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Articles We Never Finished Reading: Money Talks... Or Something

At its {Buckley v. Valeo, 1974] center is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. It is a result of Buckley that wealthy candidates like Mayor Michael Bloomberg can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.

But, according to Buckley, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not significantly inhibit political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.

In the 1974 law, Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and the outflows of money. It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candidates to live within that number. Buckley ended that system before it even started, and imposed a different one, of the Justices’ own creation. The court declared that contributions could be limited but expenditures could not, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.

 - Jeffrey Toobin, "Money Unlimited," an analysis of the Citizens United case, in the May 21st issue of The New Yorker

The "bottom line", of course, is Toobin's; he himself has just written, in the prior two paragraphs that the "bottom line" is not nearly the bright (and in the paragraphs preceding it, he points out that Buckley v. Valeo is a contradictory, complicated, and extremely long decision that's hard to understand). But "bottom line'... Toobin's happy to shorthand it for you.

And shorthand that, and much else, Toobin does, for pages and pages in The New Yorker. Poorly written, sloppily fact checked - somewhere, the ghosts of the old New Yorker staff are spinning in mausolea - Toobin's exercise is mainly one of Supreme Court soap opera, full of (unverified, as far as I can tell) postulating on who does what to whom and how the Important Work of the Law gets injured in the process. Toobin's take is catnip for liberals, and blasphemy to conservatives, but both reactions give Toobin too much credit. Toobin's lazy assertions, like the breezy (and popular) sum-up of Buckley, tend to show that his investigation of campaign financing, never mind its "reform" are secondary to scoring political points and cheap shots (his disdain for Roberts, Alito, Scalia and especially Clarence Thomas are glaring). Though Toobin attempts - and he'd have to, because otherwise the article is little more than gossipy fluff - to ground his storytelling in a historical and theoretically detailed historical perspective, his retelling is slapdash, lazy, and lacking in useful specifics. For instance, he breezily sums up Watergate and the campaign reforms out of it - which led to the Buckley case - without really laying out why Congress approached the reforms as it did, or which aspects of Watergate were the real drivers for reform). This matters, I swear. He's equally lazy, and curiously vague, when describing the even earlier aspects of the Gilded Age-era practices that first led to some attempt to regulate campaigns; and he acts as if problematic campaigns, never mind questionable campaign spending, suddenly became an issue after 1870 (try looking up "Ma, Ma, who's my Paw?" for just one earlier example).

All of which makes soggy, slippery ground for Toobin to try and ground the discussion of Citizens United, though mostly Toobin can't be bothered to lay out the specifics of McCain Feingold, why they were seen as problematic from before the law even passed, and why the Supreme Court started looking askance at the law soon after it became law. And Toobin can't really avoid the fact that First Amendment issues were a concern for the Court well before the specifics of Citizens United were brought to it (a case called FEC vs. Wisconsin Right To Life in 2007 made clear that the Court was concerned about speech restrictions), but he insists that it's a "crusading" Court, led by John Roberts, that's trying to eviscerate Campaign Finance Reform. I'm at least pretty sure that's not how they would puit it; but you'll never know from Toobin, since he makes virtually no attempt to get perspectives from anyone who seemingly disagrees with his assessments.

I'm not trying to defend the Citizens United decision, or suggest that money equals speech is a great standard; if anything I don't need to, since Toobin's article, really, does most of that work itself. Though Toobin is incredulous about the path that set the Court towards overturning McCain Feingold, he does, in fact, backhandedly lay out why the decision's logic makes internal sense: trying to separate a biased, provocative, deliberately propagandistic film from other forms of political "advertising" is in many ways a distinction without a difference, and whie the Court is more willing to regulate advertising than other forms of speech, political advertising, because it is a form of speech so central to our Constitutional approach (elections, where people can freely debate ideas and assumptions), gets more than usual protectionunder the First Amendment. That's why "money=speech" is complicated, and difficult. The money Proctor and Gamble spends to sell Tide is not afforded special consititutional protections. But Mayor Bloomberg's ability to spend his own money to advocate for his own election is. And probably should be.

