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The Senate will wrangle this week over whether to amend the Constitution to allow citizens and their representatives to organize elections where votes matter more than dollars.
The amendment that is being considered is a consequential, if relatively constrained, proposal, which focuses on core money in political concerns but which does not go as far as many Americans would like when it comes to establishing that money is not speech, corporations are not people and elections should not be up for sale to the highest bidder.
Yet it is difficult to underestimate the importance of the debate that will unfold this week. The debate signals that a grassroots movement has established the rational response to a political crisis created by US Supreme Court rulings (including, but certainly not exclusively, the Citizens United and McCutcheon decisions) that have opened the floodgates for domination of political debates by billionaire campaign donors and corporate cash.
Organizing and campaigning by citizens—working in conjunction with groups that has never been adequately funded, on a project that has never received a fair share of media attention—has gotten sixteen states and more than 600 towns, villages, cities and counties to demand an amendment. And the Senate is taking that demand seriously enough to propose a fix, to organize a debate and to schedule votes that will provide a measure of the prospects for making a democracy amendment the twenty-eighth addition to the Constitution.
Senator Bernie Sanders, the Vermont independent who has proposed a more specific and aggressively worded amendment than the compromise measure that is expected to be considered this week, argues that this Senate debate on the issue of money in politics marks “a pivotal moment in American history.”
Though Sanders would go further than Democratic leaders in the Senate on a number of points, he has joined them in co-sponsoring the amendment by New Mexico Senator Tom Udall that will be debated this week.
The Vermonter understands why this debate is so significant.
It is not because Senate consideration of the issue at this point will lead to the rapid amendment of the Constitution. In fact, no matter what Senate Democrats do, there will not be a sufficient majority in the chamber where a two-thirds vote is required to approve an amendment for consideration by the states. Nor is there any realistic chance that John Boehner will suddenly decide to lead the charge against the corporate campaign spending and billionaire manipulations that bought him the House speakership.
It is not because the amendment that is being advanced now is the amendment that will ultimately be added to the Constitution. Make no mistake, there will be a Twenty-Eighth Amendment; there must be if the American experiment is to survive as anything akin to a democratic republic. As with past amendments, however, this initial proposal for updating the Constitution will likely be altered—with language strengthened or weakened based on the ability of mass movements to place demands for more or less radical change
So why exactly is this a pivotal moment?
Because when a movement becomes sufficiently dynamic to force a Senate debate—after just four years of organizing by groups like Move to Amend, Free Speech For People, Public Citizen, Common Cause, People for the American Way and allied groups at the local and state levels—that debate ought not be seen as beginning or the end of anything. It is a part of a process—an essential teaching moment, an essential organizing moment.
“It’s overwhelmingly clear what the citizenry wants: fed up with a system in which the super-rich and giant corporations are effectively able to buy politicians and policy, the American people are rising up and demanding a constitutional amendment to overturn Citizens United and restore our democracy,” explains Robert Weissman, the president of Public Citizen. “Whatever happens on (this week), the day is not long off when the 28th amendment becomes the law of the land.”
That’s what Sanders means when he speaks of a pivotal moment.
Millions of Americans are already engaged with the movement to amend the Constitution to get money out of politics—and with the broader movement to address the twin fallacies that money is speech and that corporations should have the same rights as human beings. Tens of millions more are supportive of the struggle. Indeed, polls show there is overwhelming support for the amendment among Americans—73 percent in favor versus 24 percent opposed, according to a new Democracy Corps survey—and that this support crosses all lines of partisanship and ideology.
The Senate debate has the potential to get millions of additional Americans engaged with what Sanders refers to as “the major issue of our time—whether the United States of America retains its democratic foundation or whether we devolve into an oligarchic form of society where a handful of billionaires are able to control our political process by spending hundreds of millions of dollars to elect candidates who represent their interests.”
The fact that the issue is being treated seriously at the congressional level will merge a sense of urgency with a sense of possibility. This could have an impact on the 2014 Senate races; indeed, the Democracy Corps survey found “overwhelming cross-partisan support (73 percent) for a constitutional amendment to overturn Citizens United that can translate into added support for Democratic candidates who support the amendment and damage Republicans who oppose it.”
Significantly, the Senate debate has the potential to influence the outcome of election contests. The Democracy Corps polling memo concluded, “Democratic candidates can gain from supporting this amendment. A 48-11 percent plurality of voters say they are more likely to support the named Democratic candidate after hearing an argument for the proposal. This represents broad support, as the number actually increases among voters under 50 to a 41-point gap and among independents to 42 points.”
Those numbers may explain why Democratic senators who will never be confused with reformers have signed on as co-sponsors of the amendment proposal.
Ultimately, however, the amendment fight must be seen in a broader context than any Democratic political calculus. The movement must attract Republican support for an amendment. And this week’s debate will tell us about the prospects for bipartisanship. Will Republicans who face re-election this year in states where there is strong and well-organized support for an amendment—such as Maine’s Susan Collins, who faces amendment supporter Shenna Bellows—break with their party leadership and back this amendment? In open-seat races, will candidates such as South Dakota Democrat Rick Weiland, an outspoken amendment supporter, find their positions strengthened by an increased focus on the issue?
Constitutional amendments become viable when support for them grows so overwhelming that traditional partisan and ideological boundaries are broken. When this happens, the divide becomes less a matter of Republican versus Democrat or left versus right and more a matter of a broken present versus a functional future.
The corrupt political processes of the moment are not just anti-democratic, they are fundamentally unjust. What former Senator Russ Feingold refers to as a system of “legalized bribery” allows billionaires and corporations to buy more than elections; they buy policies and crony capitalist arrangements that undermine the fairness, the capacity for improvement and the basic stability of America.
There is no question that the arc of human progress is long. But nor is there any question that it bends toward justice. This week’s Senate debate will not produce justice; but it will help to build the movements that are necessary to bend the arc.
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Don Berwick is making a vital point about the need for progressives to expand the discussion about healthcare reform.
Democratic and Republican strategists, and the candidates who let campaign consultants frame their range of opinion, are still engaging in picayune debates about the strengths and weaknesses of the Affordable Care Act.
But Berwick, who for seventeen months headed the Medicare and Medicaid programs under President Obama, isn’t getting lost in the political weeds. He’s blazing a trail in the direction of what ultimately must be done—pushing at the constraints of the conversation and offering an illustration of why it is so important for progressives to get specific about the need for a “Medicare for All” fix.
Mounting an admittedly uphill campaign for the Democratic nomination for governor of Massachusetts, Berwick says, “I want us to be the first state in the nation to adopt single-payer health care—Medicare for All. With that one change, we can improve care and reduce costs for families and businesses. We can free up resources that will add tens of thousands of jobs all over Massachusetts. Single-payer health care— let’s lead.”
