchase for ourselves when we buy socially responsible products; there’s some version of this inoculation logic — or danger — that’s possible with empathy as well: we start to like the feeling of feeling bad for others; it can make us feel good about ourselves. So there’s a lot of danger attached to empathy: it might be self-serving or self-absorbed; it might lead our moral reasoning astray, or supplant moral reasoning entirely. But do I want to defend it, despite acknowledging this mess? More like: I want to defend it by acknowledging this mess. Saying: Yes. Of course. But yet. Anyway.”

What the Language Does

barsIn a review of Romanian writer Herta Muller's recently translated collection Christina and Her Double, Costica Bradatan points to what changing language can do, what it can't do, and how those who attempt to manipulate it may also underestimate its power: “Behind all these efforts was the belief that language can change the real world. If religious terms are removed from language, people will stop having religious feelings; if the vocabulary of death is properly engineered, people will stop being afraid of dying. We may smile today, but in the long run such polices did produce a change, if not the intended one. The change was not in people’s attitudes toward death or the afterworld, but in their ability to make sense of what was going on. Since language plays such an important part in the construction of the self, when the state subjects you to constant acts of linguistic aggression, whether you realize it or not, your sense of who you are and of your place in the world are seriously affected. Your language is not just something you use, but an essential part of what you are. For this reason any political disruption of the way language is normally used can in the long run cripple you mentally, socially, and existentially. When you are unable to think clearly you cannot act coherently. Such an outcome is precisely what a totalitarian system wants: a population perpetually caught in a state of civic paralysis.”

Humanities and Human Life

humanCharles Samuleson, author of "The Deepest Human Life: An Introduction to Philosophy for Everyone," has this paean to the humanities in the Wall Street Journal: “I once had a student, a factory worker, who read all of Schopenhauer just to find a few lines that I quoted in class. An ex-con wrote a searing essay for me about the injustice of mandatory minimum sentencing, arguing that it fails miserably to live up to either the retributive or utilitarian standards that he had studied in Introduction to Ethics. I watched a preschool music teacher light up at Plato's "Republic," a recovering alcoholic become obsessed by Stoicism, and a wayward vet fall in love with logic (he's now finishing law school at Berkeley). A Sudanese refugee asked me, trembling, if we could study arguments concerning religious freedom. Never more has John Locke —or, for that matter, the liberal arts—seemed so vital to me.”

Caritas and Felicitas

charityArthur C. Brooks makes the case that charitable giving makes us happier and even more successful: “In 2003, while working on a book about charitable giving, I stumbled across a strange pattern in my data. Paradoxically, I was finding that donors ended up with more income after making their gifts. This was more than correlation; I found solid evidence that giving stimulated prosperity…. Why? Charitable giving improves what psychologists call “self-efficacy,” one’s belief that one is capable of handling a situation and bringing about a desired outcome. When people give their time or money to a cause they believe in, they become problem solvers. Problem solvers are happier than bystanders and victims of circumstance.” Do yourself a favor, then, and become a member of the Arendt Center.

Featured Events

heidThe Black Notebooks (1931-1941):

What Heidegger's Denktagebuch reveals about his thinking during the Nazi regime.

April 8, 2014

Goethe Institut, NYC

Learn more here.

 

"My Name is Ruth."

An Evening with Bard Big Read and Marilynne Robinson's Housekeeping

Excerpts will be read by Neil Gaiman, Nicole Quinn, & Mary Caponegro

April 23, 2014

Richard B. Fisher Center, Bard College

Learn more here.

 

From the Hannah Arendt Center Blog

This week on the blog, our Quote of the Week comes from Martin Wager, who views Arendt's idea of world alienation through the lens of modern day travel. Josh Kopin looks at Stanford Literary Lab's idea of using computers and data as a tool for literary criticism. In the Weekend Read, Roger Berkowitz ponders the slippery slope of using the First Amendment as the basis for campaign finance reform. 

14Mar/140

Blogging and the New Public Intellectual – Tom Goldstein

FromtheArendtCenter

Last Sunday, March 9, Roger Berkowitz and Walter Russell Mead sat down with SCOTUSblog founder and publisher, Tom Goldstein, as part of the Arendt Center’s “Blogging and the New Public Intellectual” series in New York City. The series engages in ongoing discussion with the nation’s leading bloggers in an attempt to analyze this form of political and cultural writing and its impact on modern society.

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As a litigator, Goldstein has argued 31 cases before the Supreme Court, and teaches at Harvard Law School. He and Amy Howe founded the SCOTUSblog in 2002, which covers the Supreme Court and all of its cases in detail. Goldstein related the evolution of the now highly respected and heavily trafficked blog:

There is a lot less traditional press coverage creating the opportunity for more blogging. Just to play out the example, five years into the blog’s history, blogging was still regarded as ‘ehhh.’ By year eight or nine, the press corps was very actively citing us and others as experts in the field. At year twelve, we’re regarded as the competition.

With the success and reputation of the blog, however, has come responsibility. Walter Russell Mead noted that the more people listen to you, the less you can say. Goldstein agreed:

If I say something in the blog about the Supreme Court, a lot of people are going to think of it as true. Maybe they shouldn’t. If they knew me better, they probably wouldn’t. But, if I say, “Someone is going to retire.” or “This case was wrongly decided.” the Supreme Court press corps pays enormous attention to the blog…There is a kind of cadre of readership, an echoing effect out from the blog. Something that gets said on the blog becomes conventional wisdom. And that means that I have to be more careful.

Goldstein also reflected on the way that trolls and those who comment on blogs have made him lose some of his faith in humanity. For many years SCOTUSblog struggled to maintain a communal feeling through comments on blog posts, but they finally abandoned the effort in the face of racist, slanderous, and hateful trolls. As Goldstein said, "What people are willing to say when anonymous is extraordinary.”

Watch video of the discussion here.

6Dec/131

Nelson Mandela & Hannah Arendt on Violence

ArendtWeekendReading

“Having said this, I must deal immediately and at some length with the question of violence.”

—Nelson Mandela

 “Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”

            —Hannah Arendt citing Conor Cruise O’Brien, On Violence

Nelson Mandela gave one of the great speeches of 20th century at his trial before the South African Supreme Court in Pretoria in 1964. Mandela’s speech is best remembered for the ringing conclusion in which he articulates the ideals of free and democratic life as that “ideal for which I am prepared to die.” Six months after Martin Luther King Jr. delivered his “I have a dream speech” from the Mall in Washington, DC, Mandela ended his own speech before being sentenced to life imprisonment with these words:

During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

Mandela died yesterday and he will be rightly remembered for both his vision and his courage.

mandela

I want to focus on another aspect of his legacy, however, the question of violence. Often forgotten by those who quote only the final paragraph of Mandela’s speech, much of his speech is an exploration of the need for and proper revolutionary use of violence.  Indeed, after a brief introduction in which Mandela reminds the Court that he holds a bachelor’s degree, that he is a lawyer, and that he was raised to revere his tribal forebears who fought in defense of their fatherland, he comes to the question of violence. “Having said this,” he says, “I must deal immediately and at some length with the question of violence.”

What follows is one of the most thoughtful and subtle reflections on the strategic and moral complications of violence we have. It is worth citing at length, and even this summary barely does Mandela justice. But here is Mandela’s argument for a limited campaign of violence in response to the violence of the South African state:

I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the whites.

I admit immediately that I was one of the persons who helped to form Umkhonto we Sizwe, and that I played a prominent role in its affairs until I was arrested in August 1962….

In order to explain these matters properly, I will have to explain what Umkhonto set out to achieve; what methods it prescribed for the achievement of these objects, and why these methods were chosen. I will also have to explain how I became involved in the activities of these organisations.

I deny that Umkhonto was responsible for a number of acts which clearly fell outside the policy of the organisation, and which have been charged in the indictment against us. I do not know what justification there was for these acts, but to demonstrate that they could not have been authorised by Umkhonto, I want to refer briefly to the roots and policy of the organisation.

I have already mentioned that I was one of the persons who helped to form Umkhonto. I, and the others who started the organisation, did so for two reasons. Firstly, we believed that as a result of Government policy, violence by the African people had become inevitable, and that unless responsible leadership was given to canalise and control the feelings of our people, there would be outbreaks of terrorism which would produce an intensity of bitterness and hostility between the various races of this country which is not produced even by war. Secondly, we felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the government. We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence.

But the violence which we chose to adopt was not terrorism…..

I must return to June 1961. What were we, the leaders of our people, to do? Were we to give in to the show of force and the implied threat against future action, or were we to fight it and, if so, how?