In any event, exploring this fascinating, difficult, and challenging subject would make for a great, thoughtful article one could chew over and debate with friends. The most frustrating thing is that Toobin hasn't written it. Which is reason enough not to bother reading it.

 

ACA, Meet The Supremes

I haven't written much about politics, and even less on healthcare in a long while, and I wouldn't necessarily see a reason to start now, even with the Supreme Court arguments this week... but I think there's a few points that bear repeating. 

Which is to say: I feel like much of this "health care debate" is old news and the point's been made, but let's try again, just for giggles.

First, I tend to think the Supreme Court case is premature, but at this point, it was unavoidable. Once three Appellate Divisions had ruled, 2-1 in favor of it, there was pretty much no way for the Supreme Court not to take up this case. That's why the Supreme Court exists, to resolve disputes among the different Circuits. Still, I think the Court will regret taking this up too soon and in an election year, when the decision can't help but be all politics, and little in the way of good law.

Second, even though I think the case should have been left aside, I think the arguments that came out this week were fascinating reminders of why we're having this dispute. As someone with a lot of understanding about the issues of healthcare and health insurance in America, I still tend to forget how few people can see the bigger picture, or have thought deeply about the system of insurance and payments that we have. That, I think, has been a big driver of the "mandate is unconstitutional" side, and a lot of their naivete was on display in the Court recordings. Paul Clement's attempts, for instance, to separate health insurance as a market from healthcare services was almost laughable (and for everyone so sure of the outcomes... it was also telling that the most skeptical voice on this separation was John Roberts). Why people buy health insurance, how people use health insurance, what healthcare costs for people who don't have it, what kind of care people without health insurance can get... these are basic questions for understanding the health care problems we have, and the displays of lack of comprehension of these topics within the Supreme Court debate was deeply revealing... and deeply depressing.

Third, I think it was pretty clear that the mandate is constitutional, if unpopular. Healthcare is, virtually by definition, interstate commerce. Even separated from health service, health insurance is interstate commerce (all that takes is one company that operates in more tha one state, buying health insurance for its workers). Devising a system where people show proof of insurance or pay a penalty is a "necessary and proper" function of the tax code. This isn't hard. There might be a narrow argument that the government can't "compel" economic activity... but compulsion seems like a vague, hard to define standard (if passports require a photo... why can the government compel you to get one?). 

Fourth, the mandate isn't nearly what its opponents try to make it out to be. No one is "forced" to do anything, or buy anything, under the regulation. It says, basically, either you have health insurance or you pay a fee. The fee is comparatively small (indeed, it may be small enough that it, too, creates a perverse incentive to not buy insurance until one is absolutely desperate). Most people already have health insurance - again, more than 85% of the population, most workers through their employers, and the elderly through Medicare, just for starters. Those percentages have probably shifted somewhat since the economic downturn, but the vast majority of Americans are, still, insured. That makes the fee a dead issue for almost everyone, and the point of the healthcare legislation is that, with the mandate and other incentives, business and insurers will work harder to make sure more workers are insured, and for others, there will be increased access to programs like Medicaid, or the new health insurance exchanges.

This is not a great, or an elegant, or a nearly perfect solution to our healthcare problems; the solutions do nothing about health care cost, and they codify our employment based system of insurance in ways that probably make things worse. But that brings us back to the yearlong debate about the ACA tyo begin with - yes, there are other solutions... but most of them require enormous leaps in our healthcare systems that we're just not prepared to make as a nation. Broadening the availability of insurance is a reasonable, workable workaround. And doing it probably buys some time to craft other solutions without leaving millions with few healthcare options.

Finally, to go back to the beginning, the real mistake here may be the first one the Court made: as they debated on the first day... this case probably should be punted until the penalty fee actually goes into effect (this is the argument over the "Anti-Injunction Act" which says that you can't sue the government over a tax the government hasn't yet collected). Until the government has to start collecting the fee, we won't know how many people have to pay it. And the better case against the fee is actually probably by people who have no way to get insurance... a prospect which is much more likely to be the case if the Federal government and the States can't work out differences over Medicaid, if the health exchanges don't come together successfully, or if eocnomic conditions get worse. Even Massachusetts had to reexamine the timing and structure of their mandate fee, and the avilability of low cost insurance, as it became clear that the fee made more sense for many uninsured people when affordable insurance was unavailable. That may well be a signpost for a similar outcome, on a much larger scale, when the penalty fee goes into effect.