Berwick does not raise this issue casually. A Harvard Medical School graduate who practiced medicine serving low-income families before founding the nonprofit Institute for Healthcare Improvement, advised the World Health Organization and was so well regarded for his advice and counsel on improving Britain’s healthcare system that he was knighted by Queen Elizabeth II.
But being one of the best thinkers and doers in the area of healthcare reform does not always bring rewards. During his tenure as administrator of the Centers for Medicare and Medicaid Services, Berwick was a key player in implementing some of the best components of the Affordable Care Act, including initiatives “ensuring that young people can stay on their parents’ health plans until the age of 26, kids with preexisting conditions can no longer be denied the care they need, and insurance companies are subjected to new levels of transparency.”
Yet, as Berwick’s campaign now notes, “The toxic politics of Washington cut short Don’s time there. Right-wing pundits attacked his commitment to equality and health care for all. Glenn Beck labeled him the ‘second most dangerous man in America.’ Senate Republicans vowed to filibuster his confirmation. In the face of the same Republicans who blocked Elizabeth Warren’s confirmation to head the Consumer Financial Protection Bureau, Don was forced to step aside after only seventeen months leading Medicaid and Medicare.”
The experience did not sour Berwick on the fight for healthcare reform.
But it did cause him to refocus his considerable energies.
The physician returned to his home state of Massachusetts and began preparing for a gubernatorial run in which he has argued that the states can and must lead on real healthcare reform.
To that end, he says, he wants to build on the leadership role Massachusetts has taken on reform to make Medicare for All a reality.
“I know from my first-hand experience in Washington guiding the early implementation of the Affordable Care Act that all eyes in the nation are on Massachusetts. Champions of real health care reform are crossing their fingers for us to succeed; opponents are hoping for us to fail. It is crucial that we lead, and show the rest of the nation that treating health care as a right, not a privilege, is sensible and successful public policy,” explains Berwick in a statement on his website.
It is time to find a way to get to yes on a single payer system in Massachusetts. The complexity of our health care payment system adds costs, uncertainties, and hassles for everyone—patients, families, doctors, and employers. On day one, I will appoint a multi-stakeholder Single Payer Advisory Panel to investigate and report back within six months on how Massachusetts moves to a single payer health insurance system like Medicare for all.
Massachusetts is not the only state where single-payer healthcare reform is being placed in the agenda. In Vermont, Governor Peter Shumlin and his legislative allies have made significant progress on the issue. And they are not alone.
Last month’s “Organizing for Healthcare Justice in the Age of Obamacare” strategy conference in Oakland, California, brought together Labor Campaign for Single Payer, Healthcare NOW! and the One Payer States group, as well as members of Physicians for a National Health Program and leading figures in National Nurses United, the California Nurses Association, the International Longshore and Warehouse Union and other labor groups. At the conference, much of the discussion was about state-based initiatives in Vermont, California, Minnesota, Oregon, Washington and other regions of the country.
In Massachusetts, Berwick says the work that has already been done in the state to extend access to health care creates an circumstance for developing a single-payer system. His arguments are strong in this regard. But it will take leadership to take the next step, which is why Berwick entered the gubernatorial race.
As next week’s primary approaches, he’s trailing two primary foes, Massachusetts Attorney General Martha Coakley and Massachusetts Treasurer Steven Grossman, both of whom have more resources and party connections. While his poll numbers have improved some as the September 9 primary approaches, Berwick is behind. Yet, if the measure of a campaign is the extent to which it shifts the discourse, Berwick’s run has already been a success: He’s at the table, as a candidate who is getting a serious hearing, participating in debates and in many senses framing the discourse.
After a June debate, an analysis for WBUR radio noted that Berwick “seems to be shifting the conversation, at least at this early stage, further to the left.”
In particular, explained the WBUR report, “Berwick seems to be adjusting the conversation… on the issue of a single-payer health care system.”
The other candidates are still more cautious on the issue. But Grossman is now saying that he wants to lead a “conversation” on single-payer—arguing, “You’ve got to build a consensus in our society around any dramatic societal change.” And while Coakley says “We’re not ready to go to single-payer yet,” she adds, “I don’t rule it out ever.”
But as the Massacusetts race steers toward a close, Boston Globe columnist Alan Wirzbicki writes: “This lackluster Democratic primary wouldn’t have been the same without [Berwick]. The only doctor in the race has added some needed fiber to the Democratic diet during this year’s gubernatorial campaign. His single-payer health proposal has forced his opponents to engage in a substantive discussion of health care costs…”
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President Obama launched the fall campaign season with a robust call for increasing the minimum wage.
“If you work full time in America, you shouldn’t be living in poverty, you shouldn’t be trying to support a family in poverty,” Obama told thousands of cheering union members in Milwaukee, adding, “There is no denying the simple truth: America deserves a raise.”
The president wasn’t trying to convince the American people. They know that increasing the minimum wage is necessary to address income inequality and the injustice of a circumstance where millions of American families are struggling because their hard work is not adequately compensated. A poll conducted last summer for the National Employment Law Project Action Fund found that 80 percent of Americans surveyed favor a $10.10-an-hour wage floor. Ninety-two percent of Democrats favor the increase, as do 80 percent of independents and 62 percent of Republicans.
This enthusiasm is not just theoretical. It is immediate. Seventy-four percent of Americans say that Congress should make it a priority to significantly increase the minimum wage.
That focus on Congress is the key, as Obama acknowledged when he noted Monday that “in the year and a half since I first asked Congress to raise the minimum wage—of course, the Republicans in Congress have blocked it.”
“Eventually, Congress is going to hear [the people],” Obama continued. “We’ll break those folks down. We’ll just stay on them.… Persistence—you just stay at it. Because the only thing more powerful than an idea whose time has come is when millions of people are organizing around an idea whose time has come. Millions of people are voting for an idea whose time has come.”
This emphasis on voting, on the fall election, echoes the elite consensus in Washington that, while hiking the minimum wage (up to $15-an-hour) has become a big issue at the state and local levels of government, Congress will not budge on this issue. That consensus says that only an election will change the shape of things to come.
But that’s a bogus consensus. Telling full-time workers who are living in poverty that they must wait for the next election, and the next election, and the next election after that is a form of surrender.
Of course elections matter. But they are not an excuse for putting progress on hold.
The House and Senate will be in session this fall. A proposal to increase the base hourly wage to workers from $7.25 to $10.10 has been advanced. Top Republicans are on board for a higher minimum wage, with Mitt Romney saying “We ought to raise it,” and Rick Santorum saying “It just makes no sense” to oppose an increase.
Members of the Senate Democratic majority back higher wages and, despite the obstructionist tactics of Senate minority leader Mitch McConnell, the prospect of a high-profile vote just weeks before a critical national election might even get some Republicans—like Maine Senator Susan Collins— to do the right thing.
So where’s the problem? In the House.
Speaker John Boehner, R-Ohio, has shown no inclination to allow a vote. But the rules of the House allow a majority of members to go around the speaker and use a “discharge petition” to force a vote, which is precisely what the Time for a Raise campaign being championed by Ralph Nader argues is the right approach.