We had no doubt that we had to continue the fight. Anything else would have been abject surrender. Our problem was not whether to fight, but was how to continue the fight. We of the ANC had always stood for a non-racial democracy, and we shrank from any action which might drive the races further apart than they already were. But the hard facts were that fifty years of non-violence had brought the African people nothing but more and more repressive legislation, and fewer and fewer rights. It may not be easy for this court to understand, but it is a fact that for a long time the people had been talking of violence - of the day when they would fight the white man and win back their country - and we, the leaders of the ANC, had nevertheless always prevailed upon them to avoid violence and to pursue peaceful methods. When some of us discussed this in May and June of 1961, it could not be denied that our policy to achieve a non-racial state by non-violence had achieved nothing, and that our followers were beginning to lose confidence in this policy and were developing disturbing ideas of terrorism.

It must not be forgotten that by this time violence had, in fact, become a feature of the South African political scene. There had been violence in 1957 when the women of Zeerust were ordered to carry passes; there was violence in 1958 with the enforcement of cattle culling in Sekhukhuniland; there was violence in 1959 when the people of Cato Manor protested against pass raids; there was violence in 1960 when the government attempted to impose Bantu authorities in Pondoland. Thirty-nine Africans died in these disturbances. In 1961 there had been riots in Warmbaths, and all this time the Transkei had been a seething mass of unrest. Each disturbance pointed clearly to the inevitable growth among Africans of the belief that violence was the only way out - it showed that a government which uses force to maintain its rule teaches the oppressed to use force to oppose it. Already small groups had arisen in the urban areas and were spontaneously making plans for violent forms of political struggle. There now arose a danger that these groups would adopt terrorism against Africans, as well as whites, if not properly directed. Particularly disturbing was the type of violence engendered in places such as Zeerust, Sekhukhuniland, and Pondoland amongst Africans. It was increasingly taking the form, not of struggle against the government - though this is what prompted it - but of civil strife amongst themselves, conducted in such a way that it could not hope to achieve anything other than a loss of life and bitterness.

At the beginning of June 1961, after a long and anxious assessment of the South African situation, I, and some colleagues, came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the government met our peaceful demands with force.

This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political struggle, and to form Umkhonto we Sizwe. We did so not because we desired such a course, but solely because the government had left us with no other choice. In the Manifesto of Umkhonto published on 16 December 1961, which is exhibit AD, we said:

"The time comes in the life of any nation when there remain only two choices - submit or fight. That time has now come to South Africa. We shall not submit and we have no choice but to hit back by all means in our power in defence of our people, our future, and our freedom."

This was our feeling in June of 1961 when we decided to press for a change in the policy of the National Liberation Movement. I can only say that I felt morally obliged to do what I did….

Four forms of violence were possible. There is sabotage, there is, there is terrorism, and there is open revolution. We chose to adopt the first method and to exhaust it before taking any other decision.

In the light of our political background the choice was a logical one. Sabotage did not involve loss of life, and it offered the best hope for future race relations. Bitterness would be kept to a minimum and, if the policy bore fruit, democratic government could become a reality. This is what we felt at the time, and this is what we said in our manifesto (exhibit AD):

"We of Umkhonto we Sizwe have always sought to achieve liberation without bloodshed and civil clash. We hope, even at this late hour, that our first actions will awaken everyone to a realisation of the disastrous situation to which the nationalist policy is leading. We hope that we will bring the government and its supporters to their senses before it is too late, so that both the government and its policies can be changed before matters reach the desperate state of civil war."

The initial plan was based on a careful analysis of the political and economic situation of our country. We believed that South Africa depended to a large extent on foreign capital and foreign trade. We felt that planned destruction of power plants, and interference with rail and telephone communications, would tend to scare away capital from the country, make it more difficult for goods from the industrial areas to reach the seaports on schedule, and would in the long run be a heavy drain on the economic life of the country, thus compelling the voters of the country to reconsider their position.

Attacks on the economic life-lines of the country were to be linked with sabotage on government buildings and other symbols of apartheid. These attacks would serve as a source of inspiration to our people. In addition, they would provide an outlet for those people who were urging the adoption of violent methods and would enable us to give concrete proof to our followers that we had adopted a stronger line and were fighting back against government violence.

In addition, if mass action were successfully organised, and mass reprisals taken, we felt that sympathy for our cause would be roused in other countries, and that greater pressure would be brought to bear on the South African government.

This then was the plan. Umkhonto was to perform sabotage, and strict instructions were given to its members right from the start, that on no account were they to injure or kill people in planning or carrying out operations.

It is strange today to hear politicians of all stripes praising Mandela for his statesmanship when they, for years, condemned his embrace of violence and arrested those in the U.S. who­—following Mandela’s own tactics—chained themselves to fences to oppose the U.S. government’s support of the apartheid regime in South Africa. It is true that Mandela lived numerous lives. As a young man, he was part of a royal tribal household. As a young adult, he was a lawyer. Later he was a non-violent leader. Still later, he turned to limited and rationalized use of violence. For 27 years he paid for his crimes in prison and then emerged a statesman, one committed to reconciliation, freedom, and multicultural democracy. Finally, when he stepped down from the Presidency after one term he helped assure South Africa’s democratic future and became an elder statesman in the truest sense of the word.

To understand the complexities of Mandela’s limited turn to sabotage (as opposed to terrorism in his words), it is helpful to consider Hannah Arendt’s essay On Violence, originally published in the New York Review of Books in 1969. Violence, writes Arendt, is at root instrumental. It is a means to an end. And sometimes, violence can yield positive and even moderate results, Arendt claims, citing Conor Cruise O’Brien: “Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”

As did Mandela, Arendt well understood that violence can be a useful and important means in struggles for justice. She points to numerous of examples where violence has worked to promote justice: “France would not have received the most radical bill since Napoleon to change its antiquated education system if the French students had not rioted; if it had not been for the riots of the spring term, no one at Columbia University would have dreamed of accepting reforms; and it is probably quite true that in West Germany the existence of ‘dissenting minorities is not even noticed unless they engage in provocation.’” Violence can, and often does, make injustice visible to a citizenry that is blind to it. Because violence can “serve to dramatize grievances and bring them to public attention,” violence can serve the cause of reform and also of justice.

We must take Arendt and Mandela’s point seriously. Violence is a means to an end. Violence can work. “No doubt, ‘violence pays.’” Violence can yield results.

But Arendt is not an advocate for violence. Violence can pay, she writes, but “the trouble is that it pays indiscriminately.” And this is where the use of violence becomes dangerous.

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The danger in using violence as a means is that when “applied to human affairs,” violence as a means has a tendency to overwhelm whatever good ends towards which it aims. Too often, violence will lead those in power to respond with sham reforms designed to end violence. They will seek the path of least resistance, instituting reforms that are often the wrong reforms. Arendt offers the example of the way that the student university protests of the 60s led to new courses in Swahili and  “admitting students without the necessary qualifications” instead of real reform of the entire educational system.

What is more, violence—precisely because it is effective—has a tendency to promote more violence in response. If violence in the name of justice doesn’t achieve its ends quickly, the likely result is not justice, but more violence: “The practice of violence, like all action, changes the world, but the most probable change is to a more violent world.”

To read Mandela’s speech from 1964 is to encounter someone who thought through the promise and danger of violence in precisely the rational way that Arendt call for.  The question we should ask is whether the turn to violence by the ANC in South Africa—even the limited, rational, and property-oriented violence Mandela embraced—promoted or retarded the cause for reform? Was it the ANC’s violence that led, 30 years later, to the reform of South Africa? Or was it Mandela’s dignity in prison and his emergence as a force for peace and reconciliation? Let’s celebrate Mandela as a hero this week. But let’s also ask: Was he right about violence?

Take the time this weekend to read the entirety of Mandela’s speech, It is your weekend read. And if you have more time, review Arendt’s essay “On Violence,” which is available here.

-RB

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.

states

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.

hands

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

26Oct/120

Corruption Takes Root

What is the essence of corruption? This is a question raised by the recent Supreme Court jurisprudence around Citizens United v. FEC. For Justice Kennedy and the Court has concluded, as a matter of law, that only quid pro quo corruption is corruption. An out and out bribe is corrupting, but throwing a congressman a $100,000 party or treating them to fancy meals and trendy restaurants, that is just exercising the right to freely speak with one's elected representatives. That such lavish expenditures come with expectations is, the Court insists, improvable and simply part and parcel of our democratic system.

In Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It, Lawrence Lessig explores fully the impact of such "soft" corruption. He writes that the enemy we face today is not a Hitler or even the good Germans who would enable a Hitler. "Our enemy," Lessig writes, "is the good Germans (us) who would enable a harm infinitely less profound, yet economically and politically catastrophic nonetheless. A harm caused by a kind of corruption. But not the corruption engineered by evil souls. Indeed, strange as this might sound, a corruption crafted by good souls. By decent men. And women." Such a crime, he insists, is banal, but "not the banal in the now-overused sense of Hannah Arendt's The Banality of Evil—of ordinary people enabling unmatched evil (Hitler's Germany). Our banality is one step more, well, banal."

