The State of the Union Address: “…Meat to Distract the Watchdog of the Mind”

by Hal Gershowitz and Stephen Porter on February 8, 2010

Quote in headline: Marshall McLuhan – “Understanding Media,” 1964

On January 27, President Obama, following long tradition, delivered to a joint session of Congress and the American people his constitutionally mandated report on the state of the union. This report, over time, has become less of a report on the nation’s health than a self congratulatory report on how well each president’s administration is doing and a pep talk to push (some might say coerce) Congress into enacting any given White House’s agenda. Citizens know to take these reports with a grain of salt. But this address, by this President, took the state-of-the-union ritual to a new level of audacity– that word seems to define this president — in the claims of success it made, the facts it misreported, the predictions of improvement that lay ahead and the call for an end to mistrust and cynicism. If there weren’t an atmosphere in the capital of mistrust and cynicism before the speech, Mr. Obama’s report alone would have given birth to it. It was, in many respects, reminiscent of media-guru Marshall McLuhan’s description of media content as “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.”

We thought that waiting almost two weeks and having an opportunity to study the text for cool reflection before publishing an essay on the speech might cast it in a somewhat different light. It did. In our view Mr. Obama’s report to the nation was as close to pure political campaigning as a presidential address can get.

It started, as President Obama always seems to do, with a reminder that he inherited two wars and a financial mess. We know that; he reminds us repeatedly. But he ran on the promise and expectation of improving the state of the union. He claimed at the very start of his report that his Administration’s aggressive actions caused the worst of the storm to pass. Is there anyone in America who can actually believe that claim of cause and effect? The aggressive action that was taken (and which the president, most members of his party and many Republicans deride) was the bank bailout, enacted by the Bush Administration (TARP) aimed at preventing a systemic financial collapse. The “aggressive” action of the current Administration was the nearly $800 billion stimulus bill, which seems not to have stimulated anything except the national debt. There is no proof that any net jobs were saved (in fact, there is compelling evidence that none were) despite the president’s claim to the contrary and unemployment, which the president predicted would drop, has gone from eight percent to nearly ten percent for which the president’s prescription is another stimulus bill, this time in the new wrapper of a “Jobs Bill.”

As proof of his success, the president cited a small business in Phoenix and a window manufacturer in Philadelphia. Surely there are other anecdotal success stories. But job losses as reported by the Labor Department continued every month of 2009. If some jobs were created (or saved) from $800 billion of taxpayer money being tossed about, what was the cost of each job created…and what was the cost of each job lost as money was diverted from one part of the economy (the private sector) to fund employment in another part of the economy (primarily the public sector)?

The only things that stabilized the country and brought us back from the brink were the unprecedented and controversial actions under TARP, which saved the banking system. Much of that money has been repaid by the banks, with interest, in contrast to Freddie Mac or Fannie Mae, the multi billion dollar Congressional candy stores which more than any other institutions were responsible for the housing bubble, the bursting of which literally brought down the economy like a house of cards. For these government-sponsored enterprises, Congress in 2009 greatly increased the liability of the American taxpayer. President Obama and the democratically controlled congress have lifted the loss limit for Fannie Mae and Freddie Mac (actually they erased it altogether) and they now have a blank check from the taxpayer to cover their ever-mounting losses which have turned Fannie and Freddie into penny stocks.

So what does the president do and say? In the wake of losing his Senate supermajority, he begins to breathe fire and smoke at Wall Street, engendering populist wrath at financial institutions. He also proposes to tax them by publicly demanding, “we want our money back.” Surprise Mr. President; we have, so far, gotten over $160 billion of it back. The tax, despite his denial, is all about raising populist ire, never mind how divisive such a tactic is, nor the chilling effect it will have on new investment in any industry in the Administration’s gun sights.

The president showed no recognition that the American people have, at every turn, soundly rejected his idea of healthcare “reform.” He explains away the recent evidence from the Massachusetts senatorial election (not to mention recent routs in New Jersey and Virginia) by asserting that he just has to better explain the legislation. Congress, he suggests, should ignore the unmistakable unpopularity of his proposal with the American people and pass the bill anyway using any possible legislative trickery (changing Senate rules, using the “reconciliation process”, splitting the bill into two separate parts) and get it to him for signature, after which he will in true elitist fashion, explain it to the great unwashed masses.