“To date, 195 House members have signed the petition, meaning only 23 more member signatures are required to bring H.R. 1010 to a vote,” argues the Time for a Raise message going into the fall. “There has been insufficient effort by House Democrats, concerned Republicans, labor unions and poverty organizations to mount an effort find and persuade the 23 House members needed to complete the discharge petition and bring a raise in the federal minimum wage to a vote.”
“Time for a Raise” argues that Democratic leaders in the Senate and the House should ramp up the push for a minimum-wage hike as soon as their return to Washington.
Nader and his allies have produced compelling political math.
“To catalyze action,” they explain in a new action plan, “the Time for a Raise campaign has identified 55 House members worth pressuring to sign H.R. 1010’s discharge petition:
(a) 3 House Democrats who have not co-sponsored H.R. 1010 nor signed it’s discharge petition;
(b) 6 House Republicans who signed a letter to then-majority leader Boehner in 2006 arguing that “Nobody working full-time should have to live in poverty”;
(c) 17 House Republicans from districts won by President Obama in 2012;
(d) 26 other House Republicans who voted for a minimum wage increase in 2007; and
(e) 3 high-profile House Republican leaders.
Among the House members listed are Congresswoman Shelley Moore Capito, a West Virginia US Senate candidate who have advocated in the past for wage hikes, and House Budget Committee chair Paul Ryan, who has been trying to portray himself—with a new book and speaking tour—as a compassionate conservative friend of working families. They should both sign the petition, as should House Republicans in swing districts and reluctant Democrats who represent thousands of families that would experience an immediate improvement in their circumstance with a minimum-wage increase. A refusal to sign the petition by candidates of either party sends a “Which Side Are You On?” message to voters that goes far beyond partisanship or ideology as the November 4 election approaches.
But this is not just about Republicans. Democrats have to step up. When the discharge petition was circulated last winter, Wisconsin Congressman Mark Pocan declared, “The minimum wage is woefully inadequate to help keep hard-working people out of poverty. When millions of Americans who work hard and play by the rules cannot support themselves or their families, when they live in poverty, we face an economic crisis. That’s why we must raise the minimum wage, which would give 24.5 million Americans and more than 500,000 hard-working Wisconsinites a pay raise and generate $500 million in increased economic activity in our state alone.”
That’s a powerful message that Pocan has continued to push the issue at every turn, going so far as to propose an amendment to the Republican budget as a vehicle to force a minimum-wage vote.
That’s the right idea, and the right level of aggressiveness.
Now, as members of the House return to Washington, Democrats should take up the call—not as an election issue but as an immediate demand for action. As Nader has illustrated, it is possible to turn the volume up on this issue quickly, and effectively.
Congress should put politics aside and raise the minimum wage. Now!
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Congressmen Keith Ellison and John Lewis have proposed legislation to protect union organizing as a civil right. “As go unions, so go middle-class jobs,” says Ellison, the Minnesota Democrat who serves as a Congressional Progressive Caucus co-chair. “That’s why I’m proud to introduce the Employee Empowerment Act with civil rights icon John Lewis. This ground-breaking legislation will give workers the same legal options for union organizing discrimination as for other forms of discrimination—stopping anti-union forces in their tracks”
Amending the National Labor Relations Act to allow workers who face discrimination for engaging in union organizing to sue for justice in the civil courts—and to collect compensatory and punitive damages—is a sound and necessary initiative.
But it is certainly not a radical initiative—at least by American standards.
Indeed, the best way to understand what Ellison, Lewis and the cosponsors of their legislation are proposing is as a reconnection with a very American idea.
Despite the battering that unions have taken in recent years—in Wisconsin, Michigan and states across the country—Americans once encouraged countries around the world to embrace, extend and respect labor rights.
There was a time, within the living memory of millions of Americans, when this country championed democracy, freedom of speech, freedom of the press and the right to organize in the same breath.
When the United States occupied Japan after World War II, General Douglas MacArthur and his aides encouraged the country to adopt a constitution designed to assure that Hideki Tojo’s militarized autocracy would be replaced with democracy. Fully aware that workers and their unions had a role to play in shaping the new Japan, they included language that explicitly recognized that “the right of workers to organize and to bargain and act collectively is guaranteed.”
When the United States occupied Germany after World War II, General Dwight David Eisenhower and his aides urged the Germans to write a constitution that would assure that Adolf Hitler’s fascism was replaced with muscular democracy. Recognizing that workers would need to organize and make their voices heard in the new nation, the Germans included a provision that explicitly declared: “The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful.”
When former first lady Eleanor Roosevelt chaired the International Commission on Human Rights, which drafted the Universal Declaration of Human Rights that would in 1948 be adopted by the United Nations as a global covenant, Roosevelt and the drafters included a guarantee that “everyone has the right to form and to join trade unions for the protection of his interests.”
For generations, Americans accepted the basic premise that labor rights are human rights. When this country counseled other countries on how to forge civil and democratic societies, Americans explained that the right to organize a trade union—and to have that trade union engage in collective bargaining as an equal partner with corporations and government agencies—had to be protected.
Now, with those rights under assault in America, it is wise, indeed, to recommit to the American ideal that working people must have a right to organize and to make their voices heard in a free and open society. As the Reverend Martin Luther King Jr. said fifty years ago:
History is a great teacher. Now everyone knows that the labor movement did not diminish the strength of the nation but enlarged it. By raising the living standards of millions, labor miraculously created a market for industry and lifted the whole nation to undreamed of levels of production. Those who attack labor forget these simple truths, but history remembers them.
History remembers, as should we. The formal recognition of labor rights as human rights—and the extension of civil rights protections to prevent discrimination against labor organizing—is long overdue. Keith Ellison and John Lewis are renewing ideals that have historically enlarged America and made real the promise of democracy.
When the political mercenaries of American oligarchy jet off to consort with their electoral paymasters, they never imagine that the interactions will have consequences with constituents. The meetings are conducted in secret, the commitments that are made are never supposed to be revealed.
But, as Mitt Romney learned during the 2012 campaign, this is a new political era—when the old back-room banter about abandoning “the 47 percent” can go public and become the rallying cry for an opponent.
Senate minority leader Mitch McConnell was learning that Wednesday, as revelations about the top Republican’s pledges to serve the agenda of the billionaire Koch brothers came back to haunt him on the campaign trail in Kentucky. Within hours after the revelation of McConnell promising a room full of millionaires and billionaires that he would block minimum-wage increases, the extension of unemployment benefits and student-loan debt relief, his Democratic challenger was signaling that the senator would be held to account at home.