I'm not trying to play Mary Sunshine here - of course the Sipreme Court's conservative majority could overturn the whole thing; proof that this is far more a political choice than anything about the laws involved, more a way to score points for conservatism generally. But conservatives have, really, still no answers for the various problems our healthcare systems create, only a "fend for yourselves" approach that's disastrous not just for some, but for most of us. The Affordable Care Act is unpopular... but more to the point, it is still not really understood. And that may be reason enough to do away with it. But it's not a good reason... just like this case, really, is not a good case.

Yet More Articles We Never Finished Reading: Supreme Obliviousness

As the Supreme Court lawyer Tom Goldstein puts it, “Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president’s signature accomplishment.” This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes....

At the age of 45, Clement, who has thinning brown hair and the faintest trace of a midwestern accent left over from his Wisconsin childhood, is already in the upper echelon of the Supreme Court bar. It’s an elite group of lawyers who, much like the justices they routinely argue cases before, conceive of themselves as being Olympian in their detachment from politics. Almost all of them graduated from Harvard or Yale or Stanford law school; clerked for a Supreme Court justice; or worked in the solicitor general’s office. (In Clement’s case, he did all three.) Now, in their private practices, they pride themselves on handling only serious cases brought by serious people in a serious manner; even if their client doesn’t prevail—or, worse, turns out to be on the wrong side of history—that stigma doesn’t fall on the lawyer. John W. Davis, who argued the losing side in Brown v. Board of Education, is still held up as an exemplary Supreme Court advocate.

Nevertheless, despite these lawyers’ contention that they aren’t political animals, they are, of course—and their extrajudicial activities often reflect as much. Ted Olson, the man Clement has supplanted as the top conservative Supreme Court lawyer, was an outspoken critic of Bill Clinton, served on the board of directors of The American Spectator, and helped found the Federalist Society. His legal cases were always assumed to reflect his ideological convictions. (Even now that he is seeking to overturn Prop 8, Olson’s personal support for gay marriage is a major story line in the legal fight.) The unusual thing about Clement is that, while he’s undoubtedly a conservative and a Republican, he has managed to avoid this fate. His persona is rarely conflated with the case he’s arguing.

                Jason Zengerle, "The Paul Clement Court", also in New York's current issue.

Clement's political persona is "rarely conflated with the case he's arguing"... except, of course, that he's arguing the opposing side of Obamacare, the repeal of DOMA, arguing against race-based redistricting in Texas and defending South Carolina's attempt to impose voter ID. Clement is defending such a laundry list of right wing cases that Zengerle can barely keep a prose-bound straight face as he attempts to sell the notion that Clement represents a non-partisan ideal in Supreme Court advocacy. It's not the examination of Clement I object to, or the attempt to do a "let's see it from his side" presentation of Clement's views (that, at least, is moderately interesting). But seriously - the man is the former Solicitor General for George W Bush, currently serving as the go-to Supreme Court lawyer for Republican state Attorneys General. If that alone isn't a clear indication of the man's politics... then what, exactly, do political labels mean? It's not as if Clement can be mistaken as a Democrat, or that we can even find a liberal who'd take the depth and breadth of conservative causes on Clement's plate (and the example that proves that observation is Ted Olsen, the most noteworthy example in recent years of a lawyer crossing his usual political expectations to argue in favor of gay marriage rights). It would just be more honest, and more accurate to paint Clement as the kind of Republican that's all too hard to find these days: pleasant, respectful, willing to respect the rule of law, whatever the outcome, after making a well thought, full throated argument for his side. That's admirable enough, without pretending he's somehow nonpartisan.

If Only There Was, Like, A Way To Guarantee Women's Equality In The Constitution...

I'm slightly bemused by the brouhaha over Justice Scalia's suggestion that the 14th Amendment doesn't guarantee women's equality.