Could he be more dismissive and condescending of the intelligence of the American people? And does he not understand how much more politically divided this nation will be if the largest entitlement program since Social Security and Medicare becomes law, not only without an overwhelming consensus in favor of it but through legislative artifice.

The president also took note of our unsustainable deficits. He proposed a small first step forward in budgetary control (after taking two steps backwards with 2009 record spending and proposed 2010 record spending) through a freeze on discretionary budget spending. The budget he released on February 1st looks more like the movie Groundhog Day in government spending. It actually increases the annual budget deficit to $1.6 trillion. The line-by-line review he promised with his surgical scalpel in hand is totally absent. As near as we can tell every existing program remains. He even increased non-discretionary spending by making the Pell Grant program a permanent entitlement program. Is this a foreshadowing to making a college education for every student a taxpayer obligation?

Moreover, be vigilant; he also proposed restoring “pay go,” a Congressional device which means that any new program must be paid for by spending cuts elsewhere, or by tax increases. With huge majorities in both houses of Congress anxious to enact every social program on their multi-decade wish list, so that the government can intrude into nearly every aspect of our lives, which alternative (reduced spending or increased taxation) can we expect them or any Commission he appoints to choose? Will they cut pet projects and unnecessary subsidies, or will they increase taxes on the “wealthy”? Sorry, it was just a rhetorical question.

And yet, after making such exaggerated claims and offering no real sign of compromise on his health care reform proposals, which have divided the country since the inception of his presidency, Mr. Obama kept returning to the theme of post partisanship and the terrible tone of our politics. There is no question that he is right and that both sides of the aisle are responsible. As an example, a nasty filibuster demonizing a presidential nominee, which in turn reduces the pool of qualified people willing to take highly important positions for fear of being publicly pilloried, threatens every confirmation vote.

Both parties have used these tactics, justifying them as similar to past actions by the other, and both sides accuse the other of casting the first stone. But, how can the president be taken seriously about bipartisanship after having walked away from his promise to put conference committee negotiations reconciling the health care proposals of both houses of Congress on C Span when, in fact, without a conference committee even being appointed, the negotiations are held behind closed doors with no members of the Republican party invited, where tawdry deals favoring labor unions, or special deals favoring one state over another to buy votes, are cut out of public view and jammed down the throats of the minority?

Well past the halfway point of his address, the president finally gave a nod to the issue which all polls show is the most important one on the minds of Americans, heightened yet again by the Fort Hood attack and the failed Christmas Day airplane bombing: national security. Here is where we were most disturbed by his speech. The Commander-in-Chief stood before the nation and claimed to be filling the gaps in our security revealed by the Christmas Day incident. What exactly is he doing to fill those gaps? He didn’t say. The only thing the public heard so far was the TSA’s announcement (since retracted) that bathroom visits would be barred in the last half hour of every flight. And by the way, why wasn’t there already a coordinated plan after one year in office?

More revealing was his silence about the decision to treat Amur Farouk Abdulmutallab, as a mere common criminal to be dealt with through our criminal justice system. The Justice Department’s decision, to advise this intended mass murderer of his right to remain silent, is frightfully stunning. Not surprisingly, we have since learned, this decision was made without consulting any of our national security agencies. The president’s silence on this misguided judgment is utterly revealing of the place national security has in the Administration’s triage of important issues. Not one word of recognition was uttered which conceivably could give the American public any comfort that he and Attorney General Holder are more interested in doing what is necessary to keep us safe from terrorist attacks than they are in placating the left wing of their party, which has shown itself to be far more concerned about exquisite constitutional protections for our sworn enemies, than in effectively dealing with this mortal threat to our nation.

This mindset is further demonstrated by the Department of Justice’s decision to reopen an investigation, over CIA Director Leon Panetta’s objection, of CIA officers, which had already been thoroughly investigated, or the Justice Department’s public release of the CIA inspector general’s report on our interrogation program. As former CIA Director Michael Hayden stated in an op-ed piece in the January 31, 2010 Washington Post:

“Intelligence officers need to know that someone has their back. After the Justice memos were released in April, CIA officers began to ask whether the people following procedures that were currently authorized would be dragged through this kind of public knothole in five years. No one could guarantee that they would not.” (emphasis added).

Mr. Hayden also noted the peculiarity that while the High Value Detainee Interrogation Group (HIG), the formation of which was announced by the Administration last August to interrogate key Al Qaeda prisoners, was not yet ready to interrogate anyone, the FBI was busy interrogating CIA personnel. The mind reels at the consequences of such a “peculiarity.” If this is the priority of our Justice Department, please bring back Alberto Gonzales. We might even prefer Janet Reno.