Lessig is right to worry that Arendt's phrase is overused, but what is more banal in the banality he so penetratingly describes in his book? In any case, his book better describes the kind of endemic corruption that infects our political system than any other. It should be read.

It is also important to remember that real corruption still exists in our world. It may be more a rarity at a time when one can accomplish so much corruption through legal means, but examples of bold and brazen corruption remain.

Lance Armstrong's web of corruption that silenced and intimidated dozens of his colleagues for over a decade is one example of how corruption can succeed, against all odds, but only for a time.  Rumors of Armstrong's drug use floated around for a decade, and yet he still denies it. It took years for the web of deceit to break. As the NY Daily News wrote in an excellent review of the scandal:

The Armstrong myth was so lucrative that suppressing the truth came to require an endless behind-the-scenes campaign to bully and intimidate people into silence. Some of it bordered on gangsterism. Some of it was dressed up in the respectable wardrobe of elite law firms. But mostly it was just hot air - a fact that by 2010 had become clear enough to Floyd Landis that he stepped up and burst the bubble, blowing the whistle on the whole big fraud.

We tend to ignore corruption because it seems so inconceivable in our age of transparency. Corruption requires that the truth be kept hidden. This is extremely difficult and possible only through force and violence and even terror. But eventually, the truth comes out. As Hannah Arendt wrote in another context, "holes of oblivion do not exist." Eventually, the truth will emerge, no matter how many interests and how much money and violence is spent in the futile effort to prevent that from happening.

What brings to mind these brief reflections on the continued efficacy of corruption as well as its eventual failure is an article recently published in The Nation on the Hershey Trust. The author of the story is Ric Fouad, who is also a member of the Arendt Center's Board of Advisors. He is a graduate of the Milton Hershey School and together with a handful of other activists has been fighting a lonely battle against what he sees as the corruption of the Hershey Trust's Board, a fight that for him is inspired by Hannah Arendt's insistence on both truth, courage, and public action.

A little background. Milton Hershey was not just a brilliant chocolatier who had a radical vision of making chocolate—previously marketed only to the wealthy—available to the masses. He was also profoundly philanthropic.  Unable to have children, Hershey left his entire personal fortune to the Hershey Trust, whose mission was to administer The Milton Hershey School, a school that Hershey founded to help and educate orphaned boys—the school is now coed and serves children with living parents. That fortune is now worth nearly $8 billion.

By his own account, Milton Hershey's life work would be to help orphaned children, whose plight touched him deeply. Hershey wanted his school to bring orphans into a revolutionary new kind of school, free from industrial buildings common to orphanages. The children were to live in beautiful homes in a bucolic paradise on 12,000 acres of land. They were to work on farms to learn character and attend a school that includes a vocational curriculum as well and have great teachers. It had all the potential to be  an extraordinary facility set in truly magnificent settings.

So what is not to like? Well, for one thing, the Hershey Trust has been under investigation for six years, with no resolution and amidst plenty of accusations and charges about misspent funds and broken trust. The bucolic community-wide children's home was telescoped into a crowded centralized campus; the farms were all closed; the vocational program barely survives; and the poorest children, wards of the court, and foster care children came to be rejected in favor of what the administrators deemed a "better" class of child. Local developers made tens of millions in the process.

Tasked with administering the Milton Hershey School, the Trust's incredible resources enabled it to do much else besides. This could be an amazing opportunity to do good. It could also and become a magnet for powerful and connected people who finagled their ways onto the Hershey Trust board in order to access and control the vast wealth the Hershey Trust possessed. And that is what the article in The Nation, as well as numerous investigative articles here, here, and here, in The Philadelphia Inquirer, have alleged. You can also watch Ric Fouad's Harvard Law School lecture "Hershey's Broken Trust" here.

In Republic, Lost, Lessig writes:

The great threat to our republic today comes not from the hidden bribery of the Gilded Age, when cash was secreted among members of Congress to buy privilege and secure wealth. The great threat today is in plain sight. It is the economy of influence transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is that it discriminates against all sides to favor itself.

As true as that is about government, it is also true for cycling legends and political clubs. When corruption of all kinds pervades institutions throughout our society, it is only natural that cynicism abounds and we lose faith in the process of government as well as in the integrity of business. It is time to take corruption seriously in this country, and not explain it away as something that happens elsewhere in less civilized and less democratic countries.

You can read an excerpt of Lessig's Republic, Lost...  here, at Amazon.com, where you can also buy his book.

-RB

25Oct/121

Defining American Democracy Differently

How do our understandings of democracy shape how we imagine racial equality and the means by which it might be achieved? That was the question posed by Maribel Morey at the most recent lunchtime talk at the Arendt Center. Morey is currently a fellow at the New York University School of Law, and she has recently completed her dissertation in the Department of History at Princeton University. Building upon her research on the Swedish economist and social theorist Gunnar Myrdal, Morey offered an incisive comparative reading of Myrdal’s book An American Dilemma (1944) and Hannah Arendt’s essay “Reflections on Little Rock” (1959).

As became evident in the course of her talk, these texts posit different visions of democracy in the U.S., and they come to different conclusions about a central feature of the civil rights era: the federally enforced integration of public schools in the segregated South.

Myrdal was a strong advocate of such government intervention. In his argument, the premises and principles of American democracy effectively demand the racial integration of schools and other institutions, and it is legitimate for the federal government to enforce such integration for the sake of America’s ongoing democratic life. This position insists that education constitutes a crucial public resource provided by the state, and it proposes that inequitable access to this resource limits individual and collective participation in the political realm. Indeed, Myrdal goes even further by contending that discrimination and segregation violate the very “American creed”—the liberal commitment to equality and fair treatment—that makes national co-existence possible. Since its initial publication, Myrdal’s position has exerted a deep influence on U.S. public discourse: it played a key role in civil rights activism in the 1950s and ‘60s, and it figured prominently in the Supreme Court’s Brown vs. Board of Education decision.

Arendt was also committed to the project of political equality in the U.S., but she parts ways with Myrdal by sharply questioning the legitimacy of federally enforced integration. On the one hand, she objects to this form of intervention because it “burden[s] children, black and white, with the working out of a problem which adults for generations have confessed themselves unable to solve”. Government-mandated integration thereby inserts young people into a political struggle for which they are not prepared and to which they do not properly belong. On the other hand, Arendt takes issue with the way that federally mandated integration transgresses the boundaries that ought to be maintained between the realms of political, social, and private life.

These boundaries are necessary, in Arendt’s argument, because polity, society, and privacy are defined by different animating principles. Politics is defined by the principle of equality: all adult citizens enjoy the same right to vote and be voted into office, and no differences should exist in their ability to participate in the polity. By contrast, the social realm is characterized by the principle of discrimination: social relations follow the adage “like attracts like,” according to Arendt, and individuals are therefore entitled to associate—and not associate—with others along the lines of profession, class origin, ethnicity, level of education, and other vectors of difference. Finally, the private realm is defined by the principle of exclusiveness: individuals choose the people with whom they will spend their lives on the basis of those people’s unique qualities, and the government should and indeed must assure “the rights of every person to do as he pleases within the four wall of his own home.”

Arendt charges that state action in the service of racial integration is acceptable when it attacks the legal enforcement of discrimination in the political realm. One of her key differences with Myrdal, however, lies in the fact that she does not regard the education provided by the school as necessary for political participation. Indeed, she does not ultimately consider the school to be a “political” institution at all. To be sure, the state has the right to prescribe educational content that will prepare children for future work and citizenship. But in Arendt’s argument government cannot dictate the forms of association and social life that emerge in school, and it cannot infringe on parents’ rights to bring up their children as they deem appropriate. These points lead her to a rather provocative conclusion: “to force parents to send their children to an integrated school against their will means to deprive them of rights which clearly belong to them in all free societies—the private right over their children and the social right to free association.”

As Roger Berkowitz writes in his essay "Solitude and the Activity of Thinking," Arendt's argument is grounded on her belief that a vibrant private realm is a constitutive need of a free political society. Without a strong protection of the private realm where people can grow to be different, unique, and self-thinkers, there will be no true plurality, which is the condition for action and politics. The price for plurality, she writes, is that we allow for people to live freely in private. It is for this reason that Arendt argues against anti-miscegenation law and why she would insist on the right to gay marriage. For Arendt, there is nothing more constitutive of privacy than the right to raise one's children as one wishes. For the state to forcefully require parents to send their children to a specific kinds of school means, she writes, that there would be no meaningful realm of privacy left—which would endanger the plurality she understands is the pre-condition of politics. As Berkowitz writes:

What offends Arendt in the Little Rock case is not the ideal of desegregation, but the danger that well-intentioned governmental attacks on social discrimination will erode the walls of privacy that nourish the possibility of thinking and of acting—and thus of plurality. Since the space for solitary thought depends on the protection of a vibrant private realm, the protection of privacy is a necessary first step in the cultivation of thoughtful political action.

