I decided on the title of this piece before I had much of a clue how to actually write it.

What the hell was I thinking?

Even a cursory discussion of this topic could easily require several books.  Several intensely boring books.  I had writer’s remorse about even “going there” given that (a) I’m by no means an expert in this ridiculously complex arena and (b) the topic makes dishwater seem considerably less dull.  However, since a lack of expertise has never discouraged me from conveying a strong, laborious opinion, I thought I’d weigh in.  The topic is important.  Tedious, but important.

Please bear with me.  I promise I’ll eventually make an interesting point or two.  Scratch that.  I promise I’ll make a point.  As initial context, though, I do need to lay out a vast over-simplification of just a few of the political organizations that currently participate in American elections:

• A Campaign Committee is obviously the central organization dedicated to the election of a specific political candidate.  It is highly regulated by the Federal Election Commission (FEC).  An individual may give up to $2,700 per election to campaign committees.  All donors and expenditures must be publicly disclosed.
• A Party Committee is dedicated to electing multiple candidates at the national, state, and local levels.  An individual may give up to $33,900 per year to a national party committees and a total of $10,000 per year to state/local party committees.  A party committee may contribute up to $2,700 per election to campaign committees.  All donors and expenditures must be publicly disclosed.
• A PAC is a “Political Action Committee” formed to collect money to contribute to other committees.  A PAC is generally formed by a corporation, union, or ideological group with the intent of influencing one or more elections.  An individual may give up to $5,000 annually to a PAC.  A PAC may contribute up to $5,000 to one or more campaign committees per election.  It can also annually contribute up to $15,000 to national party committees, a total of $5,000 to state/local party committees, and $5,000 each to other PACs.  All donors and expenditures must be publicly disclosed.
• A Super PAC is an “independent expenditure-only” committee that can advocate for the election or defeat of a candidate or party.  A Super PAC can’t contribute to nor directly coordinate with any candidate or party committees but it can spend an unlimited amount independent of those two entities.  Coordination through the media, however, isn’t illegal – which is as big a loophole as you think it is.  There are no limits on contributions to a Super PAC.  All donors and expenditures must be publicly disclosed.
• A 527 organization is an “issue advocacy” group that can’t expressly advocate for the election or defeat of a candidate or party.  Instead, it is supposed to focus solely on an “issue” – which is as vague a restriction as you think it is.  It can’t coordinate with any candidate or party committees but it can spend an unlimited amount advocating for its issue.  There are no limits on contributions to a 527.  All donors and expenditures must be publicly disclosed.
• A 501(c)(4) organization is a “social welfare” group that isn’t supposed to have politics as its “primary” purpose – which is as unenforceable a restriction as you think it is.  It can’t directly contribute to candidate or party committees.  However, since it can spend unlimited amounts of money elsewhere to freely seek legislation “germane” to its purpose, it can essentially do whatever else it wants.  There are no limits on contributions to a 501(c)(4).  Donors do not need to be disclosed.  Hence, money from these groups is often called “dark money”.  Foreign donations are allowed but are only supposed to be used for “educational” purposes – which is almost funny.  Expenditures that explicitly advocate for or against a candidate are supposed to be disclosed; otherwise, there are no expenditure disclosure requirements.

Even the brief bullet descriptions are daunting and these are just the major “legal” groups.  There are also 501(c)(3) “charities” that aren’t supposed to be political, but are.  There are also LLCs which aren’t supposed to be used to obscure individual political donations, but are.  The bottom line is that the political money landscape is massively complicated and the fact that many of these groups can donate to each other makes things almost humorously meaningless.

Gaming the system is just way too easy.

As a simple example, a single group could create a 501(c)(4), a 527, and a Super PAC. Via its 501(c)(4), the group could collect as much money as it wanted from anywhere it wanted without disclosing its donors.  It could then donate half of the proceeds to its 527 to advance a specific cause and half to its Super PAC to impact specific elections. Each of the latter two organizations would have to report a donation, but only as an unattributed bulk sum from the 501(c)(4).  Thus, the group could quite easily and quite legally drop unlimited amounts of untraceable money to sway any election.

Unfortunately, this is by no means an academic exercise.  As just one real-world example, the NRA itself is technically a 501(c)(4).  It also runs both a 527 (Political Victory Fund) and a PAC (Institute for Legislative Action) and it has a well-known relationship with Karl Rove’s Super PAC (American Crossroads).  Bingo!

To put some of this into practical perspective, USA Today published a partial breakdown of political televisions spots that aired from January 1 through July 8 focused on the 2018 House and Senate races.  With some rounding, 386,000 television spots were aired; 107,000 were run by outside groups; 47,000 were funded by dark money groups.