We also wondered how the president, with a straight face, could claim progress in forging a better consensus for tougher sanctions on North Korea and Iran. Russia continues to refuse to support strong additional sanctions such as cutting off refined oil products to Iran even after we gave them the “gift” of abandoning a missile shield in Eastern Europe, which was directed to intercept attacks from Iran. China is even more recalcitrant . . . and all of this is in the face of Iranian rejection of, and public contempt for, Mr. Obama’s repeated offers of engagement. As for North Korea, they continue to conduct missile tests and seize innocent Americans and others who allegedly cross their border or enter their territorial waters by a matter of inches.

For a moment in his address, we thought we heard a promising foreign policy shift. The president spoke of the importance of trading with our friends and specifically mentioned South Korea, Panama and Colombia, three  countries where the president’s union supporters have fought free trade agreements that have been bottled up in Congress for years. Both of these treaties are generally recognized to be quite favorable in their terms to the United States. And then, just when the logical next sentence would have been “that is why I will urge the Congress to approve the South Korean and Colombia free trade treaties,” (unless our television cut off for a few seconds, or the text of the speech we read the next day inadvertently omitted that sentence) the president moved to another subject.

As for his dream of a nuclear free world, Mr. Obama is negotiating for a reduction in our arms stockpile and delivery systems to the level of the Russians. They, of course, continue to upgrade their existing weapons while our own Congress, bowing to its anti-war leftist wing, hasn’t been willing to appropriate funds to upgrade the safety and maintenance of our force.

The only military commitment the president clearly made was his pledge to repeal the “don’t ask, don’t tell” law that discriminates against gays in the military. Certainly, this is a policy that, we believe, can and should be readdressed. We wish, however, the President had brought the same passion to the critical matter of protecting the lives of Americans who are so clearly in the crosshairs of Islamic extremists.

All in all, the speech, both when we first heard it and upon rereading and reflection amounted to little more than Washington spin at high gear. The president repackaged all of his failed initiatives in soothing words of compromise and tantalizing hints of bipartisanship, which he promptly took away by explicitly repeating a bottom line, which hasn’t changed. For a leader who won office in an historic election by so effectively being in touch with and hearing the aspirations of the American people only fifteen months ago, the speed with which he has descended into political deafness is absolutely breathtaking to behold.

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The First Amendment and Corporations: ——— The Supreme Court Speaks Again

by Hal Gershowitz and Stephen Porter on February 1, 2010

“Congress shall make no law … abridging the freedom of speech or of the press; or the right of the people peacefully to assemble and to petition the Government for a redress of grievance” (First Amendment to the Constitution of the United States).

Those seemingly clear words were not in the U.S. Constitution when it was signed on September 17,1787. Debate on the rights of citizens continued after the signing, and what is now known as the Bill of Rights, the first ten amendments to our original charter were adopted and went into effect in 1791 when the State of Virginia ratified them.

The importance of the protections afforded by the First Amendment is demonstrated by its lead placement in the Bill of Rights. However interpreted in many different situations, it is the central requirement of a free society and a democratic participatory government. Without its free speech provision (there are other protections in the First Amendment as well, i.e., the prohibition on the establishment of a religion, a free press and the right of peaceable assembly) Congress could prohibit criticism of the government and its elected representatives. Our framers knew that elected officials would be tempted, as their European predecessors were, to use the power of the law to suppress even loyal opposition. They recognized that free speech was the underpinning of a society based on the rule of law.

Nevertheless despite the apparent clarity of language which states “Congress shall make no law abridging the freedom of speech, Congress has many times enacted restrictions on some forms of speech and many of these limits have been upheld as Constitutional by the Supreme Court of the United States. On January 23, 2010 the Court issued its latest ruling on speech in the case of Citizens United v Federal Election Commission where it struck down specific provisions of the campaign finance “reform” legislation enacted in 2002 … what is commonly known as the McCain‑Feingold Act. In short, McCain‑Feingold imposed new and stringent regulations on the raising of campaign contributions and the use thereof.