In case you missed it, Scalia told California Lawyer magazine:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

You can make arguments that Scalia's wrong on the history - that's not hard - but his argument about how to interpret the amendment is not new, and has been his line of argument in a number of sex discrimination cases (such as the "Lily Ledbetter" case about pay discrimination). And his interpretation is not, necessarily, wrong. There's nothing explicitly in the Constitution that says women are equal citizens, and in the orginal document, they weren't.

...and that seems wrong, right?

It's like we need - oh, I don't know - some sort of Amendment to the Constitution that explicitly stated that, oh, something like "Equal rights under the law shall not be abridged on account of sex". I mean, you might say "gender" nowadays, but words to that effect.

The Equal Rights Amendment was part of my feminist upbringing. I grew up with "ERA now" and around all the marches and agitating for its passage. And we'd have it, except for a concerted effort on the part of antifeminists like Phyllis Schlafly to confuse and misrepresent the ERA and block its ratification.

That and a number of "legal experts" - including many well meaning liberal men - telling us that it wasn't necessary, because the 14th Amendment already guaranteed women equality. Except, you know, when Susan B. Anthony tried to use it to win suffrage for women, and lost... and the right of women - you know, as equal citizens - to vote had to be guaranteed in the 19th Amendment.

They read the Consititution yesterday - well, sort of - in the House of Representatives yesterday, and listening to the 14th Amendment again, I was reminded that reading women's rights into it is a matter of interpretation. And, really, that's not a good way to guarantee one's rights. And one way to shut Antonin Scalia up, as he says, is to pass the ERA.

But, you know, who'd do that?

Something About Health Care, The Courts, And Labels

In the fog of illness - I'm doing somewhat better, but nowhere near 100% - trying to keep up with current events is both challenging and surreal. I can't quite concentrate enough to follow all the details, and the whole things becomes a blur. There was a court case. Richard Holbrooke died. Bloomberg is speaking. Somehow this must all fit together.

The problem, partly, rests outside of me: the 24 hour news cycle has flattened information until everything is news and nothing is news, all at once - both "I already knew that" and "why did I need to know that" at once. So many things are happening... and yet, nothing, really, is going on at all.

Maybe that's why I found somehting in the juxtaposition Monday between the xecision of a federal judge in Virginia to invalidate the "insurance mandate" provision of Health Care "Reform" laid up against the "No Labels" meeting of prominent people who think we should stop sorting people into left and right so rigidly. The latter was neatly summed up, I think, when I said to my mom during coverage of the event "that seems kind of dumb" with her responding "it is, but that's not the point."

I don't remember what the point was - the convenience of a cold! - but I think if there's one place I'd like to apply "no labels" it's to the Judiciary. We've been wandering down this sad road of politicizing judges and judging for years (i tend to trace it back, as many do, to some of the uglier judicial fights of the Reagan years, especially Robert Bork's nomination to the Supreme Court), and we're really not better for it. And not just because of conservatives and the Right Wing, but also because many lefties - my mom included - have a kind of faith that progressive causes can ultimately be won through a judge's decision.

I've never been thrilled that Marriage Equality hinges, basically, on a court case, but at least that's the kind of advance that folows logically from previous law, a gay people's Loving vs. Virginia. And the thing is... I don't think that's the kind of decision that actually hinges on left versus right. When we look at ideas of equality and freedom enshrined in our constitutional law, I don't think "left" or "right" really matters. There are different ways to interpret the law, different approaches to the law... but ultimately, there is the agreement that we have laws, and a sense of how to organize a civil society. Why do we insist on needing to politicize even the ajudication of the law?

What's sad about Judge Hudson's decision is how it neatly falls into the easy left/right chasm that's coming to define litigation about the Affordable Care Act. A longtime Republican with close political ties to opponents of the reform bill, Hudson found - surprise! - that the insurance mandate was unconstitutional. Two other judges - Surprise! Appointed by Democrats! - found the oppsite. So now we can pretty mcuh expect all of this to wind up at the Suprem Court where - surprise! - we already assume that 4 judges (the ones appointed by Democrats) will approve of it and 4 judges (you guessed it) won't... and we all agree that Anthony Kennedy has the final say... because he's apparently one of those people who craves attention by being in the "middle."