Thus, over a quarter of all ads came from non-campaign groups and almost half of those were untraceable to the individuals or corporations that sponsored them.

Factoring in the fact that dark money gets focused on the most contested elections, the numbers get even worse.  In Missouri’s Senate race, 42% of ads came from dark money groups; in Wisconsin’s Senate race, 46% of ads came from dark money groups.  I’m frankly surprised that the numbers weren’t higher and I fully expect that they will be as we get closer to the November elections.

In any case, I think I promised to make a point or two about money in politics.  If anyone’s still reading, here they are:

First is a point about usage.

Both conservative and liberal groups have taken advantage of the existing laws.  Democrats just suck at it.  While dark money comes from across the political spectrum, conservative-leaning groups account for four out of the five largest dark money advertisers.  In addition, many Democrats have been refusing to accept corporate PAC money while their Republican counterparts willingly accept it.  Okay.  I understand the “high road” concept.  I really do.  But it makes no sense to conduct a political campaign in some alternate universe where things are as you wish they were.  Here’s an novel idea:  Perhaps Democrats could win some elections and change the damn laws!  In the meantime, they should consider running in the same elections as their opponents.

Second is a point about how the laws could possibly be changed.  It seems to me that we’re making this a whole lot harder than it needs to be.

I propose that we eliminate all caps on all political donations from any American entity that wants to donate – people, corporations, unions, churches, trade groups, interest groups, pets, whatever.  There are actually some valid First Amendment issues related to campaign contributions in addition to the impossible enforcement issues associated with the current set of rules.  So just open the floodgates.  There would be no meaningless distinction between issue advocacy and candidate advocacy.  There would be no unenforceable restrictions on coordinated communications.  Donate at will.  Work with whomever you want.

Here’s the catch:  Any and all donations to advocate for or against a political candidate or issue must be ultimately traceable to a specific non-tax-exempt individual or corporate donor.  Period.

Yes, there are some potential negatives.

Sure, elections could be explicitly bought.  But, gee, elections can be pretty easily bought today.  An uncapped full-disclosure approach would at least let us know who’s making the purchase and would perhaps empower others to make counter bids.

Sure, publicly recorded political donations could be used to discriminate or alienate.  Well, tough.  Taking a stance is a necessary requirement of participation in a democracy.  If an individual or corporation is unwilling to stand by their convictions, they don’t have to donate.

Something has to change.  We’ve proven that constant tweaks and reinterpretations of the existing laws by the FEC, the IRS, Congress, and the courts isn’t helping.  A radical idea seems appropriate and a past Supreme Court Justice was right:

Sunlight is said to be the best of disinfectants.

– Louis Brandeis, December 1913

Republicans should be happy with the reduced regulations.  Democrats should be happy with the increased transparency.  The relevant Supreme Court rulings imply that disclosure rules are fair game; only limitations on donations have been successfully challenged in court.

Simpler is better.  And it can’t be a whole lot worse than what we have now.

This Thursday, a large number of newspapers from across the country will separately produce independent editorials concerning Trump’s constant and virulent attacks on the media.  I’m looking forward to reading some of them but will first add my own small voice to the mix.

Although there are many examples, this tweet seems representative as a starting point:

The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!

– Donald Trump, August 2018

Let’s first try a mental exercise.

Imagine for a moment that Barack Obama had issued this exact statement during his Presidency.  Close your eyes and picture the immediate reaction of the Republican Party.  Personally, I see a tree.  And some rope.

At a bare minimum, does anyone believe that McConnell and Ryan would not have called for a full retraction from Obama under the threat of impeachment?  They would have argued that such a direct challenge to the First Amendment easily rose to the “high crimes” threshold in the Constitution.  And they wouldn’t have been wrong.

Clearly, all Presidents have had issues with their press coverage.  Every occupant of the White House would certainly prefer stories that favored their policies, ignored their mistakes, and cheered their accomplishments.  Most have understood that to be wishful thinking.  Trump, unfortunately, sees the state-run media in Russia and North Korea constantly praising their leaders and he expects the same treatment from the American press.  That’s just not the way it works in a democracy.

Several conservative politicians and commentators, while voicing tepid disapproval of Trump’s angry tweets toward the press, have largely dismissed them as some variation of “Trump being Trump”.  This needs to stop and it needs to stop now.  This is not normal political rhetoric and it cannot be deemed acceptable simply due to the fact that it is coming from Donald Trump.  The man is the President of the United States, not the old man down the street screaming at kids to get off his lawn.  His tirades have gone far beyond random statements of annoyance.  His language is now dangerous.