Given the controversial nature of Arendt’s position, it should come as no surprise that much of the discussion turned on the questions her essay leaves unanswered. For example, many audience members wondered about the connections between private upbringing, social discrimination, and political equality. What is it that enables or requires citizens to forego the discrimination they practice in social life so that they might recognize other citizens as equals?

For that matter, how is it possible for people to transcend those aspects of their familial socialization that might hinder them from participating in politics without prejudice?

Other listeners focused on the two writers’ divergent intellectual predilections. As several of them noted, Myrdal’s work reveals a basic confidence in the ability of government, working in tandem with enlightened social science, to conceive and implement policies that further democratic freedoms. Arendt, on the other hand, betrays a much more skeptical stance not only on power of the state, but also on the capacity of social scientists (like Myrdal) to guide productive social and political interventions.

Finally, discussion turned to one point where Arendt, despite the contentious nature of her remarks, might be developing a more interesting view of democratic societies than Myrdal. As Morey noted in the Q and A, Myrdal’s reflections on democracy are ultimately premised on the existence of a national Volk defined by broad moral and cultural commonality. Prejudice and discrimination are pernicious, in his reading, because they prevent racial minorities from complete integration into the nation and its defining sense of peoplehood. Arendt’s vision, by contrast, adopts a much more guarded stance toward “conformism” of this sort. Indeed, “Reflections on Little Rock” proposes that people have a strong right to their opinions and sentiments in the private and social realms, even when those opinions and sentiments are deeply unpalatable in the wider public sphere and polity. As a result, Arendt’s notion of democracy appears to allow much greater room for the existence and maintenance of difference.

On the whole, then, Morey’s talk cast thoughtful light on the work of these two thinkers. It sought neither to venerate nor to dismiss their claims wholesale, but instead probed the many differences in their starting points and claims. In the end, Myrdal and Arendt’s positions seemed so divergent that it was hard not to regard them as “two ships passing in the night”—despite their common abhorrence of racial segregation.

You can view Maribel Morey's talk and the ensuing discussion on the Hannah Arendt Center website, here.

Maribel Morey's essay, "Reassessing Hannah Arendt's 'Reflections on Little Rock' (1959)" was published in the Journal of Law, Culture, and the Humanities. You can sign in with a password to read the article here

-Jeff Jurgens

 

19Oct/122

Campaign Finance Laws and the First Amendment

The Arendt Center recently hosted Professor Zephyr Teachout to speak about Citizens United v. FEC and campaign finance reform. The talk was in honor of Constitution Day, which Professor Teachout joyfully informed us may very well be unconstitutional. We carried on.

Teachout began her talk by announcing that the "First Amendment is a terrible thing." Less provocatively, she argues that the First Amendment plays a "dangerous role" in our constitutional culture. Above all, she presented her argument that the Supreme Court's increasing reliance on the First Amendment to invalidate campaign finance laws is, ironically, used to shut down meaningful public debate around the proper role of lobbying in our politics.

She began by telling a story of the Supreme Court case Trist v. Child from 1874. The case involves Mr. Trist who had a claim against the U.S. Government for about $15,000 (about $100,000 in current dollars). Trist hired Child, a lawyer, to represent him and convince Congress to honor its debt. Among other things, Child encouraged Trist to have his friends write to Congressman threatening not to vote for them if they didn't honor this debt to Trist. Child also personally lobbied Congressman.  He eventually succeeded in getting Congress to appropriate Trist's money.

Trist, however, refused to pay Child the fee agreed to in their contract. Child sued Trist to get his agreed upon money.

In the Supreme Court decision refusing to enforce the contract, the Court holds that Trist need not pay Child; a number of reasons are given, a few very technical. But the majority of the opinion by Justice Swayne rejects the legality of lobbying with a broad brush.  Trist need not honor his contract with Child, Swayne writes, because there was no valid contract. In short, the original contract hiring Child as a lobbyist was immoral and illegal, and thus unenforceable. Justice Swayne argues that the very immorality of the practice of lobbying nullifies the contract between Trist and Child.

Teachout helpfully describes the issue this way. Child says something like: Our contract was just like a contract for me to sell you a car and now you don't want to pay me for the car now that you have it. Trist responds that, in Teachout's colorful analogy,

No, this is like we made a contract for prostitution, and you can't go to the cops after we made a contract for prostitution and get them to enforce that contract. Because lobbying is like prostitution. It is so corrupt that there is no way courts are going to enforce it.

Writing for the Supreme Court, Justice Swayne puts it this way:

The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.

There are two remarkable things about Justice Swayne's argument. First, as Teachout notes in her talk, there was nothing remarkable about it in 1874. Many states and governments throughout the U.S. made lobbying illegal. It was seen as an act of corruption. And few if any courts in the U.S. would find this unusual, at least before the turn of the 20th century.

The second remarkable thing to note is how utterly remarkable Justice Swayne's argument is today. To speak of the millions of lobbyists in the US as "adventurers who make market of themselves" as offending the "moral sense of every right-minded man" is a painful reminder of how far our political system has fallen. Not only is the moral prohibition against lobbying something of the past, but also the idea that the Supreme Court would invalidate contracts based on lobbying is nearly unimaginable.

The reason for this change in the legal and even moral status of lobbying is, Teachout argues, the rise of free-speech jurisprudence in the 20th century. Specifically, the Court's acceptance of the basic claim freedom of speech is the fundamental foundation of our democratic system has made lobbying not only legal, but morally defensible. If democracy depends on a marketplace of ideas, then having corporations and individuals hire lawyers and public relations firms to buy and sell influence in politics is at the very foundation of democratic governance. What Teachout forces us to consider is that our elevation of the First Amendment to foundational status in our constitutional firmament is predicated on a political theory that founds democracy on the unfettered marketplace of ideas. If we are to take back our government from corporate adventurers and their lobbyists, we will need to rethink our commitment to free speech, at least as the Court currently understands it.

Teachout's provocative talk attacks less freedom of speech itself than the Court's elevation of free speech to the first amongst all constitutional provisions—the foundational right in our constitutional and democratic system. She traces the rise of free speech jurisprudence to the point where, today, free speech is the paradigmatic right in our democracy. Free speech has become equated with democracy, so that "free speech is democracy."

It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values.

Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.

This view that free speech is the fundamental bastion of democracy is the basis of Justice Kennedy's decision in Citizens United. In Kennedy's opinion, laws regulating campaign finance regulate speech, and not just force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship. Which is why Kennedy can worry that "The censorship we now confront is vast in its reach."

What he means is that all those corporations regulated by the campaign finance reform law invalidated by Citizens United—including large multinationals and also small mom and pop stores and even unions and non-profit corporations—are prohibited from expressing their views about political candidates during an election. In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy."

It is helpful to recall Justice Felix Frankfurter's concurring opinion in U.S. v. Congress of Industrial Organizations. The Smith Act had forbidden unions to use funds to pay for politicking, very much like the limitations on corporate funding in the 2002 Bipartisan Campaign Reform Act.  In U.S. v. CIO, the Court refused to rule on the Constitutional question of whether the Congress can forbid unions from political speech. Frankfurter, however, does consider it. He argues that we must take seriously the evil of corporate and union speech in politics. The corruption of elections and federal officials by the expenditure of large masses of aggregated wealth But that evil, he counters, "is not one unmixed with good." For Frankfurter,

To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.

Replace "Labor unions" with "corporations." That is what Justice Kennedy did in Citizens United. What he said is that corporations have a voice in our political landscape, just as do unions and non-profits. When such corporate entities engage in speech, there is a danger of corruption. But we cannot deny their speech is politically important. Instead of then balancing those interests in a practical way, Justice Kennedy simply said that the First Amendment insists that political speech never be abridged. Our Constitutional system, he argued, demands that the marketplace of ideas be allowed to work unimpeded.

The overriding desire to protect political speech proceeds under the assumption, with Oliver Wendell Holmes Jr., that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.” What Zephyr Teachout helps to make clear is that this elevation of free-speech to the first amongst constitutional provisions is fundamentally at odds with the desire to regulate political speech to keep politics free from corruption.  If we want to get serious about fighting corruption in politics, we need to take seriously the need to question the now unquestionable faith that democracy is founded upon freedom of speech.