I've said before, I tend to think the mandate, or something like it, is probably constitutional; health insurance is already part of the tax code (that's the Employer tax break that fuels our employment based system) and "proof of insurance or pay a penalty" doesn't strike me as a bridge too far. Ken Cucinelli's attempts to blow this into a major constitutional crisis seem illustrative of how he's not going to work out, mostly. But I can see the opposite side of, say, requiring everyone to provide proof a cable TV subscription, or pay a fee... how do you distinguish between a fee that's reasonable and a fee that's too far?

(Insert much longer argument about why the whole health care "reform" bill was a bad idea here, and follow it with observation that mandate, alone, is hardly the main issue of why this law is flawed, here.)

That, after all, is what the law is for: to figure out these kind of nuances, to figure out how and where the lines get drawn, and how to enforce those lines. I think it's fair to ask the questions; I think it's a necessary part of our civics to try and draw the lines. And still, I don't think this should be political, not the way it's become. The unfortunate thing about the "insurance mandate" case is not that it will be decided one way or another; it's that the decision, either way, will be seen as one side's political triumph, rather than a clear, legal resolution of a contentious issue that we can all find sensible and useful. We'll be worse off for that, however it gets resolved.

Marriage And The Incoherent Opposition

Like many a gay person, I was heartened by Judge Vaughn Walker's decision in Perry V. Schwarzeneggar, which, for now, overturns Proposition 8 in California. And, though I don't know about others, I figured it was kind of in the cards all along. Whether one wanted to rely on the powerhouse combination of Ted Olsen and David Boies as attorneys for the plaintiffs, or the spectacular way the case unfolded, it seemed clear early on that success was in the cards, and that reality never really changed.

The future results may not be as clear - I'll finish this piece with my own guess about the Supreme Court - and, as always, gay people aren't wrong to worry about a brief win only to suffer greater losses down the road, but I think the events of the summer on the Prop 8 case underscored a reality that makes "gay" marriage an inevitiability whether now or later: the opposition to it is fractured, and especially incoherent.

The deep, dark secret of opposition to "gay" marriage is that it is not, really, a unified effort, which has everything to do with evolving awareness and understanding of sex and sexuality in our culture. Marriage for two people of the same gender was simply impossible to consider less than 30 years ago, mostly because of our invisibility. Prevailing notions that gays were "sick" or "curable" hadn't been sufficiently challenged, and the growing Gay Pride movement was more oncerned with basics like, well, stopping violence and bigotry, than more positive results like honoring our relationships equally and fairly.

This week's decision, and the case that was presented, underscore how much has changed, and especially how little juice is left in making gays into social pariahs. What is left on the "gay opposition" side is a loose amalgamation of the most strident gay hating bigots, and a less well defined group of "moralists" who offer vague, nospecific notions of problems with same sex marriage while trying to actively disavow connections to the more strident homophobes.

And the thing is... the haters probably have the better case: if gayness itself is an abomination, if gay people are sick and degenrate and all the rest... it's easier to make a case that people who are so bad and wrong don't deserve fair treatment. Take that element away, and not much is left. All of which goes a long way to explain why the case for Prop 8 failed: the defense's case evaporated as promised "expert" testimony was pulled, and what few "experts" that did testify were undermined by their own poor logic and lack of conclusive evidence.

The "moralist" case after all rests, mainly, on tradition: it has always ben thus, and thus should always be this way. Over and over, when pressed to explain what "damage" same sex couples could do to even the idea of marriage (since, it was pretty easily established, one couple's marriage has no practical effect on another's), groups like the National Organization for Marriage (and its spectacularly muddled chair, Maggie Gallagher) offer little more than vague notions of "traditional" ideas of marriage - whether it's marriage is for procreation (also pretty easily torn down), or some generalizations about "social norms" that don't hold up under social science research (not that I love social sciences... but you bring it up, you live with the result).