Kentucky Secretary of State Alison Lundergan Grimes, the Democratic candidate whose populist challenge has made McConnell’s re-election race a polling “toss up,” responded by linking the incumbent’s remarks at the secret session to those of Romney at a secret session in 2012. “I think Mitch McConnell got caught in his 47 percent Mitt Romney moment,” she told CNN. “I think it shows the extent and the lengths he will go to to pander to his party millionaires and billionaires at the expense of hurting Kentuckians.”
Conservatives on the campaign trail and in the media attempted to downplay the significance of the tape, suggesting that McConnell was simply restating his fierce opposition to initiatives that Democrats have advanced to aid working Americans. But the tape’s detailed discussion of using a Senate majority to prevent debate and votes on issues that polls say are of great concern to voters in Kentucky explained why it was being seen as a significant development by McConnell’s foes.
The Grimes campaign was already incorporating references to the tape into the campaign’s message, declaring that
Mitch McConnell revealed his true quest for power. In the secretive closed-door meeting with wealthy special interest backers, he outlined how he plans to hurt Kentucky families and pander to millionaires and billionaires. On issues like raising the minimum wage, extending unemployment insurance and helping Kentuckians with college affordability, McConnell promised his party’s rich backers that he stands with them, no matter the cost to Kentuckians and this nation.
It is no secret that McConnell is a faithful servant of the economic elites that fund his campaigns—that’s one of the primary reason he faces a tough re-election race this year—but he has historically tried to cloak the extent of his deference to the men who write all those checks to fund all those campaigns for McConnell and his preferred contenders.
Now the cloak is off. And the Grimes campaign is seizing on the opening, saying, “For the past 30 years, Kentuckians have questioned Mitch McConnell’s priorities, and now we have the hard evidence that his allegiances lie with his millionaire and billionaire donors at the expense of hardworking Kentuckians.”
The political fallout came amid widespread circulation of a tape of promises McConnell made to a California gathering of wealthy donors organized by Charles and David Koch.
The audio tape, which was obtained by The Nation and The Undercurrent, has been big news in Kentucky, where radio and television stations have aired the tape and newspapers featured headlines that included:
The tape features McConnell announcing that “in the House and Senate, we own the budget. So what does that mean? That means that we can pass the spending bill. And I assure you that in the spending bill, we will be pushing back against this bureaucracy by doing what’s called placing riders in the bill. No money can be spent to do this or to do that. We’re going to go after them on healthcare, on financial services, on the Environmental Protection Agency, across the board.… All across the federal government, we’re going to go after it.”
In his remarks, McConnell griped about limits on campaign spending, hailed the US Supreme Court’s Citizens United ruling and encouraged his audience of millionaires and billionaires “to give to Americans for Prosperity”—the Koch-fueled political operation that has become a primary vehicle for aiding McConnell in his quest to become Senate majority leader.
The senior senator from Kentucky, who will take charge of the Senate if Republicans win control of the chamber this fall, left no doubt about what he would do as majority leader. After thanking Charles and David Koch personally and talking about how he and the other 1 percenters were “rallying, uh, to the cause,” McConnell pledged to use a Republican majority in the Senate to block progress on expanding healthcare, financial services reform and protecting the environment.
McConnell also promised to shut down debate on a host of economic issues, saying that “we’re not going to be debating all these gosh darn proposals…things like raising the minimum wage…extending unemployment benefits…student loan [relief].”
That, argues the Grimes campaign, “reveals the lengths Mitch McConnell will go to please his deep-pocketed donors.”
“Shockingly,” says Grimes aide Charly Norton, “Mitch McConnell will do and say anything it takes to secure his grip on personal power, including promising to hurt Kentuckians to benefit billionaires. Kentuckians who are struggling with unemployment, low wages and the soaring costs of higher education are the furthest thing from McConnell’s mind.”
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When Gogebic Taconite LLC began moving in November 2010—the same month Scott Walker was elected governor of Wisconsin—to develop an open-pit iron mine in one of the most environmentally sensitive regions of northern Wisconsin, the Florida-based mining firm got a lot of pushback. Residents of the region objected, along with Native American tribes. So, too, did citizens from across Wisconsin, a state that has long treasured the wild beauty of the Penokee Range. Environmental and conservation groups voiced their concerns, as did local and state officials from across the political spectrum.
The outcry heightened as Gogebic Taconite and its allies promoted a radical rewrite of existing mining regulations in order to promote a project that could grow to be four miles long, more than a mile wide and 1,000 feet deep. Democratic and Republican legislators began to ask tough questions. Yet Governor Scott Walker -- who as a state legislator had supported strict mining regulations -- remained “eager to advance a mining bill.”
Wisconsin media outlets reported extensively during the 2011 and 2012 on the governor’s determination to overrule objections to the grand schemes of an out-of-state corporation. Now, those same media outlets are reporting on newly released documents that show the mining firm secretly steered $700,000 into “independent” efforts to provide political cover for the embattled governor.
The documents, released as part of legal wrangling over a “John Doe” investigation into alleged fund-raising abuses during the recall elections of 2011 and 2012, have revealed both big contributions and big concerns on the part of a key investigator about “an appearance of corruption.”
Walker, of course, denies any wrongdoing, as does Gogebic and the group that managed the money.
Yet there is no question that the governor provided substantial support for the mining company. During a long, high-profile battle, he dismissed and denied a broad array of objections to Gogebic’s plans.
The Nature Conservancy argued that the proposed changes to Wisconsin mining regulations would “pose serious risks to the rivers, lakes, wetlands, groundwater and other natural resources.”
The Sierra Club announced that “the largest ever mine proposed in Wisconsin presents unacceptable risks to Lake Superior and the sensitive and exceptional Bad River Watershed which includes…the largest freshwater estuary on Lake Superior.”
“It’s devastating,” said Annie Maday, a member of the tribal council of the Bad River Band of Lake Superior Chippewa, which argued that the mine could destroy wild rice beds and pollute waters on its nearby reservation. “They’re going to destroy my home.”
When the state Senate took up the bill, it was opposed by Bob Jauch, the Poplar Democrat who represents northwest Wisconsin. “Our job is not to be Santa Claus to the mining company and Scrooge to the taxpayers,” Jauch said. “This is a bill that offers a sweetheart deal for the mining company and shortchanges the taxpayer.”
State Senator Dale Schultz, a Republican who broke with his party to oppose the mining legislation at several key points, said, “My conscience simply won’t allow me to surrender the existing environmental protections without a full and open debate.”
When the controversial rule changes were approved by the legislature in 2013, Walker announced that he was “thrilled” to sign the bill.
What went unmentioned at the time was the extent to which Gogebic Taconite was “thrilled” with Walker.
The documents that were briefly unsealed last week by the US Court of Appeals for the Seventh Circuit—which is weighing whether to permit the continuation of the “John Doe” probe into alleged illegal coordination between Walker’s campaign and so-called “independent” groups that supported the governor—shined light on the shadowy political networks that developed to aid Walker. The Milwaukee Journal Sentinel noted that the “hundreds of pages of documents that… showed Walker’s team sought to solicit funds for the Wisconsin Club for Growth from an array of nationally known donors to fend off his 2012 recall. Real estate developer Donald Trump, industrialist billionaire brothers Charles and David Koch, and casino mogul Sheldon Adelson were all targets.”