To fight against Citizens United and uphold the legal rejection of campaign finance limitations requires that we break the bi-partisan stranglehold that an extreme view of the First Amendment currently has on our constitutional jurisprudence.  Only once we do so can we return to a meaningful public debate about when lobbying is and when it is not corrupting. And only once we free campaign finance laws from the First Amendment can we, as we must, have a serious discussion about how much money distorts and corrupts our political process.

These are difficult issues, and weakening the scope and impact of the First Amendment is risky. As Teachout argues, it is a risk we must take to save our democratic system.

To see why, I encourage you to watch Zephyr Teachout's talk here. You can also read the essay on which the talk is based here. Together, they are your weekend reads.

—RB

1Oct/122

Withered Public, Disappearing Private

“What is necessary for the pubic realm is to shield it from the private interests which have intruded upon it in the most brutal and aggressive form.”

-Hannah Arendt

In 1973, Hannah Arendt was invited to participate in a series of conferences on the Humanities and Public Policy issues funded by the National Endowment for the Humanities to be held at Columbia University. The first, scheduled for February 1974, was on the topic of “Private Rights and the Public Good,” and Arendt gave a speech in response to a paper on the subject given by Charles Frankel, a Professor of Philosophy and Public Affairs at Columbia University. (The original note cards of her presentation are available to researchers at the Library of Congress and can be viewed digitally online.)

Part of the grant’s requirements included taping the sessions and providing the Endowment with a transcript of all proceedings. Arendt objected to being taped and indicated she could do no more than present her oral commentaries; she had no time to develop a fuller paper. The organizers of the conference and Arendt reached a compromise: they would prepare a transcript of her comments from the tape; the tape would stay in the possession of Columbia University and no use would be made of the transcript, other than filing it with the Endowment as required, without Arendt’s express permission.

Some months after the conference, the coordinator of the conference sent Arendt the edited transcript, along with his wishes for her speedy recovery: while Arendt was in Scotland for the second of the Gifford Lectures, she had suffered a major heart attack. Unhappy with the transcription, Arendt indicated she still had her notes and would prepare something from them, adding that she thought this would present her thoughts more clearly, “even though these notes are written down in a rather apodictic style.” She had her secretary type up a version of the notes and then made a few additional minor changes and sent them to Columbia University.

“Notes on the Discussion of Professor Charles Frankel’s Paper...” provides several succinct insights into Arendt’s critical distinctions between public and private, which are especially germane to today’s political situation.

“Every individual by virtue of his citizenship receives a sort of second life in addition to his private life. He belongs to two orders of existence. Throughout his life he moves within what is his own, and what is common to him and his fellow man.” Public happiness was something that could only be attained “in public, independent of...private happiness.”

Today, Arendt bemoaned, the opportunities for experiencing this public happiness by participating in public life had shrunk, adding, “The voting box can hardly be called a public place.” It was better represented in the activities of a jury. But the paradigmatic “public right” for Arendt was the right to peaceable assembly provided by the First Amendment to the Constitution. Its exercise was still evident in “voluntary association”, she remarked, “of which the civil disobedience groups were an outstanding examples.” Arguably, it has been more recently evident in dimensions of the Occupy Wall Street movement and its iterations. (Though, for interesting commentary and documentary materials on this see Cindy Weber’s recent essay in Open Democracy). But what was definitely not an example of the exercise of public rights was the degeneration of peaceable assembly into “lobbying,” which Arendt saw as “the organization of private interest for the purpose of public political influence.

Evidence from the current campaign suggests that the bipartisan perversion of public into private interests continues at an obscene pace. A recent article in The New Yorker provided some frightening facts:  The impact of the 2010 Supreme Court case, Citizens United v. Federal Election Commission has meant that “very wealthy Americans have begun wielding increasingly disproportionate power in U.S. politics...A pool of only 2100 people has given a total of 200 million dollars to the 2012 campaigns and their Super PACs—fifty-two million dollars more than the combined donations of the two and a half million voters who have given two hundred dollars or less. In other words, the top .07 per cent of donors are exerting greater influence on the 2012 race than the bottom 86%.” (August 27, 2012)

What this means, using Arendt’s terminology, is that only a tiny portion of private interests will exert tremendous political influence. Not only has the public realm shrunk; the private realm of influencing politics has all but disappeared for everyone except the very few. Entering the voting booth in 2012 will mean exercising your private right to choose between one form of oligarchy or another. What then of public life? How can it be restored?

Arendt was typically vague about what to do about the influence of oligarchies on public and private life. “Neither the capitalist system [nor] the socialist system respects ownership any more—inflation and devaluation of currency are capitalist modes of appropriation—although both, in different ways, respect acquisition,” she wrote in the same speech. As to the consequences of enshrining acquisition as a principle of social organization, Arendt had nothing but criticism—see The Human Condition for this. To protect private life, we must “restore ownership to private individuals under conditions of modern production.” And what is necessary for public life to be restored is “to shield it against the private interests which have intruded upon it in the most brutal and aggressive form.” Yet all recent legislation that would have restored “ownership” or secured the public realm against brutalization by private interests seem to disappeared from the legislative agenda.

Is it time to call upon the 99% to boycott the election entirely? What other act of civil disobedience would be adequate to the task of renewing public life and salvaging it from its bastardization at the hands of greedy private interests?

-Kathleen B. Jones

25Sep/120

Does the President Matter?

“Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.”

                        —Hannah Arendt, What is Freedom?

This week at Bard College, in preparation for the Hannah Arendt Center Conference "Does the President Matter?", we put up 2 writing blocks around campus, multi-paneled chalkboards that invite students to respond to the question: Does the President Matter?  The blocks generated quite a few interesting comments. Many mentioned the Supreme Court. Quite a few invoked the previous president, war, and torture. And, since we are at Bard, others responded: it depends what you mean by matters.

This last comment struck me as prescient. It does depend on what you mean by matters.

If what we mean is, say, an increasing and unprecedented power by a democratic leader not seen since the time of enlightened monarchy, the president does matter. We live in an age of an imperial presidency. The President can, at least he does, send our troops into battle without the approval of Congress. The President can, and does, harness the power of the TV, Internet, and twitter to bypass his critics and reach the masses more directly than ever before. The president can, and does, appoint Supreme Court Justices with barely a whimper from the Senate; and the president’s appointments can, and do, swing the balance on a prisoner’s right to habeas corpus, a woman’s right to choose, or a couple’s right to marry.

And yet, what if by matter, we mean something else? What if we mean, having the power to change who we are in meaningful ways? What if by matter we mean: to confront honestly the enormous challenges of the present? What if by matter we mean: to make unpredictable and visionary choices, to invite and inspire a better future?

­On the really big questions—the thoughtless consumerism that degrades our environment and our souls; the millions of people who have no jobs and increasingly little prospect for productive employment; the threat of devastating terrorism; and the astronomical National Debt: 16 trillion and counting for the US. -- That is $140,000 for each taxpayer. -- Add to that the deficiency in Public Pension Obligations (estimated at anywhere from $1 to $5 trillion.) Not to mention the 1 trillion dollars of inextinguishable student debt that is creating a lost generation of young people whose lives are stifled by unwise decisions made before they were allowed to buy a beer.

This election should be about a frank acknowledgement of the unsustainability of our economic, social, and environmental practices and expectations. We should be talking together about how we should remake our future in ways that are both just and exciting. This election should be scary and exciting. But so far it’s small-minded and ugly.

Around the world, we witness worldwide distrust and disdain for government. In Greece there is a clear choice between austerity and devaluation; but Greek leaders have saddled their people with half-hearted austerity that causes pain without prospect for relief.  In Italy, the paralysis of political leaders has led to resignation and the appointment of an interim technocratic government. In Germany, the most powerful European leader delays and denies, trusting that others will blink every time they are brought to the mouth of the abyss.

No wonder that the Tea Party and Occupy Wall Street in the US, and the Pirate Parties in Europe share a common sense that liberal democratic government is broken. A substantial—and highly educated—portion of the electorate has concluded that our government is so inept and so compromised that it needs to be abandoned or radically constrained. No president, it seems, is up to the challenge of fixing our broken political system.

Every President comes to Washington promising reform!  And they all fail.  According to Jon Rauch, a leading journalist for The Atlantic and the National Journal, this is inevitable. He has this to say in his book Government's End:

If the business of America is business, the business of government programs and their clients is to stay in business. And after a while, as the programs and the clients and their political protectors adapt to nourish and protect each other, government and its universe of groups reach a turning point—or, perhaps more accurately, a point from which there is no turning back. That point has arrived. Government has become what it is and will remain: a large, incoherent, often incomprehensible mass that is solicitous of its clients but impervious to any broad, coherent program of reform. And this evolution cannot be reversed.

On the really big questions of transforming politics, the President is, Rauch argues, simply powerless. President Obama apparently agrees. Just last week he said, in Florida: "The most important lesson I've learned is that you can't change Washington from the inside. You can only change it from the outside."