All that running away from "gays are sick and terrible and bad as people" that the hair splitters go to (which is a vivid illustration of the "love the sinner hate the sin" ethic of Catholics like Gallagher) is about pretending that what's really going on here isn't that simple: gays shouldn't marry because, well, they're gay. That's about all the opposition has, and has always had, and in the long run, that notion fails because people either find it a) hateful or b) inconsequential to their own lives, or both. But it's the fractured nature of opposition to same sex marriage that's doing the opposition in. Concede that gay people are, well, people and deserving of decency and even acceptance as gay... and you've taken most of what would deny gay people the right to marry off the table.

Judge Walker's decision lays out, calmly and coherently - if not necessarily persuasively - the reasons that simple prejudice cannot be reason enough for a majority to put the rights of others to a popular vote. That opinion, along wit the presence of Ted Olsen, a persuasive, even commanding, presence among legal conservatives, says to me that hopes for a close Supreme Court decision by anti-marriage types are optimistic. I think it's reasonable to suspect that Justice Kennedy, plus the Court's four Democratic appointed justices, will agree with Walker's reasoning... but beyond that, I suspect that one of the more conservative justices could even be persuaded to make this into a 6-3 decision. Optimistic? You bet. A dreamworld of bright fluffy clouds, even. But unless the incoherent, fractured opposition to same sex marriage can pull together a better argument than "tradition" and "because we said so"... they don't have a lot of a case. And while "tradition" can trump good sense... that's not going to be enough for the opponents of same sex marriage. Not for very long.

Don't Ask, Don't Tell... And I Don't Mean The Military.

Like clockwork, Elena Kagan received her nomination to the Supreme Court... and the topic I brought up a few weeks back resurfaced: is she, or isn't she?

I have no idea whether Kagan is a lesbian or not (and, like many, don't really care)... but already it's clear that bringing this up, or suggesting it's in play is being drawn as off limits. That may be because it's untrue - though it's  been a striking array of non-denial denials, and "I know her when she dated men" type appraisals that don't, in any direct way, answer the question - but I'm more struck by the attempt to silence a discussion before it even starts.

That's why, as frustrating as he can be, I'm impressed with Andrew Sullivan for bringing up the question and not being cowed into shutting up. If "there's nothing wrong with being a lesbian"... then why does everyone seem so skittish that, say, presenting a photo of Kagan playing softball (and, hilariously, I listened to a clueless Rush Limbaugh ask "is there something gay about softball that I'm missing?" Oh, Goddess...) might, you know, give anyone the "wrong" impression... or indeed, any impression at all. Other than that, you know, she likes to play a recreational sport.

In the rush to repeal "Don't Ask, Don't Tell" as military policy, we forget, I think, why we wound up with it, and why it has, even now, stuck: what the compromise buys, really, is silence. And silence, really, is the story here. It's not that there's something wrong with being gay... it's that we'd rather not know.

To Have A Double Standard... You Have To Have A Standard.

Is Elena Kagan a lesbian?

I have no idea. Until last night the idea hadn't, honestly, occurred to me; but, apparently, it's been kind of discussed, or known about... or something, while Kagan was at Harvard as Dean of the Law School. In a blog post about top candidates for Supreme Court Justice, Ben Domenech included Kagan - the current Solicitor General (and the first woman in that post) - as one of his examples, and lauded the fact that she'd be an openly gay Justice. The post was picked up by CBS News, which has been using Domenech as a blogger (more on that in a moment). And then, apparently, all hell broke loose.

The White House had a spokesperson come out and complain that Kagan was facing "false charges" of being a lesbian. CBS asked Domenech what evidence he had for the claim. Domenech, it turned out, had none... but didn't realize it was an issue. And he was backed up, in terms of this being sort of understood, by Julian Sanchez and Matt Yglesias, two bloggers not generally sympathetic to Domenech or his conservativism.