The documents reinforce the image of the governor, who is seeking re-election this fall and preparing a 2016 Republican presidential run, as a master political operative who worked every angle to secure record amounts of money for his own campaign and for “independent” groups that were supportive of it. In one of the unsealed documents, a fund-raising aide consulting with Walker before he met with wealthy donors advised: “Let them know that you can accept corporate contributions and it is not reported.”
The documents reveal details of a number of huge and previously unreported donations. Yet the one that raised the most eyebrows had to do with the mine project.
As the recall fights heated up, Gogebic Taconite moved $700,000 to the Wisconsin Club for Growth, which in turn steered resources to other groups that cheered on Walker and his Republican allies.
“Because Wisconsin Club for Growth’s fundraising and expenditures were being coordinated with Scott Walker’s agents at the time of Gogebic’s donation, there is certainly an appearance of corruption in light of the resulting legislation from which it benefited,” argued Dean Nickel, the former head of the state Department of Justice’s Public Integrity Unit who investigated the fund-raising scheme for the state Government Accountability Board.
Walker has admitted that he helped steer money to the Wisconsin Club for Growth, but when asked whether he knew of the Gogebic money, he answered vaguely, “Not to my knowledge.” Pressed by reporters on whether “the previously undisclosed funds and subsequent legislation were part of some pay-to-play scheme,” the governor replied, “That’s a ridiculous argument.”
The governor has every right to make that claim, as do his most ardent apologists.
But in Wisconsin, a state that historically took great pride in its clean elections and high ethical standards, voters have a right to ask, based on records and revelations, whether it really is all that ridiculous to find in them “an appearance of corruption.”
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Paul Ryan has had his eyes on Social Security for a long time.
In 2001, when Republicans controlled the presidency and were well positioned on Capitol Hill, Ryan was invited to the White House to present ideas to the new Bush-Cheney administration.
The well-regarded second-term congressman met with Vice President Dick Cheney, who was at the peak of his co-presidency powers. Like Cheney in his younger years, Ryan was a former congressional aide who had worked the conservative think-tank circuit before getting himself elected to the House. The Washington insiders should have gotten on famously.
But the vice president was not buying what the man, who is now described as “the intellectual leader of the Republican Party,” was selling.
Ryan recalls the meeting this way:
“The surplus has given us a huge opportunity,” I explained. “If we dedicate the Social Security surplus to reform, we can shore up the program and end the raid on the trust fund.” I talked about the opportunity to create a real ownership society, how workers could actually own a piece of the free enterprise system through these reforms. As soon as I finished my pitch, Vice President Cheney said, “Yeah, we’re not going to do that.” Then he looked at the person sitting next to me, signaling that he was ready to hear the next idea. His terse reply was the verbal equivalent of someone swatting an annoying mosquito from his face.
Thats’s not the only point in his new book where Ryan writes of getting the “annoying mosquito” treatment. The House Budget Committee chairman paints a dim picture of fellow Republicans who get weak in the knees whenever he starts prattling on about dismantling Social Security as we know it. Needless to say, he is even more relentless in his criticisms of President Obama and the Democrats on this issue.
What Ryan never quite recognizes is that Cheney, for all his conservatism, has always been something of a realist when it comes to domestic politics. (He saves his neoconservative flights of fantasy for foreign-policy debates.) Like Ryan, Cheney learned his politics in Wisconsin. Though he was raised in Wyoming, the future vice president cut his political teeth as an aide to former Governor Warren Knowles and then to Wisconsin Congressman William Steiger.
Knowles and Steiger were mainstream Republicans of a sort rarely seen any longer in a Grand Old Party that has abandoned most of its “Party of Lincoln” pretensions. Both had their conservative sides, but they also had what Cheney described in his own autobiography as “formidable political skills.” Those skills were rooted in an understanding that, to govern, one first had to be elected—and that, even in a political age that has been increasingly warped by Wall Street money, voters tend to reject candidates who threaten necessary and valued federal programs.
This is something Ryan struggles with, in part because he’s been sheltered until recently from a lot of political realities. The congressman’s House elections have come relatively easily, thanks to increasingly favorable district lines and (until the recent challenges of Democrat Rob Zerban) relatively lax opposition. But, as the congressman recounts in his new book, the Romney-Ryan ticket lost in 2012—by a 5 million popular-vote margin and a 332-206 Electoral College landslide.
“Why did we lose? How did it happen?” Ryan writes. “Why does the Republican Party seem to keep losing ground?”
The point of the congressman’s book is to answer those questions. But Ryan never gets there. Instead, he bogs down in pop psychology and strategic talking points—failing to recognize that Dick Cheney sorted it all out for him in 2001.
The American people do not want to reform Social Security, Medicare and Medicaid as part of some austerity scheme to balance budgets on the shoulders of the elderly, people with disabilities and children whose families cannot afford healthcare. And despite all the scaremongering that underpins “entitlement reform” debates, they have come to recognize that they do not have sacrifice in the way Ryan says they must.
Budgeting is all about priorities. Congress chooses which programs to preserve and which to diminish or dismantle. Congress also chooses whether to cover the costs by asking more from those who can afford to pay or to do so by shifting the burden to those most in need. The American people get this. And they want their leaders to respond to proposals to cut Social Security, Medicare and Medicaid by saying, “Yeah, we’re not going to do that.”
Cheney has been around politics long enough to understand this dynamic, not because he is a liberal, and not because he is disinclined toward schemes for redistributing the wealth upward. The man who did so much to privatize the military when he was in charge at the Pentagon would undoubtedly love to privatize some domestic programs, if he could see a politically palatable way to pull it off. When the Bush-Cheney administration tried in its second term to restructure Social Security, the vice president loyally followed the script—making statements that sounded themes familiar to Ryan—until the initiative collapsed. But entitlement reform was never really the vice president’s thing; in his biography he wrote of a time when “[e]ven I had to struggle to stay awake as I slogged through a speech on Medicare reform.”
When there is no politically palatable option, Cheney’s often been a “not-going-to-do-that” kind of guy. As a former secretary of defense in the mid-1990s, he entertained a 1996 presidential bid but then abandoned the project when no one seemed interested. Cheney recognized then, as he appeared to again in his 2001 “annoying mosquito” conversation with Ryan, that domestic political calculations require at least some deference to the wisdom of the American people.
Today that wisdom says that the United States need not, and must not, slash the social safety net in order to advance reforms that will be very good for Wall Street but very bad for Main Street. Until Paul Ryan accepts this reality, he will remain stuck on the same questions. Indeed, if the Republicans nominate the ambitious young congressman for president in 2016, and if he runs on the agenda Dick Cheney swatted away fifteen years earlier, Ryan will again find himself asking, “Why did we lose? How did it happen? Why does the Republican Party seem to keep losing ground.”