A similar sentiment is offered by Laurence Lessig, a founding member of Creative Commons. In his recent book Republic 2.0, Lessig writes:

The great threat today is in plain sight. It is the economy of influence now transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is not that it discriminates in favor of one side and against the other. The single most salient feature is that it discriminates against all sides to favor itself. We have created an engine of influence that seeks not some particular strand of political or economic ideology, whether Marx or Hayek. We have created instead an engine of influence that seeks simply to make those most connected rich.

The system of influence and corruption through PACs, SuperPacs, and lobbyists is so entrenched, Lessig writes, that no reform seems plausible.  All that is left is the Hail Mary idea of a new constitutional convention—an idea Lessig promotes widely, as with his Conference On the Constitutional Convention last year at Harvard.

For Rauch on the Right and Lessig on the Left, government is so concerned with its parochial interests and its need to stay in business that we have forfeited control over it. We have, in other words, lost the freedom to govern ourselves.

The question  "Does the President Matter?" is asked, in the context of the Arendt Center conference, from out of Hannah Arendt's maxim that Freedom is the fundamental raison d'etre of politics. In "What is Freedom?", Arendt writes:

“Freedom is actually the reason that men live together in political organization at all. Without it, political life as such would be meaningless. The raison d’être of politics is freedom.”

So what is freedom? To be free, Arendt says, is to act. Arendt writes: "Men are free as long as they act, neither before nor after; for to be free and to act are the same.”

What is action? Action is something done spontaneously. It brings something new into the world. Man is the being capable of starting something new. Political action, and action in general, must happen in public. Like the performing arts—dance, theatre, and music—politics and political actions requires an audience. Political actors act in front of other people. They need spectators, so that the spectators can be drawn to the action; and when the spectators find the doings of politicians right, or true, or beautiful, they gather around and form themselves into a polity. The political act, the free act must be surprising if it is to draw people to itself. Only an act that is surprising and bold is a political act, because only such an act will strike others, and make them pay attention.

The very word politics derives from the Greek polis which itself is rooted in the Greek pelein, a verb used to describe the circular motion of smoke rings rising up from out of a pipe. The point is that politics is the gathering of a plurality around a common center. The plurality does not become a singularity in circling around a polestar, but it does acknowledgement something common, something that unites the members of a polity in spite of their uniqueness and difference.

When President Washington stepped down after his second term; when President Lincoln emancipated the slaves; when FDR created the New Deal; when President Eisenhower called the Arkansas National Guard into Federal Service in order to integrate schools in Little Rock; these presidents acted in ways that helped refine, redefine, and re-imagine what it means to be an American.

Arendt makes one further point about action and freedom that is important as they relate to the question: Does the President Matter? Courage, she writes, is "the political virtue par excellence."  To act in public is leave the security of one's home and enter the world of the public. Such action is dangerous, for the political actor might be jailed for his crime or even killed. Arendt's favorite example of political courage is Socrates, who was killed for his courageous engagement of his fellow Athenians. We must always recall that Socrates was sentenced to death for violating the Athenian law.

Political action also requires courage because the actor can suffer a fate even worse than death. He may be ignored. At least to be killed for one's ideas means that one is recognized as capable of action, of saying and doing something that matters. To be ignored, however, denies the actor the basic human capacity for action and freedom.

One fascinating corollary of Arendt's understanding of the identity of action and freedom is that action, any action—any original deed, any political act that is new and shows leadership—is, of necessity, something that was not done before. It is, therefore, always against the law.

This is an insight familiar to readers of Fyodor Dostoevsky. In Crime and Punishment Raskolnikov says:

Let's say, the lawgivers and founders of mankind, starting from the most ancient and going on to the Lycurguses, the Solons, the Muhammads, the Napoleons, and so forth, that all of them to a man were criminals, from the fact alone that in giving a new law they thereby violated the old one.

All leaders are, in important ways, related to criminals. This is an insight Arendt and Nietzsche too share.

Shortly after we began to plan this conference, I heard an interview with John Ashcroft speaking on the Freakonomics Radio Show. He said:

"Leadership in a moral and cultural sense may be even more important than what a person does in a governmental sense. A leader calls people to their highest and best. ... No one ever achieves greatness merely by obeying the law. People who do above what the law requires become really valuable to a culture. And a President can set a tone that inspires people to do that."

My first reaction was: This is a surprising thing for the Attorney General of the United States to say. My second reaction was: I want him to speak at the conference. Sadly, Mr. Ashcroft could not be with us here today. But this does not change the fact that, in an important way, Ashcroft is right. Great leaders will rise above the laws in crisis. They will call us to our highest and best.

What Ashcroft doesn't quite say, and yet Arendt and Dostoevsky make clear, is that there is a thin and yet all-so-important line separating great leaders from criminals. Both act in ways unexpected and novel. In a sense, both break the law.

But only the leader's act shows itself to be right and thus re-makes the law.  Hitler may have acted and shown a capacity for freedom; his action, however, was rejected. He was a criminal, not a legislator.  Martin Luther King Jr. or Gandhi also broke the laws in actions of civil disobedience. Great leader show in their lawbreaking that the earlier law had been wrong; they forge a new moral and also written law through the force and power of moral example.

In what is perhaps the latest example in the United States of a Presidential act of lawbreaking, President George W. Bush clearly broke both U.S. and international law in his prosecution of the war on terror. At least at this time it seems painfully clear that President George W. Bush's decision to systematize torture stands closer to a criminal act than an act of great legislation.

In many ways Presidential politics in the 21st takes place in the shadow of George W. Bush's overreach. One result is that we have reacted against great and daring leadership. In line with the spirit of equality that drives our age, we ruthlessly expose the foibles, missteps, scandals and failures of anyone who rises to prominence. Bold leaders are risk takers. They fail and embarrass themselves. They have unruly skeletons in their closets. They will hesitate to endure and rarely prevail in the public inquisition that the presidential selection process has become.

These candidates, who are inoffensive enough to prevail, are branded by their consultants as pragmatists. Our current pragmatists are Products of Harvard Business School and Harvard Law School. Mr. Romney loves data. President Obama worships experts. They are both nothing if not faithful to the doctrine of technocratic optimism, that we with the right people in charge we can do anything. The only problem is they refuse to tell us what it is they want to do. They have forgotten that politics is a matter of thinking, not a pragmatic exercise in technical efficiency.

Look at the Mall in Washington: the Washington monument honors our first President,  the Jefferson Memorial, the Lincoln Memorial, the Memorial to Franklin Delano Roosevelt.  There is not a monument to any president since FDR. And yet, just 2 years ago we dedicated the Martin Luther King Memorial. It doesn't seem like an accident that the leaders of the Civil Rights Movement were not politicians. Our leaders today do not gravitate to the presidency. The presidency does not attract leaders. Bold leaders today are not the people running for office.

Yet, people crave what used to be called a statesman. To ask: "Does the President Matter?" is to ask:  might a president, might a political leader, be able to transform our nation, to restore the dignity and meaning of politics? It is to ask, in other words, for a miracle.

At the end of her essay, "What is Freedom?", Hannah Arendt said this about the importance of miracles in politics.

Hence it is not in the least superstitious, it is even a counsel of realism, to look for the unforeseeable and unpredictable, to be prepared for and to expect “miracles” in the political realm. And the more heavily the scales are weighted in favor of disaster, the more miraculous will the deed done in freedom appear.

She continued:

It is men who perform miracles—men who because they have received the twofold gift of freedom and action can establish a reality of their own.

I don't know if the president matters.

But I know that he or she must. Which is why we must believe that miracles are possible. And that means we, ourselves, must act in freedom to make the miraculous happen.

In the service of the not-yet-imagined possibilities of our time, our goal over the two days of the conference days was to engage in the difficult, surprising, and never-to-be-understood work of thinking, and of thinking together, in public, amongst others. We heard from philosophers and businessmen, artists and academics. The speakers came from across the political spectrum, but they shared a commitment to thinking beyond ideology. Such thinking is itself a form of action, especially so in a time of such ideological rigidity. Whether our meeting here at Bard gives birth to the miracle of political action--that is up to you.  If we succeeded in thinking together, in provoking, and in unsettling, we perhaps sowed the seeds that will one day blossom into the miracle of freedom.

-RB

Watch Roger's  opening talk from the conference, "Does the President Matter?" here.

11Jun/120

The Supreme Court No Longer Reigns Supreme

Polling often confirms the obvious, but sometimes it is important to be faced with the fact. The NY Times does just today when it reports,

Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views.  Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.

The loss of respect for the Court is important. Hannah Arendt understood that the Supreme Court was the only institution in American Democracy that could offer stability and authority to the vagaries of democratic will.  The Court is the institution that stands above politics, or at least it used to.