Beyond the constitutional issues, Trump’s constant dismissal of any negative press coverage as “Fake News” is also particularly offensive given his own total disregard for the truth.

Just yesterday, Trump claimed that the newly approved National Defense Authorization Act provided an “historic” $700 billion for the military.  As reported in the New York Times, Obama passed an even larger military budget his first year in office.  So that’s a pretty short span of history.  Much more ludicrous was Trump’s claim that “They never gave us money for the military for years and years. And it was depleted.”  Uh, no.  The military’s annual budget has averaged about $600 billion for each of the past several years.

There is an excellent, apolitical essay titled “On Bullshit” written in 2005 by Harry Frankfurt, a Princeton philosophy professor, which discusses the differences between a lie and bullshit.  In essence, a lie is a deliberate attempt to subvert a truth while bullshit requires no conviction at all with respect to the truth.  Bullshit is produced when someone is unconcerned with facts and when any notion of objective truth is simply irrelevant to the argument being made.  Since a lie at least requires knowledge and acceptance of the actual truth, Frankfurt posits that bullshit is the greater enemy of truth than a lie.

It’s a valid distinction and a relevant hypothesis.

A cornerstone of American democracy is a free press.  It is not the job of the media to stroke Trump’s massive ego.  It is their job to call bullshit.

There is no shortage of strong, diverse opinions on the nomination of Brett Kavanaugh to serve on the U.S. Supreme Court.  I’ve struggled to formulate my own informed opinion and have done more associated research than I probably should have.  Below are my brief thoughts (okay, relatively brief thoughts) in several arenas followed by my current conclusions.

Qualifications

Kavanaugh is graduate of Yale Law School and taught at Harvard Law School.  He’s a former clerk for two federal appellate judges and for Justice Kennedy on the Supreme Court.  He worked on Ken Starr’s legal team and served in the solicitor general’s office in the Bush II administration.  He has served on the DC Circuit Court of Appeals for 12 years.  Is Brett Kavanaugh qualified to serve on the Supreme Court?  Of course he is.  I doubt he’s one of the best legal minds of his generation, but there can be little argument that he is qualified.

Political Tilt

Prior to becoming a judge, Kavanaugh was very heavily involved in conservative causes.  During his confirmation hearings for the DC Circuit court, Sen. Dick Durbin (D-Illinois) – noting Kavanaugh’s appearance in nearly every major political legal battle of the time – dubbed him the “Forrest Gump of Republican politics.”

This is not a surprise.  Kavanaugh is a conservative Republican and he hasn’t exactly tried to hide that fact.  With Republicans in control of the Presidency and the Senate, it would only be a surprise if the nominee had a less conservative background.  I can’t hold someone responsible for having political opinions and acting upon them as long as that person doesn’t try to impose those opinions on others from a non-partisan perch.  Unfortunately, there is a glaring example of just that behavior in Kavanaugh’s past.  (See below.)

Written Judicial Opinions

It is quite reasonable for the Senate to try to determine how Kavanaugh will rule on the many important issues likely to face the Court during his tenure.  These include the extent of Presidential power and privilege, privacy rights, gun rights, and stare decisis as it relates to several existing Supreme Court decisions – most notably Roe v. Wade (abortion rights) and Obergefell v. Hodges (gay marriage rights).

Since most modern Supreme Court nominees have refused to directly weigh in on matters that could later come before them, it is quite unlikely that the upcoming confirmation hearings will provide any relevant information in this arena.  Thus, Kavanaugh’s paper trail as a judge is the best source for insights and, given that he has authored approximately 300 opinions for the DC Circuit Court, there’s a decent volume of raw data.

Indeed, a fascinating article in the Washington Post took a dispassionate data analytics approach to determine Kavanaugh’s legal tendencies, analyzing his published judicial decisions as compared with those of other jurists.  The analysis considered dissents, vote polarization, and citations of partisan precedents and included both sentiment and style analyses of the writings themselves.  The study’s determination was that Kavanaugh is “an uncommonly partisan judge” who is “highly divisive in his decisions and rhetoric.” 

Again, this is hardly a surprise.  Kavanaugh is considered a textualist and originalist.  Many of his contemporaries are not.  I can respect a judicial philosophy with which I disagree as long as it is consistently applied.

I’ll admit that I haven’t read all 300 of Kavanaugh’s opinions, but I did read two important ones and summaries of numerous others (which, unfortunately, likely puts me ahead of most of the Senators that will vote on his nomination).  While I disagree with many of his decisions, two stand out as particularly inconsistent with his own judicial philosophy while being remarkably consistent with his own personal beliefs.  (See below.)