Read Next: George Zornick on why for many politicians and 2016 contenders, Ferguson is invisible.
“A popular government, without popular information, or the mean of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both,” declared James Madison, the author and champion of the Bill of Rights. “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
This is still the essential truth of an American experiment that can only be advanced toward the equal and inclusive justice that did not exist in Madison’s time by a broadly informed and broadly engaged citizenry. When journalists are harassed, intimidated, threatened and detained, the basic premise of democracy—that the great mass of people, armed with information and perspective, and empowered to act upon it, will set right that which is made wrong by oligarchs—is attacked.
Where assaults on the gatherers and purveyors of popular information occur, those assaults must be challenged immediately. Social media and then mainstream media did just that after Washington Post writer Wesley Lowery and Huffington Post writer Ryan Reilly were arrested, detained and then released without charges or an explanation by police in Ferguson, Missouri, as they were reporting on the tensions that developed after 18-year-old Michael Brown was killed in a police shooting. The detention of reporters is merely one illustration of the seriousness of the broader battering of civil liberties and civil rights in Ferguson, a battering so severe that Amnesty International has made the unprecedented move of deploying human rights observers to the city.
The detentions of Lowery and Reilly stirred an outcry. Washington Post editor Martin Baron decried the incident as “wholly unwarranted and an assault on the freedom of the press to cover the news.” President Obama said the next day, “Here in the United States of America, police should not be bullying or arresting journalists who are just trying to do their jobs.” Amid a steady stream of reports that other reporters, still photographers and camera crews were being threatened, teargassed, assaulted and detained in Ferguson, forty-eight national media organizations and press freedom groups signed a letter to local authorities declaring, “This type of behavior is anathema to the First Amendment and to journalists everywhere.”
These are necessary answers to what happened with Lowery and Reilly, and to the growing list of complaints from journalists in Ferguson. Yet no one should be satisfied with emergency responses to glaring, and well-reported, assaults on the ability of journalists to do their work. It matters to express immediate outrage. But that is not a sufficient response, as has become evident in Ferguson—where Getty Images photographer Scott Olson was arrested on Monday, and where early Tuesday saw the arrests and jailing for several hours of Intercept reporter Ryan Devereaux and German journalists Ansgar Graw, Frank Hermannt and Lukas Hermsmeier. According to CNN, "The incidents bring the total number of journalists arrested during the mid-August protests to 11."
Graw, a veteran correspondent for Germany's Die Welt, wrote after his release, “This was a very new experience. I’ve been in several conflict zones: I was in the civil war regions in Georgia, the Gaza strip, illegally visited the Kaliningrad region when travel to the Soviet Union was still strictly prohibited for westerners, I’ve been in Iraq, Vietnam and in China, I’ve met Cuba dissidents. But to be arrested and yelled at and be rudely treated by police? For that I had to travel to Ferguson and St. Louis in the United States of America.”
The news from Ferguson highlights the need for a broader defense of journalism and democracy.
There has to be a consistent and absolute defense of the rights not just of high-profile national reporters but of all journalists and all citizens who gather information, demand answers, speak truth to power and then seek to disseminate their reports.
The assault on press freedom does not begin or end in Ferguson. The robust journalism that America requires has, of course, been undermined by the constant cuts imposed by hedge-fund media moguls. But even where media outlets still try to tell the stories that need to be told, they face threats from government agencies that are supposed to be checked and balanced by a constitutional prohibition on any official action abridging the freedom of the press—or of the related democratic rights to speak, to assemble and to petition the government for a redress of grievances.
Press freedom groups are busy these days, calling out local police forces in communities that deny reporters to news scenes, challenging state officials who refuse to obey open-records requests and federal officials who have grown increasingly aggressive in their efforts to monitor reporters and to try and force journalists to reveal the names of whistleblowers. “There is an attitude shift that says it’s OK to go after reporters to get information to use in litigation,” explained veteran First Amendment lawyer Theodore Boutrous in a recent interview with the McClatchy Washington Bureau. “That is very dangerous and has a real potential for chilling free speech and free press and reporting on important issues.”
On the very same day that the president was objecting to the bullying of journalists in Ferguson, the Reporters Committee for the Freedom of the Press and other journalism groups demanded that the federal government halt legal actions against New York Times reporter James Risen, who has been threatened with prosecution if he does not reveal the names of confidential sources for his groundbreaking 2006 book, State of War. A petition submitted to President Obama and Attorney General Eric Holder, and signed by more than 100,000 press freedom supporters, urged the administration to abandon a policy of subpoenaing journalists to reveal their sources.
Risen and his allies noted, correctly, that his case is just one of many instances where federal, state and local authorities have pressured journalists with legal threats. “I also know that it’s really not about me. It’s about some basic issues that affect all Americans and all journalists,” Risen explained. “I’m willing to do this for the future of journalism.”
More than the future of journalism is at risk. While every First Amendment freedom is important, Delphine Halgand, the director of the Washington office of Reporters Without Borders makes a vital point when she argues that freedom of the press “is the freedom that allows us to verify the existence of all other freedoms.”
That understanding ought to be the basis for a new movement to defend journalism not just from high-profile and immediate assaults but from what veteran journalist Norman Solomon refers to as the patterns of “fear and intimidation” that have always existed but that have accelerated and extended in the years since the 9/11 attacks on New York and Washington. This project cannot be about Democrats versus Republicans; this cannot be a left-versus-right game of dueling media silos. It must be transpartisan, bringing together citizens across the ideological spectrum to say that, without the free flow of information and open debate, all ideas are diminished. Americans with “Don’t Trust Corporate Media” bumper stickers have to align with Americans with “Don’t Believe the Liberal Media” bumper stickers in a shared recognition that some struggles go beyond politics.
None of this means that we must to pretend to like all journalists, or all media outlets. It is right and necessary to call out journalism that fails democracy. Media criticism, at its best, is not rooted in partisanship, or ideology; it is a demand for the pursuit of truths that someone with economic or political power does not want told. Americans have good reason to be frustrated with media that misses the essential stories of racism and inequality, as well as assaults on privacy and military adventurism. They should be furious with media monopolists who abandon civic and democratic ideals in the pursuit of commercial and entertainment compromises.
That frustration and anger cannot, however, become an excuse for abandoning the defense of journalism. In these times of manipulated media and constant assaults on the people’s right to know, citizens must take up the cause of the journalism that is on the street in Ferguson, that is exposing corporate wrongdoing, that is meeting with whistleblowers in Washington.
What is happening in Ferguson must be condemned, and there must be accountability. Authorities need to explain why journalists have been assaulted and arrested even when, according to the Intercept’s John Cook, “they had their hands raised in the air and were shouting, ‘Press! Press! Press!’” And journalists need to recognize their circumstance as part of a broader First Amendment struggle, as CNN’s Don Lemon did after he was physically pushed around Monday by police during a live shot from Ferguson. “Now you see why people are so upset here, because we have been here all day,” said Lemon. “We’re on national television. So imagine what they are doing to people when you don’t see on national television, the people who don’t have a voice like we do.”