Some quick trip through the history of legislation “abridging” free speech and the Supreme Court’s rulings thereon is appropriate (perhaps essential) to understanding the Citizens United ruling in context. Despite the “shall make no law abridging” language of the First Amendment, the Court has permitted certain exceptions … libel, child pornography, “clear and present danger” rulings, and earlier iterations of congressional enactments dealing with the financing of elections. Free speech cases do not necessarily involve liberal vs. conservative political thinking aligned against one another. Citizens United is no exception. Corporate interests and unions, the ACLU and the National Rifle Association, strange bedfellows indeed, filed amicus (friend of the court) briefs opposing the campaign finance limits imposed by McCain‑Feingold while most major newspapers editorialized in favor of the defendant, the Federal Election Commission. What is apparent is that positions among interest groups and politicians shift on the subject of free speech depending on whose “ox is being gored,” which seems to us to cry out for enforcing unlimited free political speech. Once again, it appears that the Founding Fathers anticipated this very issue and wanted to protect against exceptions to unbridled free speech when political power shifted.

In 1971, prior to McCain‑Feingold, Congress passed the Federal Election Campaign Act and amended it in the aftermath of Watergate in 1974. This Act as amended established the concept of public financing of elections, created various election regulations and created the Federal Election Commission as the enforcement agency. Strict limits on contributions and expenditures were part of this law. However in January 1976, in the case of Buckley v Valeo, the Supreme Court struck down parts of the 1974 law but upheld others. In brief, the Court upheld limits on contributions but ruled against limits on political expenditures.

In 1990, in the case of Austin v Michigan Chamber of Commerce the Court upheld, as not in violation of the First and Fourteenth Amendments, Michigan’s Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates for political office.

Which brings us to the Citizens United case. One of the provisions of McCain‑Feingold bans the use of corporate or union money to pay for “electioneering communication,” which is defined as broadcast advertising that identifies a federal candidate within 60 days of a general election. Prior to the 2008 elections, Citizens United produced a film extremely critical of Hillary Clinton but the Federal Elections Commission ruled that Citizens United could not broadcast the film. The lower courts upheld the FEC. The Supreme Court, however, in its very recent 5 to 4 decision overturned the lower courts and found much of McCain‑Feingold to be unconstitutional. In so doing, it also overturned its prior decision in the Austin case. The breadth of this recent decision will be discussed endlessly and challenged legislatively through attempts by Congress to legislate around this ruling.

Justice Kennedy wrote the majority opinion for the Court, and Chief Justice Roberts and Justice Scalia issued concurring opinions. Justice Kennedy found that “political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.” But the linchpin of the three opinions comprising the majority is that the First Amendment deals with speech and not the speaker. No distinctions are made between individuals or corporations, nor are certain media singled out. Justice Kennedy explained the majority reasoning in stating “no sufficient government interest justifies limits on the political speech of … corporations.”

Justice Scalia challenged the reasoning of Justice Stevens dissenting opinion which was premised on the notion that corporations were despised at the end of the eighteenth century and that therefore the Founders didn’t intend to protect them. Justice Scalia however noted that even if this were true, corporations at that time were granted monopoly privileges. Moreover, there were many small, unincorporated business associations, which, he stated, were the true progenitor of today’s corporations. Also colleges, towns, religious institutions and guilds “had long been organized as corporations at common law. “Surely they weren’t despised. This left, he said, only the question of whether the speech at issue is speech covered by the First Amendment.

Chief Justice Roberts’ concurring opinion seems to answer that question quite succinctly: “A documentary film critical of a potential Presidential candidate’s core political speech and its nature as such, does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and its capacity “for informing the public.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). “Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”

The reaction to Citizens United was swift by both opponents and supporters of the decision. President Obama, in his new full-throated populist mode, called the decision a victory for big oil, Wall Street banks, health insurance companies and other powerful interests. Of course he failed to mention big labor, an interest group so powerful that in the Senate health insurance negotiations he gave union labor an exception from the proposed tax on so called “Cadillac” plans at the expense of the 81 percent of American workers who do not belong to unions. Interestingly, this is also the same Barack Obama who, after pledging to finance his 2008 campaign using public financing, turned away from it when he found that he could raise more money privately. Candidate Obama saw nothing particularly evil about the influence of money contributed to him. Ironically, Senator McCain was forced to rely on public financing to his great detriment.