Political Considerations

In a perfect world, only the best legal minds – regardless of philosophy – would ascend to the highest court in the land and the resultant debates would be a testament to American democracy.  I’m reminded of an excellent episode of The West Wing where a very brilliant and very liberal Judge Evelyn Baker Lang (played by Glenn Close) and a very brilliant and very conservative Judge Christopher Mulready (played by William Fichtner) were concurrently appointed to the Supreme Court after engaging in an intense but highly respectful debate focused entirely on very different interpretations of the Constitution.

Alas, this is not a perfect world, Aaron Sorkin isn’t writing this script, Brett Kavanaugh is no Christopher Mulready, and the selection of a Supreme Court Justice is an intensely political blood sport.

Mitch McConnell has urged Democrats to “put partisanship aside” and give Kavanaugh “the fairness, respect, and seriousness that a Supreme Court nomination ought to command.”  That’s hilarious.  The man who refused to even allow consideration of President Obama’s nomination of Merrick Garland now wants everyone to be a grown-up.

Many Democrats are, quite understandably, still looking for payback for Garland’s poor treatment.  Some have argued, not without merit, that the same election year argument that McConnell used to block Garland should hold for Kavanaugh.

I’ll argue instead for Democrats to allow the confirmation hearings to proceed in a respectful manner – not because Republicans want it for a Republican nominee but explicitly because they wouldn’t allow it for a Democratic nominee.  The far-right will rejoice and the far-left will go ballistic.  But the sane middle will notice and will eventually reward the adults in the room.

Judicial Restraint

This is a loaded term these days, since many people seem to define an activist judge as one that rules against them.  By judicial restraint, I mean the ability of a judge to set aside ALL personal opinions and just interpret the law.  While I may strongly oppose any given opinion, I can at least respect one that focuses solely on the law, is consistent with other rulings, and does not attempt to impose personal beliefs or politics.

It is on these grounds that I have some objections to Kavanaugh.

Ken Gormley’s 2010 book, “The Death of American Virtue: Clinton vs. Starr” included passages from a memo sent by Kavanaugh to “Judge Starr” just prior to President Clinton’s grand jury testimony:

“[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.”

Kavanaugh then proceeded to list numerous questions that he said should be asked of Clinton.  For example:

If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?

Regardless of whether or not one agrees with the above argument, the fact is that it is not a legal argument.  It is a very personal argument.  In Kavanagh’s role as an investigator, it was simply not his place to pass moral judgment and it was particularly egregious that he let his personal judgment inform his legal opinions.  While engaging in an extra-marital affair and masturbating into a trashcan aren’t exactly presidential acts, they aren’t illegal acts.  Kavanaugh knew this but wanted Clinton punished for moral transgressions anyway.  While his questions may well have been fair game from a political perspective to embarrass Clinton, the special investigation’s task was ostensibly apolitical.  Kavanaugh knew this but wanted to score political points anyway.  Not cool.

In Heller v. DC, Kavanaugh argued that semi-automatic weapons were constitutionally protected because they’re in common use.  I love this.  Marijuana is in common use, too.  And in Texas, it is randomly illegal to own more than six sex toys (yes, really) despite their widespread use.  So we’ll be cool with Kavanaugh on the court, right?  Unfortunately, I see no “common use” doctrine in the Constitution.  A strict constructionist should have been able to find a better argument.

In Priests for Life v. HHS, Kavanagh argued that requiring a religious organization to submit a form substantially burdened their religious freedom.  I’m all for religious freedom, but I see no clause in the Constitution that precludes common sense.

My Conclusions

Is Brett Kavanaugh a liberal’s dream?  Of course not.  He’s a staunch conservative who has demonstrated only a limited capacity to produce legal findings that are antithetical to his personal beliefs.  However, there were certainly choices that were substantially more conservative and substantially less qualified.  Remember, Trump could have nominated someone like Rudy Giuliani.

If I were a Senator, I’d definitely ask the tough questions.  I’d ask Kavanaugh to defend his actions as part of the Clinton inquiry.  I’d ask him to defend his writings that seem to be in conflict with his stated judicial philosophy.  I would at least attempt to get him to state under what circumstances he would be inclined to overturn Supreme Court precedents that are consistent with contemporary popular opinion.

However, barring any surprises, and despite Republicans’ complete disregard for the constitutional right of a Supreme Court nominee to a fair hearing, I would give Kavanaugh that fair hearing.  Since I also believe that the Senate should generally reject a nominee only on grounds of qualifications, I would likely vote in favor of confirmation.  Particularly for a Senator in a 2018 swing state, a “no” vote here is certainly not worth their Senate seat.

My personal opinion is that Democrats should save their ammunition for a future nominee that is “supremely” unqualified.  It could happen.