But the response cannot stop there.
Congress needs to enact a shield law that protects journalists and whistleblowers, recognizing that Congressman Alan Grayson is right when he says, “The Constitution and the First Amendment provide for freedom of speech and of the press. It is completely incongruous to say we have freedom of the press, but the Federal Government can subpoena your sources and put them and you in prison—you, if you don’t comply.” Federal, state and local government must strengthen open meetings and open records laws; recognizing that in a digital age it should be easier and faster (not to mention cheaper) to meet the requests of citizens who want to know what is being done in their name but often without their informed consent—and of the journalists who inquire on their behalf. Resources must be made available so that every law-enforcement agency in every jurisdiction, from the FBI to the sheriff’s department in the most remote county, can train agents, deputies and officers to respect the whole of the Constitution, including the provision for a free press. And the courts must be peopled with jurists who respect the connection between a freedom of the press and all other freedoms; where judges are appointed, nominees must be grilled with regard to their constitutional commitments; where judges are elected, the First Amendment must be an issue.
What is at stake is a free and open society; and it is not enough that the most egregious wrongs have been identified and decried. The culture, the climate, in which those wrongs occur so frequently, must change. It must change because the journalism that goes to places like Ferguson, the gets behind the façade of institutions like the Central Intelligence Agency and the National Security Agency, that demands accountability from street cops and presidents, is much more than an exercise in information gathering. It is the vital link that gives citizens the information they need to bend the arc of history toward justice. There is no middle ground in this regard. Americans are either going to defend speak-truth-to-power journalism and vibrant democracy—as part of a broad reassertion of First Amendment rights—or they are going to have to settle for propaganda and oligarchy.
Read Next: Alex S. Vitale on how to end militarized policing.
When Missouri Senator Claire McCaskill called this week for the “demilitarization” of Ferguson, Missouri, she could have been talking about hundreds of other communities across the country. In recent years, as the American Civil Liberties Union details in its remarkable new report, “War Comes Home: The Excessive Militarization of American Policing,” the restructuring of local police departments into what look like occupying military forces has become “a nationwide trend.”
That trend was illustrated for America and the world by scenes from Ferguson where, after a police officer shot and killed 18-year-old Michael Brown, tensions flared. Local police met protests not just with extreme tactics—including the detention of journalists and the arrest of an elected alderman from neighboring St. Louis—but with armored vehicles, heavy weapons and a show of military force that made matters worse. With a bluntness that is rare for a US senator addressing the circumstances in a community in her state, McCaskill argued that “this kind of response by the police has become the problem instead of the solution.”
She was right about Ferguson, and about America.
The militarization of local policing is, indeed, a nationwide trend. It is encouraged by misguided “war on drugs” policies, misdirected Department of Homeland Security initiatives and the Department of Defense’s 1033 program, which sends “surplus military equipment” that USA Today describes as “left over from US military campaigns in Iraq, Afghanistan and elsewhere” to underfunded police departments. It remakes those departments in a way that, the ACLU notes, “unfairly impacts people of color and undermines individual liberties, and it has been allowed to happen in the absence of any meaningful public discussion.”
Ferguson has changed the discussion.
Now, it’s time to change the policies.
“Since the 1980s the US government has enabled the militarization of the police force as part of its so-called War on Drugs. Post-9/11 politics opened the floodgates with grants from the federal government to prepare for the imminent terrorist threat. Now, as combat missions in Iraq and Afghanistan have ended, the Pentagon is literally giving battlefield hardware away,” says Kevin Martin, executive director of Peace Action, which has organized a campaign to press members of Congress on the issue. “The militarism of policing—both in terms of weaponry and tactics—is a threat to our freedom as great as any coming from outside our borders. It’s time to put it to a stop.”
Democratic and Republican members of Congress have begun to step up on the issue.
“Our main streets should be a place for business, families, and relaxation, not tanks and M16s,” Johnson says in his letter. “Our local police are quickly beginning to resemble paramilitary forces. This bill will end the free transfers of certain aggressive military equipment to local law enforcement and ensure that all equipment can be accounted for.”
Noting the circumstance in Ferguson, and similar circumstances in communities across the country, the congressman makes the point that “before another small town’s police force gets a $700,000 gift from the Defense Department that it can’t maintain or manage, it behooves us to rein in the Pentagon’s 1033 program and revisit the merits of a militarized America.”
Johnson is a progressive who, with Congressman John Conyers (D-Michigan) and a handful of others in the House, has a track record of asking tough questions and taking bold stands regarding policing issues. But progressives are not alone is suggesting that the time has come to “revisit the merits of a militarized America.”
“There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response,” stresses Kentucky Senator Rand Paul, a leading contender for the 2016 Republican presidential nomination. “The images and scenes we continue to see in Ferguson resemble war more than traditional police action.”
Paul complains that “Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies—where police departments compete to acquire military gear that goes far beyond what most of Americans think of as law enforcement.”
He’s right about that. And he is right when he says in a Time magazine essay:
When you couple this militarization of law enforcement with an erosion of civil liberties and due process that allows the police to become judge and jury—national security letters, no-knock searches, broad general warrants, pre-conviction forfeiture—we begin to have a very serious problem on our hands.
Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.
The rough outlines of a left-right coalition to demilitarize local policing have begun to take shape. This is a vital development that extends from the frustration of Americans over what they have seen play out not just in Ferguson but in cities, villages and towns nationwide. But to begin to get to a “No More Fergusons” moment, that development must be coupled with a parallel initiative to refocus policing on the dual responsibility of defending public safety and defending the rights of citizens.
Just as the recognition of the need to debate and address militarization of local police forces has deep roots—in the work of the ACLU and writers such as Radley Balko, the author of Rise of the Warrior Cop: The Militarization of America’s Police Forces (Public Affairs)—it should be understood that the debate about smarter policing is not new.
Some of the strategies employed to ease tensions in Ferguson by Missouri State Highway Patrol Captain Ron Johnson—who was put in charge of policing Ferguson by Missouri Governor Jay Nixon— mirror those adopted by visionary law-enforcement leaders, departments and officers in recent years. To be sure, the captain’s task has been made more difficult by the level of mistrust that was created before he took charge—and that continued to be stirred by the controversial actions of the local police chief,
It will take time to restore not just calm but the relationships that are necessary to begin the “healing” that Johnson says is necessary—and possible.
But alternative models for policing can, and do, work.
