I posted yesterday about the U.S. Supreme Court agreeing to hear the appeal of Evenwel v. Abbott which will be heard and decided next Term. The Court will define the meaning of “one-person, one-vote,” based upon a radical theory put forward by the right-wing Project on Fair Representation.
Ed Kilgore at the Political Animal blog and Paul Waldman at the Washington Post’s Plum Line noticed the similarities between the radical theory of the Project for Fair Representation and the radical theory of the Libertarian lawyers pursuing the King v. Burwell case.
I also noticed these similarities. In fact, it is part of a conservative legal strategy to use the courts to undo much of the progress of the 20th Century. This strategy has been pursued for a number of years, but was recently crystalized in the latest book from Charles Murray, “By the People: Rebuilding Liberty Without Permission,” that has the right-wing all in a lather. (More on this below).
Ed Kilgore writes, Here’s How Republicans Could Repel Latinos Even More!
We talked briefly yesterday about SCOTUS accepting a challenge to the traditional understanding of “one person one vote” in a case from Texas. This is turning out to be even a bigger deal than I initially expected, particularly among Latino groups who see it as a direct threat to their political representation in both Washington and in state capitals.
But as Paul Waldman points out at the Plum Line, it’s going to be a very big deal for Republicans as well, who will likely see this as yet another way to entrench their control of legislative bodies. Paul considers this a direct analogue to what happened with King v. Burrell: yesterday’s fringe legal theory became tomorrow’s party orthodoxy:
[B]efore long, every Republican is going to decide that they firmly believe, as the most fundamental expression of their commitment to democracy and the vision of the Founding Fathers, that only eligible voters should count when tallying population to determine district lines.
One thing to watch out for as this plays out is the role of the conservative media. If I’m right, very soon you’re going to see Fox News hosts and radio talkers like Rush Limbaugh doing segments on this case, in effect instructing conservatives on what’s at stake and how they should think about the issue. That consistent drumbeat won’t only affect the conservative leaders and rank-and-file, it could even affect the Supreme Court justices, who will hear the arguments being made in the media in support of these plaintiffs. After a while, a legal theory that sounded absurd will begin to seem at the very least to be mainstream. In short order, there will be universal agreement on the right. And it could have a real impact on political power even if the plaintiffs lose.
This last point refers to the fact that all the attention will alert Republicans to the reality that using voter-only data for redistricting decisions has probably been an option all along—one they will probably take in states where they have the power, which is quite a few at present.
To the extent Republicans get excited about this, it will also exacerbate their unhappy relationship with Latinos. In fact, it will mean not one but two major federal cases—the other being the litigation over Obama’s executive actions on immigration—where Republicans are directly aligning themselves against Latino interests. And that doesn’t count King v. Burrell, which would deny a lot of Latinos health coverage.
But hey, it’s hard to think strategically when you see unelected judges identifying a whole new way to screw over those people.
Now, many of you may remember Charles Murray. Murray is nominally a political scientist, but he is really a professional provocateur at the American Enterprise Institute. He is best known for such controversial polemics as “Losing Ground,” which deemed the welfare state a failure; “The Bell Curve,” which relied on the pseudo-science of eugenics to link intelligence, race and socioeconomic outcomes (the book has served as the intellectual basis for modern-day racists); and “Coming Apart,” which declared that white America is torn by class and values.
In “By the People: Rebuilding Liberty Without Permission” he offers a bleak assessment of American democracy and calls for civil disobedience through the abuse of the legal system, and to effectively give control of our government to wealthy elite Plutocrats.
Nancy Le Tourneau at the Political Animal blog comments on a lengthy piece by Ian Millhiser at Think Progress in An Insurgency by Any Other Name:
In my very first post here at Political Animal, I described the possible threat from a Confederate insurgency. In his review of Charles Murray’s latest book, By the People: Rebuilding Liberty Without Permission, Ian Millhiser basically describes it as an insurgency by another name.
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[Millhiser] reminds us that, even though an entire industry has risen to debunk Murray, he is still revered by powerful Republicans.
Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”
So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.
Millhiser then does a thorough job of explaining what Murray proposes in this book. It’s important to note that it’s title “By the People” is the exact opposite of what he recommends. Basically what Murray wants to see is an ultra-rich benefactor who would be willing to pay for a legal defense fund that would subvert the work of the federal government.
To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.
These are not merely the ravings of a lunatic right-winger. I was immediately reminded of the fact that Majority Leader Mitch McConnell has advised states to disregard the recent EPA rulings on coal plant emissions while various entities challenge them in court.
For a while now I have been suggesting that this form of Republicanism is best described as a beast in it’s final death throes. That beast is now a minority in this country and as it lashes out, one of the only remaining possibilities for survival is to subvert our democratic process.
I hope that by now you know that I am not one given to hyperbole and conspiracy theories. I don’t say all this to ramp up a fevered reaction. But it’s important to see what is happening here with clear eyes and name it for what it is…a call to insurgency.
Ian Millhiser’s piece at Think Progress is a must read if you want to better understand the legal strategy of the radical right to undermine democracy. Jeb Bush’s Favorite Author Rejects Democracy, Says The Hyper-Rich Should Seize Power. Some excerpts:
Murray’s proposal cannot be dismissed out of hand simply because it is built upon a foundation of frivolous litigation. The first Supreme Court case attacking Obamacare was widely derided as meritless — an ABA poll of legal experts found that 85 percent believed that the law would be upheld. And yet the justices came within a hair of repealing the entire law. The lawyers behind a more recent attack on the Affordable Care Act, King v. Burwell, make demonstrably false claims about the history of the law, and they rely upon a completely unworkable method of interpreting statutes. But that hasn’t stopped at least some members of the Supreme Court from taking this lawsuit seriously. Conservatives simply have more leeway to assert meritless legal arguments than they once did.
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So Murray has written a terrible book. It is at once credulous of fringe thinkers and contemptuous of American democracy. Yet he has also written a deeply revealing book about the nature of conservatism in the age of Obama. When President Ronald Reagan was in office, he spoke with the confidence of a man who believed that the American people were on his side. Reagan pledged to appoint judges who support “judicial restraint,” a testament to Reagan’s belief that he did not need the unelected judiciary to enact conservative policies, and his administration’s understanding of the Constitution was decidedly moderate when compared to the ideas of men such as Barnett, Epstein and Greve.
Since then, however, the Republican Party has lost Reagan’s self-confidence. Instead, they reflexively turn to the judiciary when they are unable to win battles on health care, immigration, the environment, or a myriad of other issues. Democracy, as McConnell said in 2011, no longer works to give conservatives what they want.
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By The People, by contrast, bypasses the law entirely. It abandons even the trappings of a legitimate constitutional process, and instead places government in the hands of billionaires loyal only to an anti-government agenda. It is, in many ways, the perfection of post-Obama conservatism, barely even bothering to pay lip service to the notion that the American people should be governed by the people they elect.
But By The People is also more than an unintentional indictment of conservatism, it’s also a warning for liberals.