Like I said... I have no idea. Kagan's 50, unmarried, no one's ever mentioned a man or a potential husband, she certainly seems to have pursued a professional career with no interest in marriage or children... but I'm loath to draw conclusions. In one sense, of course, it hardly matters. Lesbian or not, Kagan seems like an interesting choice for the Court, and I'm among those who'd be pretty well pleased if she were nominated (Bill Clinton nominated her for the DC Circuit Judge slot that eventually went to John Roberts, on his way to Chief Justice).

What interests me is this official "we shouldn't care if she's a lesbian... so don't say she is"  approach to dealing with the discussion.

The thinking behind this logic has been rolling along for a while; it drives some of the discussion of gay progress, and gay anger, in these Obama-led times, issues that I discussed, as others did, during the primaries and the election season. Barack Obama, clearly, was a better choice for gay people than John McCain. I'm not sure, then or now, that he was a better choice than Hillary Clinton... but that's not the point, not now anyway. However, I think the larger problem for gay people is this illusion, often perpetuated these days, that gays have somehow made more progress than has actually occurred, only to discover, in unpleasant moments, that things are as bad, or worse, then they've ever been.

Gay marriage and "Don't Ask Don't Tell" are obvious, hot button examples... but this goes to, I think, some of the depression that followed the prom story in recent weeks, and underscores what's not happening with Kagan. There's this notion that people are out, that gays are accepted, that our society is more accepting and tolerant... as long as we don't push it too far. It doesn't matter if Elena Kagan's a lesbian... just don't suggest that she is one.

We forget, really, that despite suggestions of progress... many prominent people are not out. Still. We ignore that people who are out, in government, still face surprisingly high hurdles in, say, the confirmation process for appointed offices. The illusion is filled in, I think, because, being out, in small ways, and in many places, isn't a big deal, and gay people quietly live within certain limits. That, and we convince ourselves that a couple of reality shows about hairdressers and fashion designers amounts to progress.

My friend J likes to point out, whenever a new sex scandal pops up, that there's an unspoken double standard in politics that never gets brought up: all these stories about married men who are discovered with mistresses and hookers tend to underline the fact that single men, in fact, can't get elected to high office. Yet we never mention it, never even to point out that, for many of the men caught in the scandal, wouldn't face social rejection or ridicule if they were not married. Sleeping around, being somewhat promiscuous... no big deal. Just don't wear a ring... but if you don't, people will be wondering about when you run for office.

If the Kagan story has legs - and I suspect it does - we are bound to be told that there's a "double standard" when it comes to gay people, or women... or something. But there's not a double standard; there's a lack of any "standard" at all. There's a conviction, in the culture, that there's this acceptance of gay people, when in fact, there really isn't. It's an illusion. And into our clouds of illusion and fantasies that it's all better now, Elena Kagan's possibly being a lesbian challeges two things: the debate over what information is public or private, which shifts like sand... and the illusion that being gay is no big deal... unless, you know, you're actually gay.

That all of this will come from Ben Domenech, of course, is no help at all; Domenech's credibility has been shot since it was revealed in 2006 that he had an extensive history of plagiarism, having fallen upwards as a "prominent conservative" into a position at the Washington Post, and the resulting scandal forced him out of that job. Domenech has toiled since, quietly but determinedly, in reestablishing some bona fides, and restoring at least his reputation as a capable writer. This won't help; it's a Journalism 101 error that CBS should have seen coming, a reminder that "hiring paid bloggers" is often shorthand for "getting journalism on the cheap" often by reducing the presence of editors, whose function is to help catch things, like unsupported assertions in posts. Like I said... I have no idea if Kagan's a lesbian or not, and really, I couldn't care less. It'd be nice if she were, nice to know that we were, as a nation, capable of acknowledging appointing a lesbian to the Supreme Court. But my standard is not the national standard... because we don't have one of those. And let's not pretend that we do.

Money Can Change People Sometimes

I know I'm supposed to be really upset about the "corporate money" decision of the Supreme Court, but I can't quite muster the requisite outrage. Glenn Greenwald - to my utter shock - actually lays out the complete case for my own ambivalence, and beyond his take... I don't necessarily have more to say on it.

Well, just this: I think if people plan to be serious about campaign finance reform, then it can't just be a fair-weather exercise in opposing the money raised by your opponents, or trying to punish those who give to them. To get good, serious reform, everyone has to take a hit. And until progressives see that... nothing, really, can change.