For Arendt, the "great measure of success" of the American experiment in government was the founding of a "new body politic stable enough to survive the onslaught of centuries to come." Arendt writes that the success of American Constitutional Republicanism was secured "the very moment when the Constitution began to be "worshipped." The worship of the Constitution meant that the Court decisions where cloaked in a patina of authority. The Court spoke not for itself, nor for the democratic people, but for the American People constituted as a Republic.

The importance of the Supreme Court was that it lacked power and thus stood outside of politics.

Institutionally, it is lack of power, combined with permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court. And this authority is exerted in a kind of continuous constitution-making, for the Supreme Court is indeed, in Woodrow Wilson's phrase, 'a kind of Constitutional Assembly in continuous session.

The Court was both a truthteller that stood outside politics and, equally essential, a model of free and reasoned discussion about the core constitutional issues of the day.

The decline of the Supreme Court has a long history. It begins with the innovation of the Justices issuing long and reasoned decisions, something that only becomes common in the early 20th century. The long opinions and multiple dissents pierced the veil of authority and showed the Court to resemble bickering legislatures more than reasonable jurists. Franklin Delano Roosevelt's court-packing scheme further politicized the Court, as did the activism of the Warren Court. But it was only in the 1980s and the bitter confirmation battles along with the litmus tests for judges on issues like abortion and affirmative action that has produced a Court that sees itself as an increasingly politicized body. The Bush v. Gore intervention that decided the 2000 election and most recently the Citizens United decision that made unconstitutional a century-long practice of limiting the influence of money in elections have stripped the Court of its last veneer of authority.

The loss of authority may not be reversible, but nor is it a minor event. How we respond to the loss of the Court's authority—with denial, with an effort to return the Court to its prior glory, with an ever-more partisan and thoughtless politics, or with a concerted effort to create new institutions that will conserve and deepen the sense of who we are as a nation—will go a long way to determining whether the United States' will persist as a beacon of freedom and stability.

-RB

30Mar/121

The Supreme Court as Truthteller

I spent an exciting day at the College of Arts and Letters at Stevens Institute of Technology. Along with Matthias Bormuth, Morris Kaplan, and our host Michael Steinman, we enjoyed a wide-ranging discussion centering around Hannah Arendt's essay Truth and Politics, but reaching deep into Arendt's thinking about law and politics as well.

Much of the discussion at our seminar discussed the status of the Supreme Court as a truthteller. Arendt saw the great innovation of the American form of government to be the shift of the seat of authority to the Supreme Court. By authority, Arendt means that pre-political claim of obedience that flows from tradition, religion, or possibly from charisma. In Rome authority was located in the Senate, and the Senators

"held their authority because they represented, or rather reincarnated, the ancestors whose only claim to authority in the body politic was precisely that they had founded it, that they were the 'founding fathers'. Through the Roman Senators, the founders of the city of Rome were present..."

In America, authority was vested in the Supreme Court. The Justices, like the Roman Senators, hold their authority because they had no power themselves, since they "'possessed neither Force nor Will but merely judgment.'" The Justices' authority comes not from power, but from their being linked back to the founders as interpreters of the founding moment, thus as a continuation of the constitutional convention in permanent session.

How the Supreme Court and its justices tie themselves back to the founding moment as reincarnations of the founding fathers partakes, of course, of the mysterious. The initial success of the American Constitution resulted from the founders causing the US Constitution to be worshipped. This worship depended upon and allowed an ambiguity to persist in the sense and understanding of the Constitution, on its becoming both ‘an endurable objective thing’, on the one hand, and yet one that could be approached from many angles and many interpretations. It must be amendable and changeable, and yet impervious to any subjective states of mind or influences of will.

The miracle of the Constitution’s foundational authority – it being worshipped as both a text and a continual reincarnation of the founding revolutionary act – is made possible only by a prior miracle – the miracle of beginning. As Arendt argues throughout her work, all men ‘are equipped for the logically paradoxical task of making a new beginning’.  As beginners, we men are uniquely capable of understanding the mysterious way in which a beginning can also rest on ancient and unyielding foundations. Since men are themselves, as part of the human condition, beginners who can and do appear in the world to start things anew – since men are thrown into the world that we must respond to – thus are we uniquely open to the idea of finding in the first and foundational act not only an arbitrary deviation but also an authoritative principle.

For men, therefore, the act of beginning anew is not an arbitrary deviation from the foundation. The foundation is in the past, and yet it remains a forceful part of everyday practice.  The beginning, Arendt argues, ‘carries its own principle within itself, or, to be more precise, that beginning and principle, principium and principle, are not only related to each other, but are coeval’.  As beginners, men are open to the claim of the beginning and foundation as an origin that carries with itself a principle and thus simultaneously allows for augmentation and conservation. 

Arendt's locating of authority in the Supreme Court is part and parcel of her respect for the American Constitution and for federalism. The seat of American freedom is, in Arendt's understanding, the diffusion of powers and the refusal of absolute sovereignty in the American system of government.

It is, I think, worth recalling that the present arguments about the Affordable Care Act before the Supreme Court concern precisely this question of federalism. If the Court holds the Act unconstitutional, it will be because we live in a constitutional republic defined by the separation of powers including the division of power between a centralized national government and de-centralized state governments. According to this theory, liberty is best protected by diffusing power. The federal government has the right to regulate commerce. But to hold that people who do not purchase health care are engaged in interstate commerce is to say that the government can regulate anything we do, even non-commercial activities, simply by insisting that we buy something and then calling it commerce. By this theory, the act removes any and all limits on federal power and violates the constitutional idea of the diffusion and separation of powers.

I have no idea what Arendt would have thought of the Affordable Care Act. Clearly the Act is both flawed and ambitious, and it carries both much that is good and some that is less so.

But it does seem undeniable that the Affordable Care Act is a significant expansion of governmental power, both the power of the federal government over the states as well as the power of government over individuals. It confirmation would be another step in the long chain of 20th century cases eroding the separation of powers that Arendt held so important a bulwark for human freedom.

As the debate around the Affordable Care Act rages on, and as the judges retire to their chambers to commune with our ancestors, it is well worth your time to revisit Chapter Four of Hannah Arendt's defense of  On Revolution. It is your weekend read. Click here to download.

-RB

30Mar/120

Contending with Youth Crime

There has been much attention paid to the arguments before the Supreme Court concerning the 2010 health care law. And such attention is entirely justified, for the upcoming decision will have a decisive impact on the availability and quality of medical care for millions of Americans. But we should not forget another question that has recently come before the Court: whether it is constitutional for states to sentence juvenile offenders to life without the possibility of parole.

This case raises important questions not only about the purpose of criminal prosecution and incarceration, but also about our conceptions of personhood and the legal, moral, and other boundaries we construct between youth and adulthood. These issues have been on my mind a great deal these days: as part of my work with the Bard Prison Initiative, I am currently teaching a writing-oriented anthropology course entitled “Youth and Youth Politics” to two groups of incarcerated students. But they came even more pointedly to the fore as I was listening to the March 24th edition of NPR’s “All Things Considered.” This broadcast reported on a recent gathering that brought families of victims together with families of offenders sentenced to life without parole for crimes they committed as teenagers. Significantly, all those in attendance hope that the Supreme Court would declare such sentences unconstitutional.

If you have not already heard the report, I would recommend that you take a listen (and not merely read the text available on the NPR website). Aside from the power of the emotions expressed, I appreciate the way it neatly outlines and complicates the terms of debate. On the one hand, it presents the viewpoint of Scott Burns, head of the National District Attorneys Association, who sketches the potential reasons for long criminal sentences in starkly dichotomous terms. “Is it the goal [of prosecution and incarceration] to rehabilitate someone to see if they change? Or is the goal to do justice for the victims and others?” He inclines to the latter position, as is evident in the brief he filed that urged the Court not to overturn life sentences without parole.

On the other hand, the NPR report also includes the perspective of people like Mary Johnson, a mother whose son was shot and killed at a party by a sixteen-year-old boy. In the immediate aftermath, she regarded her son’s killer as an “animal”: “I wanted him charged with first-degree murder, imprisoned for the rest of his life.” But she now contends that retribution and rehabilitation cannot be easily separated from one another, and she suggests that offenders should not be defined for the entirety of their lives by the crimes they committed as young people.

This report does not offer nuanced arguments for one position or another on the constitutionality of life sentences without parole. But by providing a vivid account of how some people have sought to work through, and live with, the conundrums of “juvenile crime,” it offers a useful starting point for reflecting on our own moral intuitions.

You can listen to the excerpt here.