During the mass protests at the Wisconsin Capitol in 2011, the top local law enforcement officer on the scene was Dane County Sheriff Dave Mahoney. Protests went on around the clock for weeks with no serious violence or arrests. The situation was tense at times. But police officers and protesters generally got along. As Mahoney explained, “Law enforcement agencies have responsibilities: They have to keep the peace. And they have to assure that citizens are able to exercise their First Amendment rights. There’s something very troubling about the notion that law enforcement agencies should play a role in preventing people from exercising their constitutional rights. That’s not how it is supposed to work.”
The American people are ready for a demilitarization of policing, as the positive response to Captain Johnson’s initial approach in Ferguson suggests. They are ready, as well, for policing that strikes a right balance of guaranteeing public safety while preserving civil liberties.
Sheriff Mahoney struck that right balance with considerable success in 2011. And the people have rewarded him for doing so. On August 12, Mahoney’s name was on the ballot, along with that of a retired deputy who mounted an active challenge in the sheriff Wisconsin’s second-largest county. Mahoney won, with 89 percent of the vote.
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The constitutional crisis that has developed in Ferguson, Missouri, begins as is so often the case with a human tragedy. Michael Brown, an unarmed African-American teenager has lost his life, following an incident—now under investigation not just by local authorities but by the US Department of Justice—in which a witness tells CNN, “I saw the police chase him…down the street and shoot him down.”
When circumstances spin out of control, as they clearly have in Ferguson, it is essential always to remember the human element at the heart of the matter. In another time and another place, the singer Peter Gabriel nailed this with the gripping refrain of “Biko,” his anti-apartheid anthem that steadily reminded the world, “A man is dead, a man is dead.”
What has evolved since the death of Michael Brown, however, illustrates the challenges that arise when law-enforcement officials fail to fully recognize and embrace their dual responsibility: to maintain public safety while at the same time guaranteeing the rights of Americans to speak, to practice journalism, to assemble for the purpose of making demands on those in power.
Missouri Governor Jay Nixon, a former state attorney general, seems to recognize that something had gone badly awry. After another turbulent night in Ferguson, the governor finally canceled appearances in other parts of the state on Thursday and announced he was going to the community where heavily armed police have confronted, arrested and detained protesters and journalists.
“The worsening situation in Ferguson is deeply troubling, and does not represent who we are as Missourians or as Americans,” declared Nixon, a Democrat who on Thursday afternoon announced plans for an “operational shift” and a “different tone” in the policing of Ferguson. “While we all respect the solemn responsibility of our law enforcement officers to protect the public, we must also safeguard the rights of Missourians to peaceably assemble and the rights of the press to report on matters of public concern.”
Missouri’s Senator Claire McCaskill was blunt : “We need to demilitarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement’s work to provide public safety, but my constituents are allowed to have peaceful protests, and the police need to respect that right and protect that right.”
When President Obama spoke about Ferguson on Thursday, he too highlighted constitutional concerns. While the president said there was “never an excuse for violence against police or for those who would use this tragedy as a cover for vandalism and looting,” he emphasized that there is “no excuse for police to use excessive force against peaceful protests or to throw protesters in jail for lawfully exercising their First Amendment rights. And here in the United States of America, police should not be arresting or bullying journalists who are just trying to do their jobs.”
It is getting difficult to keep count of the number of constitutionally defined protections that have been undermined and neglected in Ferguson. Surely, most lists begin with evidence of a disregard for the promise of equal protection under the law. But they do not end there. The reports from each new day, and especially from each new night, point to a disregard for the First Amendment that tells us no law shall be made “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Law enforcement agencies have a duty to maintain public safety, to arrest and prosecute those who commit crimes, and to take reasonable steps to prevent violence, looting or riots that might threaten communities. But there is a parallel duty to protect against abridgments of First Amendment rights. The balance can be difficult to strike, but it is when the difficulty arises that the striking of the balance is most important.
When the balance is not kept, there is, as Demos president Heather McGhee says, “an affront to democracy” that must be addressed by local, state and federal officials.
“There is nothing more American than a community uniting in the face of tragedy, than ordinary people organizing to peacefully protest injustice,” says McGhee. “The police reaction—to protests of their own violence—has been more violence, less transparency, and an active suppression of first amendment freedoms.”
In Ferguson, there have been chaotic moments. But there have also been sincere efforts by religious and community leaders to peacefully protest police actions. What is unsettling is the extent to which these protests have been met with overwhelming force and responses that appear to rescind basic rights during much of the day. For instance, citizens were told by the police that they should assemble only during daylight hours and protest only in a “respectful manner.”
The American Civil Liberties Union of Missouri correctly labeled that police statement as “a direct attack on protected expressive liberty.”
“The protests in Ferguson are at the core of the First Amendment’s protection because they deal with matters of public concern,” wrote Jeffrey Mittman, the executive director of the Missouri ACLU, in a letter to the Ferguson police chief. The letter notes that “the protests in Ferguson are subject to a heightened protection for the additional reason that they are peaceful and conducted on public streets and sidewalks.”
Mittman’s letter pays particular attention to the police demand that protests proceed in a “respectful manner.” That, he explains, “is far beyond the bounds of permissible government activity. Government agencies do not get to demand respect from protesters. Respect is something that government officials earn from citizens, and citizens are entitled to express their lack of respect by protest on public streets and sidewalks. Actions to suppress peaceful expressive activity dilute that respect and, thus, are contrary to your request.”
Evidence of the constitutional crisis is also found in reports that journalists who are attempting to cover the story are being harassed, arrested and told to exit the scene. On Wednesday night, reporters for The Washington Post and the Huffington Post were detained by police in Ferguson, in what Washington Post executive editor Marty Baron described as a “wholly unwarranted…assault on the freedom of the press to cover the news.” Later, St. Louis Alderman Antonio French, who has used his Twitter account and interviews to report on developments in the St. Louis suburb, was jailed for most of the night.
“In an American city, people are being tear-gassed and snipers are pointing rifles at them,” French told the St. Louis Post Dispatch after his release Thursday morning. “Everybody should be upset.… [the] heavy-handed police approach is actually making the situation worse.
In particular, French objected in media interviews to police crackdowns on peaceful protests during the evening.
“We have a right to protest 24 hours a day,” the alderman said. “Our constitutional rights don’t expire at 9 p.m.”
Antonio French is right.
That is a basic premise of the American experiment.
It is, as well, a basic premise of effective policing.
During the mass protests at the Wisconsin Capitol in 2011, the top local law enforcement officer on the scene was Dane County Sheriff Dave Mahoney. Protests went on around the clock for weeks with no serious violence or arrests. The situation was tense at times. But police officers and protesters generally got along. As Mahoney explained, “Law enforcement agencies have responsibilities: They have to keep the peace. And they have to assure that citizens are able to exercise their First Amendment rights. There’s something very troubling about the notion that law enforcement agencies should play a role in preventing people from exercising their constitutional rights. That’s not how it is supposed to work.”
The police can strike the proper balance. And the people will respect them when they do so. This week, Mahoney was up for re-election. The sheriff beat his challenger, winning 89 percent of the vote.
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