In the last few election cycles, for a number of reasons, Democrats finally solved some fundamental "money parity" problems with the GOP. Partly, it was the internet, which greatly expanded options to fundraise from people with lower incomes who could give small amounts or in small increments. That unleashed a deep reserve of goodwill among less well off liberals whose money could, in aggregate, amount to substantial amounts.

But part of the gains, too, stem from the shift of EEP (Educated, Elite Professionals) to the left; with bankers, lawyers, and others in a position to give now interested in liberal causes, parity with wealthy Republican donors was easier to achieve. And with it came natural increases in corporate donations from entities controlled by these wealthy individuals: law firms, high tech companies, and as has been for a good while, the entertainment industries and media firms.

Citizens United is, without a doubt, a problematic decision; it invites new troubles, restores an avenue for excessive ad spending, and will, no doubt, unleash a string of unintended consequences... ones that, I suspect, Republicans have to know don't all work in their favor (unions and other lefty groups free to advertise against Republicans is going to hurt. A lot). But we're here because the regulations, as written, never really made a lot of sense and undermine our faith in free speech. There are other, better ways to address questions of "corporations as people" and even other ways to reform campaign financing. But mostly, we have to stop doing campaign reform that's conveniently tailored to help us and hurt them, whoever "they" are.

One of the results of the decision has been a lot of blogging under variations of "Money Money Money... Money" meant to evoke the O'Jays signature hit "For The Love of Money", surely one of the great songs of all time. As I've been vaguely out of sync with the anger over Citizens United, I've been more than a little taken aback over the use of the song. Darker, dirtier than most people realize, Foe The Love Of Money paints a bleak picture (it was the seventies and it was ugly in the urban jungle) of all of us and what we'll do for money. But the point is... it's all of us. None of us get to stand outside, untouched. Don't let money change you... but it probably will.

We don't like to talk about all the money Barack Obama raised from Goldman Sachs. Or the way Joe Biden is the recipient of enormous sums from the law firms of the civil bar (tort reform, anyone? Anyone?).  We like even less asking questions about why enormous donations of money and time from Unions doesn't, in its way, have a distorting effect on liberal politics... not always to the good (teaching standards, merit pay, removing bad teachers... I know there's a link here, somewhere). It's easy for us to look at a few bad actors on the right - Mormons paid for Prop 8! Oil companies oppose environmental reform! - rather than admit that, deeply, money touches all of our politics, affects most of what we do, and don't do. And explains why we do - and don't do - it.

I do believe, deeply, that we need reform of campaign financing... but part of the change, really, is things we have to change in ourselves - not letting advertising drive our every decision making process, but at the same time, persuading people with ideas and policies, rather than shouting and name calling. Or we can grow up, and admit that this is who we are and what we have to live with, that money in our system has to go somewhere, and the distorting effect of money on our campaigns will never, really, go away. Money changes... everything. And all of us.  And for the love of money... well, do you?

The Soft Bigotry Of... Well, Soft Bigotry.

It's a rough end of year for The Gays.

When election day passed and we faced another loss on gay marriage, this one an especially cruel result in Maine, I debated what to say. And while I waited ("dithered" now belongs to Obama, apparently), there started a harangue from the right about intolerant gay activists.

And still I struggled. But this week, the icing arrived when the New York state Senate voted down a marriage equality bill that had already passed the Assembly.

When Prop 8 failed, I was one who noted the failure of gay marriage to find support in the black community; I take that back: the problem, apparently is finding enough of anyone - at least anyone's who not gay or one of our friends.

The failure of gay marriage in Maine and New York has many angles, but all come down to proving why "I'm not intolerant" types like Rod Dreher and Jeff Jacoby - who both accused gay advocates of negativity and namecalling - have it backwards. Those who accuse the gay marriage opponents of intolerance and bigotry have it right... the challenge is making such bigotry both socially less acceptable and to make clearer why that is. Until then... treating gay people badly... well, that's just what happens. And it's hard not to be angry about it.