-Jeff Jurgens

9Feb/120

A Brief History of Campaign Finance

The NY Times penned one of those editorials Wednesday that makes one wonder who is home. The Times takes President Obama to task for forming a Super PAC--or for having someone form a Super PAC for him, because we know there is no coordination between the Super PAC and the Super PAC's beneficiary.  As cynical as the current Super PAC frenzy is, and as disheartening as the crush of money being spent by the Republican Super PACs and hoarded by Karl Rove's Super PAC is, what would be served by President Obama refusing to feed at the trough? Recall, he is the first Presidential candidate since 1974 to opt out of the public matching funds system. The idea that he might run as an anti-big-money candidate is hard to imagine, so how could he meaningfully run a campaign claiming on principle to be opposed to the influence of big money, as the Times editorial suggests.

I am in Berlin where on Monday I gave a Keynote Talk to open the State of the World Week in Berlin, sponsored by the European College of Liberal Arts of Bard. My talk was on the Citizen United court case, the case that opened the door to Super PACs. I'll be blogging more about Campaign Finance Reform as the election progresses. But for now, here is a short excerpt of one part of my talk that offered a condensed history of Campaign Finance and Campaign Finance Reform in the United States.

We can divide the history of Campaign finance in the U.S. into 7 stages.

     1. The first stage is the pre-History involving the 1787 Constitutional Convention. As Zephyr Teachout has shown, "Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened." Teachout and Lawrence Lessig have argued that there was a strong sense among the founding fathers that the great threat to new Constitution was corruption. And they have pointed to a number of practical responses to that threat in the Constitution itself. These include Article I, Section 6, Clause 2, which prevents members of Congress from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure.  The point was to prevent members of Congress from using their posts to enrich themselves and their friends.

Another innovation aimed to prevent corruption was the decision to have those in the House of Representatives serve only for two years. According to Teachout and Lessig, this was designed to counter the formation of bonds between legislators and the President. By turning over the members of the House on a regular basis, it would be less likely that the Representatives would form strong alliances with members of the Executive branch, thus helping to maintain their independence. The founding fathers would surely be astounded by the incumbent advantages apparent today.

     2. The Second stage of American campaign finance history runs from the passage of the Constitution until the election of Andrew Jackson in 1828. In early U.S. elections, most campaign expenses were paid directly by the candidates using their own money. Such expenses were relatively minimal, going toward an occasional campaign pamphlet and, sometimes, for food and drink at rallies. As Bradley Smith writes, "Though free from the "corrupting" effects of money, elections in this early period were generally contested by candidates representing aristocratic factions standing for election before a relatively small, homogeneous electorate of propertied white men."

     3. The financing of American political campaigns begins to become interesting in 1828, with the election of Andrew Jackson. Jackson's presidency is rightly seen as the true beginning of modern American democracy. And Jackson's campaign for President was the first presidential campaign that appealed directly to the voters and not simply to party elites. Jackson's campaign was organized by Martin van Buren (who later served as his Vice President and thereafter as President). Van Buren was one of the original machine politicians from New York who created the machine concept Boss William Tweed would perfect later in the century at Tammany Hall.  What Van Buren did for Jackson was to organize a campaign aimed at the people. This cost money. And what he and Jackson did was to raise money from those who were seeking jobs in the government.  This was the beginning of the spoils system, whereby political campaigns were funded by current and prospective government employees; these employees in turn expected to be rewarded with jobs once their candidate won the election.

     4. The spoils system lasted until the passage of the Pendleton Act, in 1883, which inaugurates the fourth stage of the development of campaign finance. The Pendleton Act professionalized the Federal Civil Service, instituting an exam for entry into the service and outlawing the Spoils system. The result was that campaign funds from federal officeholders dried up, and politicians needed new sources of funds. The obvious sources were wealthy individuals and corporations. And oh boy did corporations jump into the breach. By the late 19th century, the government was giving grants of land and cash to corporations, and in return the corporations were generously funding political campaigns. In 1888 40%, of Republican national campaign funds came from Pennsylvania manufacturing and business interests. By 1904, 73% of Teddy Roosevelt's presidential campaign funds were raised from corporate contributions. (I take these numbers from Bradley Smith). The age of corporate funded campaigns was here, and it has never left.

     5. Once he was elected, Teddy Roosevelt made it a priority to reform the broken campaign financing system that he had exploited so well. With his support, Congress passed the Tillman Act in 1907, which made illegal all campaign contributions from corporations. The Tillman Act opens the Fifth stage of the development of Campaign Finance Reform in the United States.

While the Tillman Act carried penalties for its violation, it instituted no enforcement mechanism. The result is that not much changed. To take only one legendary example, in 1968 and 1972 Clement Stone contributed up to $10 million to President Richard Nixon's Presidential campaigns. Stone's contributions caused a scandal that, together with the outrage over Watergate, led Congress to finally institute a serious attempt at campaign finance reform.

     6. The key moment of modern campaign finance reform is the passage of the Federal Election Campaign Act (FECA) in 1974, and  the Supreme Court's partial upholding and partial overturning of that law in Buckley v. Valeo in 1976. In the wake of Watergate and the loss of trust in government, the Congress passed FECA which: limited individual contributions to individual candidates to $1,000; limited the amount candidates could spend on a campaign; established a system of public financing of campaigns that required a voluntary limit on campaign expenditures; required that candidates, parties, PACs and groups engaging in express advocacy disclose their fund-raising and spending; and created the Federal Elections Commission, to regulate and enforce the new rules.

In a landmark decision that still controls all legal approaches to the regulation of campaign financing, the Supreme Court in Buckley v. Valeo upheld the disclosure requirement and the limits on individual contributions. It also upheld the limits on campaign spending when those limits were voluntary and in conjunction with the decision to accept public financing. But the Court struck down compulsory limits on spending both by individual candidates and by PACs and other groups. While the Court recognized that limits on campaign spending were a kind of censorship that limited the rights of people and corporations to speak about the most central political issues of the day, it also acknowledged "large contributions threaten the integrity of our system of representative democracy." Because large contributions, especially to individual candidates, at the very least appear to suggest a kind of quid pro quo corruption, the Court accepted that Congress has the right to censor such expressions of support. More general expenditures not given to or coordinated with a specific candidate were, the Court argued, not examples of the kind of corruption that would allow Congress to override the fundamental free speech interests of individuals and corporations who would want to influence the political debate. Thus, post-Buckley, the rule was: The Constitution limits censorship of political activity, political speech and political spending on campaigns. Any limit is censorship that violates the First Amendment. And yet the Court carved out One Narrow Exception: speech or activity that either is or gives the appearance of quid pro quo corruption could be regulated and banned.

In the aftermath of Buckley v. Valeo, money continued to pour into politics. Candidates and their supporters made use of "soft money," money given to political parties and other groups and thus not subject to the limits imposed on individual contributions to individual candidates. PACS began to bundle large sums of money that, while not individual contributions to candidates, nevertheless carried the tint of influence peddling. In the year 1993-94, the Democratic Party received $45 Million dollars in "soft money" and the Republic Party received $59 Million. By 1999-2000, the numbers were $92 Million and $244 Million respectively. In  2001-2002, the Democratic Party took in $200 Million and the Republicans $421 Million.

     7. The failure of FECA to stem the tsunami of money in elections led Congress to try again, and in 2002 it passed the Bi-Partisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act—the seventh and until now final stage of the effort to regulate campaign finance in the United States.  The main innovation of BRCA was to prohibit unlimited soft money contributions by corporations and unions. And it was this provision that was held to be unconstitutional by the Supreme Court in the now infamous case of Citizens United v. FEC.

The core of the Citizens United ruling was Justice Anthony Kennedy's argument that "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." For Kennedy, "The censorship we now confront is vast in its reach." What he means is that the law bans all those corporations—including large multinationals and also small mom and pop stores and even non-profit corporations—from expressing their views about political candidates for either 30 or 60 days leading up to an election.

In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy." Here Kennedy channels Felix Frankfurter, who in the 1941 case of U.S. v.s. Congress of Industrial Organizations, wrote:

To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.

U.S. v. C.I.O. dealt with the anti-Union Smith Act, which forbade unions and corporations from using treasury funds to pay for politicking. In this regard, the Smith Act was very much like 2002 Bipartisan Campaign Reform Act. While the majority of the Court refused to consider the Constitutional Question and decided the case on narrow grounds, Frankfurter did.  In his telling, the Court must take seriously the evil that Congress sought to address: namely, the corruption of elections and federal officials by the expenditure of large masses of aggregated wealth. And yet, Frankfurter saw that "the claimed evil is not one unmixed with good."  The expression of corporate or union speech in elections is, he writes, a good thing! "The expression of bloc sentiment has always been an integral part of our democratic and legislative processes."  Replace "Labor unions" with "corporations." That is what Kennedy did.

 -RB

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.