Various opponents of the Court’s decision have cranked out their obligatory talking points, some of which focus on the fear of foreign intervention in our elections by non-U.S. corporate interests. Even the president played this fear card in his State-of-the Union address last Wednesday night which brought the party automatons to their feet cheering, while the Justices who were there as guests of the Congress sat in shocked silence. It would, at first blush, be a reasonable concern to raise except under existing federal election law which the Court’s decision clearly leaves intact, and which the president would surely have known if the White House counsel had vetted his speech, foreign corporations may not spend any money in U.S. elections whatsoever. This, we assume, is to what Justice Alito’s silent not true referred. Ironically, it was Alito’s incredulous mouthing of “not true” that had the talking heads abuzz rather than the inappropriate, gratuitous and inaccurate depiction of the opinion gliding over the teleprompter and, simultaneously, advanced to the nation by the President.

Most newspapers have also railed against the Citizens United opinion. Of course they would. Congress exempted them and their corporate owners from McCain‑Feingold, thereby vastly increasing their influence. Of course, when their interests are at stake (protection of reporters’ sources, libel laws, etc.) they are major supporters of unlimited free speech. This raises an interesting question. McCain‑Feingold exempted the press from its restrictions, but just what is the press? Do “issue-oriented” print journals enjoy the exemption from McCain‑Feingold? What about electronic messages? Does our weekly essay in “Of Thee I Sing 1776” enjoy “press” status? Where would the line be drawn?

We see any restrictions on contributions or expenditures as arbitrary abridgments of free speech with no discernable public benefit. Money has leaked into political campaigns no matter what restrictions are placed on contributions. Isn’t the real risk of contributed money, the possibility of undisclosed promises of future legislative favor? Wouldn’t it be better, far more effective and clearly more transparent to require that all contributions be posted on the Internet as soon as they are received? More information (the very essence of free speech) assuring immediate public disclosure of the source, the timing and the amount of all contributions strikes us as a far better antidote to political corruption than having Congress enact laws where the only clear result is to provide electoral advantage to their own incumbency.

It is often opined in the process of political discourse, especially on the left, that the framers of the constitution could have never anticipated the complex issues that America would face in the 20th and 21st centuries and, therefore, the courts must be given considerable latitude in their interpretation of constitutional questions. We won’t engage in that debate in this essay. We believe, however, that it would stretch credulity to the extreme to imagine Madison, Hamilton or Jay (those great defenders of the Constitution and the authors of the Federalist Papers) ever postulating that any segment of American society might be denied the absolute and unfettered right to engage in free speech or public political debate.

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Year One: Long on Audacity, Short on Hope

January 25, 2010

The first year of the Obama Administration has not been a very good year for the country. Frequent Flyer Miles aside, the new Administration has been very short on achievement since that cold, crisp winter day one year ago when Barack Obama, newly elected 44th President of the United States, addressed the nation, indeed, the [...]

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Terrorism, Security and the Resurgence of a Deadly Tenet of Radical Islam… Jihad

January 18, 2010

No Mr. President, it was more than just a security “screw-up” from a single isolated incident. Rather it was part of a continuum deriving from a failure to understand the historical context of the dangerous and continuing struggle in which we are engaged. To be sure there were a series of security blunders, what the [...]

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“We Are…Fundamentally Transforming America” — and He Means It!

January 11, 2010

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US-Iran Foreign Policy: Fifty-Six Years Of Getting It Wrong

January 4, 2010

Our current conflict with Iran began thirty years ago on November 4th, 1979 when so-called Iranian “students” stormed the American Embassy in Tehran and took 66 American diplomats hostage. Since the Iranian revolution that brought Ayatollah Khomeini back to Iran as the supreme spiritual leader was only eight months old, there was initially some [...]

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“I Will Not Sign a Healthcare Bill That Raises The Deficit by One Dime…Not One Dime!”

December 28, 2009

President Barack Obama, September 9th, 2009
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A RUDE AWAKENING FOR THE HOLIDAYS

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Man-Caused Climate Change (and other) Advococracies: A Perversion of Science

December 14, 2009

“It is difficult to get a man to understand something when his job depends on not understanding it.” Upton Sinclair
The causes, effects and even the certainty of global warming and climate change may be a settled consensus among some politicians, academicians, environmental writers, bureaucratic regulators and even a chorus of scientists, but it is, by [...]

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The Gathering Storm: The Sorrowful State of Education in America

December 7, 2009

Let’s not kid ourselves. Public education in America is a growing disgrace, breathtakingly so in our major urban areas. It is a disgrace that is going to cost us dearly. In a world rushing toward technological and scientific innovation at warp speed, America has, according to the Council on Competitiveness, declined to [...]

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